1In reviewing the grant of judgment as a matter of law, we

view the evidence in the light most favorable to the non-movant. 

1

United States Court of Appeals,

Fifth Circuit.

No. 93-7673.

Judy PORTIS, Plaintiff-Appellant,

v.

FIRST NATIONAL BANK OF NEW ALBANY, MS, Defendant-Appellee.

Oct. 10, 1994.

Appeal from the United States District Court for the Northern

District of Mississippi.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Judy Portis sued her employer, the First National Bank of New

Albany, Mississippi ("FNB"), after FNB demoted her from loan

officer to a bookkeeping position. She alleged that her demotion

constituted sex discrimination, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1988) ("Title VII").

The district court granted FNB's motion for judgment as a matter of

law at the close of all the evidence. Portis appeals the district

court's decision, claiming she had adduced sufficient evidence of

intentional discrimination to overcome judgment as a matter of law.

Because we agree that Portis was entitled to have her case

submitted to a jury, we reverse the judgment as a matter of law and

remand for a new trial.

I

Judy Portis is a long-term employee of FNB.1 She began her
See Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969); see

also infra Part II.A. 

 

2FNB's evidence indicated that Portis voluntarily resigned

her position as a loan officer. Portis testified that Collums

coerced her into resigning. 

 

3Portis also claims that the pay cut was a discriminatory

act, because her new salary is less than her previous salary as a

loan secretary. 

 

4Portis also brought an Equal Pay Act claim, which the

district court dismissed at the close of Portis' case-in-chief. 

Portis does not challenge this dismissal on appeal. 

2

employment with FNB in 1971, and by 1978 she was promoted to loan

secretary. As a loan secretary, she consistently received high

performance evaluations. In June 1988, FNB gave Portis

responsibility for student loans, and C.R. "Butch" Collums became

her supervisor. One year later, Portis received a promotion to

loan officer, retaining student loan responsibility in addition to

her new duties.

Portis' performance evaluations as a loan officer ranged from

mediocre to unacceptable. A month after FNB learned that the

student loan files were substantially in arrears, FNB demoted

Portis from loan officer to a bookkeeping position.2 Portis'

salary accordingly decreased from $20,352 as a loan officer to

$12,500 as a bookkeeper.3

Portis brought suit against FNB, claiming sex discrimination

in violation of Title VII.4 She testified that her two and

one-half years as a loan officer did not progress well. Among

other problems, she and Collums did not have an amicable working

relationship. According to Portis, Collums continuously belittled
 

5Collums also lowered Portis' ratings contained in a prior

evaluation by her former supervisors. The parties disagree as to

the purpose and legitimacy of this action. 

3

both her and her performance.5 She asserted that Collums told her

that she would never be worth as much as a man to the bank because

she was a woman. Additionally, Collums refused to provide Portis

with a secretary. Portis testified that every other loan officer,

all of whom were male, had his own secretary. Other witnesses,

however, testified that the secretaries all belonged to a pool and

worked for all the loan officers, including Portis. Portis also

testified that the loan secretaries either could not or would not

work for her consistently, as they completed assignments for their

assigned supervisors first and had no additional time to do Portis'

assignments. Other evidence indicated that although the

secretaries were willing to work for Portis, she preferred to do

her own secretarial work. Moreover, FNB witnesses testified that

Portis refused to use the loan secretaries even when ordered to do

so.

Portis did not dispute her poor performance. Rather, Portis

challenged the reasons for this failure, asserting that

discriminatory conduct by FNB caused her poor performance. FNB

claimed that Portis lied about the status of the student loan files

and failed to carry out other job responsibilities, and that these

reasons for demoting Portis were legitimate and nondiscriminatory.

At the close of all the evidence, the district court granted

FNB a judgment as a matter of law. The court concluded that: 1)

Portis failed to present sufficient evidence of sex discrimination
4

to overcome a judgment as a matter of law; and 2) Portis failed to

both causally connect any purported sex discrimination with FNB's

reasons for demoting her and show that FNB's reasons were

pretextual.

II

A

"In reviewing a district court's disposition of a motion for

judgment [as a matter of law], we apply the same test as did the

district court, without any deference to its decision." Little v.

Republic Ref. Co., 924 F.2d 93, 95 (5th Cir.1991).

"[T]he Court should consider all of the evidence—not just that

evidence which supports the non-mover's case—but in the light

and with all reasonable inferences most favorable to the party

opposed to the motion. 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, granting of the motion[ ] is proper. On the

other hand, if there is substantial evidence opposed to the

motion[ ], 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 motion[ ]

should be denied.... There must be a conflict in substantial

evidence to create a jury question. However, it is the

function of the jury as the traditional finder of the facts,

and not the Court, to weigh conflicting evidence and

inferences, and determine the credibility of witnesses."

Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en

banc); see also Normand v. Research Inst., 927 F.2d 857, 859 (5th

Cir.1991) (applying Boeing standard).

Under Title VII, it is unlawful for any employer "to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to ...

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or
 

6The customary rubric for a prima facie case includes the

following elements: 1) membership in a protected class; 2) that

the plaintiff was qualified for the position at issue; 3) that

the defendant made an adverse employment decision despite the

plaintiff's qualifications; and 4) that the plaintiff was

replaced with a person not a member of the protected class. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). However, this is not the only means of

demonstrating a prima facie case; McDonnell Douglas "did not

purport to create an inflexible formulation." International Bhd.

of Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866; see also United

States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Furnco Constr.

Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57

L.Ed.2d 957 (1978). 

 

71) The plaintiff must first demonstrate a prima facie case

of discrimination; 2) if successful, the burden of production

shifts to the defendant to show a legitimate and

nondiscriminatory basis for the adverse employment decision; and

3) finally, the plaintiff must show that the defendant's offered

reason is pretext or unworthy of belief. See McDonnell Douglas,

411 U.S. at 802, 93 S.Ct. at 1824; Davis v. Chevron U.S.A.,

5

national origin." 42 U.S.C. § 2000e-2(a)(1) (1988). A Title VII

plaintiff carries "the initial burden of offering evidence adequate

to create an inference that an employment decision was based on a

discriminatory criterion illegal under the Act." International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97

S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).6 This inference arises

"only because we presume these acts, if otherwise unexplained, are

more likely than not based on the consideration of impermissible

factors." Furnco, 438 U.S. at 577, 98 S.Ct. at 2949-50.

A plaintiff may use either direct or circumstantial evidence

to prove a case of intentional discrimination. Aikens, 460 U.S. at

714 n. 3, 103 S.Ct. at 1481 n. 3. Because direct evidence is rare,

a plaintiff ordinarily uses circumstantial evidence to meet the

test set out in McDonnell Douglas.7 This test establishes a prima
Inc., 14 F.3d 1082, 1087 (5th Cir.1994) (applying McDonnell

Douglas test); Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir.1990)

(same). 

 

8See also Davis, 14 F.3d at 1085 ("If there is direct

evidence that an employer placed substantial negative reliance on

an illegitimate criterion in reaching an employment decision,

however, resort to inferential methods of proof is

unnecessary."); Vaughn, 918 F.2d at 521 ("When, however, direct

credible evidence of employer discrimination exists, a different

process appertains."); Lee v. Russell County Bd. of Educ., 684

F.2d 769, 773 (11th Cir.1982) (holding that "[w]here a case of

discrimination is made out by direct evidence, reliance on the

four-part test developed for circumstantial evidence is obviously

unnecessary"). 

6

facie case by inference, but it is not the exclusive method for

proving intentional discrimination. "[T]he McDonnell Douglas test

is inapplicable where the plaintiff presents direct evidence of

discrimination." Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1984).8

 "Direct evidence is evidence which, if believed, proves the

fact [of intentional discrimination] without inference or

presumption." Brown v. East Miss. Elec. Power Ass'n, 989 F.2d 858,

861 (5th Cir.1993). In the context of Title VII, direct evidence

includes any statement or written document showing a discriminatory

motive on its face. See Vaughn, 918 F.2d at 521; Miles v. M.N.C.

Corp., 750 F.2d 867, 870 (11th Cir.1985) (holding "discriminatory

statements and admissions" to be direct evidence).

Portis contends that, because she had adduced sufficient

evidence of intentional discrimination, the district court erred in

granting FNB's motion for judgment as a matter of law. Portis

testified about several statements by Collums, indicating his

intent to discriminate against her because of her sex. According
7

to Portis, Collums refused her a secretary because she was a woman

and told her she would never be worth as much as a man to the bank,

because she could not participate in the community. Because

Collums had deprived her of a secretary, Portis testified, she had

to do her own clerical work. Consequently, she fell behind in her

other work, and FNB ultimately demoted her. As this case was

decided on a motion for judgment as a matter of law, Portis is

entitled to all "reasonable inferences," including that if she had

been given a secretary, her performance would not have been

deficient. We cannot say that a reasonable jury would not under

any circumstances find that Portis' poor performance was a product

of FNB's earlier discriminatory deprivation of a secretary. Given

that standard, Portis has adduced sufficient evidence of

intentional discrimination to warrant presentation of her case to

a jury.

B

FNB, nonetheless, argues that Portis' testimony does not

constitute direct evidence sufficient to overcome a motion for

judgment as a matter of law because 1) it is merely her personal

belief that Collums intended to discriminate against her; and 2)

Portis failed to show a causal connection between Collums' alleged

discriminatory intent and her demotion.

First, FNB contends that Portis only presented evidence of her

personal belief that FNB discriminated against her. "[G]eneralized

testimony by an employee regarding his subjective belief that his

discharge was the result of age discrimination is insufficient to
 

9Id. at 566. See also Langley v. Jackson State Univ., 14

F.3d 1070, 1075 (5th Cir.1994) (holding that evidence of

supervisors' race-consciousness was not direct evidence because

it did not show that the decisions were because of that

race-consciousness), petition for cert. filed, 62 U.S.L.W. 3794

(U.S. May 13, 1994); Guthrie v. Tifco Indus., 941 F.2d 374, 378-

79 (5th Cir.1991) (finding statements relating to age of

employees not direct evidence because they were too vague and

open to other plausible interpretations), cert. denied, --- U.S.

----, 112 S.Ct. 1267, 117 L.Ed.2d 495 (1992); Little, 924 F.2d

at 96 (rejecting subjective belief because the "record contains

absolutely no manifestations of this alleged [belief]"). 

8

make an issue for the jury in the face of proof showing an

adequate, nondiscriminatory reason for his discharge." Elliott v.

Group Medical & Surgical Serv., 714 F.2d 556, 566 (5th Cir.1983),

cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984)

(citing Houser v. Sears, Roebuck & Co., 627 F.2d 756 (5th

Cir.1980)); see also Little, 924 F.2d at 96 (finding subjective

belief of little value toward proving a prima facie case). The

district court held that Portis' testimony regarding Collums'

statements was exactly this sort of subjective belief. We

disagree.

In Elliott, the plaintiffs "offered no more than conclusory

statements of age discrimination. On cross-examination each

[plaintiff] admitted that he was never told that age was a factor

in his discharge."9 Instead, the Elliott plaintiffs only believed

they had been terminated because of age. Id. Portis, in contrast,

testified that Collums told her that she would not have a secretary

because she was a woman. She also testified that he told her she

would be paid less because she was a woman. Unlike those in

Elliott, these statements require no additional inference to
 

10FNB also contends that Portis' testimony cannot, without

corroboration, be sufficient direct evidence to overcome a motion

for judgment as a matter of law. When reviewing a judgment as a

matter of law, however, the question is not whether the

plaintiff's testimony on its own can satisfy the burden of

persuasion, but whether it is enough to establish intentional

discrimination. In this context, the plaintiff's uncorroborated

testimony is "sufficient to cast on the defendant the burden of

producing admissible evidence [of nondiscriminatory motivation]." 

Jackson v. City of Killeen, 654 F.2d 1181, 1184 (5th Cir. Unit A

1981). See also Williams v. Williams Elecs., Inc., 856 F.2d 920,

923 n. 6 (7th Cir.1988) (finding plaintiff's testimony alone

sufficient to establish prima facie case); Yarbrough v. Tower

Oldsmobile, Inc., 789 F.2d 508, 512 (7th Cir.1986) (same). The

fact that Portis' case-in-chief consists solely of her own

testimony does not prevent her from establishing intentional

discrimination.

FNB further argues that Portis' testimony cannot

overcome the quantum of evidence provided by FNB because it

is "self-serving and speculative testimony ... subject to

especially searching scrutiny." Elliott, 714 F.2d at 564; 

New England Merchants Nat'l Bank v. Rosenfield, 679 F.2d

467, 473 (5th Cir.1982) (rejecting "unsupported self-serving

testimony that flies in the teeth of unimpeachable

contradictory evidence and universal experience"), cert.

denied, 459 U.S. 1173, 103 S.Ct. 819, 74 L.Ed.2d 1017

(1983); Ralston Purina Co. v. Hobson, 554 F.2d 725, 728-29

(5th Cir.1977) (same). FNB's assessment of the law is

correct, but it errs in its application. In the Elliott

line of cases, the plaintiffs' testimony failed because it

alone stood against unimpeached and uncontradicted opposing

testimony. Portis, however, challenged the testimony of the

FNB witnesses. Because FNB has neither uncontradicted nor

unimpeached evidence, Elliott's bar does not apply. 

9

conclude that she was wrongfully treated because of her sex.

Consequently, Elliott does not apply.10

FNB further argues that, because Portis was demoted for poor

performance, Portis cannot show the necessary causal connection

between Collums' alleged discriminatory intent and her demotion.

Although Portis concedes that her performance was unacceptable,

Portis contends that her poor performance was itself the product of

discrimination, thereby making the decision to demote her
10

discriminatory. We have stated:

Had [this employer] treated [the employee] in a color-blind

manner ... [she] may have been fired ... for unsatisfactory

work; on the other hand, she might have sufficiently improved

her performance so as not to be one of the two "lowest ranked'

employees, thereby avoiding termination.... This circuit will

not sterilize a seemingly objective decision to [discipline]

an employee when earlier discriminatory decisions have

infected it.

Vaughn v. Edel, 918 F.2d 517, 522 (5th Cir.1990). In Vaughn, the

employer, Texaco, did not give Vaughn, a black female attorney,

accurate employment evaluations and attendant counseling because of

her race. When Texaco eventually made a reduction in workforce on

the basis of performance, Vaughn had one of the lowest ratings, and

Texaco dismissed her. On appeal, this court concluded that the

district court committed clear error in focusing on the final act

of firing instead of the earlier discriminatory actions leading up

to that firing.

FNB claims that it demoted Portis for affirmatively

misleading her superiors about the status of her files and for

failing to stay current on applicable government regulations. To

meet its burden, though, FNB must show that it would have demoted

any loan officer who acted in a similar manner, not just Portis,

whose poor performance allegedly resulted from discriminatory

animus. Although an employer may penalize employee misconduct, it

must apply the penalties equally. Levitt v. University of Texas at

El Paso, 847 F.2d 221, 227 n. 14 (5th Cir.), cert. denied, 488 U.S.

984, 109 S.Ct. 536, 102 L.Ed.2d 567 (1988); see also Kientzy v.

McDonnell Douglas Corp., 990 F.2d 1051 (8th Cir.1993) (refusing to

allow misconduct to negate discrimination where other employees
 

11Portis' testimony and her cross-examination of FNB

witnesses suggested that, although Jerry Dulaney, another bank

officer, failed to comply with IRS regulations and made false

reports to cover up his failure, FNB did not discipline Dulaney. 

FNB's evidence on this issue indicated no false reports and no

need for disciplinary action. 

 

12Our holding that Portis has sufficiently established a

case of intentional discrimination to withstand a judgment as a

11

were not disciplined for the same misconduct); Corley v. Jackson

Police Dep't, 639 F.2d 1296, 1299 (5th Cir. Unit A 1981)

("[P]laintiffs' discharges are unlawful despite their wrongdoing,

if it is shown that, for impermissible reasons, they were singled

out for discriminatory treatment—either for discharge from among

others equally guilty, or for investigation from among others

equally suspected."). Portis accordingly argues that, even if

FNB's characterization of her performance is true, FNB had excused

similar acts and omissions by other, male bank officers.11 FNB

disputes this response, but a jury could reasonably conclude on the

record that FNB might not have disciplined any employee who acted

as Portis did, if the jury chose to believe Portis' version rather

than FNB's. Again, this becomes an issue of credibility, and

consequently falls squarely within the province of the jury. See

Boeing Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc)

("[I]t is the function of the jury ... to weigh conflicting

evidence and inferences, and determine the credibility of

witnesses.") We therefore hold that Portis has adduced sufficient

evidence of intentional discrimination to require presentation to

a jury, and that the district court erred in granting FNB's motion

for judgment as a matter of law.12
matter of law should not be interpreted as an indication of the

strength of either party's case. Also, because this case has not

yet been submitted to a jury, we do not comment on how the

district court should apply Price Waterhouse v. Hopkins, 490 U.S.

228, 241, 242, 109 S.Ct. 1775, 1785, 1786, 104 L.Ed.2d 268 (1989)

(holding (1) that, if both gender and legitimate grounds

influence an employer's decision, that decision is "because of"

gender; but (2) that the employer will not be liable, if it can

prove that the decision would have been the same absent the

impermissible factor). And, because we reverse the judgment of

the district court, we do not address FNB's request for

sanctions, based on its allegation that Portis' appeal is

frivolous. See Fed.R.App.P. 38. 

12

C

 On appeal, Portis also argues that even if she loses on her

demotion claim, she has adduced sufficient evidence to prove a

claim of a "hostile work environment," as defined by Harris v.

Forklift Systems, Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d

295 (1993).

"A discriminatorily abusive work environment, even one that

does not seriously affect employees' psychological well-being,

can and often will detract from employees' job performance,

discourage employees from remaining on the job, or keep them

from advancing in their careers. Moreover, even without

regard to these tangible effects, the very fact that the

discriminatory conduct was so severe or pervasive that it

created a work environment abusive to employees because of

their race, gender, religion, or national origin offends Title

VII's broad rule of workplace equality."

--- U.S. at ---- - ----, 114 S.Ct. at 370-71. See also Meritor

Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91

L.Ed.2d 49 (1986) (concluding that "a plaintiff may establish a

violation of Title VII by proving that discrimination based on sex

has created a hostile or abusive work environment"); Carmon v.

Lubrizol Corp., 17 F.3d 791, 794 (5th Cir.1994) (discussing Harris

standard).
 

13Portis' complaint seeks damages for "sex discrimination"

resulting from "inferior working conditions," that is, "failure

to furnish Plaintiff with a secretary." The prayer asks for

"reinstatement to her position as a loan officer" and "actual and

punitive damages." 

13

 If Portis did not raise a hostile work environment claim in

the district court, we do not review it on appeal. See Singleton

v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826

(1976) ("It is the general rule ... that a federal appellate court

does not consider an issue not passed on below."). A party has

presented an issue in the trial court if that party has raised it

in either the pleadings or the pretrial order, or if the parties

have tried the issue by consent. See Myrick v. City of Dallas, 810

F.2d 1382, 1386 (5th Cir.1987) (holding a claim not properly raised

if not in pleadings, pretrial order, or evidence presented); Laird

v. Shell Oil Co., 770 F.2d 508, 510-11 (5th Cir.1985) (refusing to

consider an issue not raised in the pleadings, pretrial order, or

trial evidence). The raising party must present the issue so that

it places the opposing party and the court on notice that a new

issue is being raised. See Simon v. United States, 891 F.2d 1154,

1158 (5th Cir.1990) (affirming district court's finding that a

party had waived an issue because the record did not put opponent

or court on notice).

Portis did not raise a hostile work environment claim in her

pleadings,13 nor does this issue clearly appear in the pretrial

order. See Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 554

(5th Cir.1992) (waiving claims omitted from pretrial order);
 

14A plaintiff need not use the magic words "hostile work

environment" to raise this claim. See Boutros v. Canton Regional

Transit Auth., 997 F.2d 198, 204 (6th Cir.1993) (finding claim

properly raised even though "hostile work environment" words not

utilized). 

 

15The pretrial order lists Portis' demotion claim, but it

does not list any hostile work environment claim. The relevant

contested issues of fact include: Item 9(f)—"Was Plaintiff's

inability to properly function as a loan officer caused by

discrimination against Plaintiff because of her sex?"; Item

9(g)—"Was plaintiff's failure to report the degree to which she

was behind in her work the result of harassment of her based upon

her sex?." The relevant contested issues of law include: Item

10(d)—"If plaintiff was unable to properly perform her duties as

a loan officer because of harassment of her based upon her sex,

have her rights as an employee, under Title VII of the Civil

Rights Act of 1964 been violated?" 

14

Flannery v. Carroll, 676 F.2d 126, 129 (5th Cir.1982) (same).14 An

affirmative duty exists at the pretrial conference for each party

to allege clearly all factual and legal bases upon which the party

wishes to litigate the case. See Hodges v. United States, 597 F.2d

1014, 1017-18 (5th Cir.1979) (refusing to find additional issue

raised because pretrial order unclear); 6A Wright, Miller & Kane,

Federal Practice and Procedure § 1527. Further, the pretrial order

controls the course of the trial. See Fed.R.Civ.P. 16 ("This order

shall control the subsequent course of the action...."). In

examining Portis' version of the facts and the issues in contest as

set out in the pretrial order, we cannot distinguish a "hostile

work environment" issue from Portis' "unequal treatment" issue.15

Claims of a hostile work environment also relate to the claims of

disparate treatment raised in Portis' pleadings. We cannot say

that the pretrial order put FNB on notice that Portis intended to
 

16Nor can we presume that FNB would have tried its case in

the same manner if Portis had raised the issue in the pretrial

order. See Flannery, 676 F.2d at 131 ("We simply cannot know how

the trial would have proceeded."). 

 

17Rule 15(b) provides in relevant part:

When issues not raised by the pleadings are tried by

express or implied consent of the parties, they shall

be treated in all respects as if they had been raised

in the pleadings.... [F]ailure so to amend [the

pleadings] does not affect the result of the trial of

these issues.

Fed.R.Civ.P. 15(b); see also Flannery, 676 F.2d at 131

(stating purpose of Rule 15(b) is to base the outcome on the

trial and not the pleadings). 

15

raise two alternatives theories of recovery.16

 Portis nonetheless contends that the parties actually tried

the hostile work environment claim by consent. Even if waived in

the pretrial order, parties may try a new issue by express or

implied consent. See Fed.R.Civ.P. 15(b).17 The record does not

support a finding of express consent by FNB. Moreover, trial by

implied consent turns on:

whether the parties recognized that the unpleaded issue

entered the case at trial, whether the evidence that supports

the unpleaded issue was introduced at trial without objection,

and whether a finding of trial by consent prejudiced the

opposing party's opportunity to respond.

United States v. Shanbaum, 10 F.2d 305, 312-13 (5th Cir.1994); see

also Haught v. Maceluch, 681 F.2d 291, 305-06 (5th Cir.1982). As

a general rule, a party impliedly consents by failing to object to

evidence supporting issues that go beyond the pleadings. Haught,

681 F.2d at 305.

Nonetheless, unless we could reasonably expect FNB to have

recognized that the new issue was being raised, we cannot hold that
 

18Portis testified that Collums belittled her performance

and person, that he criticized her so much that she could not

sleep, "nervous ate," and cried frequently. 

16

FNB consented to trial of a hostile work environment claim. See

Moody v. FMC Corp., 995 F.2d 63 (5th Cir.1993) (refusing to find

implied consent where evidence presented was not recognizable as an

independent issue); see also Domar Ocean Transp. Ltd. v.

Independent Ref. Co., 783 F.2d 1185, 1188 (5th Cir.1986) (same);

Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 421 (5th Cir. Unit A

1981) (same). Recognition of whether an unpleaded issue has

entered the case at trial "depends on whether the evidence

supporting the issue is also relevant to another issue in the

case." Shanbaum, 10 F.3d at 313. If the evidence overlaps in this

fashion, it does not equate to implied consent " "absent a clear

indication that the party who introduced the evidence was

attempting to raise a new issue.' " Haught, 681 F.2d at 305

(quoting International Harvester Credit Corp. v. East Coast Truck,

547 F.2d 888, 890 (5th Cir.1977)).

Evidence of a hostile work environment claim may include "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." Harris, --- U.S. at ----, 114 S.Ct.

at 371. Portis did introduce evidence supporting these factors.18

She introduced each of these items, however, as part of her proof

of her disparate treatment claim, that is, to prove the

discriminatory nature of her demotion. Moreover, FNB directed all
 

19See Moody, 995 F.2d at 66 (finding no consent where

evidence on new issue was relevant to defenses already raised in

the pleadings); Domar, 783 F.2d at 1188 (holding that implied

consent was properly found only when party should reasonably have

believed that a new issue had been presented); Jimenez, 652 F.2d

at 421 (stating that evidence relevant to issues already raised

did not give fair notice of a new claim). Consequently, FNB's

failure to object to any material being outside the scope of the

pleadings does not imply consent. 

 

20We do not comment on whether the district court on remand

should allow Portis to raise a hostile work environment claim. 

17

evidence presented in response toward rebutting Portis' assertions

of discriminatory intent and causation. Consequently, we cannot

say that FNB had any reason to believe that Portis was injecting a

hostile work environment claim into the case.19 Consequently, FNB

did not consent to trial of a hostile work environment claim in the

trial court. Because Portis did not raise her hostile work

environment claim in either her pleadings or the pretrial order,

and the parties did not try the issue by consent, we hold that

Portis did not properly present a claim of hostile work environment

in the court below. Accordingly, we do not address whether the

district court properly granted judgment as a matter of law against

Portis on this claim.20

III

For the foregoing reasons, we REVERSE the grant of judgment as

a matter of law and REMAND to the district court for further

proceedings consistent with this opinion.