*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this opinion should not be published and is not precedent except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.

1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-30318

Summary Calendar

____________________

DELENE GRIFFIN; LORI TERREBONNE; BUFFY PLAISANCE,

Plaintiffs-Appellees,

v.

DELCHAMPS, INC.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana 

(96-CV-233-S)

_________________________________________________________________

March 12, 1999

Before KING, Chief Judge, BARKSDALE and STEWART, Circuit Judges.

KING, Chief Judge:*

Defendant-appellant Delchamps, Inc. appeals from the

district court judgment entered after the jury returned an

adverse verdict in this lawsuit brought pursuant to Title VII, 42

U.S.C. §§ 2000e to 2000e-17. We affirm in part and reverse in

part the judgment of the district court, and remand to the

district court for entry of an amended judgment.
 

1 The ultimate damage awards were as follows: Griffin--

$9200 in back pay, $2690 in front pay, $35,000 in compensatory

damages, $40,000 in punitive damages, and $15,000 for intentional

infliction of emotional distress; Terrebonne--$3400 in back pay,

$1506 in front pay, $15,000 in compensatory damages, $58,400 in

punitive damages, and $30,000 for intentional infliction of

emotional distress; and B. Plaisance--$9200 in back pay, $112 in

front pay, $25,000 in compensatory damages, $40,000 in punitive

damages, and $15,000 for intentional infliction of emotional

distress. 

2

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs-appellees Delene Griffin, Lori Terrebonne, and

Buffy Plaisance (B. Plaisance)(collectively, plaintiffs), former

employees of defendant-appellant Delchamps, Inc. (Delchamps),

filed suit on January 18, 1996, alleging the existence of a

hostile work environment based on sex, constructive discharge,

and intentional infliction of emotional distress. The district

court conducted a jury trial from May 19, 1997 to May 21, 1997. 

After the district court denied Delchamps’s motion for judgment

as a matter of law made at the close of plaintiffs’ case and reurged at the close of evidence, the jury returned a verdict in

favor of plaintiffs, awarding them back pay, front pay,

compensatory damages, and punitive damages. On November 12,

1997, the district court issued a judgment modifying the monetary

awards, which was made final by the district court’s March 13,

1998 denial in part of plaintiffs’ motion to amend the judgment.1

Delchamps filed a timely notice of appeal on March 31, 1998. 

The facts pertinent to this appeal are as follows:

Plaintiffs all were employed by Delchamps in Cut Off,
 

2 Griffin had been employed at Delchamps’s Cut Off,

Louisiana store since 1982, and Terrebonne had been employed

there since 1990. B. Plaisance began employment with Delchamps

in 1987 at a different location, and transferred to the Cut Off,

Louisiana store in 1991. 

 

3 K. Plaisance and plaintiff-appellee B. Plaisance are not

related.

3

Louisiana, until their resignations in July 1995.2 During their

tenures with Delchamps, Griffin and B. Plaisance worked as

cashiers, dairy clerks, and frozen food clerks. Terrebonne

worked as a produce clerk. All three contend that from mid-1994

until the time of their resignations in mid-1995, a hostile work

environment based on their sex existed, which led ultimately to

their constructive discharge. 

During the relevant time period, Allen Berthelot served as

store manager, Kelly Kirchhoff and Earl Hebert served as

assistant managers, Kerry Plaisance (K. Plaisance) was the head

stock clerk,3 and Tony Leger was the meat market manager. 

Plaintiffs testified at trial that, during their employment,

male employees engaged in “chrome shots,” meaning they would use

the polished mirrors underneath the refrigerator cases to look up

women’s skirts and shorts. According to Griffin, the chrome

shots began as early as 1993, and increased in frequency in 1994

to a regular weekly basis, with more and more male employees

participating as time went on. Among other male employees,

plaintiffs observed store manager Berthelot, K. Plaisance, and

Leger engage in chrome shots. 

Plaintiffs also testified that they observed male employees,
4

including Berthelot, K. Plaisance, and Leger, pass around women’s

magazines. On one occasion, Berthelot showed Griffin a magazine

containing pictures of women’s breasts, and later showed the same

pictures to a truck driver in her presence. Terrebonne testified

that K. Plaisance showed her a magazine containing pictures of

women’s breasts, and that she overheard Berthelot discuss a

magazine depicting homosexual men. B. Plaisance testified that,

in 1995, she began to walk abruptly away from store manager

Berthelot when he showed her magazines with sexual pictures such

as women’s bare breasts. On one such occasion, Berthelot pulled

her aside and asked her whether she had a “problem.” She

responded that she believed the workplace should be a more

professional environment and that personal matters should be left

at home. Berthelot responded that she had an “attitude problem.” 

When B. Plaisance asked what Berthelot wanted from her, he told

her he wanted her to laugh at their jokes and “have fun with it.” 

She replied that she would not, and he again told her that she

had an attitude problem. B. Plaisance testified that she felt

Berthelot was threatening her job by stating that she had an

attitude problem.

Plaintiffs further testified that they witnessed male

Delchamps employees, including Berthelot, K. Plaisance, and

Leger, follow female customers around the store. Griffin

testified that Berthelot, the store manager, would call other

male employees on the store’s market phone to inform them that an

attractive woman was entering the store, or he would ask them to
5

meet in a certain aisle over the public address system, at which

point they would follow the customer around. Plaintiffs

testified that they overheard male employees guessing the color

of female customers’ underwear or whether they were wearing bras. 

Griffin stated that she overheard the men comment on the

appearances of female customers, including a remark by Leger

about a woman’s breasts--”Wouldn’t you like to smother in that?” 

B. Plaisance testified that this behavior occurred once or twice

a week in 1994, and continued in 1995. Terrebonne witnessed

this behavior approximately once a week in 1994, and almost every

day in 1995. According to Griffin, the men also played a game

they called “the stock game,” in which the men would state

whether they would be willing to “do” a particular customer.

Griffin and B. Plaisance testified about an occasion on

which Griffin overheard Berthelot and K. Plaisance discuss B.

Plaisance’s breasts when she entered the store on her day off. 

B. Plaisance stated that she wore a short-sleeved ribbed, fitted

shirt, and that K. Plaisance and Berthelot had stared at her

chest, making her feel very uncomfortable. According to Griffin,

K. Plaisance remarked that he had not realized that B. Plaisance

was so “stacked,” and Berthelot nodded in agreement. 

All three plaintiffs testified that they overheard male

employees, including K. Plaisance, Berthelot, and John Lirette,

discuss videotapes with lurid sexual content. Specifically, one

videotape featured sexual acts between women and animals. 

Plaintiffs overheard male employees discuss a scene from the
 

4 According to Terrebonne, she also overheard Lirette say,

“there was this woman that was fucking a goat,” and overheard K.

Plaisance say, “there was this woman that was fucking a dog,” and

“she was sucking the dog’s dick, and then the dog was licking her

pussy.” 

6

videotape in which a woman had sex with a horse.4 Terrebonne

also overheard Berthelot and K. Plaisance discuss another

videotape in which, during a skit, a naked woman ran around a

stage.

All three plaintiffs further testified that K. Plaisance

frequently used offensive language including “fuck” and “bitch,”

and that his language worsened during 1995. Griffin testified

about an occasion on which K. Plaisance informed her that he had

received a “blow job” from his wife through the window of his new

pick-up truck, and that it was the best “blow job” he had ever

received. Terrebonne also testified that K. Plaisance told her

that his wife gave him a “blow job” through the back window of

his new truck to “bless” it. 

On another occasion, K. Plaisance questioned Griffin across

the sales floor from twenty feet away as to whether she gave her

husband “blow jobs.” Griffin was offended by his question, and

told him not to speak to her that way. K. Plaisance replied that

he was going to ask her husband whether she gave him “blow jobs.” 

Griffin walked away. 

B. Plaisance testified that K. Plaisance would frequently

remark that he would like to have sexual relations with

particular female customers. According to her testimony, K.

Plaisance’s language became worse in 1995. She testified that he
7

once asked her if she “shaved [her] pussy.” When she replied

that it was none of his business, he laughed and said “You know

you like it.” She further testified that, in 1995, K. Plaisance

asked her if she would “fuck” him, to which she responded that

she did not want him to talk to her that way.

Terrebonne testified that twice a week K. Plaisance would

describe an affair he was having with a married woman, stating

that she gave good “blow jobs” and that he would like to “fuck”

her again. According to Terrebonne, he also described an

occasion on which he had taken a woman to a bowling alley, tried

to “fuck her,” but because she was “too dry” she gave him a “blow

job” instead. 

Terrebonne further testified that K. Plaisance frequently

made vulgar comments to her about customers, such as “Oh, I’m

going to come on her,” or “I bet her pussy stinks.” Terrebonne

testified that, by 1995, K. Plaisance was directing offensive

comments to her every day. For example, she testified that every

day he would say to her, “When are you going to let me fuck you? 

I just want to fuck you once, maybe twice,” almost every day he

would tell her that he wanted to “come” on her, about three times

a week he would grab his crotch and tell Terrebonne to “suck

this,” every day he would ask her, while she was working in the

cooler, if her nipples were hard, and once he asked her if she

was wearing underwear. According to Terrebonne, K. Plaisance

ignored her repeated requests to leave her alone.

In addition to the vulgar language, B. Plaisance testified
8

about an occasion on which assistant manager Kirchhoff walked

into the women’s restroom after she had passed him on her way

into the restroom. She was standing outside the stall with her

shirt tucked under her chin, trying to zip her pants, when

Kirchhoff walked in. Both her bra and her underwear were

exposed. Kirchhoff stood and stared, and B. Plaisance became

upset and ran out of the restroom. She reported the incident to

assistant manager Hebert, who did not respond, and to store

manager Berthelot, who rolled his eyes and walked away.

Terrebonne testified concerning three occasions on which K.

Plaisance fondled her bottom. The first incident occurred in

January 1995 when K. Plaisance brushed past her and rubbed his

hand on her bottom. Terrebonne turned around, hit him, and told

him not to do it again. He then tried to do it again, and said,

“Oooh, that felt good, I’m going to do it again.” She again told

him to leave her alone, and was upset by the incident. The next

incident occurred in early May 1995. K. Plaisance passed

Terrebonne in an aisle and pinched her on the bottom. She told

him not to do it again, and he made a motion toward her breast as

though he were going to touch it. She again told him to leave

her alone, at which point he knelt down on a case of merchandise,

scooted it over in front of her, and said, “Well, I’m going to

accidentally touch your breast.” Terrebonne then walked away. 

The final incident occurred in late May 1995. K. Plaisance

approached Terrebonne from behind and grabbed her bottom with

both hands as she drank from a water fountain. She told him to
 

5 B. Plaisance testified that she witnessed K. Plaisance

come out of the back of the store, laughing with another male

employee. K. Plaisance then asked her, “What would you do if I

would grab you on the ass?” She responded, “I would hit you.” 

He replied, “Yeah, I thought so.” At this point, she went into

the back of the store and observed Terrebonne crying. She

testified that Terrebonne later told her that K. Plaisance had

grabbed Terrebonne’s bottom. 

9

stop, and he said, “Come on, you know you like it.” This

incident caused Terrebonne to cry. She later told B. Plaisance

about the incident after B. Plaisance witnessed her crying.5

Plaintiffs made several complaints to their supervisors

about the behavior occurring at the store. At the end of 1994 or

the beginning of 1995, B. Plaisance told assistant manager Hebert

that she was offended by the chrome shots and by male employees

following around female customers. She testified that Hebert did

not say much in response, but did not seem surprised. As

discussed above, B. Plaisance also testified that she informed

Hebert about the incident in which assistant manager Kirchhoff

walked into the women’s restroom while she was partially

undressed, but that Hebert did not respond. She then informed

Berthelot of the incident, but he responded by rolling his eyes

and walking away, and seemed upset with her after she reported

it. 

In June 1995, plaintiffs and another female Delchamps

employee requested a meeting with Berthelot to discuss the

working conditions at the store. At the meeting, B. Plaisance

told Berthelot that she was offended by K. Plaisance’s vulgarity

and informed him of one of the incidents in which K. Plaisance
10

had touched Terrebonne’s bottom. Berthelot’s responded by

pretending he was playing the violin--a gesture that signaled to

B. Plaisance that he thought they were “just a bunch of women up

there whining.” At that point, Berthelot left the meeting. When

he returned a few minutes later, he began to talk about

scheduling, an issue that the women had not raised during the

meeting. B. Plaisance attempted to return the discussion to the

inappropriate behavior occurring at the store, but Berthelot

merely continued discussing scheduling. The entire meeting

lasted ten or fifteen minutes. Conditions at the store did not

improve after the meeting. In fact, B. Plaisance testified that

the offensive behavior continued, and that male employees began

to treat the women with hostility. For example, she testified

that Berthelot became very abrupt with her, jerked papers out of

her hands, and gave her fewer breaks. 

At the end of June 1995, Griffin asked Berthelot to call

Johnny Smith, the area supervisor, to come in for a meeting. 

Smith came to the store that afternoon and met separately with

Griffin, B. Plaisance, and Terrebonne. Berthelot was present at

each meeting. During Griffin’s meeting, she complained to Smith

about K. Plaisance’s vulgarity. She testified that Berthelot

tried to interrupt her during the meeting, and that she felt

uncomfortable having him there. She further testified that

conditions did not improve after the meeting and that the
 

6 Later, near the end of Griffin’s employment, she also

complained to Smith about K. Plaisance’s question to her

regarding whether she gave her husband “blow jobs.”

11

hostility grew worse.6 

During B. Plaisance’s meeting, she informed Smith about K.

Plaisance’s vulgar language, about the episode where K. Plaisance

had grabbed Terrebonne’s bottom, and about a question that she

had heard that Berthelot had asked K. Plaisance--“was he getting

any from [Terrebonne]?” She testified that Smith turned to

Berthelot and asked whether that was true. Berthelot denied it,

and Smith appeared to take his denial at face value. B.

Plaisance testified that she felt uncomfortable having Berthelot

at the meeting because she felt he was part of the problem and

because she feared retaliation. According to her, conditions

worsened after the meeting. 

During Terrebonne’s meeting, she told Smith about the times

that K. Plaisance had touched her without permission and about K.

Plaisance’s vulgarity. Terrebonne testified that she felt

uncomfortable with Berthelot’s presence at the meeting and that

she felt she could not tell Smith everything she wanted to

because Berthelot was there. She testified that, after the

meeting, the behavior and the hostility continued. For example,

she testified about an incident in which Leger, appearing very

upset, came “flying toward” her with a meat cart. The meat cart

hit the buggy she was using, which hit her. She was very upset
 

7 She later complained to Smith about Leger’s behavior. He

appeared unconvinced by her story. She testified that she said

to Smith, “You look at me like you don’t believe me,” to which he

replied, “I believe you to be a truthful person.”

12

by the incident because she felt Leger was trying to hurt her.7

Smith later issued K. Plaisance a written reprimand, which stated

that off-color jokes and innuendos giving the appearance of

sexual harassment would not be tolerated.

All three employees resigned their positions in July 1995,

and went to work at a new Wal-Mart superstore opening in the

area. 

On appeal, Delchamps argues that the evidence was

insufficient to support the jury’s verdict because plaintiffs did

not prove the existence of a hostile work environment based on

sex, that the evidence did not establish that Delchamps is

legally responsible for any hostile work environment that may

have existed, that plaintiffs did not prove constructive

discharge, that plaintiffs did not prove intentional infliction

of emotional distress, that certain damage awards were

inappropriate, that the district court erroneously instructed the

jury, and that the district court erred by admitting certain

testimony. We examine each contention in turn. 

II. STANDARD OF REVIEW

This court must consider the evidence in the light most

favorable to the prevailing party below, drawing all reasonable

inferences in favor of the jury’s verdict. See Weller v.

Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir. 1996);
 

8 We discuss employer liability (the fifth element) in

section III.B below. 

13

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). We may

reverse only “if reasonable minds exercising impartial judgment

could not have arrived at the verdict.” Weller, 84 F.3d at 194. 

III. DISCUSSION

A. Existence of Hostile Work Environment

In order to establish a hostile work environment sexual

harassment claim, plaintiffs are required to show (1) that they

belong to a protected class; (2) that they were subject to

unwelcome sexual harassment; (3) that the harassment was based on

sex; (4) that the harassment affected a term, condition, or

privilege of employment (i.e., that the harassment was so severe

or pervasive as to alter the conditions of employment and create

an abusive working environment); and (5) that the employer knew

or should have known of the harassment and failed to take prompt

remedial action. See Farpella-Crosby v. Horizon Health Care, 97

F.3d 803, 806 (5th Cir. 1996); Jones v. Flagship Int’l, 793 F.2d

714, 719-20 (5th Cir. 1986). Delchamps challenges the

sufficiency of the evidence to support the jury’s verdict on the

fourth and fifth elements.8

Delchamps first argues that the harassment was not

sufficiently severe or pervasive. Sexual harassment that is so

severe or pervasive that it alters the conditions of employment

and creates an abusive working environment violates Title VII. 

See Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998);
14

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To be

actionable, the environment “must be both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive

to be so.” Faragher, 118 S. Ct. at 2283 (citing Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). It is necessary

to consider “‘all the circumstances’” in order to determine

whether an environment is sufficiently hostile or abusive,

including the “‘frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.’” Id. (quoting

Harris, 510 U.S. at 23)). 

We have no trouble concluding from the testimony described

above that the evidence was more than sufficient to support the

jury’s determination that plaintiffs were subjected to severe or

pervasive harassment at Delchamps. The Harris factors are all

present. First, the harassment occurred frequently. All three

plaintiffs testified to daily comments and vulgarity, including

Terrebonne’s testimony that K. Plaisance would say to her on a

daily basis that he wanted to “come” on her and that he wanted to

“fuck” her, and her testimony that he would ask her on a daily

basis whether her nipples were hard. All three plaintiffs also

testified that male employees frequently followed females around

the store and engaged in “chrome shots” several times per week. 

Second, much of the harassment is severe, including K. Plaisance
15

grabbing his crotch three times per week and telling Terrebonne

to “suck this,” K. Plaisance telling Terrebonne daily that he

wanted to “come” on her and wanted to “fuck” her, K. Plaisance

asking daily whether Terrebonne’s nipples were hard, K.

Plaisance’s frequent discussions of oral sex in front of all

three plaintiffs, K. Plaisance shouting across the sales floor to

ask Griffin whether she gave her husband “blow jobs,” K.

Plaisance’s remarks such as “I bet her pussy stinks” or “the dog

was licking her pussy,” and K. Plaisance asking B. Plaisance

whether she shaved her “pussy.” Third, many of the incidents

described above qualify as humiliating, including K. Plaisance

shouting across the store to ask Griffin whether she gave her

husband “blow jobs.” Moreover, K. Plaisance touching Terrebonne

on her bottom could be construed as physically threatening

because he continued to approach her after she told him to leave

her alone. Finally, the harassment unreasonably interfered with

plaintiffs’ work performance. Several witnesses testified that

Terrebonne and B. Plaisance frequently cried on the job, and that

Griffin became withdrawn and cried on the job. Terrebonne

testified that she cried constantly, frequently had severe

headaches, stomach problems and nausea, and frequently felt tired

and drained. B. Plaisance testified that she cried frequently

and became very withdrawn. Griffin testified that she cried,

felt angry, and tried to work harder. Thus, the evidence amply

supports the existence of a hostile work environment at

Delchamps.
16

The cases cited by Delchamps are distinguishable. See Webb

v. Cardiothoracic Surgery Assocs., 139 F.3d 532, 538-39 (5th Cir.

1998) (affirming district court’s grant of summary judgment

motion because, inter alia, employer took prompt remedial action

after learning of alleged harassment); Weller, 84 F.3d at 194-95

(finding that evidence that supervisor gave plaintiff an article

about the “spirit of Jezebel” was insufficient for jury to find

the existence of hostile work environment); DeAngelis v. El Paso

Mun. Police Officers Assoc., 51 F.3d 591, 595-96 (5th Cir. 1995)

(finding evidence insufficient to support jury verdict on

existence of hostile work environment where harassment complained

of consisted merely of a few written jibes about plaintiff and

female police officers published in newsletter over period of two

and one half years); Gleason v. Mesirow Financial, Inc., 118 F.3d

1134, 1137, 1144-45 (7th Cir. 1997) (affirming grant of summary

judgment to employer where, inter alia, supervisor flirted with

plaintiff’s female relatives, stated that female customers were

“bitchy,” “dumb,” or suffering from “PMS,” told another employee

that he liked her in tighter skirts, stood on his desk to “ogle”

women as they walked by, informed plaintiff that he had spent

weekend at nudist colony, and told plaintiff that he had dreamt

about holding hands with her); Baskerville v. Culligan Int’l Co.,

50 F.3d 428, 430 (7th Cir. 1995) (finding nine incidents over

seven month period insufficient to support jury verdict on

existence of hostile work environment where, inter alia,

supervisor called plaintiff “pretty girl,” made grunting sounds
 

9 We note that the standard applied in Scott required that,

before the conduct complained of was actionable, it had to “cause

such anxiety and debilitation to the plaintiff that working

conditions were poisoned.” Id. at 213 (internal quotation marks

omitted). The Seventh Circuit later noted that this standard was

17

one time plaintiff wore a leather skirt, implied that plaintiff

raised the temperature of his office because she was attractive,

stated that he had left a party early because he did not want to

lose control around the “pretty girls,” and made a gesture

indicating masturbation); Saxton v. American Tel. & Tel. Co., 10

F.3d 526, 528, 534 (7th Cir. 1993) (affirming grant of summary

judgment to employer where supervisor touched plaintiff on leg

while at jazz club, kissed her briefly later that evening, and

“lurched” at her from behind bushes while out on a walk during

lunch); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 334-35,

337 (7th Cir. 1993) (affirming grant of summary judgment to

employer where supervisor asked about plaintiff’s personal life,

complimented her, asked her for dates, jokingly called her “dumb

blond,” put his arm around her and tried to kiss her while at a

bar, placed “I love you signs” in her work area, put his hand on

her shoulder at least six times, and tried to kiss her twice);

Scott v. Sears, Roebuck & Co., 798 F.2d 210, 211-12, 213-14 (7th

Cir. 1986) (affirming grant of summary judgment motion to

employer where supervisor asked plaintiff out on dates, winked at

her, suggested that he give her a “rub-down,” and asked what he

would receive from her in exchange for requested advice or

assistance, and where co-worker slapped her buttocks, and another

co-worker stated that she must moan and groan while having sex).9
overruled by Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993),

which held that plaintiffs need not prove psychological injury in

order to establish actionable harassment. See Saxton v. American

Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993). 

 

10 The letters included statements such as “You are still

trying to control everyone’s life,” “You probably could use a man

in your life to calm some of that frustration down,” “When you

drive down the street you look like you’re pissed off,” and “When

are you going to start dressing like an adult.” Id. at 265.

18

The incidents to which plaintiffs testified are significantly

more severe and pervasive than those alleged in the above cases.

Delchamps argues in its reply brief that a recent Fifth

Circuit case requires us to find that a hostile work environment

did not exist at Delchamps. See Butler v. Yselta Indep. Sch.

Dist., 161 F.3d 263 (5th Cir. 1998). We find this case

distinguishable. In Butler, we found that a series of anonymous

letters mailed to plaintiffs at their homes by the principal of

the school where plaintiffs worked did not constitute severe or

pervasive harassment.10 See id. at 269. In finding that a

hostile work environment did not exist, we relied on the fact

that the letters were received at home, were sent infrequently

over the time period, and were non-threatening. See id. at 269-

70. The facts of Butler are clearly distinguishable from the

facts of the instant case. 

Delchamps argues, however, that after Butler, we are

required to consider a fifth factor, in addition to the factors

outlined in Harris, in determining whether a hostile work

environment existed. Supreme Court precedent establishes that,

while we must consider “all the circumstances,” not every listed
 

11 It is further evident that the Supreme Court did not

intend to require that every factor listed be present before a

work environment qualifies as hostile or abusive because its list

included both the severity and the pervasiveness of the

discriminatory conduct as relevant factors to consider when

evaluating whether an environment is hostile or abusive. See

Harris, 510 U.S. at 23 (“These [factors] may include the

frequency of the discriminatory conduct [i.e., its

pervasiveness]; [and] its severity . . . .”) (emphasis added). 

Yet, as the Supreme Court has stated, for sexual harassment to be

actionable it need only be “‘sufficiently severe or pervasive.’” 

Id. at 21 (quoting Meritor Sav. Bank, 477 U.S. at 67)) (emphasis

added); see Faragher, 118 S. Ct. at 2283.

19

factor need be present in order for a work environment to qualify

as sufficiently hostile or abusive. Harris, 510 U.S. at 23 (“But

while psychological harm, like any other relevant factor, may be

taken into account, no single factor is required.”).11

Nevertheless, consideration of the additional factor described in

Butler does not help Delchamps’s case. In Butler, we suggested

that it could be relevant to consider whether the conduct

complained of explicitly or implicitly has the purpose or effect

of undermining the plaintiffs’ workplace competence so as to

create more disadvantageous terms or conditions for the

plaintiffs because of their sex than for members of the opposite

sex. See 161 F.3d at 270. Implicit in the behavior directed at

plaintiffs--including, but not limited to, the frequent comments

about oral sex, K. Plaisance’s daily statements that he wanted to

“come” on and “fuck” Terrebonne, and K. Plaisance’s frequent

grabbing his crotch and telling Terrebonne to “suck this”--is the

message that women are not welcome in the workplace because of

their sex, and that women are not valuable as workers but are

only good for gratifying men sexually. This undermines the
20

workplace competence of women subjected to such behavior, and

creates less advantageous terms or conditions of employment for

them, “impairing their ability to compete on an equal basis with

men.” Id. at 270 (quoting DeAngelis, 51 F.3d at 593). As we

noted in Butler, the “critical issue” in determining whether an

actionably hostile or abusive work environment exists is whether

plaintiffs were subject to “‘disadvantageous terms or conditions

of employment to which member of the other sex [were] not

exposed.’” Id. at 271 (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 118 S. Ct. 998, 998 (1998)). It is

clear that here plaintiffs were subject to such terms or

conditions, and we therefore hold that the evidence is sufficient

to support the jury’s finding that an actionable hostile work

environment existed at Delchamps.

 B. Employer Liability

Delchamps urges us to find that it is not liable for the

hostile environment that existed at its Cut Off, Louisiana store. 

It argues that plaintiffs did not prove that the harassment

complained of was committed by a supervisor, and that therefore

it cannot be vicariously liable under the principles articulated

in the Supreme Court’s recent decisions in Faragher v. City of

Boca Raton, 118 S. Ct. 2275 (1998), and Burlington Industries,

Inc. v. Ellerth, 118 S. Ct. 2257 (1998). While conceding that

store manager Berthelot qualifies as a supervisor, Delchamps

contends that K. Plaisance, who it argues was not a supervisor,

and other non-supervisory personnel, perpetrated the vast
21

majority of the complained of harassment. Plaintiffs respond by

arguing that K. Plaisance qualifies as a supervisor or,

alternatively, that Berthelot was responsible for the hostile

work environment, mandating further inquiry under Faragher and

Burlington Industries.

We need not decide whether supervisors created the hostile

work environment at Delchamps, however, because we find that the

evidence was sufficient to support the conclusion that Delchamps

knew or should have known of the harassment experienced by

plaintiffs and failed to take prompt remedial action. As an

alternative to vicarious liability, an employer may be held

responsible for a hostile work environment “if it knew or should

have known of the harassment and failed to take prompt remedial

action.” Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th

Cir. 1993) (citing Jones, 793 F.2d at 720); see Burlington

Indus., 118 S. Ct. at 2267 (“An employer is negligent with

respect to sexual harassment if it knew or should have known

about the conduct and failed to stop it. Negligence sets a

minimum standard for employer liability under Title VII.”). 

A plaintiff may establish an employer’s knowledge by

demonstrating either actual or constructive notice to the

employer. See Sharp v. City of Houston, No. 97-20602, 1999 WL

10153, at *4 (5th Cir. Jan. 12, 1999); Williamson v. City of

Houston, 148 F.3d 462, 465 (5th Cir. 1998); Waltman v.

International Paper Co., 875 F.2d 468, 478 (5th Cir. 1989). 

Actual notice can be proven by evidence that the plaintiff
22

complained to someone in management with the authority to take

remedial action, see Sharp, 1999 WL 10153, at *4-*5; Waltman, 875

F.2d at 478, whereas constructive notice is demonstrated by

showing that the harassment was sufficiently pervasive to give

“rise to the inference of knowledge or constructive knowledge” on

the part of someone with remedial authority, Waltman, 875 F.2d at

478 (internal quotation marks omitted); see Sharp, 1999 WL 10153,

at *5. 

The evidence is sufficient to hold Delchamps liable under

both actual and constructive notice theories. B. Plaisance

testified that she complained to assistant manager Hebert in late

1994 or early 1995 about the chrome shots and the male employees

following around females, and that she reported to both Hebert

and store manager Berthelot in early 1995 that assistant manager

Kirchhoff had walked into the restroom while she was partially

undressed. None of these complaints resulted in a response. She

further testified that in May 1995 she informed Berthelot that

she did not want him to show her magazines with sexual content. 

He replied that she had an “attitude problem” and should try to

“have fun with it.” All three plaintiffs met with Berthelot in

mid-June 1995 to discuss their grievances. At the meeting, they

brought to Berthelot’s attention that K. Plaisance had touched

Terrebonne’s bottom and they complained of K. Plaisance’s

vulgarity. Berthelot’s response was to pretend that he was

playing the violin in mock sympathy. He took no corrective

action. Plaintiffs testified that the offensive behavior
 

12 Smith did issue K. Plaisance a written reprimand as a

result of these meetings, but the reprimand referred only to offcolor jokes and innuendos and not to the incident in which K.

Plaisance inappropriately touched Terrebonne.

23

worsened after the meeting and that the atmosphere became more

hostile. Ultimately, plaintiffs met with area supervisor Smith

to air their grievances.12 Plaintiffs testified that the

atmosphere deteriorated further after these meetings. 

Delchamps’s sexual harassment policy provides that 

[i]f any associate feels he or she is the victim of unlawful

discrimination, the associate should feel free to discuss

the matter with his or her supervisor. If the circumstances

are such that the associate would prefer to discuss this

matter with someone else other tha[n] his or her immediate

supervisor, the associate may contact . . . anyone else he

or she may prefer within the Company. We will see that the

matter will be promptly investigated and handled

appropriately.

As we noted in Williamson, “[w]hen an organization designates a

particular person or persons to receive harassment complaints, it

sends a clear signal that those persons have the authority to

accept notice of harassment problems.” 148 F.3d at 466. Here,

the evidence demonstrates that plaintiffs reported the harassment

to their supervisors, as instructed by Delchamps’s sexual

harassment policy. This actual notice can be imputed to

Delchamps for purposes of liability. See id. at 467. 

Moreover, Berthelot, as store manager, undeniably had

authority to take corrective action and knew or should have known

about the harassment taking place at the store. The evidence

indicates that Berthelot himself participated in much of the

harassing behavior complained of by plaintiffs, and that the 
24

conduct was sufficiently severe and pervasive that he either was

aware or should have been aware of its existence. Thus,

Delchamps had constructive knowledge of the situation.

Additionally, despite the complaints, Delchamps “failed to

take steps to repudiate th[e] conduct and eliminate the hostile

environment.” Farpella-Crosby, 97 F.3d at 807; see Nash, 9 F.3d

at 404. The vast majority of plaintiffs’ complaints were

ignored, or, worse, mocked. We conclude that the evidence is

sufficient to support the jury’s verdict that Delchamps is liable

for the hostile environment that existed at its Cut Off,

Louisiana store.

C. Constructive Discharge

Delchamps argues that the evidence does not support the

jury’s finding that the plaintiffs were constructively discharged

from their employment with Delchamps, and that therefore we

should reverse the back and front pay awards plaintiffs received. 

A claim for constructive discharge requires a plaintiff to prove

that the employer deliberately made the “employee’s working

conditions so intolerable that the employee [wa]s forced into an

involuntary resignation.” Dornhecker v. Malibu Grand Prix Corp.,

828 F.2d 307, 310 (5th Cir. 1987). This requires a showing that

“working conditions would have been so difficult or unpleasant

that a reasonable person in the employee’s shoes would have felt

compelled to resign.” Landgraf v. USI Film Prods., 968 F.2d 427,

429 (5th Cir. 1992) (internal quotation marks omitted), aff’d 511

U.S. 244 (1994); see Dornhecker, 928 F.2d at 310. To prove
 

13 Terrebonne testified that Leger struck her with his meat

cart after the complaint to Smith.

25

constructive discharge in the sexual harassment context, “the

plaintiff must demonstrate a greater severity or pervasiveness of

harassment than the minimum required to prove a hostile working

environment.” Landgraf, 968 F.2d at 430. 

Viewing the evidence in the light most favorable to the

jury’s verdict, as we must, we conclude that the harassment

described above is more than sufficient to support the jury’s

finding that plaintiffs were constructively discharged. 

Plaintiffs experienced severe and degrading harassment at the

hands of their male co-workers. They made numerous complaints to

their supervisors over a period of several months, which were

ignored. They testified that after each complaint the offensive

behavior continued and the atmosphere of the store became more

hostile. Ultimately, after complaining to area supervisor Smith,

K. Plaisance received a written reprimand. Nevertheless,

plaintiffs testified that the offensive behavior continued

unabated, and that their male co-workers became even more hostile

and violent.13 Under these circumstances a reasonable person

would have felt compelled to resign. 

The cases cited by Delchamps are distinguishable. See Webb,

139 F.3d at 539-40 (affirming grant of summary judgment to

employer on constructive discharge theory because employer took

prompt remedial action, including requiring harasser to end his

offensive conduct and offering to transfer employee away from
26

harasser); McKethan v. Texas Farm Bureau, 996 F.2d 734, 740-41

(5th Cir. 1993) (upholding district court’s directed verdict on

age discrimination claim, finding no constructive discharge where

plaintiff endured two minutes of embarrassing remarks at awards

dinner, but voluntarily delayed his retirement for thirteen

months for tax purposes and later requested his job back); Ugalde

v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir. 1993)

(affirming grant of summary judgment to employer, concluding

reasonable employee would not have felt compelled to resign where

plaintiff contended that supervisor subjected him to ethnic

slurs, but did not mention the slurs on the one occasion he

attempted to complain, after which he walked off the job);

Landgraf, 968 F.2d at 429-30 (concluding evidence supported

district court’s finding that plaintiff was not constructively

discharged where district court found that plaintiff’s reason for

resigning was not complained of sexual harassment, and evidence

supported district court’s conclusion that employer took

reasonable steps to end harassment); Dornhecker, 828 F.2d at 310

(holding that, because employer took prompt remedial action,

district court clearly erred in finding plaintiff was

constructively discharged, where plaintiff, who had been employed

with defendant for two days, was sexually harassed on business

trip, complained to her supervisor, but quit despite employer’s

promise that she would not have to work with harasser after

business trip ended two days later); Larry v. North Miss. Med.

Ctr., 940 F. Supp. 960, 966 (N.D. Miss. 1996) (dismissing
27

plaintiff’s constructive discharge claim where employer took

prompt remedial action and no further incidents occurred prior to

plaintiff’s resignation), aff’d in part sub nom. Larry v. Grice,

156 F.3d 181 (5th Cir. 1998) (unpublished table decision); Sims

v. Brown & Root Indus. Servs., Inc., 889 F. Supp. 920, 931 (W.D.

La. 1995) (granting summary judgment on constructive discharge

claim where plaintiff resigned only because she felt “awkward”

with two co-workers after employer terminated harasser), aff’d,

78 F.3d 581 (5th Cir. 1996) (unpublished table decision). We

find that there is ample evidence to support the jury’s

conclusion that a reasonable person in the shoes of plaintiffs

would have felt compelled to resign.

D. Intentional Infliction of Emotional Distress

Delchamps requests that we overturn the district court

judgment with respect to the awards for intentional infliction of

emotional distress, arguing that it is not vicariously liable for

the acts of its employees. In determining whether Delchamps may

be found vicariously liable under Louisiana law for the

intentional infliction of emotional distress committed by its

employees, courts consider whether the acts complained of were

committed on the employer’s premises, whether the acts were

committed during hours of employment, whether the acts were

primarily employment rooted, and whether the acts were reasonably

incidental to the performance of the employee’s duties. See

Baumeister v. Plunkett, 673 So.2d 994, 996-97 (La. 1996). While

the conduct underlying plaintiffs’ claims for intentional
28

infliction of emotional distress did occur on Delchamps’s

premises during working hours, satisfying the first two elements,

the acts complained of were not primarily employment rooted, nor

were they reasonably incidental to the performance of the duties

of Delchamps’s employees. 

While the predominant motive of the employee need not be

employment related in order for the acts to be deemed primarily

employment rooted, the purpose of serving the employer must

actuate the employee at least to some extent. See id. at 999-

1000 (“If the purpose of serving the master’s business actuates

the servant to any appreciable extent, the master is subject to

liability if the act is otherwise within the service. . . . In

our case, serving the master’s business did not actuate the

servant at all, much less to any appreciable extent.”) (internal

quotation marks and citation omitted). The evidence put forth by

plaintiffs does not support the conclusion that the purpose of

serving Delchamps constituted any part of the motivation for

committing the acts forming the basis of their claims of

intentional infliction of emotional distress. Instead, these

acts were “entirely extraneous” to Delchamps’s interests. See

id. at 1000. Moreover, the acts complained of were not

reasonably incidental to the performance of employment duties

because the employees’ responsibilities did not include any

duties that would make such conduct reasonably foreseeable or

fairly attributable to Delchamps. See id. at 999; Samuels v.

Southern Baptist Hosp., 594 So.2d 571, 574 (La. Ct. App. 1992). 
 

14 Alternatively, we may uphold the district court judgment

on plaintiffs’ intentional infliction of emotional distress

claims if Delchamps itself committed the tort, which would

require a showing that Delchamps’s conduct was extreme and

outrageous, that the conduct caused plaintiffs to suffer severe

emotional distress, and that Delchamps desired to cause severe

emotional distress or knew that severe emotional distress would

be certain or substantially certain to result from its conduct. 

See White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991). We

conclude that Delchamps’s behavior in failing to remedy the

hostile environment created by its employees does not rise to the

level of extreme and outrageous conduct necessary to support the

judgment. See id. (“The conduct must be so outrageous in

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

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

intolerable in a civilized community.”). 

29

Viewing the evidence in the light most favorable to the jury’s

verdict, we cannot conclude that Delchamps is vicariously liable

for the intentional torts of its employees, and therefore reverse

the judgment as to plaintiffs’ intentional infliction of

emotional distress claims.14 Because we reach this result, we

need not consider Delchamps’s argument that the jury’s award of

both compensatory damages and damages for intentional infliction

of emotional distress constituted a double damage award.

E. Compensatory Damages

Delchamps argues that the jury’s compensatory damage awards

were excessive and that plaintiffs were entitled only to nominal

damages because they did not present sufficient proof of mental

anguish. Our review of this award is deferential to the

conclusions of the fact-finder. See Patterson v. P.H.P.

Healthcare Corp., 90 F.3d 927, 937-38 (5th Cir. 1996). 

Plaintiffs were required to establish the harm they suffered,

either through corroborating testimony or medical or
30

psychological evidence. See id. at 940. After a careful review

of the record, we conclude that the jury’s compensatory damage

awards were well-supported by both plaintiffs’ testimony and by

corroborating testimony, and therefore we decline to overturn

those awards. 

F. Punitive Damages

Punitive damages are appropriate where the complaining party

shows “‘that the respondent engaged in a discriminatory practice

. . . with malice or with reckless indifference to the federally

protected rights of an aggrieved individual.’” Patterson, 90

F.3d at 941 (quoting 42 U.S.C. § 1981a(b)(1)) (emphasis added). 

In Patterson, we stated that an employer could be liable for the

malicious or reckless conduct of its employees if the employer

itself (i.e., someone sufficiently high in company hierarchy)

acted maliciously or recklessly, or if the employer knew or

should have known of the malicious or reckless conduct, but took

no action. See id. at 944 & n.15. However, in DeffenbaughWilliams v. Wal-Mart Stores, Inc., 156 F.3d 581, 593 (5th Cir.

1998), vacated and reh’g en banc granted, No. 97-10685, 1999 WL

107104 (5th Cir. Feb. 26, 1999), we reexamined this holding in

light of the Supreme Court’s pronouncements in Faragher and

Burlington Industries, and held that a supervisor’s malicious or

recklessly indifferent acts may be imputed to the employer for

purposes of awarding punitive damages through principles of

vicarious liability. Because the jury was instructed under the

standards set forth in Patterson and because our opinion in
 

15 Specifically, the jury charge reads: 

If you find Defendant Delchamps intentionally discriminated

against Plaintiffs, the law allows you, but does not require

you, to award punitive damages.

. . . . 

In this case, you may award punitive damages if you

find that Defendant Delchamps engaged in a discriminatory

practice or practices with malice or reckless indifference

to the rights of Plaintiffs to be free from such intentional

discrimination in employment.

The verdict form reads:

Do you find from a preponderance of the evidence that

Defendant’s corporate management personnel acted with actual

malice or gross negligence which evidences a willful, wanton

or reckless disregard regarding [the plaintiffs’] claims

that Delchamps subjected [them] to a hostile work

environment.

 

16 The employer had distributed a non-discrimination policy

to its employees detailing complaint procedures, but neither

plaintiff utilized the complaint procedures. See id.

31

Deffenbaugh-Williams has been vacated, we will apply the law as

it existed prior to Deffenbaugh-Williams.

15

Under Patterson, an employer is not strictly liable for

punitive damages for the acts of its agents, but may be liable

for such damages under agency principles. See Patterson, 90 F.3d

at 942. The Patterson court found that a project manager’s

discriminatory acts could not be imputed to the employer for

purposes of punitive damages where the project manager was not

sufficiently high in the company, and where there was no evidence

that the company knew or should have known of his discriminatory

acts.16 See id. at 944 (finding that actions of supervisor

alone, “without some evidence showing that [the employer] knew or
 

17 Smith had authority over sixteen stores.

32

should have known of [the supervisor’s] malicious or reckless

conduct, are insufficient to cause punitive liability to directly

attach to [employer]”).

We conclude that the punitive damage awards in this case

were appropriate under Patterson. Berthelot, the store manager,

and Smith, the area supervisor,17 are managerial employees such

that their malicious or recklessly indifferent behavior binds

Delchamps for purposes of punitive damages. See EEOC v. Wal-Mart

Stores Inc., 156 F.3d 989, 992 (9th Cir. 1998) (assistant

manager’s discriminatory behavior binds employer for purposes of

punitive damages); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294,

306 (4th Cir. 1998) (store manager’s discriminatory behavior

binds employer for purposes of punitive damages); EEOC v. WalMart Stores, Inc., 11 F.Supp.2d 1313, 1322 (D.N.M. 1998)

(assistant manager’s and training coordinator’s discriminatory

behavior binds employer for purposes of punitive damages); Deters

v. Equifax Credit Info. Servs., Inc., 981 F. Supp. 1381, 1384-85

(D. Kan. 1997) (behavior of general manager of local office binds

employer for purposes of punitive damages); Preston v. Income

Producing Management, Inc., 871 F. Supp. 411, 415 (D. Kan. 1994)

(co-manager’s behavior binds employer for purposes of punitive

damages). 

Viewing the evidence in the light most favorable to the

jury’s verdict, we conclude that there was sufficient evidence

from which the jury could conclude that Berthelot and/or Smith
 

18 The reprimand referred to off-color jokes and innuendos,

despite the fact that Smith testified that none of the plaintiffs

had complained to him about K. Plaisance’s vulgarity and had only

complained about K. Plaisance’s inappropriate touching of

Terrebonne. The jury was free to be skeptical of Smith’s

testimony that he decided to issue K. Plaisance a reprimand for

behavior that Smith claimed nobody had complained about, but not

to issue a reprimand for behavior that Smith testified plaintiffs

brought to his attention. The jury was free to disbelieve his

testimony that none of the plaintiffs had informed him about K.

Plaisance’s vulgarity. Moreover, the jury was free to conclude

that Smith did not adequately handle plaintiffs’ complaints

because of malice or reckless indifference.

33

acted with malice or reckless disregard for the rights of

plaintiffs to be free from sexual harassment. Berthelot

personally contributed to the revolting atmosphere of sexual

harassment described above, ignored every complaint brought to

his attention, responded by pretending to play the violin in a

gesture of mock sympathy or by rolling his eyes, and, when

informed by B. Plaisance that she did not like him showing her

magazines with sexual content, responded that she had an

“attitude problem” and that she should just laugh and “have fun

with it.” Meanwhile, the harassing behavior continued and the

hostile atmosphere worsened. 

Smith’s behavior also evinced malice or reckless

indifference to the rights of plaintiffs to be free of sexual

harassment. When plaintiffs brought their complaints to his

attention, he appeared to accept the word of store manager

Berthelot at face value after Berthelot denied one of B.

Plaisance’s complaints, issued a written reprimand that did not

address the plaintiffs’ principal complaint (K. Plaisance’s

inappropriate touching of Terrebonne),18 looked at Terrebonne as
 

19 In fact, Smith testified that, despite the language of

the written reprimand that he issued K. Plaisance, which read

“[a]ny further action of this [sort] will result in termination,”

he took no corrective action in response to Griffin’s later

complaint, which K. Plaisance denied, that K. Plaisance had asked

her whether she performed oral sex on her husband. The jury was

free to conclude from this testimony that Smith’s behavior

indicated malice or reckless indifference to the rights of

plaintiffs to be free from sexual harassment.

 

20 Smith further testified at trial that Terrebonne had

told him that she considered K. Plaisance’s touch to be merely a

friendly pat, that Terrebonne signed a statement to that effect

at the time of Smith’s investigation, and that Smith had been

unable to verify plaintiffs’ other complaints. Yet, Smith could

not produce the statement that Terrebonne allegedly had signed,

nor the notes he claimed to have taken during the meetings, and

Terrebonne denied his version of events. Thus, the jury was free

to disbelieve Smith’s testimony, and to infer that he concocted

the story to cover up his poor response, demonstrating malice or

reckless indifference. See EEOC v. Wal-Mart Stores Inc., 156

F.3d 989, 993 (9th Cir. 1998) (concluding jury should have been

allowed to decide appropriateness of punitive damages where

evidence demonstrated that assistant manager attempted to cover

up discriminatory conduct by, inter alia, fabricating an

interview that never transpired).

34

if he did not believe her story after a subsequent complaint, and

took no follow-up action after the written reprimand to ensure

that the offensive conduct would not continue.19 As a result,

the harassing behavior did continue, and the hostility at the

store worsened to the point that plaintiffs were compelled to

resign.20 

Thus, there was sufficient evidence from which the jury

could conclude that Delchamps engaged in a discriminatory

practice with malice or reckless indifference to plaintiffs’

rights to be free from discrimination. We therefore decline to

overturn the punitive damage awards.

G. Improper Jury Instruction
 

21 The challenged jury charge reads:

A corporation under the law is a person, but can only act

through its employees, agents, directors or officers. The

law, therefore, holds a corporation responsible for the acts

of its employees, agents, directors, and officers.

 

22 The jury instruction also properly instructed the jury

on the requirements for employer liability for its employees’

acts of intentional infliction of emotional distress. However,

this instruction is irrelevant in light of our resolution of

plaintiffs’ claims for intentional infliction of emotional

distress.

35

Delchamps contends that the district court improperly

instructed the jury on corporate liability. It argues that the

jury charge could have led the jury to believe that Delchamps was

strictly liable for its employees’ conduct.21 For a challenge to

a jury charge to succeed, the party challenging the charge must

demonstrate that “the charge as a whole creates substantial and

ineradicable doubt whether the jury has been properly guided in

its deliberations.” Federal Deposit Ins. Corp. v. Mijalis, 15

F.3d 1314, 1318 (5th Cir. 1994) (internal quotation marks

omitted). Delchamps has not met this standard because the jury

charge, read as a whole, properly instructed the jury that

demonstrating Delchamps’s liability for its employees’ acts of

sexual harassment requires proof “that the employer knew or

should have known of the harassment and failed to take prompt

remedial action.”22 We conclude that there is no doubt that the

jury was properly guided in its deliberations.

H. Admission of Deposition Testimony

Finally, after consideration of the arguments set forth in

the parties’ briefs, we conclude that the district court properly
36

admitted the deposition testimony of Amy Landry. We agree with

the district court that plaintiffs sufficiently demonstrated the

unavailability of the witness and that the witness’s testimony

was relevant. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM in part and REVERSE in

part the judgment of the district court, and remand for entry of

an amended judgment that vacates the awards for intentional

infliction of emotional distress. Delchamps shall bear the costs

of this appeal.