IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-60016

Summary Calendar ____________________

AUDREY FAYE HOOKER

Plaintiff - Appellee - Cross - Appellant v.

VICTORIA’S SECRET STORES, INC.

Defendant - Appellant - Cross - Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi No. 01-60016 _________________________________________________________________ November 21, 2001

Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant-Cross-Appellee Victoria’s Secret Stores,

Inc. appeals the district court’s judgment on an age

discrimination claim in favor of Plaintiff-Appellee-Cross-

Appellant Audrey Faye Hooker. Hooker cross-appeals the district

court’s judgment in favor of Defendant on a claim for intentional

infliction of emotional distress and the court’s award of damages

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and attorney’s fees and expenses. For the following reasons, we

AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

In August of 1996 at age fifty-nine, Plaintiff-Appellee-

Cross-Appellant Audrey Faye Hooker began work as an Assistant

Manager for employer Defendant-Appellant-Cross-Appellee

Victoria’s Secret Stores, Inc. (“VSS”) in one of their retail

lingerie stores. Hooker had nearly twenty years experience in

the retail lingerie field. Hooker began at one VSS location but

then asked for, and received, a transfer to VSS’s Metro Center

location. The store manager, Erin Titman, served as Hooker’s

direct and sole supervisor at that location and was hired within

a few months after Hooker’s transfer. Hooker estimated Titman’s

age as “early 30s” during the relevant time. In July of 1998,

Hooker resigned from VSS.

On May 11, 1999, Hooker filed an age discrimination claim

against VSS under the Age Discrimination in Employment Act of

1967,

et seq. (1999) (“ADEA”), alleging

constructive discharge, as well as a claim under Mississippi

state law for emotional distress. VSS subsequently filed a

motion for summary judgment on both claims, which the district

court denied. Both claims went to trial in June of 2000. At the

close of Hooker’s case, VSS filed a motion for judgment as a

matter of law pursuant to Rule 50(a) of the Federal Rules of

2 Civil Procedure (“FRCP”). The district court granted VSS’s FRCP

50(a) motion as to the state law claim of intentional infliction

of emotional distress, but denied the motion as to the ADEA

claim. The jury rendered a verdict in favor of Hooker on the

ADEA claim and awarded back pay damages in the amount of

$46,655.05. The jury also determined by special interrogatory

that VSS had willfully violated the ADEA. Hooker then moved for

front pay damages and attorney’s fees and, based on the jury’s

finding of willful violation, for liquidated damages. The

district court denied the front pay motion with prejudice and

awarded liquidated damages in the amount of $46,655.05. The

district court granted Hooker’s motion for attorney’s fees, but

reduced the requested award. VSS moved to alter or amend the

judgment on the ADEA claim pursuant to FRCP 59(e), or for a new

trial pursuant to FRCP 59(a). Hooker moved for a new trial on

her claim of intentional infliction of emotional distress

pursuant to Rule 59(a). The district court denied all three

motions.

VSS appeals the judgment in favor of Hooker on the ADEA

claim and the district court’s denial of the motions to alter or

amend the judgment and for new trial. Hooker cross-appeals the

district court’s grant of VSS’s motion for judgment as a matter

of law on the emotional distress claim and its denial of her

motion for a new trial on that claim. Hooker also cross-appeals

3 the district court’s denial of front pay and the reduction of her

attorney’s fee award.

II. ADEA CLAIM

A. Standard of Review

VSS is unclear and inconsistent in its briefing regarding

whether it now appeals the district court’s denial of its FRCP

50(a) motion for judgment as a matter of law on the ADEA claim;

or whether it appeals the jury’s verdict for Hooker on the three

substantive ADEA issues, including, constructive discharge,

discriminatory age-based animus, and mitigation of damages; or

whether it appeals the district court’s “upholding” of the

verdict on those three substantive issues implicit in the court’s

denial of VSS’s two FRCP 59 motions. All three substantive ADEA

issues were submitted to the jury, which made findings for Hooker

on all three. Whether this court reviews the district court’s

original denial of judgment as a matter of law subsequent to a

jury verdict on any of those three issues, or whether we review

the jury verdict itself, this court applies a deferential

“sufficiency of the evidence” standard in light of the fact that

there are jury findings on all three issues. See, e.g., Cozzo v.

Tangipahoa Parish Council-President Gov’t,

(5th

Cir. 2001) (“We review de novo [a] district court’s ruling on a

motion for judgment as a matter of law but note that, in an

action tried by a jury, such a motion is a challenge to the legal

4 sufficiency of the evidence supporting the jury’s verdict.”)

(internal quotation and citation omitted). We review the

district court’s denial of VSS’s motions to alter or amend the

judgment on the verdict, and for new trial, for abuse of

discretion. Youmans v. Simon,

(5th Cir. 1986)

(motion to alter or amend judgment); Woodhouse v. Magnolia Hosp.,

, 256 n.6 (5th Cir. 1996)(new trial). The sufficiency

of the evidence standard has been defined by this court to mean

that even where reasonable jurors could differ on conflicting

evidence that fails to “overwhelmingly” support either party’s

case, the evidence is nevertheless sufficient if reasonable minds

could make the challenged jury finding of fact based on specific

evidence in the record. See, e.g., Hansard v. Pepsi-Cola Metro.

Bottling Co., Inc.,

(5th Cir. 1989) (“The

evidence in this [ADEA] case supported neither side

overwhelmingly. It follows that there is sufficient evidence to

support the jury’s determination that [the employee] was

discharged.”); Haun v. Ideal Indus., Inc.,

(5th Cir. 1996) (upholding a jury verdict of age discrimination

despite recognition of a “substantial conflict in the evidence

presented” and noting that where “[t]he jury heard both sides and

the jury spoke” then “[t]hat is about all there is to say about

age discrimination liability in this case”).

5 B. Constructive Discharge

A showing of constructive discharge requires that the

plaintiff prove by a preponderance of the evidence that the

employer made the employee’s working conditions so intolerable

that a reasonable employee would feel compelled to resign. See

Brown v. Bunge Corp.,

(5th Cir. 2000). This

court considers several factors relevant to a determination that

an employee reasonably could have felt her working conditions

were sufficiently intolerable, including: (1) demotion; (2)

reduction in salary; (3) reduction in job responsibilities; (4)

reassignment to menial or degrading work; (5) reassignment to

work under a younger supervisor; (6) badgering, harassment, or

humiliation by the employer calculated to encourage the

employee’s resignation; or (7) offers of early retirement or

continued employment on terms less favorable than the employee’s

former status.

(internal quotation omitted). This court has

further held that a determination of intolerability “depends on

the facts of each case”, and that the factors are considered

“‘singly or in combination’”, indicating that no one factor

predominates. See

(quoting Barrow v. New Orleans Steamship

Ass’n,

(5th Cir. 1994)).

The jury heard the following evidence, inter alia,

regarding the intolerability of Hooker’s work situation. Hooker

testified that she was the only employee required during her

6 tenure to come into morning meetings, to return home, and then to

return to the store later in the afternoon to work. Hooker

testified that on one occasion when she had pain in her foot that

made her unable to stand, she asked Titman to find a replacement

for her, but because on that day the location was short-staffed,

Titman told Hooker that Hooker must report to work. Hooker

testified that Titman then told Hooker, “I don’t care if you go

down there and you sit on a stool all day.”

Hooker further testified that, on another occasion, when

Titman was assisting a customer and attempting to sell that

customer some lingerie, Titman pointed toward Hooker and told the

customer that “even” Hooker wore VSS’s “G-string panties.” While

Hooker admitted that she agreed with and signed one performance

evaluation given to her by Titman, Hooker testified that she did

not agree with a second performance evaluation given a few months

before she resigned, but signed the evaluation in the belief that

she could not get her merit increase without signing. Hooker

testified that she felt belittled by Titman and that the

supervisor treated no other workers as harshly as Hooker.

The jury also heard testimony of Hooker’s co-workers

regarding VSS supervisor Titman’s treatment of Hooker. Kym

Wiggins testified that Titman was continually “condescending”

toward Hooker and always “sounded so exasperated” when dealing

with Hooker, and that Titman did not act in the same manner

toward other workers. Gloria Proctor testified that when talking

7 to employees other than Hooker, Titman was “nice”, but that when

talking to Hooker, the supervisor used a “reprimanding-a-child

type” voice. Proctor further testified that the “tone of voice

that [the supervisor] would use with [Hooker] versus everybody

else” was so noticeably different that it prompted Proctor to

start paying closer attention to the relationship between Hooker

and Titman.

Cory Wofford, testified that Titman maintained a

condescending tone toward Hooker and singled out Hooker for

constant criticism not given to younger, less experienced workers

who made similar mistakes. Wofford testified that Titman

constantly made remarks about Hooker’s age and “incompeten[ce]”

in front of him and other workers and that the supervisor

maintained such a constant “hostile” manner toward Hooker that

Wofford considered it “harassment.” Donyelle Russell testified

that Hooker was singled out for harsher criticism than other

workers, criticism Russell said was delivered in a “loud[er]” and

more “upset” manner than criticism given to other workers.

Russell testified that Titman treated workers other than Hooker

“normal[ly]”, but that Titman made repeated remarks regarding how

Hooker should “quit” because she was too “old.” Russell further

testified that if she had been treated in the same manner by

Titman as was Hooker, Russell “probably would have left.”

VSS contends that this evidence is insufficient to support a

finding of constructive discharge because it is specious, because

8 the evidence is susceptible to different interpretations, and

because some of the evidence -- such as the two performance

evaluations signed by Hooker leading to at least one merit

increase -- mitigates any picture of intolerability. VSS claims,

for example, that the comment made by Titman to the customer

regarding Hooker’s wearing of G-strings was a “truthful[]”

attempt to assist that customer.2 VSS further contends that some

of the co-workers’ testimony is of limited value because those

workers had limited contact with Hooker due to the fact that they

worked only in a physically co-joined VSS fragrance store, but

not for the VSS lingerie business, and because the workers did

not work during every shift Hooker worked with Titman.3

This is not an incontrovertible case for constructive

discharge implicating a multiplicity of the seven criteria this

2 VSS also claimed that the incident between Hooker and Titman on the day Hooker requested leave from work for foot pain was merely an attempt by the supervisor to “accommodat[e]” Hooker by suggesting Hooker place a chair on the floor and only perform supervisory duties that day. 3 VSS makes an argument in the alternative that, even if this court upholds the jury finding of constructive discharge, Hooker failed to establish an “adverse ultimate employment decision,” as is required by the ADEA and Title VII, since Hooker suffered no actions such as denial of merit increases or demotions. VSS’s argument ignores that constructive discharge is an ultimate employment action for ADEA purposes, one that takes the place of actual discharge or other adverse employment actions. Cf., Sharp v. City of Houston,

(5th Cir. 1999) (“Employer actions that can result in [Title VII] liability include more than just actual or constructive discharge ... [and] can include discharges, demotions, refusals to hire, refusals to promote, and reprimands.”).

9 court finds relevant to determining workplace intolerability.

However, that VSS can point to conflicting evidence or to

incidents in the record susceptible to differing, even innocent,

interpretations, is not sufficient to warrant disturbing the jury

verdict. See, e.g., Hansard,

; Haun,

. Examining all the evidence heard by the jury in this

case regarding incidents between Hooker and Titman, as well as

the testimony of Hooker’s co-workers that the supervisor singled

out Hooker for different, harsher treatment, this court cannot

say that the jury had insufficient evidence to support its

finding that Hooker’s employment had become objectively

10 intolerable.4 The jury finding of constructive discharge is

4 VSS further points to seven decisions by this court in ADEA and Title VII cases that VSS contends establish such a high threshold of intolerability as a matter of law in this circuit that Hooker’s claim must fail. VSS contends that because those cases involve arguably more egregious circumstances than the instant case, this court is compelled to overturn the jury’s finding. VSS’s reliance on these cases is misplaced and the cases establish no such threshold as a matter of law. In four of these decisions, this court upheld bench rulings or jury findings that an employer did constructively discharge an employee in arguably more egregious circumstances. See Cortes v. Maxus Exploration Co.,

(5th Cir. 1992) (upholding district court’s bench finding that employee was constructively discharged where employee’s charges of sexual harassment were not responded to by management and she was offered a transfer); Stephens v. C.I.T. Group/Equip. Fin., Inc.,

(5th Cir. 1992) (upholding jury verdict finding constructive discharge where manager was demoted, forced to train his younger successor, and received slight pay reduction); Wilson v. Monarch Paper Co.,

(5th Cir. 1991) (upholding jury verdict for a former vice- president with thirty years experience who was demoted to janitorial duties and re-assigned to a work at a location where he developed an allergy to dust); Guthrie v. J.C. Penney Co., Inc.,

(5th Cir. 1986) (upholding jury verdict of constructive discharge based on repeated questioning of employee regarding retirement plans, subjecting employee to harsher criticism and treatment than other workers, and downgrading employee’s managerial performance rating by one point on a five-point scale). In three other decisions, this court upheld summary judgment on, or dismissal of, employment discrimination claims in favor of the employers based on rationales with little bearing on the instant case. See Guthrie v. Tifco Indus.,

(5th Cir. 1991) (upholding summary judgment for employer because the employee failed to prove that the employer’s proffered reason was pretextual); Bodnar v. Synpol, Inc.,

(5th Cir. 1988) (upholding summary judgment for employer based on court’s finding that offers of early retirement were part of a legitimate business decision and not enough alone to create constructive discharge); Christopher v. Mobil Oil Corp.,

, 1216- 17 (5th Cir. 1992) (upholding district court’s dismissal of an ADEA claim because it was time barred and noting that an offer of an attractive retirement plan was sufficient to put the employees on notice of constructive discharge for statute of limitations purposes). That this court upheld findings of constructive

11 therefore affirmed.

C. Discriminatory Animus

VSS correctly points out that the ADEA will not protect an

employee from arbitrary personnel decisions, but only from those

caused by discriminatory animus based on age. See Russell v.

McKinney Hosp. Venture,

(5th Cir. 2000). When

the evidence of age-based animus consists of remarks about an

employee’s age, as does the evidence in the instant case, this

court has set forth four criteria by which it judges the

sufficiency of that evidence. To be actionable, such remarks

must be: (1) age related; (2) made proximately in time to the

employment decision at issue; (3) made by an individual with

authority over the employment decision; and (4) related to the

employment decision. See

at 255 n.10. (quoting Brown v. CSC

Logic, Inc.,

(5th Cir. 1996)) (internal

quotation omitted). VSS contends that the remarks made by Titman

fail to satisfy the fourth criterium of the Brown test because

they are merely “stray remarks” and thus are insufficiently

related to any of Titman’s conduct giving rise to the

constructive discharge.

discharge made by factfinders in arguably more egregious circumstances, or that we upheld summary judgment on, or dismissal of, employment discrimination claims does not establish any “floor” of intolerable circumstances below which this court may not go as a matter of law to uphold a jury verdict based on the individual circumstances of the instant case.

12 VSS correctly contends that this court has consistently

declined to find sufficient evidence of age-based animus when the

evidence of animus consists only of “stray remarks” regarding a

worker’s age. E.g., Wyvill v. United Cos. Life Ins. Co.,

(5th Cir. 2000) (internal quotation omitted).

However, in Russell, this court recently refined the scope of its

“stray remarks” doctrine in the context of reviewing a jury

finding of age-based animus to ensure conformity with Supreme

Court precedent regarding the proper standard of review applied

to jury findings. See Russell,

. In that

case, this court held that, in light of the Supreme Court’s

holding in Reeves v. Sanderson Plumbing Prods., Inc.,

(2000), “viewing remarks that a jury could find to

evidence animus through [a] harsh lens ... [is] unacceptable” and

that “all reasonable inferences” must be drawn in favor of a

verdict for an employee. Russell,

(internal

quotation omitted). This court further reiterated that “the

potentially damning nature of ... age-related comments” cannot be

discounted “on the ground that they were not made in the direct

context” of an adverse employment decision.

(internal

quotation omitted).

In this case, the jury heard testimony by Hooker’s co-

workers, Wofford and Russell, that Titman told them that Titman

felt Hooker was too old to do her job and that Titman wished

Hooker would resign. The jury also heard co-worker Jennifer

13 Walker testify that Titman asked Walker if she would be

interested in a co-manager position and that Titman said that

Hooker was “just too old and that [the supervisor] needed

somebody younger to work” in the store. A fourth co-worker,

Proctor, testified to the jury that Titman made comments about

Hooker being too old to perform her job correctly “quite often,”

although not to Hooker’s face. A fifth co-worker, Wiggins,

testified that she was standing next to Titman when the

supervisor received a phone call from Hooker relaying that Hooker

would not be coming into work that day. Wiggins testified that

Titman then told Wiggins that Hooker was “just too old to do the

job”, that “[Hooker] was tired all the time”, and that the

supervisor “needed someone younger that could keep up with the

rigors of retail.” Wiggins further testified that Titman would

tell Wiggins that Hooker “needed to go ahead and retire; that she

felt sorry for [Hooker]; and that she was a really nice person,

but that it was just too much for her to handle at her age.”

VSS contends that because these comments were not made to

Hooker directly, nor made in Hooker’s presence during any conduct

giving rise to the constructive discharge, and because the

comments were made to employees that did not work every shift

with Hooker and Titman, such remarks are insufficient to support

the jury’s verdict finding age-based animus. However, a

reasonable jury could have found that the supervisor’s repeated

remarks to multiple workers regarding Hooker’s age and Titman’s

14 desire that Hooker not work for VSS indicated an age-related

motivation for Titman’s criticism and harsh treatment of Hooker.

This court cannot say that the jury lacked sufficient evidence to

find the constructive discharge was age-based merely because such

age-related comments were not made to Hooker’s face, nor in her

presence. The jury finding of age-based animus is therefore

affirmed.

D. Mitigation of Damages

VSS contends that Hooker failed to mitigate her damages and

thus that the jury’s award of back pay, as well as the liquidated

damages assessed by the district court, must be vacated. Hooker

contends that the district court erred in failing to award her

front pay because the evidence in the record shows that she

mitigated her damages. The jury awarded Hooker $46,655.05 in

back pay and found that VSS had wilfully violated the ADEA. The

district court, in denying VSS’s motions to alter or amend the

judgment and for new trial, held that the jury’s back pay award

was not excessive. The court then granted Hooker’s motion for

liquidated damages based on the jury’s finding of a willful

violation and assessed $46,655.05 in damages, an amount equal to

the back pay award.

The factfinder, in this case the jury, may reduce the back

pay damage award if an employee fails to mitigate her damages by

reasonable efforts to obtain substantially similar employment

15 after termination. See, e.g., Boehms v. Crowell,

(5th Cir. 1998), aff’d,

(5th Cir. 2000). If the

defendant “proves that other employment was available and not

diligently sought, there can be no award of back pay.” Hill v.

City of Pontotoc, Mississippi,

(5th Cir. 1993)

(citation omitted). In the event the factfinder concludes that a

willful violation of the ADEA occurred, an employee is entitled

to liquidated damages not to exceed the back pay damage award.

Smith v. Berry Co.,

, 395 (5th Cir. 1999) (citing

(b) (1994)). The jury’s finding that an employee

mitigated damages and its damage award are findings of fact thus

reviewed for sufficiency of the evidence. See Normand v.

Research Inst. of America, Inc.,

(5th Cir.

1991) (applying sufficiency of evidence standard to reinstate

jury verdict finding mitigation).

In this case, Hooker presented evidence to the jury that

after she left VSS’s employ, she made several telephone calls to

managers that she knew in the retail lingerie field to inquire if

any managerial positions commensurate with her experience were

available in the region, without success. Hooker also testified

that, because of her age and her experience at VSS, she felt that

applying to jobs in person was not a good strategy and thus that

she failed to fill out any job applications or to go on any

interviews when her telephone inquiries proved unfruitful.

The jury also heard testimony by a VSS district manager that

16 tends to show that employment was available to Hooker. The

district manager testified that VSS employees were recruited

frequently by other retailers in the Jackson, Mississippi area,

that the manager felt it would be “easy” for a VSS manager to

obtain such employment, and that in fact, at least two managers

at a VSS location in Jackson were recruited away by other

retailers. The jury weighed all of this evidence and concluded

that Hooker mitigated her damages sufficiently to entitle her to

back pay in the amount of $46,655.05. This court cannot say

that, given Hooker’s age and experience within the limited sphere

of lingerie sales, a reasonable jury could not conclude that

Hooker searched reasonably diligently under the circumstances to

mitigate her back pay damages. The jury award of back pay

damages is therefore affirmed.

VSS contends that because the district court made its own

finding of fact that Hooker did not sufficiently mitigate damages

to entitle her to front pay relief, the court erred in declining

to reduce the back pay damage award as well. The district

court’s denial of VSS motions to alter or amend the judgment or

for new trial, in which the court denied VSS’s request for

reduced back pay, as well as the court’s denial of front pay

damages to Hooker, are reviewed for abuse of discretion. See

Stephens v. C.I.T. Group/Equip. Fin., Inc.,

(5th Cir. 1992) (reviewing denial of a motion for new trial

17 requesting reduced back pay for abuse of discretion); Giles v.

General Elec. Co.,

(5th Cir. 2001) (front pay).

This court has recently held that a factfinder’s

determination that an employee failed to mitigate damages so that

she is not entitled to back pay does not compel the same finding

on the issue of mitigation for the purposes of determining

entitlement to front pay relief. See Giles

(finding that court did not abuse its discretion in granting

front pay award where, as the factfinder, the court found a

failure to mitigate damages for the purposes of back pay relief

and denied back pay damages). The Giles decision recognizes that

the employee’s duty to mitigate serves different purposes for the

separate determinations of entitlement to back pay relief versus

front pay relief. See

The Giles holding further establishes

that a factfinder may properly make differing factual

determinations as to whether an employee sufficiently mitigated

her damages for front pay versus back pay purposes based on the

same evidence of mitigation. See

Thus, under Giles, the

district court in the instant case was entitled to make its own

factual determination regarding whether Hooker sufficiently

mitigated damages to entitle her to prospective relief entirely

separate from the jury finding of mitigation related to past

damages. The district court’s finding that mitigation was not

established for front pay purposes is not inconsistent with the

jury finding of mitigation for back pay purposes and does not,

18 therefore, compel this court to hold that the district court

abused its discretion. Consequently, both VSS’s and Hooker’s

motions to vacate the district court’s rulings on back pay and

front pay damages are denied. The back pay and liquidated

damages awards totaling $93,310.10 are affirmed.5

E. Motions to Alter or Amend the Judgment and for New Trial

VSS contends that the district court erred in denying its

motions to alter or amend the verdict and for new trial under

FRCP 59(a) and (e). Because this court finds that there is

sufficient evidence to support the jury’s finding that VSS

violated the ADEA and that Hooker mitigated damages sufficiently

to entitle her to back pay, the court finds that the district

court did not abuse its discretion in denying those motions. The

district court’s denial of VSS’s two FRCP 59 motions is therefore

affirmed.

III. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM

Hooker contends that the district court erred in granting

judgment as a matter of law to VSS pursuant to FRCP 50(a) on her

state law claim for intentional infliction of emotional distress.

Hooker further contends that the district court erred in denying

5 VSS does not contest the jury’s finding of a willful violation, but contends only that where any reduction is made to the back pay award, the liquidated damages award must be reduced to no more than an equal amount. Because we uphold the ADEA violation and the back pay award, the equal liquidated damages award remains undisturbed by this court.

19 her motion for a new trial pursuant to FRCP 59(a) on the same

claim. We review the district court’s grant of judgment as a

matter of law under Rule 50(a) de novo and use the same

evidentiary standard applied by the district court. Haun,

. Judgment as a matter of law is inappropriate if

substantial evidence in the record indicates that reasonable

jurors could arrive at a contrary verdict. See

(internal

quotation omitted). We review denial of a motion for new trial

for abuse of discretion; such review is “quite limited”, and a

new trial will only be granted if “prejudicial error has crept

into the record” or “substantial justice has not been done.”

Streber v. Hunter,

(5th Cir. 2000) (internal

quotation and citation omitted).

In order to establish a claim of intentional infliction of

emotional distress under Mississippi law, a plaintiff must

establish two elements: (1) conduct on the part of the defendant

that is so extreme or outrageous as to go “beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community”; and (2) severe emotional

distress. Haun,

(internal quotation and emphasis

omitted). For a plaintiff to establish the outrageous conduct

element, “[i]t has not been enough that the defendant has acted

with an intent which is tortious or even criminal, or ... [with]

malice, or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort.”

(internal

20 quotations omitted). Moreover, this court has held that conduct

creating constructive discharge of an employee, as deplorable as

such conduct sometimes may be, is not the sort of behavior or

treatment that rises to the level of outrageousness sufficient to

support an emotional distress claim except in “the most unusual

cases.” Wilson v. Monarch Paper Co,

(5th

Cir. 1991) (applying Texas law, which applies similar standards

as Mississippi to emotional distress claims).

In Haun, for example, this court was confronted with

circumstances analogous to the instant case. In that case, this

court declined to overturn a jury verdict finding a willful ADEA

violation, but affirmed the district court’s grant of judgment as

a matter of law to the employer on an emotional distress claim

where both claims arose from the same conduct on the part of the

employer. See

(applying Mississippi law). In

so doing, we noted that conduct sufficient to sustain a claim of

constructive discharge and employment discrimination -- including

that the employer lied to the employee about the employee’s

probationary status, that it waited three months to inform the

employee he was on probation, and that it failed to remove the

employee from probation -- was certainly “not praiseworthy” and

“might even rise to the level of wrongful.”

.

Nevertheless, this court concluded that such conduct failed to

meet the high threshold for an emotional distress claim because

21 the employer’s conduct did not “go beyond all possible bounds of

decency.”

(internal quotation omitted).

Similarly in Jenkins v. City of Grenada,

(N.D. Miss. 1993), a district court applying Mississippi law

granted summary judgment to an employer on an emotional distress

claim based on a pattern of discriminatory and harassing conduct

toward an employee of a similar, or arguably even more egregious,

nature to that suffered by Hooker. In that case, the conduct

suffered by the employee included unfair criticism of job

performance, poor evaluations, and demands that the employee quit

or face the threat of the employer fabricating justifications for

termination. This court held that such conduct could “sound[] in

Title VII”, but that it failed to sustain a claim of emotional

distress under Mississippi law.

(relying on Monarch,

). Likewise in the instant case, although the

conduct suffered by Hooker may be deplorable and sustains a jury

verdict for her regarding employment discrimination, it is not,

without more, so unusual that such conduct is sufficiently

outrageous to sustain a claim for intentional infliction of

emotional distress under Mississippi law.6 Because Hooker fails

6 Because we find that Hooker failed to establish the outrageous conduct element necessary to her claim, we find it unnecessary to address in detail Hooker’s arguments that she suffered sufficient emotional distress to establish the second element of her claim. We note, however, that the district court was correct in determining that Hooker’s claim fails based on either element.

22 to establish a substantial conflict in the evidence regarding the

outrageous conduct element of her emotional distress claim, the

district court did not err in granting judgment as a matter of

law to VSS on that claim. Likewise, because there does not

appear to be prejudicial error, nor was substantial injustice

done, this court cannot say that the district court abused its

discretion in failing to grant a new trial under FRCP 59(a) on

the emotional distress claim. Both the judgment as a matter of

law for VSS and denial of Hooker’s motion for a new trial on the

emotional distress claim are therefore affirmed.7

IV. ATTORNEY’S FEES

We review a district court’s award of attorney’s fees for

abuse of discretion and have set forth twelve factors considered

relevant to a proper determination of reasonable fees. Giles,

(citing Johnson v. Ga. Highway Express, Inc.,

(5th Cir. 1974)). In exercising its discretion

7 Hooker further argues that because the district court denied summary judgment to VSS on the emotional distress claim based on affidavits of witnesses that included substantially the same evidence established at trial regarding the outrageous and distressing nature of VSS’s conduct, this court is compelled to find that the district court erred in granting judgment as a matter of law to VSS. However, Hooker’s argument merely points out that the district court may have erred in failing to grant summary judgment to VSS. It does not establish that the district court, with full benefit of hearing all the evidence presented at trial, could not have found the evidence insufficient to sustain the claim. The district court’s denial of summary judgment is not before this court, and this court’s de novo review of the record indicates that there is insufficient evidence of outrageous conduct in the record as a whole to support the emotional distress claim under Mississippi law.

23 properly, a district court need not “meticulously” address all

twelve factors, but must “heed the twelve-factor analysis.” Id.

at 490 (internal quotation omitted). Hooker claims that the

district court erred by reducing her request for attorney’s fees

without adequate explanation.

However, a review of the district court’s assessment of

attorney’s fees as set forth in its Opinion and Order of December

4, 2000, indicates that the court gave more than adequate

consideration to the reasonableness of Hooker’s fee request and

properly heeded the twelve-factor analysis when it reduced the

fees. The district court expressly noted the Johnson twelve-

factor test. The court then assessed the rates of Hooker’s three

attorneys based on their respective years of experience and

reduced one attorney’s hourly rate from $175 to $155 because the

court determined that the $175 rate was excessive, even for an

attorney with twenty-eight years experience. As appropriate

under the twelve-factor test, the district judge used his own

experience of the time necessary to complete similar tasks to

find that the 734 hours of attorney labor claimed from the filing

of the complaint through the close of post-trial motions was

“excessive.” The court then reduced the total compensable hours

by two-thirds. The court thus reduced the total fees from

Hooker’s request of $104.137.04 to $33,719.60. The court further

reduced claimed expenses by $5,302.43 to $3,734.60 where it found

that a $7,302.43 charge for outside copying was excessive without

24 further justification. Given the district court’s due

consideration of the Johnson factors, the court did not abuse its

discretion by reducing the fees and expenses from the amounts

requested by Hooker. The award of attorney’s fees is therefore

affirmed.

V. CONCLUSION

For the foregoing reasons, the jury findings in favor of

Hooker on her ADEA claim are AFFIRMED. The district court’s

denial of VSS’s motions for judgment as a matter of law on the

ADEA claim is AFFIRMED. The district court’s denial of VSS’s

motions to alter or amend the judgment and for new trial is

AFFIRMED. The jury award of back pay, as well as the district

court’s denial of front pay damages, are AFFIRMED. The district

court’s grant of judgment as a matter of law for VSS on the claim

of intentional infliction of emotional distress is AFFIRMED. The

district court’s denial of Hooker’s motion for a new trial on the

emotional distress claim is AFFIRMED.

25