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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-50506

Summary Calendar

____________________

JANINE IRVINE

Plaintiff - Appellee

v.

EL PASO HEALTHCARE SYSTEM, LTD, doing business as Columbia

Healthcare

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas 

No. EP-99-CR-186-DB

_________________________________________________________________

February 23, 2001

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Columbia Healthcare appeals from the

district court’s denial of its motion for judgment as a matter of

law on Plaintiff-Appellee Janine Irvine’s claim of constructive
1 Columbia disputed many of Irvine’s allegations. We have

noted those distinctions where appropriate. However, for

purposes of a motion for judgment as a matter of law, we must

review the evidence in the light most favorable to the verdict. 

See Scott v. Univ. of Miss., 148 F.3d 493, 503 (5th Cir. 1998).

2 For approximately eight months of that time, Irvine

served as the Interim Manager of Clinical Systems as well.

3 The evidence could indicate, however, that Irvine was

not in fact the Manager of Financial Systems at the time of her

resignation. On the one hand, Irvine stated in her letter of

resignation that she was “resigning [her] position as Manager

Financial Systems” and admitted that even after the

reorganization of the IS Department she was still a manager. 

However, the jury was also presented with evidence of a revised

Department reorganization chart, which indicated that Irvine was

in charge of “special projects” and that Roman Castaneda was

responsible for “Clinical/Financial.” Furthermore, other

employees stated that they considered Irvine to have been

demoted. The jury could reasonably infer from this evidence that

Irvine was no longer the Manager of Financial Systems after the

reorganization.

2

discharge under Title VII. For the reasons stated below, we

AFFIRM. 

I. FACTUAL AND PROCEDURAL HISTORY1

From October 1995 until her resignation in August 1998,

Janine Irvine worked for Columbia Healthcare (“Columbia”) as the

Manager of Financial Systems in the Information Systems (“IS”)

Department2 in El Paso, Texas.3 A few months after Irvine began

to work at Columbia, Clifton Scott was hired as the Manager of

Technical Support for the IS Department. Both Irvine and Scott

reported to Don Bandy, the Director of the IS Department, who in

turn reported to Ann Pinkerton, Columbia’s Senior Vice President
4 Scott was promoted over Irvine even though Irvine had

been with the company longer than Scott, had higher scores on her

performance evaluations than Scott, and had received more awards

than Scott. However, Columbia argued that Scott was promoted

because he performed better in the interview than Irvine and had

an MBA, which Irvine did not. The committee that selected Scott

consisted of Doug Matney, the CEO of Columbia Medical Center—

East; Hank Hernandez, the CEO of Columbia Medical Center—West;

Roger Armstrong, the Chief Financial Officer assigned to Columbia

Medical Center—East; and Stan Serimet, from Columbia’s Central

Group. 

Armstrong was one of three employees whom Irvine alleged

made improper sexual advances towards her. Specifically, Irvine

alleged that Armstrong asked her out on dates numerous times,

even after she had indicated she had no romantic interest in him

and that, on one occasion, he grabbed her, pushed her down on a

staircase, and tried “to force himself on [her].”

3

of Finance. By early 1998, when Bandy and Pinkerton both left El

Paso, there were a total of four managers in the IS Department:

Irvine; Scott; Susan Aguilar, the Manager of Clinical Systems;

and Roman Castaneda, the Manager of the Information Center. Both

Irvine and Scott applied for Bandy’s position, and the position

was ultimately awarded to Scott.4

Irvine alleges that prior to receiving this promotion, Scott

had made several inappropriate sexual advances towards her. 

These included calling her at home, following her car down the

street, and giving her an astrological chart that details the

love strategies that will sexually excite a Leo. After receiving

the promotion to Director of the IS Department, Irvine alleges

that Scott continued his improper advances. For example, before

assuming his new responsibilities, Scott informed Irvine that it

was her last chance to sleep with him before he became her boss.
4

Upon assuming the role of Director of the IS Department,

Scott restructured the Department. Prior to the reorganization,

Irvine and Aguilar, both women, had been the Manager of Financial

Systems and the Manager of Clinical Systems, respectively. Scott

consolidated those two positions into the new Manager

Clinical/Financial Systems position and gave the position to

Castaneda, a male and the prior Manager of the Information

Center. This was done without a posting of the position

description and without other candidates being allowed to compete

for the position, in contravention of established Columbia

policy. Also, as a result of the reorganization, Irvine was put

in charge of Special Projects, and Aguilar was assigned to

Patient Care Inquiry (“PCI”). Although still considered a

“Manager” in the IS Department and still receiving the same

salary, Irvine’s role in the Department had changed. For

example, prior to the reorganization, she supervised four

employees who reported directly to her (“direct reports”). After

the reorganization, she and Aguilar had zero direct reports; all

of the direct reports reported to the two male managers. 
5 Aguilar complained that Scott’s discrimination

negatively affected the manner in which the rest of the

Department treated her. Aguilar also noted that Scott had

instructed Castaneda to write the job description for Castaneda’s

new position, thereby arguably allowing Castaneda to tailor the

position to meet his qualifications. Furthermore, she contended

that Castaneda was far less qualified for the position, having

less experience in the area than the women and no supervisory

experience. Finally, she noted that other women in the

Department had also experienced discriminatory treatment. 

6 Theresa Cintron, another manager who reported to Scott,

also filed a written complaint regarding Scott with the Human

Resources Department in April 1998. In her complaint, she

detailed several incidents of Scott’s questionable behavior and

expressed her concerns that Scott discriminated against female

employees, behaved abusively towards employees in general, and

had a problem with drinking in the workplace. 

7 See supra note 3.

8 We also note that Irvine complained of the behavior of

Felipe Perez. Perez is one of the other employees who Irvine

alleged sexually harassed her. Irvine asserts he publicly

referred to her breasts as “the twins” on twenty or thirty

occasions. Perez testified he made the statement only once. 

As further evidence to support her claims, Irvine contended

that Perez spread unfounded rumors that she intended to get

5

In April 1998, both Aguilar5 and Irvine made written

complaints to Columbia’s Human Resources Department.6 Irvine

specifically complained that she and two other female managers

were affected by discriminatory treatment. Specifically, she

asserted that the female managers were replaced by less qualified

males and that she had effectively been demoted and relegated to

performing job assignments below her capabilities. She claimed

that a hostile work environment had been created by this

“demotion”7 and other discriminatory treatment, including being

excluded from meetings and being denied access to information.8
married and leave El Paso. She asserted that these rumors

negatively impacted her job, because it was believed she would

not be continuing her employment with Columbia in El Paso. 

9 We note, however, that the organization chart indicates

there were twenty people in the IS Department, including a total

of five women. Two of those women were Aguilar and Irvine, who

had complained. A third was Terri Cummings, who was Scott’s

girlfriend at the time. 

6

Irvine had initially met with Armstrong to voice her

complaints; however, he informed her that he would not interfere

with Scott’s decisions. Following the receipt of the written

complaints, Columbia began an investigation of the allegations of

discrimination. Bertha Prospero-Sipes, Columbia’s Vice President

of Human Resources, and Sally Walker, Director of Human Resources

at Columbia Medical Center-West, conducted the investigation. 

At the conclusion of the investigation, Prospero-Sipes

issued a report. In her report, she stated that “[a]n

investigation of the entire department took place . . . .

Statments [sic] were taken from the majority of the IS

department.” The report concluded that the majority of the

Department was happy with the changes and understood that Janine

and Susan were no longer managers (even though Columbia contends

that was not the case). “None of the women expressed any

concerns with sex discrimination from [Scott] or the other

staff.”9 Prospero-Sipes’s recommendations for resolving the

situation involved permitting all of the managers to apply for

the new positions and specific suggestions for how to remove the
10 We note that neither Irvine nor Aguilar was moved, no

apology was ever issued, and neither Armstrong or Scott was sent

to diversity training.

11 A jury may have doubted the credibility of this

conclusion given Prospero-Sipes’s later email to Doug Matney

regarding the situation, which stated, “I apologize if I seem a

bit ‘heated’ however, it is still my contention that Roger

[Armstrong] has no glue [sic] as to what the problem is/was, that

he did anything wrong or that he will correct his behavior going

forward, without YOU or someone at your level informing him of

such.” 

12 Matney denied making this statement. 

7

women, namely Citron, Irvine, and Aguilar, from Scott’s

supervision. Additionally, she recommended that Scott receive a

written warning, be expected to attend management training

classes, and issue an apology to the women.10 Ultimately,

Prospero-Sipes informed Irvine and Aguilar that the company had

reached the conclusion that no sex discrimination was taking

place in the IS Department, but that the proper procedures for

reorganizing the Department had not been followed.11

Ultimately, the decision was made to reopen the competition

for the Manager Clinical/Financial position. However, Irvine was

urged to apply for the position of Y2K Coordinator; Irvine

contends that Matney urged her to take the Coordinator position

because she had “little or no chance” of receiving the Manager

Clinical/Financial position.12 Although described as a lateral

move, Irvine alleges that, while interviewing for the Coordinator

position, she was told the move would involve a $20,000 pay
13 Additionally, we note that the position had previously

been offered to one of Aguilar’s former direct reports, Sandra

Lynn, who declined the position. 

14 Irvine contends that, just before this conversation,

Scott entered her office drunk and behaved in an aggressive and

belligerent manner. 

8

cut.13 Feeling that she had been tricked into applying for the

Coordinator position rather than the Manager position, Irvine

returned to her office to inform Matney that she would be

applying for the Manager position.14 When she went to discuss

the situation with Scott, he allegedly told her that she would

not have a job if she did not take the Coordinator position. 

Irvine arrived at Scott’s office at 10:00 a.m. on May 21,

1998, to interview for the Manager position. At that time, no

one from Human Resources was present, as had been promised, and

Scott allegedly said, “Well, this is your interview. Do you have

anything to say? It doesn’t matter anyway. Interview over. 

Good-bye.” Irvine returned to her office and emailed Matney,

Prospero-Sipes, and Walker to ask why no one from Human Resources

had been present. At 10:45 a.m., a second “professional”

interview was conducted in the presence of Walker, but the

position was again awarded to Castaneda. From this point

forward, Irvine contends that her duties were taken away from her

and that she was assigned primarily clerical, rather than

managerial, tasks. 
15 Irvine was under the care of two doctors. She alleges

that the stress caused extreme hair loss, hives, and severe

facial disfigurement. 

16 See infra note 17.

9

Scott’s inappropriate behavior did not end upon his

promotion; Scott continued to approach Irvine in her office while

intoxicated. He made a number of threats to Irvine, which Irvine

reported to Human Resources. Ultimately, Scott was arrested for

aggravated assault on Columbia property against Terry Cummings,

his girlfriend and an employee of Columbia. Irvine testified

that after this event, she was concerned about her personal

safety in light of Scott’s prior threats and behavior towards

her. In response to the threat potentially posed by Scott,

Columbia posted security guards outside the building. Two weeks

later, Scott was dismissed from Columbia.

On July 15, 1998, Irvine’s counsel wrote to Columbia’s

counsel summarizing Irvine’s allegations of sexual harassment and

sex discrimination and offering to settle her claims for

$150,000. Columbia did not investigate the claims raised in the

letter or respond to the letter in any way. Irvine was absent

from work from July 22 until August 11 for medical reasons15 and

resigned from work on August 21.

Irvine filed suit in state court against Columbia alleging

hostile work environment sexual harassment and constructive

discharge in violation of both state and federal law.16 Columbia
10

removed the case to federal court. After Irvine presented her

case, Columbia moved for judgment as a matter of law. The

district court granted the motion with respect to Irvine’s state

common law claim for “negligent continuation of employment,” but

denied the motion with respect to both of the discrimination

claims. After Columbia presented its case, it renewed its motion

for judgment as a matter of law, which the court again denied. 

After deliberation, the jury found against Irvine on the sexual

harassment claim, but in her favor on the constructive discharge

claim and awarded her $30,000 in compensatory damages and

$150,000 in punitive damages. 

Columbia again filed a renewed motion for judgment as a

matter of law. The court denied the motion, including the motion

to set aside the punitive damages award, and entered judgment in

favor of Irvine on the constructive discharge claim. Columbia

timely appeals.

II. STANDARD OF REVIEW

“We review de novo the district court’s ruling on a motion

for judgment as a matter of law.” Brown v. Bryan County, 219

F.3d 450, 456 (5th Cir. 2000); see also Scott v. Univ. of Miss.,

148 F.3d 493, 503 (5th Cir. 1998). “Under Rule 50, a court

should render judgment as a matter of law when ‘a party has been

fully heard on an issue and there is no legally sufficient
11

evidentiary basis for a reasonable jury to find for that party on

the issue.’” Reeves v. Sanderson Plumbing Prods., 120 S. Ct.

2097, 2109 (2000). 

A motion for judgment as a matter of law will be

granted only if “the facts and inferences point so

strongly and overwhelmingly in favor of one party that

the Court believes that reasonable men could not arrive

at a contrary verdict. . . . On the other hand, if

there is substantial evidence opposed to the motions,

that is, evidence of such quality and weight that

reasonable and fair-minded men in the exercise of

impartial judgment might reach different conclusions,

the motions should be denied. . . .”

Brown, 219 F.3d at 456 (quoting Boeing Co. v. Shipman, 411 F.2d

365, 374 (5th Cir. 1969) (en banc), overruled on other grounds,

Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997)

(en banc)). 

We view all of the evidence and draw all reasonable

inferences in the light most favorable to the verdict. See

Scott, 148 F.3d at 504. “[I]n entertaining a motion for judgment

as a matter of law, the court should review all of the evidence

in the record.” Reeves, 120 S. Ct. at 2110. However, 

although the court should review the record as a whole,

it must disregard all evidence favorable to the moving

party that the jury is not required to believe. That

is, the court should give credence to the evidence

favoring the nonmovant as well as that evidence

supporting the moving party that is uncontradicted and

unimpeached, at least to the extent that that evidence

comes from disinterested witnesses. 

Id. at 2110 (internal quotations and citation omitted); see also

Brown, 219 F.3d at 456.
17 Irvine asserted violations of the Texas Commission on

Human Rights Act (“TCHRA”), TEX. LAB. CODE ANN. §§ 21.001-21.306

(Vernon 1996), and Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (1994). However,

“[b]ecause one purpose of the Commission on Human Rights Act is

to bring Texas law in line with federal laws addressing

discrimination, federal case law may be cited as authority.”

Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492

(Tex. 1996). 

12

“Although we review denial of a motion for judgment as a

matter of law, we note that our standard of review with respect

to a jury verdict is especially deferential.” Brown, 219 F.3d at

456. “‘We must not substitute for the jury’s reasonable factual

inferences other inferences that we may regard as more

reasonable.’” Denton v. Morgan, 136 F.2d 1038, 1044 (5th Cir.

1998) (quoting Rideau v. Parkem Indus. Servs., Inc., 917 F.3d

892, 897 (5th Cir. 1990)); see also Boeing, 411 F.2d at 374-75.

III. CONSTRUCTIVE DISCHARGE

Irvine asserted two sexual discrimination claims in

violation of state and federal law17: hostile work environment

sexual harassment and constructive discharge. Columbia contends

that the district court erred by considering evidence of Irvine’s

sexual harassment, a claim rejected by the jury, in determining

whether Irvine was constructively discharged. Furthermore,

Columbia claims that the evidence was insufficient to support the

constructive discharge claim. 
18 Because there is sufficient evidence to support the jury

finding of constructive discharge without considering the hostile

work environment sexual harassment evidence, we need not and do

not, in fact, decide if such evidence was properly considered. 

Contrary to Columbia’s argument, we do not believe that this

court’s decision in Mattern v. Eastman Kodak Co., 104 F.3d 702

(5th Cir. 1997), mandates the exclusion of the sexual harassment

evidence in this case. In Mattern, this court noted only that

“the retaliation claim must be viewed in the context of these two

jury findings adverse to Mattern.” 104 F.3d at 706. In that

case, however, a finding of retaliation was predicated on facts

that could have been established only by a finding of sexual

harassment or constructive discharge. The findings against the

employee on those claims precluded the court from finding that

the employee had, for example, suffered an adverse employment

action. By contrast, in this case, Irvine’s constructive

discharge claim is not similarly dependent on a finding of

hostile work environment sexual harassment. See infra note 21.

13

For purposes of this opinion, we need not determine whether

Columbia’s assertion that the hostile work environment sexual

harassment evidence may not be considered in determining whether

Irvine was constructively discharged. Assuming arguendo that

Columbia is correct, the jury still had before it sufficient

evidence on which to base its finding of constructive

discharge.18

A. Sufficiency of the Evidence

“To prove constructive discharge, a plaintiff must establish

that working conditions were so intolerable that a reasonable

employee would feel compelled to resign.” Faruki v. Parsons

S.I.P., Inc., 123 F.3d 315, 319 (5th Cir. 1997). A showing of

discrimination is not enough; an employee must also show

“aggravating factors.” Brown v. Kinney Shoe Corp., No. 99-50493,

2001 WL 1016, at *8 (5th Cir. Jan. 15, 2001); McCann v. Litton
19 Although Brown v. Bunge Corp., 207 F.3d 776 (5th Cir.

2000), and Barrow v. New Orleans Steamship Association, 10 F.3d

292 (5th Cir. 1994), are cases of discrimination alleged under

the ADEA, the factors are equally relevant to Title VII cases. 

See, e.g., Brown, 2001 WL 1016, at *8 (listing the Barrow factors

in the context of a Title VII case); Ward v. Bechtel Corp., 102

F.3d 199, 202 (5th Cir. 1997) (referencing the Barrow factors in

a Title VII race discrimination case). 

14

Sys., Inc., 986 F.2d 946, 951 (5th Cir. 1993); Jurgens v. EEOC,

903 F.2d 386, 391-92 (5th Cir. 1990). 

The court must weigh several factors to determine if a

constructive discharge has occurred. In Brown v. Bunge Corp.,

207 F.3d 776 (5th Cir. 2000), this court listed a number of such

relevant factors:19

“Whether a reasonable employee would feel compelled to

resign depends on the facts of each case, but we

consider the following factors relevant, singly or in

combination: (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]. . . .”

Id. at 782 (quoting Barrow v. New Orleans Steamship Ass’n, 10

F.3d 292, 297 (5th Cir. 1994)). However, “[t]he list of factors

in Barrow is non-exclusive.” Ward v. Bechtel Corp., 102 F.3d

199, 202 (5th Cir. 1997); see also Barrow v. New Orleans

Steamship Ass’n, 10 F.3d 292, 297 (5th Cir. 1994). 

Columbia asserts that the evidence presented by Irvine was

insufficient to support the jury’s finding of constructive
20 Columbia also argues that Irvine was required to prove

that her working conditions were intolerable because of unlawful

discrimination, which she could not do, given that the jury found

against her on her sexual harassment claim. 

An unlawful employment practice is established under Title

VII “when the complaining party establishes that race, color,

national origin, or sex was a motivating factor for any

employment practice, even though other factors also motivated the

practice.” Garcia v. City of Houston, 201 F.3d 672, 676 (5th

Cir. 2000). A finding of constructive discharge need not be

predicated on a finding of hostile work environment sexual

harassment to be unlawful. 

The jury was instructed that it needed to find that Columbia

intentionally made Irvine’s working conditions “so intolerable

that a reasonable person would feel forced to resign” and that

Irvine’s “sex was a motivating factor.” We find no error. 

21 Columbia argues that because this circuit has found that

“[t]o prove constructive discharge, the plaintiff must

demonstrate a greater severity or pervasiveness of harassment

than the minimum required to prove a hostile working

environment,” the jury’s finding against Irvine on the hostile

work environment sexual harassment claim mandates the conclusion

that there is insufficient evidence to support a constructive

discharge claim or, alternatively, is inconsistent with a finding

in favor of Irvine on the constructive discharge claim. See

15

discharge.20 We disagree. In light of our standard of review,

we find that Irvine presented sufficient evidence to support the

jury finding. In viewing the cumulative condition of the work

environment, a reasonable juror could have found that “working

conditions were so intolerable that a reasonable employee would

feel compelled to resign.” Faruki, 123 F.3d at 319. Although

Columbia disputed much of the evidence presented by Irvine, it is

the role of the jury, not the court, to make credibility

determinations. See Russell v. McKinney Hosp. Venture, 235 F.3d

219, 222 (5th Cir. 2000); Denton v. Morgan, 136 F.3d 1038, 1044

(5th Cir. 1998).21 
Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992);

see also Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 195 n.7

(5th Cir. 1996). 

It is important, however, to look at that requirement in the

context from which it was taken. The preceding sentence in

Landgraf states: “Moreover, even if the reason for Landgraf’s

departure was the harassment by Williams, ... the level of

harassment was insufficient to support a finding of constructive

discharge.” Landgraf, 968 F.2d at 430. Therefore, in a

situation in which a plaintiff is relying on harassment evidence

to prove constructive discharge, she must show a “greater

severity or pervasiveness of harassment than the minimum required

to prove a hostile work environment.” Id. However, Irvine did

not limit the evidence she presented on her constructive

discharge claim to evidence of sexual harassment. As we will

find that the evidence is sufficient to support the jury verdict

of constructive discharge without relying on the sexual

harassment evidence, Landgraf is inapplicable to this situation.

16

Irvine presented evidence that she was repeatedly passed

over for promotion in favor of less-qualified males. 

Furthermore, in the recent restructuring of her Department, she

had been effectively demoted. Although her pay remained the

same, her responsibilities and her direct reports had been taken

away--even her coworkers testified that they believed she had

been demoted. This happened not only to Irvine, but to the only

other female manager in the IS Department. In fact, the two

positions held by the women, Manager of Financial Systems and

Manager of Clinical Systems, were combined into the new Manager

Clinical/Financial position, and the new position was given to a

male with no experience in either area. Additionally, the new

position was filled without even allowing the women to apply for

the position, in direct violation of company policy. 
17

Although Columbia presents its investigation into the

discrimination complaints as evidence of its good faith effort to

comply with Title VII, the evidence could reasonably have been

interpreted by the jury as establishing an environment in which

complaints of discrimination were not taken seriously. After

receiving written complaints from three out of the six women in

the IS Department, the Human Resources Department conducted an

investigation and found that no discrimination had occurred in

the Department. Yet, after having found no discrimination in the

IS Department, the Human Resources Department suggested moving

all of the women who had complained out of the IS Department,

offering diversity training to the men identified in the written

complaints, offering apologies to all of the women involved, and

having follow-up conversations with the men involved. 

Furthermore, the jury could have found an even more blatant

disregard of Irvine’s rights in that none of these

recommendations was followed. Additionally, although the

complaints had contained numerous references to Scott’s alleged

drinking problem and his abusive behavior towards all employees,

but especially women, the investigation did not appear to address

these issues in any manner. 

After the investigation, the jury was presented with

evidence that the discriminatory behavior continued, and in fact,

more threatening behavior began. Not only did Scott continue to

act abusively towards her, but he allegedly threatened to fire
18

her if she did not withdraw her application for the newly created

Manager position. Instead, Irvine was encouraged by both Scott

and Armstrong to apply for a “lateral” position as a Y2K

Coordinator. However, she later found that the Coordinator

position involved a $20,000 pay cut and had already been offered

to her subordinate, potentially discrediting the testimony that

the move was in fact lateral. Furthermore, her treatment within

the IS Department continued to deteriorate as she was excluded

from meetings and assigned primarily clerical work, rather than

the managerial work she had done in the past. 

Furthermore, Scott’s drinking problem exacerbated his

aggressive and abusive behavior. Ultimately, he assaulted his

girlfriend, a coworker of Irvine’s, resulting first in criminal

charges against him and later in his dismissal from Columbia. 

Although Columbia asserts that no other women left because of

this threat, and therefore, Irvine’s reaction was not reasonable,

the jury was also presented with evidence that the threat was

sufficiently serious for Columbia to post security guards at the

office.

We agree with the district court that the facts and

inferences do not point so strongly and overwhelmingly in favor

of one party that the court should overturn the jury verdict. A

jury could find, in line with the factors identified in Barrows,

that Irvine had been demoted, that she had a reduction in job

responsibilities, that her new work was menial and degrading,
22 Columbia correctly asserts that many of these factors

alone cannot support a finding of constructive discharge. 

However, constructive discharge is determined by looking at the

cumulative effect of the conditions on a reasonable employee. 

See McCann, 986 F.2d at 952 (finding that certain factors alone

could not constitute constructive discharge); Jurgens, 903 F.2d

at 392 (same); Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65

(5th Cir. 1980) (same). 

19

that a less-qualified male had been promoted over a morequalified female, and that the treatment she received was

calculated to encourage her resignation. Additionally, a jury

could find that Columbia’s asserted investigation was not

genuine, particularly given Columbia’s failure to follow any of

the recommendations made by Prospero-Sipes to remedy the

situation. Finally, a reasonable juror could find that Irvine

reasonably feared that her “demotion” was a harbinger of

dismissal and that she was in physical danger from Scott. 

Cumulatively, the facts and inferences do not point so strongly

and overwhelmingly in favor of Columbia that reasonable men could

not arrive at a contrary verdict.22 Thus, Columbia’s motion for

judgment as a matter of law was properly denied.

IV. PUNITIVE DAMAGES

Columbia argues that the district court erred in awarding

punitive damages to Irvine because Columbia did not act with the

malice required for punitive damages, and even if Scott did act

with such required malice, punitive damages are not appropriate
20

in light of Columbia’s good faith efforts to comply with Title

VII. Furthermore, Columbia asserts that even if punitive damages

are appropriate, the $150,000 award is excessive in this case

because Irvine suffered no economic loss.

A. Appropriateness of Punitive Damages

“A complaining party may recover punitive damages . . . if

the complaining party demonstrates that the respondent engaged in

a discriminatory practice or discriminatory practices with malice

or with reckless indifference to the federally protected rights

of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1); see also

TEX. LAB. CODE ANN. § 21.2585(b) (Vernon 1996); Kolstad v. Am.

Dental Ass’n, 527 U.S. 526, 534-39 (1999); Deffenbaugh-Williams

v. Wal-Mart Stores, Inc., 188 F.3d 278, 281 (5th Cir. 1999)

(“Kolstad explains, first, that no ‘egregiousness’ requirement

exists for § 1981a(b)(1) punitive damages beyond the statutory

‘malice’ or ‘reckless disregard’ regarding actions’ legality

under Title VII.”).

Furthermore, Kolstad adopted the Restatement (Second) of

Agency § 217C for imputed liability for punitive damages to a

principal for the acts of an agent. See Deffenbaugh-Williams,

188 F.3d at 281-82. 

“Punitive damages can properly be awarded against a

master or other principal because of an act by an

agent, but only if:

(a) the principal authorized the doing and the manner

of the act, or

(b) the agent was unfit and the principal was reckless

in employing him, or
21

(c) the agent was employed in a managerial capacity and

was acting in the scope of employment, or

(d) the principal or a managerial agent of the

principal ratified or approved the act.”

Kolstad, 527 U.S. at 542-43 (quoting RESTATEMENT (SECOND) OF AGENCY

§ 217C (1957)) (emphasis added). However, “such liability may

not be imputed when the managerial agent’s within the scope

actions are ‘contrary to the employer’s good faith efforts to

comply with Title VII.’” Deffenbaugh-Williams, 188 F.3d at 282

(quoting Kolstad, 527 U.S. at 545). We agree with the district

court that Irvine presented sufficient evidence for the jury to

have inferred that Scott was a manager acting within the scope of

his employment; that Scott, as well as other employees, acted

with “malice” and “reckless indifference” to Irvine’s federal

rights; and that Columbia’s actions did not rise to the level of

good faith efforts to comply with Title VII.

Columbia does not seriously dispute that Scott was a manager

acting within the scope of his employment. “[W]hether an agent

is a manager is a ‘fact-intensive’ inquiry.” Id. at 285. Scott

was the director of the IS Department. Upon taking the position,

he instituted a reorganization, effectively demoted Irvine and

Aguilar, promoted Castaneda, and shifted job responsibilities and

direct reports. When Irvine complained about these actions to

Armstrong, she was told that he would not interfere with Scott’s

decisions. Therefore, a jury could have found Scott’s actions to

be managerial and within the scope of his employment. 
22

“The terms ‘malice’ and ‘reckless’ ultimately focus on the

actor’s state of mind.” Kolstad, 527 U.S. at 535. “The terms

‘malice’ or ‘reckless indifference’ pertain to the employer’s

knowledge that it may be acting in violation of federal law, not

its awareness that it is engaging in discrimination.” Id. at

535. The district court did not err in concluding that Scott’s

discriminatory restructuring of the Department and his aggressive

and abusive conduct were sufficient for a reasonable juror to

find that he acted with malice. 

Finally, the jury could have found that although Columbia

had a anti-discrimination policy in place and conducted an

investigation, the manner in which the investigation was

conducted and the remedial action taken established that those

actions were not conducted in good faith and that Columbia acted

with reckless indifference to Irvine’s federal rights. After its

investigation, Columbia concluded no sexual harassment had taken

place in the IS Department, notwithstanding written complaints

from three of the six women in the Department. Additionally, the

jury could consider evidence that although the Human Resources

Department found that no sexual harassment had occurred in the

Department, Prospero-Sipes recommended that the women be moved,

that the men attend diversity training, that apologies be given,

and that someone should speak to the men involved because they

were unaware that they had done anything wrong. Furthermore,

none of those recommendations was followed. Given this evidence,
23

the jury could have “infer[red] that any [employer] policy

against discrimination was too poorly enforced to distinguish”

Columbia’s actions from Scott’s. Deffenbaugh-Williams, 188 F.3d

at 286. 

Therefore, we agree with the district court that the

evidence, considered in a light most favorable to Irvine, does

not point so strongly in Columbia’s favor that reasonable jurors

should find punitive damages inappropriate.

B. Excessiveness of Punitive Damage Award

Columbia’s final argument is that even if punitive damages

are appropriate, the award of $150,000 in punitive damages is

excessive and should be reduced. In Rubinstein v. Administrators

of the Tulane Educational Fund, 218 F.3d 392, 407-08 (5th Cir.

2000), the court utilized the three-factor approach taken by the

original panel opinion in Deffenbaugh-Williams v. Wal-Mart

Stores, Inc., 156 F.3d 581 (5th Cir. 1998), vacated, Williams v.

Wal-Mart Stores, Inc., 169 F.3d 215 (5th Cir.), partially

reinstated on rehearing, Williams v. Wal-Mart Stores, Inc., 182

F.3d 333 (5th Cir. 1999). The first factor is the degree of

reprehensibility of the defendant’s conduct. See Rubinstein, 218

F.3d at 408. The second factor is “‘whether the punitive damages

bear a reasonable relationship to the compensatory damages

awarded.’” Id. (quoting Deffenbaugh-Williams, 156 F.3d at 597.) 

Finally, for the third factor, we “compar[e] the award in this
24

case to comparable cases.” Deffenbaugh-Williams, 156 F.3d at

598. 

However, we note further that:

“[w]e do not reverse a jury verdict for excessiveness

except on ‘the strongest of showings.’ The jury’s

award is not to be disturbed unless it is entirely

disproportionate to the injury sustained. We have

expressed the extent of distortion that warrants

intervention by requiring such awards to be so large as

to ‘shock the judicial conscience,’ ‘so gross or

inordinately large as to be contrary to right reason,’

so exaggerated as to indicate ‘bias, passion,

prejudice, corruption, or other improper motive,’ or as

‘clearly exceed[ing] that amount that any reasonable

man could feel the claimant is entitled to.’”

Deffenbaugh-Williams, 156 F.3d at 597 (second alteration in

original)(quoting Caldarera v. Eastern Airlines, Inc., 705

F.2d 778, 784 (5th Cir. 1983)). 

Regarding the first factor, a jury could find that the

evidence presented to it reveals a sufficient degree of

reprehensibility to justify a $150,000 punitive damages

claim. Irvine was passed over for promotion and effectively

demoted in favor of less-qualified males. Her complaints to

Human Resources did not produce effective remedial action. 

She was subjected to demeaning and abusive behavior from her

supervisor. Finally, Irvine lived in fear of physical

retribution from Scott. These stresses produced serious

health consequences requiring Irvine to seek medical

attention. Such verbal and physical abuse is precisely the

kind of behavior that illustrates a high degree of
25

reprehensibility. See Deffenbaugh-Williams, 156 F.3d at

597; Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 943

(5th Cir. 1996).

Similarly, that the punitive award of $150,000 is five

times the compensatory award of $30,000 does not compel a

remittitur. “As noted, the type [of] harm inflicted or

caused is a primary consideration in determining whether the

ratio is acceptable.” Deffenbaugh-Williams, 156 F.3d at

597-98. In Deffenbaugh-Williams, this court noted that the

fact that a punitive damage award was 5.26 times the

compensatory damage amount did not, standing on its own,

compel a remittitur. See id. at 598. We agree.

Finally, we compare the $150,000 award of punitive

damages case with the $75,000 award, after remittitur, in

Deffenbaugh-Williams. The evidence supports significantly

more reprehensible behavior in this case than the “limited

evidence of ill will” found in Deffenbaugh-Williams. See

156 F.3d at 597. Therefore, we do not find that the

punitive damage award of $150,000 shocks the judicial

conscience to such an extent that a remittitur is required.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.