1 Local Rule 47.5.1 provides: "The publication of

opinions that have no precedential value and merely decide

particular cases on the basis of well-settled principles of law

imposes needless expense on the public and burdens on the legal

profession." Pursuant to that rule, the court has determined

that this opinion should not be published.

- 1 - UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-50247

_____________________

SONJA CHAVEZ,

Plaintiff-Appellee,

versus

KOSA TELEVISION and TIM RIGGAN,

Defendants-Appellants.

________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(M-94-CV-121)

________________________________________________

December 29, 1995

Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM: 1

The principal issue in this appeal by KOSA Television and Tim

Riggan is whether lack of prompt remedial action is one of the

elements for this Title VII sexual harassment action brought by

Sonja Chavez. Appellants claim that the district court erred by

denying them judgment as a matter of law and by submitting the

issue of punitive damages to the jury. We AFFIRM

.- 2 - I.

Chave z was hired by Riggan to work as an advertising

salesperson fo r KOSA-TV on March 25, 1991. Riggan, the head of

sales, began making sexual comments, discussed i nfra

, to Chavez.

In early December 1992, Chavez complained to Sheryl Jonsson, the

KOSA general manager, and Jonsson met with Chavez and Riggan about

the complaint. After this meeting, the sexual comments stopped,

but Riggan then began a campaign of beeping Chavez to check on her

work, instituted new rules tha t were abandoned when she left,

became cold and distant, and began dealing with her only through

third parties. Chavez testified that the hostility increased until

it be came intolerable; she resigned in March 1993, approximately

three months after her complaint of sexual harassment.

Chavez filed this action against KOSA and Riggan in July 1994,

presenting 11 cla ims; one was for sexual harassment under Title

VII. KOSA and Riggan's summary judgment motion was denied on the

harassment claim, but was granted for the remainder.

After the close of evidence at a jury trial, KOSA and Riggan's

motion for judgment as a matter o f law was denied. The jury

awarded Chave z $8,000 in compensatory damages and $35,000 in

punitive damages. Post-judgment, KOSA and Riggan filed a renewed

motion for judgment as a matter of law and a moti on for a new

trial; both were denied.

II.

In relevant part, Title VII prohibits an "employer" from

discriminating "against any individual with respect to his- 3 -

compensation, terms, conditions, or privileges of employment,

because of such individual's

... sex". 42 U.S.C. § 2000e-2(a)(1).

T he issues presented are whether judgment as a matter of law was

appro priate because the conduct did not violate Title VII,

including because of prompt remedial action, and whether punitive

damages were erroneously submitted to the jury in light of the jury

verdict form and insufficiency of the evidence.

A.

The well-known standard of review for a F ED

. R. C IV

. P. 50

motion for judgment as a matter of law is found in B oeing Co. v.

Shipman , 411 F.2d 365 (5th Cir. 1969) (en banc). Boeing states:

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]

s hould be denied, and the case submitte d to

the jury. A mere scintilla of evidence is

insufficient to present a question for the

jury.

411 F.2d at 374. The court must "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". Id.

1.

The elements for this sexual harassment claim are:

(1) That [Chavez] belongs to a protected

c lass; (2) that she was subject to unwelcome

sexual harassment; (3) that the harassment was- 4 - based on sex; [and] (4) that t he harassment

affected a "term, condition or privilege of

employment"....

Nash v. Electrospace System, Inc.

, 9 F.3d 401, 403 (5th Cir. 1993)

(citing Jones v. Flagship Int'l

, 793 F.2d 714, 719-20 (5th Cir.

1986), cert. denied

, 479 U.S. 1065 (1987)). The disputed fifth

prong under Nash

, 9 F.3d at 403 ("that the employer either knew or

should have known of the harassment and failed to take prompt

remedial action"), is discussed in part II.A.2.

Evidence in favor of Chavez includes the following: when

viewing Chavez walking down the hall, Riggan said daily, "work it,

baby, work it"; when Chavez asked Riggan for assistance on a

business task, he replied , "oh baby, how bad do you need me";

Riggan remarked daily on her cleavage and clothes; in cold weather

Riggan remarked about Chavez having her "party hats on", apparently

in reference to her nipples; several times when Riggan entered

Chavez's office, he told her that he would turn off the light and

put her on the desk; when Chavez requested permission to leave

early one day, Riggan said, " if you show me your tits first, you

can go home"; once, when Chavez called in sick, Riggan asked

whether she was naked in bed; and, on one occasion, Riggan put golf

hats on Chavez's breasts. Witnesses, in addition to Chavez,

testified about similar improper comments and actions by Riggan.

C havez testified that the remarks by Riggan were continuous

and permeated the work environment. A co-worker testified that

from the time Chavez began working at KOSA and until she complained

of sexual harassment, Riggan seemed to enjoy upsetting Chavez, who- 5 -

"would spend a lot of time in the bathroom due to phy s ical

reactions to the tension and the upset". Chavez testified that

after her sexual harassment complaint, she felt that Riggan began

harassing her through his daily actions toward her. Chavez

testified that, because of these post-complaint actions, on a daily

basis she cried, her heart raced, and she was a nervous emotional

wreck.

Appellants respond that there was no "unwelcome sexual

harassment", and that, other than a few offensive rem arks by

Riggan, as Chavez testified, she loved her work at KOSA-TV. The

evidence presented in favor of appellants was that Chavez exposed

her breasts to Riggan at a pool party; she acknowledged telling

sexually-oriented jokes at the station; and, after the complaint of

sexual harassment, Chavez was observed touchi ng Riggan at a

Christmas party and making two attempts to grab his buttocks at the

station.

Chavez and a co-worker who was present at the pool party

denied that Chavez showed her breasts to Riggan. And, a co-worker

testified that Chavez's attempt to touch Riggan's buttocks was only

a demonstration of what a former employee had done to Chavez.

In short, Riggan denied the sexual harassment in cidents

presented by Chavez; but, the jury obviously believed her. This is

a classic case for the jury; it goes without saying that the jury,

not this court, makes credibility determinations. Based on all the

evidence, considered in the light most favorable to Chavez, a fair-- 6 -

minded and impartial jury could have found Title VII sexual

harassment.

2.

KOSA and Riggan assert that the sexual harassment claim fails

because t he fifth prong (respondeat superior) of N ash ("that the

employer either knew or should have known of the harassment and

failed to take prompt remedial action") was not satisfied. Nash

,

9 F.3d at 402.

Under certain circumstances, the respondeat superior prong

imposes liability on Title VII "employers" for sexual harassment by

a co-worker or supervisor, persons not otherwise liable under Title

VII. The salient question here is whether this prong applies; it

does not, because, as discussed below, the claimed harasser was the

employer.

KOSA and Riggan appear to h ave conceded, necessarily so, at

oral argument that Riggan is an "employer" for purposes of this

action. In any event, were Riggan not an employer, he could not be

a defendant in this Title VII action, because as quoted earlier,

Title VII only prohibits certain actions by employers. Moreover,

KOSA and Riggan do not challenge the district court's ruling that

this Titl e VII action could proceed against Riggan. 42 U.S.C. §

2000e(b) defines a Title VII "employer" as "a person engaged in an

industry affecting commerce who has fifteen or more employees ...

and any agent of such a person " (emphasis added). And, our court

gives the phrase "any agent" a liberal construction. G arcia v. Elf

Atochem North America

, 28 F.3d 446, 451 (5th Cir. 1994); Harvey v.2 Our court first used the five-prong test for "hostile

work environment" in Jones v. Flagship Int'l , 793 F.2d 714 (5th

Cir. 1986), which borrowed the test from Henson v. City of

Dundee , 682 F.2d 897 (11th Cir. 1982). Henson stated that

respondeat superior applies when "the plaintiff seeks to hold the

employer responsible for the hostile environment created by the

plaintiff's supervisor or co-worker", 682 F.2d at 905, and that,

if the alleged harasser [Riggan] "was her employer, the City of

Dundee [KOSA] would be liable for his action without the

operation of respondeat superior". Id . at 905 n.9.

- 7 - Bla ke , 913 F.2d 226, 227 (5th Cir. 1990). "`Under this liberal

construction, immediate supervisors are Employers when delegated

the employer's traditional rights, such as hiring and firing.'"

Elf , 28 F.3d at 451 (quoting H arvey

, 913 F.2d at 227; emphasis

omitted). In sum, had Riggan not been an "employer", the action

could have proceeded only against KOSA on the basis of respondeat

superior. See Elf , 28 F.3d at 450.

Obviously, respondeat superior is not applicable when, as

here, sexual harassment i s by the employer, rather than by a coworker or supervisor. S ee 42 U.S.C. § 2000e-2(a); Nash

, 9 F.3d at

404 (respondeat superior liabilit y not at issue when harasser is

president of company) (citing Harris v. Forklift Systems, Inc.

,

___

U.S. ___, 114 S. Ct. 367 (1993)); Simmons v. Lyons , 746 F.2d 265,

270 (5th Cir. 1984). 2

B.

KOSA and Riggan contest punitive damages on t wo bases: the

punitive damages question submitted to the jury did not contain the

word "malice"; and there was insufficient evidence to support the

award.- 8 - 1.

Although the jury instruction included "malice" ("You may also

award punitive damages, if [Chavez] has proved that the defendants

acted with malice or willfulness or with callous and reckless

indifference to the rights of [Chavez]."), question number three on

the jury verdict form did not ("Did the defendants intentionally,

willfully, or with reckless disregard violate the rig hts of

[Chavez]?"). But, KOSA and Riggan objected to question number

three only generally; they did not object specifically to the

failure to include "malice". Their counsel stated:

My final objection, if Your Honor please,

would be to Question Number 3 as submitted by

the Court, and that is the question concerning

punitive damages, because of the same reasons

as outlined above in that the test for

punitive damages, number one, has not been met

by [Chavez] in this case under th e evidence,

and number two, the Court's charge does not

meet the burden and does not pla ce upon

[Chavez] the burden that [Chavez] would have

to bear in order to get punitive damages.

Restated, contrary to F ED

. R. C IV

. P. 51, KOSA and Riggan did not

state distinctly that they ob jected to the omission of "malice".

Rule 51 states:

No party may assign as error the giving or the

failure to give an instruction unless that

party objects thereto before the jury retires

to consider its verdict, stating distinctly

the matter objected to and the grounds of the

objection

.

(Emphasis added).

Under Highlands Ins. Co. v. Nat'l Union Fire Ins. Co.

, 27 F.3d

1027, 1032 (5th Cir. 1994), cert. denied,

___ U.S.

___, 115 S. Ct.

903 (1995), "so long as the trial judge gives counsel a fair- 9 -

opportunity to object, we will listen to unobjected-to rulings only

in those handful of cases that can meet the exacting requirements

of plain error". As stated in Highlands

,

[f]ew jury charges in cases of complexity will

not yield "error" if pored over, lon g after

the fact in the quiet of the library

-- if

such an enterprise is to be allowed. It is

not. The reality is that most such "errors"

will be washed away if the trial court is

given a fair opportunity to consider them.

27 F.3d at 1032. Due to the general nature of KOSA and Riggan's

objection, the trial court was not given fair opportu nity to

consider the omission of "malice". Therefore, we review only under

the plain error standard:

(1) that an error occurred; (2) that the error

was plain, whic h means clear or obvious; (3)

the plain error must affect substantial

rights; and (4) not correcting the error would

"seriously affect the fairness, integrity or public reputation of judicial proceedings."

Highlands

, 27 F.3d at 1032 (citing United States v. Olano

, 507 U.S.

725,

___, 113 S. Ct. 1770, 1779 (1993)). Needless to say, any

error in not including "malice" does not meet this strict standard.

Among other things, as discussed infra

, the omission did not affect

substantial rights.

In the alternative, even assumi ng, a rguendo

, that KOSA and

Riggan did object sufficiently, the error was harmless. An award

of punitive damages is appropriate under 42 U.S.C. § 1981a(b)(1) if

the defendant "engaged in a discriminatory practice

... with malice

or with reckless indifference". (Emphasis added.) The jury found

reckless indifference; the omission of "malice" did not affect the- 10 -

out come. S ee F.D.I.C. v. Mijalis

, 15 F.3d 1314, 1318 (5th Cir.

1994); Bender v. Brumley , 1 F.3d 271, 276-77 (5th Cir. 1993).

2.

KOSA and Riggan claim that there was insufficient evidence to

support submission of punitive damages to the jury. Under the

above discussed Boeing and punitive damages standards, we conclude

that the evidence was sufficient for a fair-minded juror to find

that reckless indifference was present.

III.

For the foregoing reasons, the judgment is

AFFIRMED

.