Stover v. Hattiesburg Public School District

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 18, 2008

No. 07-60419 Charles R. Fulbruge III
Clerk

ADDIE STOVER

Plaintiff-Appellant
v.

HATTIESBURG PUBLIC SCHOOL DISTRICT

Defendant-Appellee

Appeals from the United States District Court
for the Southern District of Mississippi

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
STEWART, Circuit Judge:
Plaintiff-Appellant Addie Stover (“Stover”) appeals the Final Judgment
entered pursuant to a jury verdict in favor of Defendant-Appellee Hattiesburg
Public School District (“School District”), the denial of a motion for a new trial,
and the district court’s grant of attorney’s fees to the School District. On appeal,
Stover argues that (1) the district court made evidentiary errors during the trial,
(2) the district court erroneously permitted the “same actor” jury instruction, (3)
the jury verdict was against the overwhelming weight of the evidence, and (4)
the district court erroneously awarded attorney’s fees to the School District. For
the following reasons, we affirm in part, reverse and vacate in part, and render
in part.
 No. 07-60419

I. FACTUAL AND PROCEDURAL BACKGROUND
In early 1996, Stover, an African American female, began working as a
temporary secretary to Jimmy Hopkins in the Personnel Department at the
School District. Hopkins, an African American, was the Associate
Superintendent and head of the Personnel Department. Stover holds a
bachelor’s degree in English with a minor in Paralegal Studies. In June 1996,
Stover began working as a full-time secretary to Hopkins, and Stover’s beginning
salary was $12,945. For the 1997-98 term, Stover was assigned to work for Dr.
Gordon Walker, a white male, instead of Hopkins. Dr. Gordon Walker was the
Superintendent at the time Stover was his secretary. Dr. Walker resigned in
1999, and Dr. James Davis, an African American, became Superintendent. In
June 2005, Dr. Davis retired, and Dr. Annie Wimbish,1 an African American
female, became Superintendent. Stover’s salary at the time she resigned in 2006
was $37,438. Stover is not a licensed educator, and she did not have an
employment contract with the School District.
During his tenure as Superintendent, Dr. Davis had a “cabinet” of high-
level administrators, including Perrin Lowery, Tressie Harper, Penny Wallin,
and Jimmy Hopkins; Stover was not a member of the cabinet. Perrin, Harper,
and Wallin held doctorate degrees in education, and Hopkins held a master’s
degree and was working on his doctorate degree. In 2001, Dr. Harper resigned
to become a superintendent for another district. The School District did not
immediately replace Dr. Harper because of budget considerations. Stover
contends that she assumed many of the responsibilities of Dr. Harper when Dr.
Harper resigned; Dr. Davis testified that he assumed most of Dr. Harper’s
responsibilities, and the other responsibilities were spread out among others.

1
Stover had already filed charges with the EEOC and her federal lawsuit by the time
Dr. Wimbish became the Superintendent.

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Approximately two years after Dr. Harper resigned, the School District
decided to fill the vacuum created by Dr. Harper’s resignation. This action arose
from the School District’s decision to hire Alan Oubre, a white male, as the
Central Office Administrative Coordinator in August 2003. The School District
concedes that it did not advertise the available position. Oubre’s starting salary
was $48,380 for the partial school year and $62,845 for the full school year.
Oubre holds a bachelor’s degree in secondary school English and a master’s
degree in Educational Administration. Oubre has a contract of employment with
the School District.
Upon learning of Oubre’s salary, Stover argued that both Oubre and she
were Administrative Assistants who performed substantially equal work, and
therefore, they should be paid the same. In August 2004, Stover filed a charge
of discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging that the School District discriminated against her on the
basis of race and violated the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). On
June 23, 2005, Stover filed a complaint in federal district court for claims of race
discrimination under Title VII and violation of the EPA. On June 30, 2005, she
filed another charge with the EEOC, adding allegations of gender discrimination
and retaliation. Stover amended the complaint twice, and on January 9, 2006,
Stover filed her second amended complaint alleging race and sex discrimination
under Title VII, retaliation under Title VII, and violation of the EPA.
The School District moved for summary judgment on all claims. On
February 8, 2007, the district court found no direct evidence of discrimination
and applied the McDonnell Douglas burden-shifting framework to determine
whether Stover made out a prima facie case of discrimination under Title VII.
The court concluded that there was sufficient evidence in the record to withstand
a motion for summary judgment as to the Title VII race and sex discrimination
claims. Specifically, the district court stated the following:

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There is evidence in the record that Ms. Stover and Mr. Oubre
performed similar duties and that their job functions overlapped
and that Mr. Oubre assumed some of Ms. Stover’s duties during her
employment at [the School District]. There is also evidence in the
record demonstrating differences between Mr. Oubre’s and Ms.
Stover’s jobs. At certain times Mr. Oubre and Ms. Stover
apparently shared the same title of “administrative assistant.”

The district court denied the School District’s motion for summary judgment as
to the race and sex discrimination claims under Title VII. Citing the same
evidence, the district court similarly denied the School District’s motion as to the
claim under the EPA.
The district court also held that there was sufficient evidence to support
Stover’s retaliation claim and denied the School District’s motion as to that
claim. The court pointed to evidence that “there had been no performance
problems on Ms. Stover’s part until Mr. Oubre was hired, and that in 2004, 2005
and 2006[,] there were increasing issues with Ms. Stover’s performance being
raised by Dr. Davis and Mr. Hopkins.” The court granted the School District’s
motion as to Stover’s claim of constructive discharge, holding that the alleged
conduct did not rise to the level of constructive discharge.2

2
Stover did not allege a claim for constructive discharge in her second amended
complaint. Stover raised the claim in her response to the School District’s motion for summary
judgment. The district court considered the claim, concluding that “to the extent this is being
asserted by plaintiff as a separate claim for relief, summary judgment for defendant is
granted.” We find no error in the district court’s consideration of the constructive discharge
claim. See Debowale v. US Inc., 62 F.3d 395, 395 (5th Cir. 1995) (“The district court should
have construed [the plaintiff’s] Bivens claim, raised for the first time in his response to the
summary judgment motion, as a motion to amend the complaint under Fed. R. Civ. P. 15(a)
and granted it.”) (citations ommitted); Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th
Cir. 1992) (deciding that a response to a motion to dismiss, in which plaintiff first alleged that
she had been willfully discriminated against, should be treated as a motion to amend her
pleadings); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972) (determining that a
new allegation raised in a memorandum in opposition to a motion for summary judgment
should have been construed as an amendment to the original complaint).

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The case proceeded to a jury trial on February 12-16, 2007. The district
court precluded certain evidence, including evidence of the School District’s
pattern and practice not to advertise positions of employment. Citing Frank v.
Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003), the district court held that
pattern and practice evidence should be excluded.
During the jury trial, the School District moved for judgment as a matter
of law pursuant to Federal Rule of Civil Procedure 50(a). The district court took
the motion under advisement and permitted the case to go to the jury. The jury
returned a unanimous special verdict in favor of the School District on all claims,
and the district court entered Final Judgment in favor of the School District on
February 28, 2007. Stover filed a motion for a new trial, which the district court
denied.
The School District moved for an award of attorney’s fees and costs, which
Stover opposed. The district court awarded attorney’s fees to the School District
in the amount of $144,058.50 and taxed costs against Stover in the amount of
$10,570.06. In deciding the attorney’s fees issue, the district court stated that
there were “[n]umerous examples of the diverseness of [Stover’s and Oubre’s]
jobs [] brought out during the testimony.”
While at trial it was obvious that the case was baseless, frivolous
and without merit, the plaintiff and her attorney did not have the
benefit of all of the information learned in discovery at the time of
filing suit. However, the Court finds that the latest time that the
plaintiff should have realized that her suit was frivolous and
baseless was by the conclusion of discovery. She certainly should
have recognized this at that time. Therefore, the Court does hereby
find that from the end of discovery forward the plaintiff should be
required to reimburse the defendant’s attorney[’]s fees.

Stover filed a timely notice of appeal, assigning the following errors by the
district court: (1) not permitting alleged admissions of discrimination and
discriminatory intent to be considered as direct evidence of discrimination at the

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trial; (2) permitting evidence of Oubre’s qualifications during the trial; (3)
permitting evidence during the trial that attacked Stover’s character; (4)
excluding evidence of the School District’s pattern and practice; (5) precluding
evidence regarding constructive discharge; (6) submitting the “same actor” jury
instruction to the jury; (7) the jury verdict was against the overwhelming weight
of the evidence; and (8) awarding attorney’s fees to the School District. We now
turn to a discussion of these assigned errors.

II. DISCUSSION
Stover’s eight assignments of error fall into five broad categories: the
summary judgment ruling on the constructive discharge claim, evidentiary
rulings during the trial proceedings, objections to the jury instructions, the jury
verdict, and the award of attorney’s fees. We will discuss each category in turn.
A. Constructive Discharge Claim
The district court granted the School District’s motion for summary
judgment on Stover’s claim for constructive discharge. We review a district
court’s grant of summary judgment de novo. LeMaire v. La. Dep't of Transp. &
Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary judgment is appropriate when
“the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). A genuine issue
of material fact exists if the summary judgment evidence is such that a
reasonable jury could return a verdict for the non-movant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All the facts and evidence must be taken
in the light most favorable to the non-movant. LeMaire, 480 F.3d at 387.
To establish a constructive discharge claim, an employee “must offer
evidence that the employer made the employee’s working conditions so
intolerable that a reasonable employee would feel compelled to resign.” Brown

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v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (quoting Barrow v. New
Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)). This objective test
has been referred to as the reasonable employee test. See Haley v. Alliance
Compressor LLC, 391 F.3d 644, 650 (5th Cir. 2004). The evidence “must
demonstrate a greater severity or pervasiveness of harassment than the
minimum required to prove a hostile working environment.” Landgraf v. USI
Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (citation omitted). We have
considered the relevancy of the following events in determining whether a
reasonable employee would feel compelled to resign:

(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading work; (5)
badgering, harassment, or humiliation by the employer calculated
to encourage the employee’s resignation; or (6) offers of early
retirement that would make the employee worse off whether the
offer were accepted or not.

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008) (quoting
Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771-72 (5th Cir. 2001)).

Stover contends that she was not paid appropriately, but she does not
present any evidence that she received a reduction in salary. Rather, Stover
received increases in her salary. Also, she does not argue that she received a
demotion, reassignment to menial or degrading work, or offers of early
retirement, so neither of these factors supports Stover’s assertion that she felt
compelled to resign. As to the reduction of job responsibilities, Stover actually
testified, that her “plate was full” and “she was happy for the help.” It is
therefore inconsistent to assert that she felt compelled to resign based in part on
a reduction in job responsibilities.

The only factor Stover can rely on to meet the reasonable employee test is
“badgering, harassment, or humiliation by the employer calculated to encourage

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the employee’s resignation.” Aryain, 534 F.3d at 481. Stover contends that she
was not provided the same career development opportunities as Oubre; her
complaints of discrimination were not investigated; she was not allowed comp
time while Oubre and others were allowed comp time; Mr. Hopkins exhibited
anger, violence, shouting, and waved his arms at Stover; and she was excluded
from prestigious retreats. The evidence that Stover cites in support of her
constructive discharge claim does not amount to conditions or an environment
so intolerable that a reasonable employee would feel compelled to resign. At
best, the evidence shows that Stover was disgruntled that Oubre, a high-level
administrator, was provided greater benefits while employed with the School
District than she was provided and that she encountered difficulty in dealing
with her supervisor, Mr. Hopkins.

Even assuming arguendo that Stover was subjected to a hostile working
environment, none of the evidence increases the severity or pervasiveness of any
harassment to the level required to support a constructive discharge claim. See
Brown, 207 F.3d at 782-83 (affirming grant of summary judgment even where
employee was demoted and given fewer job responsibilities). We conclude that
the district court properly granted summary judgment in the School District’s
favor on the constructive discharge claim.
B. Evidentiary Rulings
Stover challenges several evidentiary rulings. We review evidentiary
rulings under the deferential abuse of discretion standard. Kelly v. Boeing
Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995). We will reverse a
judgment for an evidentiary ruling only if it affected the substantial rights of the
parties. EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir. 1994)
(citation omitted).

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1. Direct Evidence
Stover argues that evidence that the School District admitted
discriminatory conduct and violation of the EPA should have been considered as
direct evidence of discrimination, and Stover should have been allowed to argue
to the jury the impact and importance of direct evidence. Notably, the only
evidence of the alleged admissions was Stover’s testimony. She contends that
the district court abused its discretion by not allowing “the Direct Evidence mode
of evidentiary production,” and if it would have been permitted, the McDonnell
Douglas framework could have been avoided. The School District argues that
the district court allowed Stover to present the statements she contends were
direct evidence, and therefore, the jury had the benefit of weighing Stover’s
testimony and credibility in reaching its jury verdict.
Stover’s discrimination claims survived summary judmgent and proceeded
to trial. Stover does not argue that the evidence was excluded at trial, but
rather, she concedes that her “proof was there.” At trial, Stover testified to
many statements that she contends were the School District’s admissions that
it was violating the EPA and anti-discrimation laws. For example, Stover
testified to the following at trial:
When I spoke with Mr. Hopkins in August of 2003 after Dr. Davis
notified us that he was hiring Alan [Oubre], Mr. Hopkins made
indication to Dr. Davis in my presence that Dr. Davis could not
employ Alan Oubre as administrative assistant as it was a violation
of the Equal Pay Act and other laws. Dr. Davis said, “Well, we’ll
just call him something else.”
....
I asked Mr. Hopkins if there was a job announcement or any posting
indicating that a second position was being created. And Mr.
Hopkins said there was none. That they just wanted to hire a white
male.
....
Mr. Hopkins said [Oubre] got the job because he was white.

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When a full trial on the merits has been conducted, as in this case, our
focus is on whether the record contains sufficient evidence to support the jury’s
finding of no race or sex discrimination—not on the plaintiff’s prima facie case
or the McDonnell Douglas framework. Raggs v. Mississippi Power & Light Co.,
278 F.3d 463, 468 (5th Cir. 2002); accord Dilworth v. Cont’l Const. Co. Inc., No.
07-60850, 2008 WL 2468397, at *2 (5th Cir. 2008) (unpublished).
At trial, Dr. Davis testified that “it would have been highly inappropriate
to have [Stover] part of the cabinet. She didn’t . . . bring to the table the skills
and knowledge, and she wasn’t part of the decision making team . . . .” Dr. Davis
also testified that while Stover did attend board meetings, she attended the
meetings to take the minutes. According to Dr. Davis, Stover did not create
agenda items, but rather, she typed and organized information that was
provided to her. Dr. Davis also testified that Stover was not qualified for the
position which Oubre filled. There was sufficient evidence presented at trial for
the jury to conclude that the School District did not discriminate against Stover
on the basis of race or sex. Therefore, Stover cannot prevail on this assignment
of error.
2. Comparison of Qualifications
Next, Stover argues that the jury should not have been permitted to
consider Oubre’s qualifications. Stover argues in her brief, however, that an
issue at trial “was whether Ms. Stover and Mr. Oubre were similarly situated.”
The district court properly instructed the jury that to prevail on the Title VII
discrimination claim, Stover had to show by a preponderance of the evidence
that, inter alia, “others similarly situated were treated more favorably because
of their race or gender.” Further, Stover’s claim under the EPA required a
comparison of Stover’s and Oubre’s “skill, effort, and responsibility” for the
performance of their jobs. The EPA requires that an employer not discriminate
“between employees on the basis of sex . . . for equal work on jobs the

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performance of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). To
determine whether an EPA violation occurred, the district court properly
permitted evidence demonstrating the skill, effort, and responsibility required
of the jobs performed by Oubre and Stover. The district court did not abuse its
discretion by permitting this evidence at trial.
3. Character Evidence
Stover also contends that the district court erroneously permitted evidence
that Stover destroyed or deleted computer information. The School District
argues that it was entitled to defend itself against Stover’s allegations of
retaliation. Stover argued that she did not have one blight on her record until
she complained of discrimination when Oubre was hired. The School District
contends that it countered against Stover’s claim of retaliation with evidence of
a pattern of Stover’s conduct that showed a deteriorating professional attitude
and work ethic, and the deletion of the files on the day Stover resigned was the
final demonstration of her unprofessional conduct.
One of the issues at trial was Stover’s claim of retaliation. In overruling
the objection to the evidence at trial, the district court stated that Stover had
portrayed herself to be a victim and work attitude was at issue. The court
permitted the evidence for purposes of impeachment. The court also ruled that
it was more probative than prejudicial. Having fully reviewed the record, we
find that the district court did not abuse its discretion on this issue.
4. Systematic Practices of the School District
Stover argues that the district court erroneously refused to permit
evidence of the School District’s business habit and practice of not advertising
positions or allowing competition for positions. Stover contends that it was
“plainly discriminatory” not to advertise the position. She also states that
pattern and practice evidence should have been allowed to prove intent and/or

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pretext. Further, Stover argues that the School District’s hiring system “allowed
. . . complete racial and gender discrimination.”
The School District argues that regardless of the district court’s pre-trial
exclusion of this evidence by granting the School District’s motion in limine, the
jury heard the evidence, and therefore, the issue is moot.3 At trial, Stover
testified that the district was “culpable for failing to advertise th[e] position.”
Dr. Davis testified to the following:
Q. Did Mr. Oubre have any competition for the job?
A. No.
Q. Did you place any advertisement for the position?
A. No.
The jury, therefore, heard evidence that the School District did not advertise the
position for which Oubre was hired.
The School District also contends that failure to have a policy requiring
employment positions to be advertised does not mean its hiring practices are
discriminatory. We agree that the lack of a policy requiring advertisement
under these circumstances is not evidence of discrimination. Stover provides no
Mississippi law or School Board policy requiring the School District to advertise
the position for which Oubre was hired or any other position in the district.
Also, Stover’s contention that the School District’s systematic practice of not
advertising positions allowed complete racial and gender discrimination is
unsupported by any evidence in the trial record. We find no reversible error on
this issue.

3
Stover even states in her appellate brief that “the existence of the system is not
disputed and was conceded before trial and during trial.” Appellant Br. at 40 (emphasis
added).

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C. Jury Instructions
Stover argues that the district court erroneously permitted the “same
actor” jury instruction. Specifically, Stover states that the district court
instructed the jury that it could infer that discrimination was not the motive
behind the challenged employment action if Mr. Hopkins hired her. We will
reverse a jury verdict based on the jury charge only if “the charge as a whole
‘leaves us with substantial and ineradicable doubt whether the jury has been
properly guided in its deliberations.’” McCullough v. Beech Aircraft Corp., 587
F.2d 754, 759 (5th Cir. 1979) (citation omitted).
The referenced jury instruction provided as follows:
If you find that the same person who hired the plaintiff is also one
of the people who allegedly discriminated against her, you may
consider it inherently inconsistent that an individual who is willing
to hire or promote a person who is a member of a protected class will
discriminate against that same individual because she is a member
of that class.
This instruction is not a misstatement of the law. Compare Haun v. Ideal
Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) (stating that such evidence is
relevant but declining to establish a rule that no inference of discrimination
could arise under the same actor circumstances), with Brown v. CSC Logic, Inc.,
82 F.3d 651, 658 (5th Cir. 1996) (noting acceptance of same actor inference by
several other circuits and expressing approval of the inference). This
assignment of error is without merit.

D. Jury Verdict
Stover contends that the jury verdict was against the overwhelming
weight of the evidence, and therefore, we should reverse. The School District
argues that there was sufficient evidence to support the jury verdict.
“Challenges to the sufficiency of the evidence must be raised in a Federal Rule
of Civil Procedure 50(a) motion for judgment as a matter of law before

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submission of the case to the jury.” United States ex rel. Wallace v. Flintco Inc.,
143 F.3d 955, 960 (5th Cir. 1998). During the trial, Stover did not raise a Rule
50 motion for judgment as a matter of law before the case went to the jury; only
the School District raised such a motion. Where Stover failed to raise a Rule 50
motion for judgment as a matter of law, we consider the sufficiency of the
evidence under a plain error standard,4 reversing “only if the judgment
complained of results in a ‘manifest miscarriage of justice.’” Flintco, Inc., 143
F.3d at 963-64.
On plain error review “the question before this Court is not whether there
was substantial evidence to support the jury verdict, but whether there was any
evidence to support the jury verdict.” McCann v. Texas City Refining, Inc., 984
F.2d 667, 673 (5th Cir. 1993). “If any evidence supports the jury verdict, the
verdict will be upheld.” Flintco, Inc., 143 F.3d at 964 (citing Polanco v. City of
Austin, 78 F.3d 968, 974 (5th Cir. 1996)); accord Dilworth, 2008 WL 2468397, at
*3 (“We have reviewed the record and confirmed that Dilworth indeed failed to
move for judgment as a matter of law on the issue of the sufficiency of the
evidence before the case was submitted to the jury. We must therefore consider
Dilworth’s current challenge to the sufficiency of the evidence under the plain
error standard . . . .”).
In this case, there clearly exists some evidence to support the jury
determination. When Dr. Davis was questioned about the allegation of race
discrimination, he testified that

4
Although neither party provides the applicable standard of review for this issue, we
must apply the appropriate legal standard of review to each assignment of error. See United
States v. Duhon, 541 F.3d 391, 396 n.2 (5th Cir. 2008) (“[N]o party has the power to control our
standard of review.” (quoting United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992))).
“The parties’ failure to brief and argue properly the appropriate standard may lead the court
to choose the wrong standard. . . . A reviewing court may reject both parties approach to the
standard.” Vontsteen, 950 F.2d at 1091.

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I never in my whole career based any decision on race. That just
simply was not a part of the way I did business or functioned as a
leader. . . . [I]t was disconcerting because it was just so farfetched.
It was just totally fictitious that any decision was made in that
central office based on race. It just didn’t happen.
There was also evidence from which the jury could conclude that Stover and
Oubre were not similarly situated. While Oubre and Stover at some time carried
the same title of Administrative Assistant, Dr. Davis explained that
there are different degrees of assistance. Some assistance takes a
highly qualified person with some kind of administrative
certification like Dr. Harper . . . . Then there might be someone else
who might be called administrative assistant who doesn’t have to be
nearly as highly qualified and may not do the kind of heavy lifting
. . . that another person who may have that title.
There was also evidence from which the jury could conclude that Stover’s and
Oubre’s positions were not substantially equal. Dr. Davis testified that there
were “vast, vast differences in what [Oubre and Stover] would do.” Dr. Davis
also testified that Stover attended meetings to take the minutes and “wasn’t part
of the decision making team.” Oubre, on the other hand, was a member of the
cabinet. According to Dr. Davis, Oubre supervised the technology department,
helped to supervise the department of building and grounds and the department
of transportation, and he managed high-dollar grants. Evidence supports the
jury verdict, and this assignment of error is also without merit.
E. Award of Attorney’s Fees
Finally, we turn to Stover’s argument that the district court erroneously
awarded attorney’s fees to the School District. The parties are not clear as to the
designation of attorney’s fees and costs. The School District states in its brief
that the district court taxed costs against Stover in the amount of $5,285.03.
The docket in the court below indicates that costs were actually taxed against
Stover in the amount of $10,570.06. The district court’s order provides that
“attorney’s fees in the amount of $144,058.50 and costs of $10,570.06 are

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assessed to Plaintiff Addie Stover.” The district court separately considered an
exhibit seeking costs in the amount of $5,285.03 and other exhibits pertaining
to costs pursuant to Rule 54(d). Based on the aggregate total, the district court
assessed costs in the total amount of $10,570.06.
Stover does not separately raise the issue of costs on appeal. Based on
Stover’s calculation of “attorney fees,” it appears that Stover has lumped the
district court’s award of attorney’s fees and costs into one issue. Stover assigns
error to the attorney’s fee award of “$154,628.56,” which apparently results from
the combined attorney’s fees in the amount of $144,058.50 and costs in the
amount of $10,570.06. We will separately consider the district court’s award of
attorney’s fees and costs to the School District.
1. Costs
Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal
statute, these rules, or a court order provides otherwise, costs - other than
attorney’s fees - should be allowed to the prevailing party.” FED. R. CIV. P.
54(d)(1). Stover does not address Rule 54's application to this case, and she does
not contend that the School District was not the prevailing party. The School
District was the prevailing party, and the district court could tax costs in favor
of the School District pursuant to Rule 54(d).
However, the district court assessed an improper amount of costs to
Stover. First, the Bill of Costs submitted by the School District stated costs in
the amount of $5,285.03. In calculating costs, the district court not only
considered this amount, but it also considered the School District’s exhibits
substantiating this amount. The effect of this dual consideration was to assess
double the amount of taxable costs, that is, $5,285.03 plus $5,285.03 for a total
of $10,570.06.
On appeal, the School District, citing the district court’s Order dated May
31, 2007, states that the district court taxed “costs in the amount of $5,285.03.”

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The referenced Order actually orders that “costs of $10,570.06 are assessed to
plaintiff Addie Stover.” The School District implicitly acknowledges in its brief
that the proper amount of taxable costs was $5,285.03, though neither party
brought this clear error in calculation to the attention of the district court or this
court. Because the district court improperly awarded costs in excess of those
allowable under Rule 54(d)(1), we vacate the costs award in the amount of
$10,570.06 and render costs against Stover and in favor of the School District
in the amount of $5,285.03.
We now turn to the district court’s award of attorney’s fees.
2. Attorney’s Fees
This court reviews a district court’s award of attorney’s fees for abuse of
discretion. Boehms v. Crowell, 139 F.3d 452, 462 (5th Cir. 1998). As a general
rule, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v.
Wilderness Soc’y, 421 U.S. 240, 247 (1975). Congress has provided exceptions
to this rule, allowing the prevailing party to recover attorney’s fees under certain
circumstances. See, e.g., 42 U.S.C. § 2000a-3(b) (“In any action commenced
pursuant to this subchapter, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the
costs, and the United States shall be liable for costs the same as a private
person.”). Notwithstanding the “prevailing party” language, the exceptions
generally serve to protect plaintiffs. Fee-shifting statutes usually create “a
presumption in favor of awarding fees to a prevailing plaintiff but allows fees to
be awarded to a prevailing defendant only if the suit was frivolous.” Sullivan v.
William A. Randolph, Inc., 504 F.3d 665, 670 (5th Cir. 2007).
In Christianberg Garment Company v. EEOC, 434 U.S. 412 (1978), the
Supreme Court discussed the differentiating considerations applicable to an
award of attorney’s fees to a prevailing plaintiff and an award of attorney’s fees
to a prevailing defendant, even where a statute on its face may provide for an

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award of attorney’s fees to either the plaintiff or defendant as the prevailing
party.
First, . . . the plaintiff is the chosen instrument of Congress to
vindicate “a policy that Congress considered of the highest priority.”
Second, when a district court awards counsel fees to a prevailing
plaintiff, it is awarding them against a violator of federal law. As
the Court of Appeals clearly perceived, “these policy considerations
which support the award of fees to a prevailing plaintiff are not
present in the case of a prevailing defendant.” A successful
defendant seeking counsel fees . . . must rely on quite different
equitable considerations.

Christiansburg Garment Co., 434 U.S. at 418-19. The Supreme Court ultimately
concluded that “a district court may, in its discretion, award attorney’s fees to
a prevailing defendant in a Title VII case upon a finding that the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.” Id. at 421.
The Court cautioned, however, that the district court should “resist the
understandable temptation to engage in post hoc reasoning by concluding that,
because a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation.” Id. at 421-22. This Court has explained
that under Christiansburg, to determine whether a suit is frivolous, a court must
ask whether “the case is so lacking in arguable merit as to be groundless or
without foundation rather than whether the claim was ultimately successful.”
Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981).
In Pelmer v. Parsons-Gilbane, 713 F.2d 1127 (5th Cir. 1983), we considered
a case significantly analogous to this action. In Pelmer, the plaintiff brought a
Title VII and EPA suit against her employer. Pelmer, 713 F.2d at 1130. The
case proceeded to trial, and the district court entered judgment in favor of the
defendant employer. Id. at 1131-32. Finding that the plaintiff’s claims were
“simply frivolous,” the district court awarded attorney’s fees to the defendant.

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We reversed the award of attorney’s fees, stating that the district court appeared
to have “engaged in exactly the post hoc reasoning and hindsight logic that the
Supreme Court proscribed.” Id. at 1141.
In this case, the district court found that “the latest time that the plaintiff
should have realized that her suit was frivolous and baseless was by the
conclusion of discovery.” Subsequent to the close of discovery, the School District
filed a motion for summary judgment. The court referenced numerous examples
of evidence supporting Stover’s claims5 and found that there was sufficient
evidence in the record to survive summary judgment on the race and gender
discrimination claims under Title VII, the retaliation claim under Title VII, and
the EPA claim. Stover proceeded to trial on those claims.
During the trial, the School District moved for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50 after Stover rested. Referencing
the “tremendous amount of testimony,” the district court took the motion under
advisement and allowed the trial to proceed to a jury verdict. The jury returned
a verdict in favor of the School District on all the claims.
In awarding attorney’s fees to the School District, the district court, as the
district court in Pelmer did, appears to have engaged in post hoc reasoning to
find that Stover’s action was frivolous. The record does not support a finding
that Stover’s action was frivolous, unreasonable, or without foundation. There
was plausible evidence supporting Stover’s claim, as set forth in the district
court’s order on summary judgment and the testimony at trial. The unanimous
jury verdict for the School District does not totally negate that evidence; it

5
For example, in reference to the retaliation claim, the district court stated that
“reduction or reassignment of job duties and negative evaluations” were more serious and that
“there is evidence that there had been no performance problem on Ms. Stover’s part until Mr.
Oubre was hired.” In regard to other claims, the district court cited evidence that Stover and
Oubre performed similar duties and at certain times apparently shared the same title of
“administrative assistant.”

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simply means that the jury unanimously concluded that the weight of the
evidence was not in Stover’s favor.
The district court erroneously awarded attorney’s fees6 to the School
District, and we reverse and vacate the award of attorney’s fees.

III. CONCLUSION
For the foregoing reasons, we affirm the judgment in part, reverse and
vacate in part, and remand in part. We REVERSE and VACATE the award of
attorney’s fees and costs, RENDER costs in the amount of $5,285.03 against
Stover and in favor of the School District, and AFFIRM the judgment in all
other respects.

6
The district court’s standard for assessment of attorney’s fees mentioned only the Title
VII claims; it made no reference to the EPA claim. It appears, however, that the School
District’s request for attorney’s fees included fees incurred in relation to both the Title VII
claims and the EPA claim. The EPA provides in part that “[t]he court in such action shall, in
addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s
fee to be paid by the defendant.” 29 U.S.C. § 216(b). Unlike Title VII, the EPA’s attorney’s fee
provision does not, on its face, allow for the award of attorney’s fees to a prevailing defendant.
Compare 29 U.S.C. § 216(b) with 42 U.S.C. § 2000e-5(k) (“In any action or proceeding under
this subchapter the court, in its discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney’s fee (including expert fees) as part
of the costs, and the Commission and the United States shall be liable for costs the same as
a private person.”) (emphasis added). Because we conclude that Stover’s action was not
frivolous and the School District was not entitled to attorney’s fees, we need not address the
different statutory authorities supporting the fee award.

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