Skidmore v. Precision Printing & Packaging, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-40440

PATRICIA D. SKIDMORE,

Plaintiff-Appellee,

v.

PRECISION PRINTING AND PACKAGING, INCORPORATED;
ANHEUSER BUSCH COMPANIES, INC.; JAY MITCHELL,

Defendants-Appellants.

_______________________________

Appeal from the United States District Court
for the Eastern District of Texas
_______________________________
September 13, 1999
Before GARWOOD, DUHÉ, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellants Precision Printing & Packaging, Inc.

(“Precision”) and its parent, Anheuser-Busch Companies, Inc.

(“Anheuser-Busch”), appeal judgments against them for intentional

infliction of emotional distress and violation of Title VII.

Appellant Jay Mitchell appeals a judgment against him for

intentional infliction of emotional distress. We vacate the

judgment against Mitchell, reverse all judgments against

Precision and Anheuser-Busch, and reverse the award of attorneys’

fees.
 I. Background

Appellee Patricia Skidmore1 began working for the Paris,

Texas facility of Precision in 1990. In fall 1994, Skidmore took

a position in Precision’s cutting department, where she was

assigned to work as an inspector-packer on a flexographic

machine. Appellant Mitchell was employed as the operator of the

flexographic on the same shift as Skidmore. Although Mitchell

oversaw the operation of the machine, Skidmore’s direct

supervisor at the company was Jim Bryan. The cutting department

supervisors, including Bryan, observed workers either from an

observation post overlooking the department floor or by walking

around the machines.

Skidmore testified that Mitchell harassed her with constant

sexual remarks, invited her to his house for a “hot body oil

massage,” told her to undress so he could lick her from head to

toe, asked her to leave her husband and have his child, followed

her after work, asked her to go to Las Vegas with him, and

sometimes came up behind her and licked or kissed her face or

neck. Skidmore further testified that Mitchell once put his

1. Sometime after the events that gave rise to this case,
Skidmore remarried and took the name Patricia Slagle. For
convenience, we refer to her as “Skidmore” throughout this
opinion.

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hands around her neck as if to choke her when she confronted him

about his behavior. Mitchell testified that he had a good

working relationship with Skidmore and that although he did joke

around with her, he never sexually harassed her.

On January 30, 1995, Bryan learned of an argument in a break

room between Skidmore and another employee, Freddy Cooke.

According to trial testimony, Patricia Skidmore’s then husband,

Curtis, had telephoned Cooke after hearing a rumor that his wife

was having an affair with Mitchell. Patricia Skidmore became

angry with Cooke for not denying the existence of the affair or

explaining to Curtis Skidmore how Mitchell was harassing Patricia

Skidmore. After learning of the disturbance in the break room,

Bryan met with Skidmore in his office. Skidmore told Bryan that

Mitchell was bothering her and that his behavior was contributing

to problems in her marriage. Bryan testified at trial that this

was his first notice of the alleged harassment.

Immediately after talking with Skidmore, Bryan moved her to

a warehouse facility for the rest of the week and instructed

Mitchell to stay away from her. Three days later, Bryan returned

Skidmore to the cutting department but no longer assigned

Skidmore to work the same shift as Mitchell, with the exception

of several days that she spent training her replacement on the

flexographic. Testimony at trial revealed that although Bryan

considered the January 30 conversation with Skidmore to be a

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complaint about sexual harassment, he did not conduct an

investigation or interview Skidmore’s co-workers until after

Skidmore filed an EEOC complaint three months later. Skidmore

alleges that Mitchell’s harassment abated after the January 30

incident but did not end: on one occasion, Mitchell “leered” at

her and his presence in common work areas (for instance, the

break room) made her feel uncomfortable. Skidmore concedes that

he did not touch her or say anything offensive to her again.

Skidmore also testified that rumors about her sexual harassment

complaint circulated around the office and caused other employees

to ostracize her. Following a maternity leave later that year,

Skidmore quit Precision.

Skidmore testified that, as a result of the harassment, she

lost weight, had anxiety attacks, and suffered from headaches,

vomiting, and nightmares. She visited a psychologist soon after

the incidents but stopped when it became too expensive.

Skidmore’s attorney later referred her to a psychiatrist, Dr.

Roger House, who diagnosed her with post-traumatic stress

disorder and recommended a year or more of psychiatric treatment.

Skidmore filed this suit against Precision, Anheuser-Busch,

and Mitchell, alleging sexual harassment and retaliation in

violation of Title VII, as well as state law claims of assault

and battery, intentional infliction of emotional distress, and

negligent supervision. The district court granted summary

judgment to Precision and Anheuser-Busch on Skidmore’s assault

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and battery claim, finding insufficient evidence that they

ratified any conduct by Mitchell that could be construed as

assault and battery. The district court also granted summary

judgment to Precision and Anheuser-Busch on Skidmore’s negligent

supervision claim and summary judgment to Mitchell on Skidmore’s

Title VII claim. The remaining claims proceeded to trial before

a jury. The Appellants moved for judgment as a matter of law

before the case was submitted to the jury. The district court

denied the motion.

The jury found Precision and Anheuser-Busch liable for

violating Title VII with willful or reckless disregard for

Skidmore’s rights. It set punitive damages against Precision and

Anheuser-Busch on this charge at $10,000. The jury found that

Precision and Anheuser-Busch did not retaliate against Skidmore

for her complaints.

The jury found that Mitchell did not commit assault and

battery against Skidmore but did cause intentional infliction of

emotional distress and in doing so acted with malice,

willfulness, or callous and reckless disregard. The jury set

punitive damages against Mitchell at $10,000 on this charge. The

jury found that Precision and Anheuser-Busch ratified Mitchell’s

intentional infliction of emotional distress but did not act with

malice, willfulness, or callous and reckless disregard. The jury

set punitive damages against Precision and Anheuser-Busch at

$10,000 on this charge.

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 The jury determined that Skidmore should not receive

compensation for lost wages or benefits. The jury set

compensatory damages at $20,000 for mental anguish and emotional

distress and $10,000 for past and future medical expenses.

The district court entered judgment in favor of Skidmore.

It held Mitchell, Precision, and Anheuser-Busch liable, jointly

and severally, for $30,000 in compensatory damages. It awarded

the jury’s recommended punitive damages of $20,000 against

Precision and Anheuser-Busch and $10,000 against Mitchell.

The district court later entered an order for attorneys’

fees in the amount of $86,013.65 and for expenses in the amount

of $7,624.70, to be paid by Precision and Anheuser-Busch.

Thereafter, the district court denied the Appellants’ Rule

50(b) and Rule 59 motions.

II. Claim Against Jay Mitchell

Appellant Jay Mitchell argues that the district court erred

in finding that there was sufficient evidence to support

Skidmore’s claim for intentional infliction of emotional

distress. Under Federal Rule of Civil Procedure 50(b), a party

is entitled to judgment as a matter of law when the facts and

inferences point so strongly in that party’s favor that no

reasonable jury could reach a contrary verdict. See Fed. R. Civ.

P. 50(b). We review de novo a district court’s decision whether

to grant judgment as a matter of law under Rule 50. See Nichols

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v. Lewis Grocer, 138 F.3d 563, 565 (5th Cir. 1998). Mitchell

further argues that the jury received an incorrect instruction

regarding intentional infliction of emotional distress. We agree

with the district court that Skidmore presented sufficient

evidence to support her claim against Mitchell, but we vacate the

award on the basis of the improper instruction.

A. Sufficiency of the Evidence

In Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir.

1991), this Court set forth in detail the elements of a claim for

intentional infliction of emotional distress under Texas law.

First, a plaintiff must show that the defendant acted

intentionally or recklessly. Second, she must show that the

defendant’s conduct was “extreme and outrageous”: “‘so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious.’”

Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir. 1989)

(quoting Restatement (Second) of Torts § 46 cmt. d). Mere

violation of laws regulating conduct in the workplace is not

enough to establish intentional infliction. See Wilson, 939 F.2d

at 1143-44; Sebesta v. Kent Electronics Corp., 886 S.W.2d 459,

463-64 (Tex. App.--Houston [1st Dist.] 1994, writ denied); see

also Johnson v. Merrell Dow Pharmaceuticals, Inc., 965 F.2d 31,

33 (5th Cir. 1992) (“[A] claim for intentional infliction of

emotional distress will not lie for mere ‘employment

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disputes.’”). “[T]he level of atrociousness to which [the

behavior] must [rise] is quite high. Simply put, it must exceed

all possible bounds of decency and be utterly intolerable in a

civilized society.” Franklin v. Ensearch, Inc., 961 S.W.2d 704,

710 (Tex. App.--Amarillo 1998, n.w.h.). Third and fourth, the

plaintiff must show that the actions of the defendant caused the

plaintiff to suffer emotional distress and that the distress was

severe. See Wilson, 939 F.2d at 1142; Wornick Co. v. Casas, 856

S.W.2d 732, 734 (Tex. 1993).

Mitchell argues that his conduct lacked the requisite degree

of outrageousness. There is no litmus test for outrageousness;

whether conduct was outrageous and extreme must be analyzed on a

case-by-case basis. Some employment settings “‘contemplate a

degree of teasing and taunting that in other circumstances might

be considered cruel and outrageous.’” Wilson, 939 F.2d at 1143

(quoting Keeton et al., Prosser & Keeton on Torts (5th ed. 1984 &

1998 Supp.)). The employment context in this case was a

manufacturing facility, a casual workplace in which, according to

trial testimony, employees frequently joked and kidded with one

another. Nonetheless, the jury could reasonably have found that

Mitchell’s behavior exceeded the bounds appropriate in even a

relaxed workplace, going well beyond unwanted sexual advances in

the workplace. When viewed favorably to Skidmore, the evidence

showed that Mitchell subjected her to sexually suggestive

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touching, including kissing her neck and pulling her waist to his

if she bent over; that Mitchell made constant sexual remarks,

including suggesting that Skidmore allow him to lick her from

head to toe or accompany him home for a “hot body oil massage”;

that Mitchell laughed at Skidmore’s reactions to his uninvited

harassment; that Mitchell, telling Skidmore that her husband did

not treat her well, asked Skidmore to leave her husband for

Mitchell; and that Mitchell, even knowing that false rumors of a

sexual relationship between him and Skidmore had reached

Skidmore’s husband and threatened her marriage, did not deny the

relationship. Mitchell’s improper conduct was persistent and

long-standing. This evinces a course of conduct intentionally

designed to inflict emotional distress upon Skidmore that is so

severe, pervasive, and outrageous as to constitute the state law

claim advanced by Skidmore. Accordingly, we cannot say that the

jury verdict against Mitchell for intentional infliction of

emotional distress was wholly unsupported. Cf. GTE Southwest,

Inc. v. Bruce, 1999 WL 450707, at *11 (Tex. July 1, 1999)

(finding that a supervisor who “regularly assaulted, intimidated,

and threatened” his subordinates engaged in extreme and

outrageous conduct); Soto v. El Paso Natural Gas Co., 942 S.W.2d

671, 681 (Tex. App.--El Paso 1997, writ denied) (reversing a

grant of summary judgment for an individual employee because his

derogatory remarks about a female co-worker’s cancer-related

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mastectomy raised a fact issue regarding intentional infliction

of emotional distress).

Mitchell next argues that Skidmore failed to present any

evidence that she suffered severe emotional distress. Skidmore

testified that, following the harassment, she lost weight,

experienced anxiety attacks, had headaches and nightmares, and

became depressed. She also proffered the testimony of Dr. Roger

House, a psychiatrist, who testified that Skidmore suffers from

post-traumatic stress disorder. This is sufficient evidence of

severe emotional distress if the jury chose to credit the

testimony.

B. Jury Instructions

Nonetheless, despite the sufficiency of Skidmore’s evidence,

we must vacate the verdict against Mitchell. We vacate an award

if the jury charge “‘as a whole leaves . . . substantial and

ineradicable doubt whether the jury has been properly guided in

its deliberations.’” EEOC v. Manville Sales Corp., 27 F.3d 1089,

1097 (5th Cir. 1994) (quoting Pierce v. Ramsey Winch Co., 753

F.2d 416, 425 (5th Cir. 1985)).

The district court charged the jury, in part, with this

language:

The court instructs you that, as a
matter of law, the corporate officers and
agents of Precision Printing and Anheuser-
Busch had a duty under the laws guaranteeing
equal opportunity in employment to prevent
sexual harassment of employees of the

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 company.

Therefore, if you find that any one or
more of the Defendants knew, or reasonably
should have known, of intentional sexual
harassment that could, or did, inflict severe
emotional distress upon female employees,
Patricia Skidmore, and other employees of
Precision Printing & Packaging Company, and
that Defendant, or those Defendants, failed
to make a reasonable effort to prevent such
sexual harassment, then you may find that the
[sic] Defendant, or those Defendants[,]
liable to the Plaintiff for intentional
infliction of emotional distress.

The instruction misstates the law regarding intentional

infliction of emotional distress. Under it, the jury could have

found Mitchell liable to Skidmore for sexual harassment that

could have caused severe emotional distress upon “female

employees” in general. The instruction ignores that a claim for

intentional infliction of emotional distress requires that the

plaintiff actually suffer severe distress and that the defendant

act intentionally or recklessly. Moreover, the instruction at no

place gave an accurate statement of the kind of conduct that the

jury would have to find in order to conclude that Mitchell

intentionally inflicted emotional distress on Skidmore. Such an

erroneous instruction leaves us with substantial doubt whether

the jury was properly guided in its deliberations. We are

therefore compelled to vacate the verdict against Mitchell for

intentional infliction of emotional distress. Consistent with

this holding, we remand for a new trial on Skidmore’s claim

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against Mitchell based on the state law of intentional infliction

of emotional distress.

III. Claims Against Precision

A. Intentional Infliction of Emotional Distress

Under Texas law, an employer may be vicariously liable for

the intentional tort of its employee under the doctrine of

respondeat superior or directly liable under the theory of

ratification. Per the interrogatories in this case, the jury

found Precision and Anheuser-Busch liable for intentional

infliction of emotional distress via the doctrine of

ratification, and not respondeat superior. The employer may

ratify its employee’s conduct through its own acts, conduct, or

affirmative acquiescence. See, e.g., Little v. Clark, 592 S.W.2d

61, 64 (Tex. Civ. App.--Ft. Worth 1979, writ ref’d n.r.e.). The

employer’s mere retention of the employee in service will not

establish ratification. See Durand v. Moore, 879 S.W.2d 196, 203

(Tex. App.--Houston [14th Dist.] 1994, no writ); Prunty v.

Arkansas Freightways, Inc., 16 F.3d 649, 653-54 (5th Cir. 1994).

Nor will its mere denial of liability. See Southwestern Bell

Telephone Co. v. Wilson, 768 S.W.2d 755, 764 (Tex. App.--Corpus

Christi 1988, writ denied). The employer’s failure to repudiate

its employee’s tortious act may sometimes establish ratification.

See Prunty, 16 F.3d at 653 (citing Hinote v. Oil, Chemical and

Atomic Workers Union, 777 S.W.2d 134, 141 (Tex. App.--San Antonio

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1989, writ denied)); K-Mart No. 4195 v. Judge, 515 S.W.2d 148,

153, 154 (Tex. Civ. App.--Beaumont 1974, writ dism’d w.o.j.)).

In cases of employer silence as ratification, the employer must

possess all material facts. See Southwestern Bell Telephone, 768

S.W.2d at 764. In the case of intentional infliction of

emotional distress, the employer therefore must know enough to

realize that the employee’s conduct was extreme and outrageous.

See Prunty, 16 F.3d at 655. The plaintiff bears the burden of

proving ratification. See Southwestern Bell Telephone, 768

S.W.2d at 764.

Skidmore presented no evidence at trial from which the jury

could have concluded that Precision ratified Mitchell’s conduct

or was otherwise directly liable. Skidmore herself testified

that she complained only once to Bryan and never to any other

manager. Bryan responded by telling Mitchell to leave Skidmore

alone. Even if the plant managers had failed to act on

Mitchell’s conduct at all, Skidmore presented no evidence

suggesting that they possessed all material facts such that their

silence could constitute ratification. The district court thus

should have granted judgment as a matter of law to Precision on

Skidmore’s claim for intentional infliction of emotional

distress.

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B. Title VII

1. Sufficiency of the Evidence

Skidmore claimed sexual harassment under the theory of a

hostile or abusive work environment, as set forth in Meritor

Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399 (1986). To

support such a claim, a plaintiff must establish five elements:

(1) that she belongs to a protected group; (2) that she was

subjected to unwelcome harassment (3) based upon sex, (4) which

affected a term, condition, or privilege of her employment; and

(5) that her employer knew, or should have known, of the

harassment and failed to take prompt remedial action. See Jones

v. Flagship International, 793 F.2d 714, 719-20 (5th Cir. 1986).

Precision argues that Skidmore presented no evidence that

Mitchell’s conduct was severe and pervasive enough to alter the

terms or conditions of her employment. We disagree. Skidmore,

as well as various co-workers, testified that Mitchell’s

inappropriate behavior was constant and caused others to

ostracize and make fun of Skidmore.

Precision further argues that Skidmore presented no evidence

that Precision failed to take prompt remedial action once it knew

or should have known of the harassment. “Prompt remedial action”

must be “reasonably calculated” to end the harassment. Id.

What is appropriate remedial action will
necessarily depend on the particular facts of
the case--the severity and persistence of the
harassment, and the effectiveness of any

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 initial remedial steps. . . . [N]ot every
response by an employer will be sufficient to
discharge its legal duty. Rather, the
employer may be liable despite having taken
remedial steps if the plaintiff can establish
that the employer’s response was not
“reasonably calculated” to halt the
harassment.

Waltman v. International Paper Co., 875 F.2d 468, 479 (5th Cir.

1989) (citations omitted). The plaintiff bears the burden of

showing that his employer failed to take effective action. See,

e.g., Mockler v. Multnomah County, 140 F.3d 808, 812 (9th Cir.

1998); Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d

Cir. 1990). This Court has often found that an employer’s

response to employee behavior constituted prompt remedial action

as a matter of law. See Hirras v. National Railroad Passenger

Corp., 95 F.3d 396, 400 (5th Cir. 1996) (listing cases). In many

such instances, in determining whether the employer’s actions

were remedial, we have considered whether the offending behavior

in fact ceased. See, e.g., Indest v. Freeman Decorating, Inc.,

164 F.3d 258, 263 (5th Cir. 1999) (Jones, J., with two Judges

concurring in result) (affirming judgment as a matter of law for

an employer who promptly punished the harassing employee,

resulting in “complete cessation of harassment”); Waymire v.

Harris County, 86 F.3d 424, 429 (5th Cir. 1996) (affirming

judgment as a matter of law for the defendant who promptly

reprimanded the harassing employee, who never harassed the

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plaintiff again); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d

307, 309-10 (5th Cir. 1987) (reversing judgment for the plaintiff

where the employer took decisive action but the plaintiff quit

her job too soon for the remedy to have effect). In this case,

we hold that Precision’s conduct constitutes “prompt remedial

action” as a matter of law. Bryan testified that he instructed

Mitchell to leave Skidmore alone and moved Skidmore to a new

shift. At that point, the hostile work environment terminated.

Though Skidmore testified that she remained uncomfortable,

Mitchell’s conduct ceased its offensive nature. Indeed, Skidmore

never registered a further complaint with Bryan or any other

manager at Precision. Therefore, Precision’s action was

“reasonably calculated” to relieve, and in fact did successfully

abate, the hostile work environment, despite the fact that Bryan

did not conduct any investigation of the allegations until after

Skidmore filed an EEOC complaint months later, did not reprimand

Mitchell, and made no follow-up inquiry with Skidmore as to

whether the harassment had ceased. Thus, the evidence was

insufficient to find Precision liable under Title VII, and the

district court erred in failing to grant judgment as a matter of

law to Precision. Because we dispose of this matter thusly, we

need not reach Precision’s arguments about defective jury

instructions and improper special interrogatories. We also need

not reach Precision and Anheuser-Busch’s objection to the

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punitive damage award under Title VII.

IV. Claims Against Anheuser-Busch

A. Title VII

Title VII proscribes certain actions of “employers,”

“employment agencies,” and “labor organizations.” 42 U.S.C.

§ 2000e-2. In considering whether a corporation related to an

employer may be liable under Title VII as a joint employer, the

Fifth Circuit follows the four-factor test adopted by the United

States Supreme Court in the context of a labor dispute in Radio

Union v. Broadcast Services, 380 U.S. 255, 257, 85 S. Ct. 876,

877 (1965). See Trevino v. Celanese Corp., 701 F.2d 397 (5th

Cir. 1983) (applying the Radio Union test in a civil-rights

context); see also Garcia v. Elf Atochem North America, 28 F.3d

446, 450 (5th Cir. 1994) (applying Trevino to a Title VII

action).

[T]he rule has emerged that superficially
distinct entities may be exposed to liability
upon a finding that they represent a single,
integrated enterprise: a single employer.
Factors considered in determining whether
distinct entities constitute an integrated
enterprise are (1) interrelation of
operations, (2) centralized control of labor
relations, (3) common management, and (4)
common ownership or financial control.

Trevino, 701 F.2d at 404. Traditionally, the second of these

four factors has been considered the most important, such that

courts have focused almost exclusively on one question: which

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entity made the final decisions regarding employment matters

relating to the person claiming discrimination? See Schweitzer

v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.

1997) (citing Trevino, 701 F.2d at 404).

Contending that Anheuser-Busch was her and Mitchell’s

employer for Title VII purposes, Skidmore points to evidence of

five points: (1) Anheuser-Busch approved Precision’s awards for

accident-free work records; (2) Skidmore received a corporate

letter of commendation that referred to her as an Anheuser-Busch

employee; (3) Anheuser-Busch gave production directives to

Precision; (4) an Anheuser-Busch vice-president held meetings

with Precision’s employee safety team and presided over

presentations on expansion and purchase of new presses; and (5)

legal counsel at Anheuser-Busch handled Skidmore’s EEOC charge

and harassment suit.

The evidence to which Skidmore points does not support a

finding that Anheuser-Busch was her employer for Title VII

purposes. The primary Trevino factor concerns which entity made

the employment decisions regarding Skidmore. Brian Ashworth,

Precision’s director of human resources, testified that, although

it paid an Anheuser-Busch department to act as third-party

administrator of its benefit programs, Precision offered its own

employee benefit packages. He testified that Precision hired,

fired, promoted, and demoted its own employees without consulting

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Anheuser-Busch, and that Precision negotiated its own union

contracts without consulting Anheuser-Busch. Skidmore’s evidence

does not contradict Ashworth’s testimony. Nor has Skidmore shown

Anheuser-Busch participated in Precision’s labor decisions, or

that Anheuser-Busch and Precision intermingled their operations

and management functions. The district court therefore erred in

failing to grant judgment as a matter of law to Anheuser-Busch on

Skidmore’s claim for sexual harassment.

B. State Law Claims

Skidmore presented no evidence that Anheuser-Busch employed

Mitchell or ratified his conduct. The district court therefore

erred in failing to grant judgment as a matter of law to

Anheuser-Busch on Skidmore’s claim for intentional infliction of

emotional distress.

V. Expert Testimony

Precision complains that the district court erred in

admitting the expert testimony of Dr. Roger House, a psychiatrist

who evaluated Skidmore. Dr. House testified to his diagnosis

that Skidmore suffered from post-traumatic stress disorder and

depression brought on by Mitchell’s conduct. We review for abuse

of discretion the district court’s decision to admit the expert

testimony. See Moore v. Ashland Chemical Inc., 151 F.3d 269, 274

(5th Cir. 1998) (en banc) (citing General Electric Co. v. Joiner,

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522 U.S. 136, 118 S. Ct. 512 (1997)).

Precision first argues that the district court admitted

House’s testimony without requiring the establishment of a proper

foundation under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S. Ct. 2786 (1993). Under Daubert, the

district court makes a “preliminary assessment of whether the

reasoning or methodology underlying the testimony is

scientifically valid and of whether that reasoning or methodology

can be applied to the facts at issue.” Id. at 592-93, 113 S. Ct.

at 2796. Many factors may bear on this inquiry, for example

whether a scientific technique has been subjected to peer review

and whether it has received general acceptance. See id. at 593-

94, 113 S. Ct. at 2796-97. This so-called “gate-keeping”

obligation applies to all types of expert testimony, not just

“scientific” testimony. See Kumho Tire Co., Ltd. v. Carmichael,

-- U.S. --, 119 S. Ct. 1167, 1174 (1999). But whether Daubert’s

suggested indicia of reliability apply to any given testimony

depends on the nature of the issue at hand, the witness’s

particular expertise, and the subject of the testimony. Id. at

1174-76 (1999). It is a fact-specific inquiry. See Black v.

Food Lion, Inc., 171 F.3d 308, 311 (5th Cir. 1999). The district

court’s responsibility “is to make certain that an expert,

whether basing testimony upon professional studies or personal

experience, employs in the courtroom the same level of

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intellectual rigor that characterizes the practice of an expert

in the relevant field.” Kuhmo, 119 S. Ct. at 1176. The district

court in this case did not deviate from that standard. Dr. House

testified to his experience, to the criteria by which he

diagnosed Skidmore, and to standard methods of diagnosis in his

field. Absent any indication that Dr. House’s testimony amounted

to the sort of “junk science” Daubert blocks, we see no abuse of

discretion in the district court’s admitting the testimony.

Next, Precision argues that Dr. House should not have been

allowed to testify to Skidmore’s credibility. Dr. House

testified that he did not think Skidmore had lied to him or

fabricated her psychiatric symptoms. Credibility determinations,

of course, fall within the jury’s province. See, e.g., Ray v.

Iuka Special Municipal Separate School District, 51 F.3d 1246,

1251 (5th Cir. 1995); Boeing Co. v. Shipman, 411 F.2d 365, 377

(5th Cir. 1969) (en banc). Nonetheless, Dr. House in no way

testified that Skidmore was undoubtedly telling the truth;

instead, he merely opined that her symptoms and recollections

appeared genuine and that he felt he had not been “duped” by her.

We see no abuse of discretion in the district court allowing a

psychiatrist to testify that a plaintiff seems genuinely

distressed to him.

Finally, Precision states that Skidmore’s own testimony--

namely, that she began having nightmares long after the alleged

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harassment ended--contradicted the facts upon which Dr. House

said he relied. Because of this, Precision argues, Dr. House’s

testimony was not based on reliable data and should not have been

admitted. We disagree. “The facts . . . in the particular cases

upon which an expert bases an opinion or inference may be those

perceived by . . . the expert at or before the hearing.” Fed. R.

Evid. 703. The expert may be required to disclose the underlying

facts upon which he relied, see Fed. R. Evid. 705, and Dr. House

did just that. The jury was then free to credit or not to credit

Dr. House’s testimony and diagnosis. See, e.g., Newport Ltd. v.

Sears, Roebuck & Co., 6 F.3d 1058, 1069 (5th Cir. 1993) (“[I]t

ordinarily is the province of the jury to gauge the expert

witness[’]s credibility and the reliability of his data.”).

VI. Damages

The district court held Precision, Anheuser-Busch, and

Mitchell jointly and severally liable for $30,000 in compensatory

damages. The interrogatories given to the jury allowed no

opportunity to allocate damages between Skidmore’s Title VII and

state law claims. Moreover, neither Precision nor Anheuser-

Busch should have been held liable for damages on any claimss.

We therefore vacate the award as to Mitchell and reverse the

award as to Precision and Anheuser-Busch. What damages Mitchell

owes will be determined at a new trial on the intentional

infliction of emotional distress question.

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 VII. Attorneys’ Fees

Precision argues that the district court abused its

discretion when it awarded attorneys’ fees to Skidmore. We

review the district court’s grant of attorneys’ fees for abuse of

discretion. See League of United Latin American Citizens v.

Roscoe ISD, 119 F.3d 1228, 1232 (5th Cir. 1997).

Generally, entitlement to attorneys’ fees in this type of

action is predicated on the recovery of actual damages for the

federal claim. See Farrar v. Hobby, 506 U.S. 103, 115, 113 S.

Ct. 566, 575 (1992); Johnson v. Eaton, 80 F.3d 148, 152 (5th

Cir. 1996). Because we hold, as a matter of law, that Skidmore

is not entitled to recover on the Title VII claim, she is

likewise not entitled to any attorneys’ fees at all. We

therefore find that the district court abused its discretion and

reverse the award of attorneys’ fees.

VIII. Conclusion

The judgment against Mitchell for intentional infliction of

emotional distress is VACATED based on the misleading jury

instruction and the cause REMANDED for a new trial.

The judgment against Precision for intentional infliction of

emotional distress and a violation of Title VII is REVERSED and

REMANDED with instructions to dismiss the claims.

The judgments against Anheuser-Busch are REVERSED on all

claims and REMANDED with instructions to dismiss the claims.

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 The attorneys’ fee award based on Skidmore’s Title VII claim

is REVERSED and REMANDED with instructions to dismiss the claim.

REVERSED in part, VACATED and REMANDED in part.

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