Oden v. Oktibbeha County MS

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-60878

JESSE ODEN,

Plaintiff-Appellee,

VERSUS

OKTIBBEHA COUNTY, MISSISSIPPI; DOLPH BRYAN,
Individually and in his official capacity as sheriff,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of Mississippi, Aberdeen
March 27, 2001
Before POLITZ, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendants Oktibbeha County, Sheriff Dolph Bryan in his

official capacity, and Dolph Bryan individually appeal from the

judgment of the district court in which a jury awarded plaintiff

Jesse Oden compensatory and punitive damages for Sheriff Bryan’s

failure to promote Oden to chief deputy. We reverse the punitive

and compensatory damages against Oktibbeha County and Dolph Bryan

individually and affirm the jury’s compensatory damage award

against Sheriff Bryan in his official capacity.

1
 I.

In September of 1976, Jesse Oden and George Carrithers joined

the Oktibbeha County Sheriff’s Department. Oden worked as a part

time radio operator, while Carrithers served as a part time jailer.

The Department promoted Oden to full time road deputy in 1979.

Carrithers received the same rank in 1980.

Sheriff Dolph Bryan dismissed his former chief deputy in 1986.

Deputy Oden inquired about the job, but Sheriff Bryan informed him

that he would not fill the vacant position. At the same time,

Sheriff Bryan assigned Deputy Carrithers to office duties and gave

him the title “administrative assistant.” Deputy Oden remained

working in the field. In 1997, Sheriff Bryan promoted Deputy

Carrithers to chief deputy.

Deputy Oden filed a complaint with the Equal Employment

Opportunity Commission, claiming age and race discrimination. Oden

then sued Oktibbeha County, Sheriff Dolph Bryan in his official

capacity, and Sheriff Dolph Bryan individually, asserting causes of

action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 1981, and 42 U.S.C. § 1985.1

Oden presented evidence at trial showing his seniority,

superior law enforcement training, and background in business

1
Neither the parties nor the district court contemplated the
application of 42 U.S.C. § 1985 to this case. Because Oden failed
to present evidence of a conspiracy to discriminate, this Court’s
analysis is limited to the plaintiff’s causes of action under Title
VII and 42 U.S.C. § 1981.

2
management. According to Oden, these assets should have ensured

his promotion to chief deputy. The defendants argued that the

chief deputy position was not a promotion in favor of Deputy

Carrithers; rather, the assignment of the chief deputy rank was

merely a change in job title. The defendants also claimed that

Deputy Oden was unqualified. At the close of the plaintiff’s case,

the district judge entered a directed verdict for the defendants

dismissing Oden’s age discrimination claim. The jury returned a

verdict in favor of Deputy Oden for race discrimination and

assessed compensatory and punitive damages against all three

defendants.

I. Proper Defendants Under Title VII and 42 U.S.C. § 1981

Oktibbeha County and Sheriff Bryan (“Appellants”) argue that

the district court erred by denying their motion to dismiss the

County and the Sheriff in his individual capacity. This Court

recognizes that Title VII does not provide the exclusive remedy for

discrimination by employers. See Hernandez v. Hill Country Tel.

Coop., Inc., 849 F.2d 139, 142-43 (5th Cir. 1988). Courts may not,

however, indiscriminately assess damage awards against persons and

entities that are not responsible for an employer’s unlawful

discriminatory conduct. See Huckabay v. Moore, 142 F.3d 233, 241

(5th Cir. 1998) (holding that only employers are liable for

unlawful conduct under Title VII). Because the remedies against

the defendants under Title VII and § 1981 were not separated, we

3
must determine whether the district court erred by assessing

compensatory and punitive damages against Oktibbeha County and the

Sheriff in his official and individual capacities.

A. Defendants and Remedies under § 1981

Plaintiffs may plead causes of action under both Title VII and

§ 1981 against private employers to remedy discrimination in

private employment contracts. See Runyon v. McCrary, 427 U.S. 160,

174 (1976); Johnson v. Railway Express Agency, Inc., 412 U.S. 454,

459 (1975). Plaintiffs may also pursue a § 1983 cause of action

against persons acting under color of state law in order to assert

their substantive rights under § 1981. We must determine whether

Oden can assert an independent cause of action under § 1981 against

Oktibbeha County and the Sheriff in his official and individual

capacities.

1. The County and the Sheriff in His Official Capacity

In 1989, the Supreme Court held in Jett v. Dallas Independent

School District, 491 U.S. 701, 731 (1989), that § 1981 did not

provide a separate cause of action against local government

entities. The Court concluded that plaintiffs must assert a cause

of action against state actors under § 1983 to remedy violations of

civil rights under § 1981. See id. Several courts have addressed

the continuing significance of the Court’s plurality decision after

Congress passed the Civil Rights Act of 1991. The Act amended §

1981 by adding subsection (c), which states that the rights

4
protected by § 1981 “are protected against impairment by

nongovernmental discrimination and impairment under color of state

law.” 42 U.S.C. § 1981(c).2 In order to determine whether Oden

could pursue a separate cause of action under § 1981 against

Oktibbeha County and the Sheriff in his official capacity, we must

address whether the 1991 amendment abrogated the Court’s holding in

Jett and created a separate cause of action against local

government entities.

Subsection (c) does not expressly create a remedial cause of

action against local government entities, and we are not persuaded

that such a remedy should be implied. In Jett, the Court held that

Congress intended § 1983 to be the sole remedy for discrimination

by persons acting under color of state law. See Jett, 491 U.S. at

731. The Court reasoned that §1981 implicitly created an

independent cause of action against private actors because no other

statute created such a remedy. See id. at 732. Because § 1983

provided a remedy against persons acting under color of state law,

the Court declined to imply a cause of action under § 1981

2
The circuit courts are split as to the effect of the Civil
Rights Act of 1991 upon the Court’s holding in Jett. The Fourth
Circuit and Eleventh Circuit concluded that the 1991 amendment had
no affect on the Court’s opinion. See Butts v. County of Volusia,
222 F.3d 891, 894 (11th Cir. 2000); Dennis v. County of Fairfax, 55
F.3d 151, 156 n.1 (4th Cir. 1995). The Ninth Circuit, however,
concluded that the 1991 amendment implicitly created a cause of
action against local government entities. See Federation of
African American Contractors v. Oakland, 96 F.3d 1204 (9th Cir.
1996).

5
independent of § 1983. We are persuaded that the conclusion in

Jett remains the same after Congress enacted the 1991 amendments.

Subsection (c) addresses only substantive rights. Section 1983

remains the only provision to expressly create a remedy against

persons acting under color of state law. The addition of

subsection (c) creates no more of a need for the judiciary to imply

a cause of action under § 1981 against state actors than existed

when the Supreme Court decided Jett.

The legislative history of the 1991 amendment is supportive of

our conclusion. By enacting subsection (c), Congress stated that

it intended to codify the Supreme Court’s decision in Runyon v.

McCrary. See Butts, 222 F.3d at 894 (citing H.R. Rep. No. 102-

40(I), at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630; H.R.

Rep. No. 102-40(II), at 37 (1991), reprinted in 1991 U.S.C.C.A.N.

694, 731). See also Anderson v. Conboy, 156 F.3d 167, 179 (2d Cir.

1998). In Runyon, the Supreme Court reaffirmed that § 1981 implies

a right of action based on racial discrimination against private

actors. See Runyon, 427 U.S. at 174-75. There is no

congressional statement of intent to overrule Jett. By codifying

Runyon, Congress confirmed that § 1981 implies a cause of action

against private actors.

The question follows then why, if Congress only intended to

codify Runyon, does subsection (c) include language referring to

persons acting under color of state law? The Ninth Circuit

6
reasoned that this allusion to persons acting under color of state

law implies Congressional intent to create a remedy in addition to

§ 1983. See Oakland, 96 F.3d at 1213. We disagree. “[T]he

judicial power to imply or create remedies . . . should not be

exercised in the face of an express decision by Congress concerning

the scope of remedies available under a particular statute.” Jett,

491 U.S. at 732 (citing National R.R. Passenger Corp. v. National

Assn. of R.R. Passengers, 414 U.S. 453, 458 (1974). Because

Congress neither expressed its intent to overrule Jett, nor

explicitly created a remedy against state actors in addition to §

1983, we are not willing to deviate from the Supreme Court’s

analysis of § 1981 in Jett. Accordingly, Deputy Oden could not

maintain an independent cause of action under § 1981 against

Oktibbeha County and Sheriff Dolph Bryan in his official capacity.3

2. The Sheriff in His Individual Capacity

Sheriff Dolph Bryan claims that the district court erred by

failing to dismiss Oden’s claims against him in his individual

capacity. The Sheriff does not dispute that § 1981 provides an

implicit cause of action against private actors in private

3
In any event, there is no evidence in the record that the
promotion to chief deputy was in accordance with any custom or
policy of the County. Rather, Sheriff Bryan’s employment decision
represented the policy of the Sheriff’s Department, a separate
government entity. Therefore, the judgment against the County
cannot be imposed on the basis of respondeat superior. See Board
of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 415
(1997); Jett, 491 U.S. at 737.

7
employment discrimination cases. See Johnson v. Railway Express

Agency, Inc., 412 U.S. 454, 459 (1975); Adams v. McDougal, 695 F.2d

104, 108 (5th Cir. 1983). Rather, he argues that he is not a

proper party in this suit because he was acting in his official

capacity.4

While the Supreme Court has extended § 1981 liability to

cases involving private employment contracts, it has not imposed

personal liability on elected officials for discrimination in the

terms and conditions of local government employment contracts. Cf.

Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976) (holding

that Title VII is the exclusive remedy for seeking money damages

against the federal government). In Huckabay v. Moore, this Court

concluded that an individual was not an employer for purposes of

Title VII when acting in his official capacity. See 142 F.3d at

241. Only officials should be responsible for discriminatory

decisions concerning government employment contracts. See id. See

also Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994)

(“Only ‘employers,’ not individuals acting in their individual

capacity who do not otherwise meet the definition of ‘employers,’

can be liable under Title VII.”); Harvey v. Blake, 913 F.2d 226,

227 (5th Cir. 1990) (concluding that an elected official should not

4
“Racial discrimination claims brought under § 1981 are subject
to the defense of qualified immunity.” Todd v. Hawk, 72 F.3d 443,
445 n.6 (5th Cir. 1995). However, Sheriff Bryan did not raise
qualified immunity in the district court.

8
be liable for official acts). Likewise, when a plaintiff asserts

a cause of action under § 1981 for discrimination in the terms and

conditions of a municipal employment contract, the proper defendant

is the government employer in his official capacity. Because

Sheriff Bryan’s choice to promote Deputy Carrithers to chief deputy

was an official decision, he is not personally liable under §

1981.5 We therefore dismiss the district court’s judgment against

Sheriff Bryan in his individual capacity.

B. Title VII Defendants

Title VII allows employees to sue their employers for

discriminatory employment decisions. See 42 U.S.C. §§ 2000e-2(a),

2000e-5. An “employer” under Title VII is a “person in an industry

affecting commerce who has fifteen or more employees . . ..” 42

U.S.C. § 2000e(b). A person “includes one or more individuals,

governments, governmental agencies, [or] political subdivisions .

. ..” 42 U.S.C. § 2000e(a). The trial court failed to designate

which of the three defendants was Deputy Oden’s employer.6

5
In other contexts, § 1981 serves as an independent cause of
action against individuals for discriminatory acts performed in
their official capacities. See, e.g., Todd, 72 F.3d at 446
(allowing a prisoner to sue prison officials under § 1981 for
discriminatory conduct concerning the “punishment, pains, [and]
penalties” provision in § 1981). Our decision regarding personal
liability under § 1981 only applies to the liability of local
government officials for their decisions affecting municipal
employment contracts.
6
Oktibbeha County and Sheriff Bryan in his official capacity are
eligible employers under Title VII. Sheriff Bryan is not
personally liable for the performance of wrongful acts in his

9
 Federal law controls whether a person is an employer under

Title VII, but courts can look to state law to understand the

nature of the employment relationship. See, e.g., Calderon v.

Martin County, 639 F.2d 271, 273 (5th Cir. Unit B 1981)

(determining whether plaintiff constituted an employee under Title

VII). Mississippi law allows a sheriff to appoint, remove, and fix

the compensation of his deputies, subject to the county board of

supervisor’s approval of the sheriff’s budget. See Miss. Code Ann.

§ 19-25-19. Sheriff Bryan was solely responsible for hiring,

promoting, and establishing the deputies’ wages. The County’s only

responsibility was to approve the Sheriff’s budget and allocate the

necessary funds. Because Sheriff Bryan was the elected official

who made all decisions concerning promotions within the Sheriff’s

Department, he was Deputy Oden’s employer for purposes of Title

VII.7 We therefore reverse the district court’s judgment against

Oktibbeha County and Sheriff Dolph Bryan individually under Title

official capacity. See Huckabay, 142 F.3d at 241.
7
See Simmons v. Lyons, 746 F.2d 265, 270 (5th Cir. 1984); Ryals
v. Mobile County Sheriff’s Dept., 839 F. Supp. 25 (S.D. Ala. 1993).
See also Lee v. Coahoma County, 937, F.2d 220, 226 (5th Cir. 1991),
amended in part, 37 F.3d 1068 (1993) (holding that a Mississippi
sheriff was an “employer” under the Fair Labor Standards Act). Cf.
Spencer v. Byrd, 899 F. Supp. 1439, 1441 (M.D.N.C. 1995)
(concluding that the county, rather than the sheriff, was an
employer under Title VII because the county limited the number of
the sheriff’s deputies and provided the deputies’ compensation);
Johnson v. Board of County Comm’rs for County of Freemont, 859 F.
Supp. 438, 442 (D. Col. 1994) (holding that the economic ties
between the Board of Commissioners and the sheriff demonstrated
that the Board was the Title VII employer).

10
VII.

B. Punitive Damages Under Title VII

Appellants argue that the Civil Rights Act of 1991 limits

Sheriff Bryan’s liability in his official capacity to compensatory

damages. The Act allows plaintiffs asserting a Title VII claim to

recover compensatory and punitive damages, provided that recovery

is unavailable under § 1981. See 42 U.S.C. § 1981a(1).8 The Act

precludes plaintiffs from recovering punitive damages against

governments, government agencies, and political subdivisions. See

42 U.S.C. § 1981a(b); Baker v. Runyon, 114 F.3d 668, 669 (7th Cir.

1997), cert. denied, 119 S.Ct. 335 (1998).

Oden does not dispute the applicability of § 1981a to the

Sheriff in his official capacity. Oden contends that the

appellants forfeited their argument on appeal because the

objections to the district court’s jury instructions were not

specific. See Fed. R. Civ. P. 51. We agree that the appellants

8
Section 1981a states:
In an action brought by a complaining party under section
706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5)
. . . against a respondent who engaged in unlawful intentional
discrimination (not an employment practice that is unlawful
because of disparate impact) prohibited under section 703,
704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3) . . .,
and provided that the complaining party cannot recover under
section 1981 of this title, the complaining party may recover
compensatory and punitive damages as allowed in subsection (b)
of this section, in addition to any relief authorized by
section 706(g) of the Civil Rights Act of 1964 . . ., from
respondent.

42 U.S.C. § 1981a(a)(1).

11
failed to properly preserve their objection.

If a litigant forfeits a point of error on appeal, we review

the district court’s decision under the plain error standard. See

Douglass v. United Serv. Auto. Ass’n,79 F.3d 1415, 1427 (5th Cir.

1996) (en banc). For this Court to correct an error not raised at

trial, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3)

that ‘affect[s] substantial rights.’” Johnson v. United States, 520

U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725,

732 (1993)). If plain error exists, this Court should not exercise

its discretion to correct the error unless “the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Id.

The district court committed “plain error” by assessing

punitive damages against the Sheriff. Section 1981a prohibits

punitive damage awards against governments and political

subdivisions. Subjecting the Sheriff to an $80,000 punitive damage

award is inapposite to Congress’s intent to preclude local

government entities from paying such judgments. We find it

appropriate even under a plain error standard to correct judgments

that are contrary to the express limits federal law imposes on

judicial authority, and therefore reverse the punitive damage award

against Sheriff Bryan in his official capacity.

C. The Personal Staff Exception

Title VII relieves employers from liability for decisions

12
affecting members of a personal staff. See 42 U.S.C. § 2000e(f).9

The exception includes appointments to a staff position. See

Teneyuca v. Bexar County, 767 F.2d 148, 150-53 (5th Cir. 1985).

Appellants maintain that the district court erred in denying their

motion for judgment as a matter of law because the chief deputy

position is part of Sheriff Bryan’s personal staff. Oden claims

that the Appellants waived the personal staff exception by

asserting it for the first time in their motion for post-trial

relief.

Rule 8(c) of the Federal Rules of Civil Procedure lists

nineteen affirmative defenses that must be set forth in a

responsive pleading. See Fed. R. Civ. P. 8(c). In addition to

these nineteen defenses, Rule 8(c) includes “any other matter

constituting an avoidance or an affirmative defense.” Id. To

9
Title VII states:
The term “employee” means an individual employed by
an employer, except that the term “employee” shall not
include any person elected to public office in any State
or political subdivision of any State by the qualified
voters thereof, or any person chosen by such officer to
be on such officer’s personal staff or an appointee on
the policy making level or an immediate adviser with
respect to the exercise of the constitutional or legal
powers of the office. The exemption set forth in the
preceding sentence shall not include employees subject to
the civil service laws of a State government,
governmental agency or political subdivision. With
respect to employment in a foreign country, such term
includes an individual who is a citizen of the United
States.

42 U.S.C. § 2000e(f).

13
qualify as a defense under Rule 8(c)’s residuary clause, we look to

the logical relationship between the defense and the cause of

action and assess whether failure to timely plead the defense will

result in unfair surprise. See Ingraham v. United States, 808 F.2d

1075, 1079 (5th Cir. 1987). “A defendant should not be permitted

to ‘lie behind a log’ and ambush a plaintiff with an unexpected

defense.” See id. at 1079. The personal staff exception allows

the defendant to avoid liability even if the plaintiff meets his

burden of proof under Title VII. See id. The defendant bears

the initial burden of demonstrating that the personal staff

exception applies. See Nichols v. Hurley, 921 F.2d 1101, 1111

(10th Cir. 1990); Teneyuca v. Bexar County, 767 F.2d 148, 152 (5th

Cir. 1985).

The Appellants raised the personal staff exception for the

first time in their motion for judgment as a matter of law, which

was filed after the jury returned its verdict and the district

court entered its judgment. Oden was denied the opportunity to

present evidence at trial concerning the applicability of the

personal staff exception. “‘Affirmative defenses . . . will defeat

an otherwise legitimate claim for relief [and] must be set forth to

avoid surprise and give the opposing party an opportunity to

respond.’” 2 JAMES W. MOORE ET AL, MOORE’S FEDERAL PRACTICE § 8.07[1], at

8-35 (3d ed. 2000) (citing Blonder-Tongue Labs., Inc. v. Univ. of

Ill. Found., 402 U.S. 313, 350 (1971)). Allowing the Appellants to

14
wait until after the jury verdict to assert the personal staff

exception was an unfair surprise to Oden. The personal staff

exception is an affirmative defense that must be pleaded under Rule

8(c).10 Appellants waived the personal staff exception by failing

to raise it in a responsive pleading.

II. Sufficiency of the Evidence

Appellants also argue that the trial court erred by denying

their motion for judgment as a matter of law because the record

contained insufficient evidence to support the jury’s verdict. We

review a district court’s denial of a motion for judgment as a

matter of law de novo. See Russell v. McKinney Hospital Venture,

235 F.3d 219, 222 (5th Cir. 2000). “Judgment as a matter of law is

appropriate if ‘there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue.’” Id.

(quoting Fed. R. Civ. P. 50(a)). After reviewing the evidence in

the record, we draw all reasonable inferences in favor of the

nonmoving party, disregarding evidence favorable to the moving

party. See Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct.

10
This Court’s holding is consistent with cases concluding that
statutory exemptions should be pleaded as affirmative defenses.
See Donovan v. Hamm’s Drive Inn, 661 F.2d 316, 317 (5th Cir. Unit
A 1981) (concluding that an exemption under the Fair Labor
Standards Act is an affirmative defense that is waived if not
pleaded); Brennan v. Valley Towing Co., 515 F.2d 100, 104 (9th Cir.
1975) (holding that an exception under the Fair Labor Standards Act
must be pleaded as an affirmative defense); WRIGHT & MILLER: FEDERAL
PRACTICE & PROCEDURE § 1271 (1990); 2 JAMES W. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 8.07[5] (3d ed. 2000).

15
2097, 2110 (2000).

To prove a claim of intentional discrimination, a plaintiff

must first establish a prima facie case. See id. at 2106;

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Oden can

demonstrate a prima facie case by showing that (1) the plaintiff

was within a protected class; (2) he was qualified for the position

sought; (3) he was not promoted; and (4) the position was filled by

someone outside the protected class. See Blow v. City of San

Antonio, Texas, 236 F.3d 293 (5th Cir. 2001) (citing Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 252-53). The record

shows that Oden, an African-American, was a member of a protected

class, that he inquired about the chief deputy position, that he

was not promoted to the higher rank, and that George Carrithers, a

white male, was appointed to the position.

The Appellants contend that Oden cannot establish a prima

facie case of race discrimination because the chief deputy

appointment was not a promotion. Appellants claim that the

analysis in § 1981 promotion cases should apply to support their

argument under Title VII. In Patterson v. McLean Credit Union, 491

U.S. 164, 175-77 (1989), the Supreme Court held that plaintiffs

must show that the failure to receive a promotion amounts to a

denial of the opportunity to form a new and distinct employment

relationship. See also National Ass’n of Gov. Employees v. City

Public Serv. Board of San Antonio, Texas, 40 F.3d 698, 714 (1994).

16
In Patterson, the Court restricted claims under § 1981 to redress

discriminatory conduct “at the initial formation of the contract”

or “conduct which impairs the right to enforce contract obligations

through legal process.” Patterson, 491 U.S. at 179. See also

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992).

The Court reasoned that § 1981 was restricted to the contractual

relationship between an employer and employee, while Title VII

addresses a more expansive scope of conduct. See id. at 180. The

contract analysis for promotion claims under § 1981 therefore does

not necessarily apply to Title VII suits.11

Title VII “is not limited to economic or tangible

discrimination, . . . and it covers more than terms and conditions

in the narrow contractual sense.” Faragher v. City of Boca Raton,

524 U.S. 775, 786 (1998) (citations ommitted). To establish a

prima facie case for discrimination under Title VII, Oden must show

that, at the very least, the alleged discriminatory conduct tended

to adversely affect him. See Mattern V. Eastman Kodak Co., 104

F.3d 702, 708 (5th Cir. 1997) (stating that the discrimination

11
In any event, the Patterson decision was legislatively reversed
by the Civil Rights Act of 1991. See Harrington v. Harris, 118
F.3d 359, 367 n.8 (5th Cir 1997). Section 1981 now states that,
“[f]or purposes of this section, the term ‘make and enforce
contracts’ includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b). Both § 1981 and Title VII now apply to the
terms and conditions of the employment relationship, rendering the
Patterson analysis inapplicable.

17
provision in Title VII is “much broader” than the retaliation

provision and applies to activity that tends to adversely affect

the employee). At most, Oden must demonstrate that Sheriff Bryan

made an ultimate employment decision. See Shackelford v. Deloitte

& Touche, LLP, 190 F.3d 398, 406-07 (5th Cir. 1999) (noting that

the “ultimate employment decision” standard applied in retaliation

cases may not apply to claims of race discrimination). Regardless

of which standard applies, Sheriff Bryan’s appointment was an

ultimate employment decision. The Sheriff testified that only one

person could fill the chief deputy position. By appointing Deputy

Carrithers to the higher rank, Sheriff Bryan precluded Deputy Oden

from becoming second in command. Sheriff Bryan’s appointment was

an employment decision that could subject him to Title VII

liability.

Appellants further contend that Oden failed to establish a

prima facie case because he was not qualified for the job. Sheriff

Bryan testified that the chief deputy position required

administration skills and an understanding of the office computer

system. Deputy Carrithers was the only person in the Sheriff’s

Department who acquired these skills. Oden claims that, because

the Sheriff never posted the qualifications for chief deputy before

appointing Carrithers, the Sheriff’s stated qualifications were

pretext.

A plaintiff must demonstrate that he meets objective promotion

18
criteria at the prima facie stage of his case. See Medina v.

Ramsey Steel Co., Inc., 238 F.3d 674 (5th Cir. 2001); Lindsey v.

Prive Corp., 987 F.2d 324, 327 (5th Cir. 1993). Whether an

employer’s subjective hiring criteria serves as pretext for

discrimination is an issue for the trier of fact to decide in the

later stages of the burden-shifting analysis. See id. Oden was a

road deputy with almost twenty years of experience at the time the

Sheriff appointed Deputy Carrithers to the chief deputy position.

Oden had seniority over every other officer in the Department.

Other deputies testified that Oden was much better at working with

the general public than Deputy Carrithers. In addition, Oden

possessed managerial skills that he developed before working for

the Sheriff’s Department. On the basis of this evidence, Oden

satisfied objective hiring criteria and established his prima facie

case.

Once a plaintiff satisfies his prima facie case, the employer

must assert a legitimate, nondiscriminatory reason for his

decision. See McDonnell Douglas, 411 U.S. at 802. If an employer

alleges a nondiscriminatory explanation, the factfinder must

determine the “‘ultimate question: whether [the] plaintiff has

proven [intentional discrimination].’” Russell, 235 F.3d at 222

(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511-12

(1993). “It is not enough . . . to disbelieve the employer; the

factfinder must believe the plaintiff’s explanation of intentional

19
discrmination.” Hicks, 509 U.S. at 519. “Thus, plaintiff’s prima

facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of

fact to conclude that the employer unlawfully discriminated.”

Reeves, 120 S.Ct. at 2109.

The Sheriff’s asserted nondiscriminatory reason for promoting

Deputy Carrithers over Deputy Oden was that Carrithers met the

qualifications for the job. The Sheriff claimed that a chief

deputy must be familiar with the administration of the Sheriff’s

Department and the Department’s computer system. Oden argues that

Sheriff Bryan’s stated qualifications were pretext. Our task then

is to determine whether sufficient evidence supports the jury’s

verdict in Oden’s favor, viewing the evidence in the light most

favorable to Oden, the nonmovant. See Reeves, 120 S.Ct. at 2110.

In addition to the evidence supporting his prima facie case,

Oden established that he completed more law enforcement training

than Deputy Carrithers and that he was proficient in some office

skills, such as reviewing the other deputies’ paperwork. Sheriff

Bryan gave Deputy Carrithers the opportunity to improve his

administrative skills without giving Oden the same chance. Deputy

Oden could clearly meet most of the Sheriff’s qualifications, but

for the Sheriff’s decision to groom someone else for the position.

To further refute the Sheriff’s subjective qualifications,

Oden presented evidence that Sheriff Bryan previously overlooked

20
qualified African-American applicants for deputy positions in favor

of white applicants with less experience. Sheriff Bryan also

stated that, if he could have filled two chief deputy positions,

then he would have appointed both Oden and Carrithers. The Sheriff

therefore admitted that computer skills and an acute knowledge of

the office’s administrative needs were not the primary

qualifications for chief deputy. In fact, the transcript shows

that the former chief deputy, like Deputy Oden, worked as a road

deputy instead of an administrative assistant. After reviewing the

record in the light most favorable to the verdict, we find that the

record contains sufficient evidence to support the jury’s finding

of intentional discrimination.12

III. Compensatory Damages

The jury awarded Oden $20,000 in compensatory damages for

mental anguish and emotional stress that he suffered as a result of

Sheriff Bryan’s conduct. Section 1981a allows juries to award

compensatory damages for mental anguish and suffering. See 42

U.S.C. § 1981a(a)(1).13 Appellants claim that the award of

12
The Appellants further claim that the jury was biased and
prejudiced by irrelevant testimony. Appellants neither specified
any instances in the record as to when the alleged irrelevant
testimony occurred nor supported their argument with adequate legal
authority. Because we do not consider issues that are inadequately
briefed, we do not address this contention. See Rutherford v.
Harris County, Texas, 197 F.3d 173, 193 (5th Cir, 1999).
13
Section 1981a excludes backpay or any other relief under 42
U.S.C. § 2000e-5(g). Compensatory damages include awards for
“future pecuniary losses, emotional pain, suffering, inconvenience,

21
compensatory damages was not supported by the evidence. We review

the award of mental anguish damages for abuse of discretion. See

Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 940 (5th Cir.

1996).

In many cases, “a claimant’s testimony alone may not be

sufficient to support anything more than a nominal damage award.”

Id. at 938. Plaintiffs are required to prove damages for mental

anguish and suffering to a “degree of specificity which may include

corroborating testimony or medical or psychological evidence . .

..” Id. (citing Carey v. Piphus, 435 U.S. 247, 264 (1978)). We

however have not required corroborating testimony and medical

evidence in every case involving nonpecuniary compensatory damages.

See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (1998);

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 809 (5th Cir.

1996). In Migis, the district court relied solely on the

plaintiff’s testimony. The plaintiff stated that her employer’s

discrimination caused her low self-esteem, serious financial

hardships in relation to her newborn child, anxiety attacks,

stress, and sleeplessness. See Migis, 135 F.3d at 1046. We

concluded that the district court did not abuse its discretion by

awarding compensatory damages because Migis’ testimony was

sufficiently detailed to support the award. See id. at 1047.

mental anguish, loss of enjoyment of life, and other nonpecuniary
losses . . ..” 42 U.S.C. 1981a(b)(3).

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 We have reviewed the evidence presented by Oden, which

included his testimony concerning stress, sleeplessness, betrayal,

and shame, and find that there is sufficient evidence to support

the jury’s award.

IV. Conclusion

In sum, we reverse the district court’s judgment against

Oktibbeha County. Oden could not assert an independent cause of

action against a local government entity under § 1981, and the

County is not an employer for purposes of Title VII. We also

reverse the district court’s judgment against the Sheriff in his

individual capacity because the Sheriff is not personally liable

for his official employment decisions under Title VII and § 1981.

We reverse the district court’s judgment as to the punitive damage

award against the Sheriff in his official capacity because § 1981a

prohibits punitive damages against government entities. Finally,

we affirm the district court’s judgment assessing compensatory

damages against the Sheriff in his official capacity.

REVERSED IN PART; AFFIRMED IN PART

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POLITZ, Circuit Judge, specially concurring:

I specially concur, but conclude that the more appropriate

disposition of the 42 U.S.C. § 1981(c) issue presented herein would

be as that accorded by our colleagues in the Ninth Circuit in

Federation of African American Contractors v. Oakland, 96 F.3d 1204

(9th Cir. 1996).

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