IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60339 Summary Calendar

DEAN MICHAEL FOLEY,

Plaintiff-Appellee,

versus

UNIVERSITY MEDICAL CENTER,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:98-CV-219-LN

***************************************************************** IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60405 Summary Calendar

DEAN MICHAEL FOLEY,

Plaintiff-Appellee,

versus

UNIVERSITY MEDICAL CENTER,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:98-CV-219-LN

March 14, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

The jury awarded Dean Michael Foley damages for race and sex

discrimination, and the district court awarded him attorney fees in

this Title VII case. The University of Mississippi Medical Center

argues that the evidence was insufficient to support the verdict

and damages, and that the district court committed error in its

award of attorney's fees. We AFFIRM.

The Medical Center appeals from the district court's denial of

its alternative motions for judgment as a matter of law or for a

new trial. We review a denial of a motion for judgment as a matter

of law de novo. See Scott v. University of Mississippi,

(5th Cir. 1998). When a case was tried to a jury, we

examine the sufficiency of the evidence by considering all the

evidence and drawing reasonable inferences in a light favorable to

the verdict. See

We review the denial of a motion for a new

trial for abuse of discretion. See Sibley v. LeMaire,

(5th Cir. 1999).

Foley was employed as a nurse at the University of Mississippi

Medical Center. He was terminated by his supervisor after having

his license restricted for patient abuse. He alleged that

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 nonwhite female nurses with restricted licenses were not

terminated. The Medical Center urges us to reverse the jury's

verdict because Foley failed to prove a prima facie case of

discrimination, as the other nurses were not similarly situated

employees. When a case has been tried to a jury, we do not examine

the verdict through the McDonnell Douglas burden-shifting framework

but decide whether the plaintiff met his ultimate burden of proving

discrimination. See Scott,

. The Medical Center

argues that the nonwhite female nurses were not similarly situated

to Foley, because the restrictions imposed upon their licenses were

less extensive. The director of nursing testified in her

deposition that she terminated Foley because his license was

restricted rather than because of the features of the restrictions.

Foley offered as comparators nonwhite female nurses with restricted

licenses who were retained by the Medical Center. A rational jury

could have found that Foley was treated differently than similarly

situated nonwhite females because of his race and gender and

disbelieved the Medical Center's proffered nondiscriminatory reason

for its actions. We agree with the district court that the

evidence supports the verdict.

The jury awarded Foley $ 70,000 in damages, and the Medical

Center argues that the amount of the award is not supported by the

evidence. The Medical Center did not present this issue to the

district court. We do not consider issues not presented to the

trial court. See Ferguson v. FDIC,

, 897 (5th Cir.

1997).

3 We review the district court's initial determination of

attorney fees for clear error, and its adjustments to the lodestar

amount for abuse of discretion. See Migis v. Pearle Vision, Inc.,

(5th Cir. 1998). The Medical Center argues

that the district court should not have awarded fees for time spent

on Foley's grievance hearing with the Medical Center. In fact, the

district court agreed with the Medical Center and did not consider

these hours. The court did, however, consider hours spent on

Foley's EEOC charges, to which the Medical Center also objects.

Fees should be awarded for time spent on the litigation only. See

Webb v. Dyer County Bd. of Educ.,

(1985). We see

no error here, since an EEOC filing is a prerequisite to a Title

VII claim.

AFFIRMED.

4