IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30435

CATHERINE BALTAZOR,

Plaintiff-Appellee,

versus

MORRIS HOLMES and

THE ORLEANS PARISH SCHOOL BOARD, Defendants-Appellants,

MAUDELLE DAVIS-CADE;

DR. J. BERENGER BRECHTEL;

GAIL MOORE GLAPION;

CAROLYN GREEN FORD and

CHERYL Q.W. CRAMER

Appellants.

Appeals from the United States District Court

for the Eastern District of Louisiana

December 8, 1998

Before REYNALDO G. GARZA, DUHÉ, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Catherine Baltazor prevailed in a jury trial against her employer, the Orleans Parish School

Board and its superintenden t , Dr. Morris Holmes, on her claims of race and sex discrimination in

violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §§1981 and 1983. Our review

of the record leads us to conclude that as a matter of law Baltazor did not prove any violations of1 It is important to note that Baltazor was classified as a grade 6 on the clerical grade scale and

that Webre was classified as a grade 14 on the administrative and professional services scale.

There is no direct correlation between the two scales. Clerical positions involve less responsibility

and thus are classified on a different track as the administrative positions.

2 Title VII by a preponderance of the evidence. Similarly, the reco rd fails to support a cognizable

violation of 42 U.S.C. §§1981 and 1983. Therefore, we find that the lower court should have entered

judgment against Baltazor.

F ACTUAL B ACKGROUND AND P ROCEDURAL H ISTORY

This action was filed by Catherine Ann Baltazor, a white female who served as a clerical

employee of the Orleans Parish School Board (“School Board”) for 18 years until her resignation on

May 3, 1996. Baltazor was sixty-one years old at the time of her resignation. Asserting causes of

action under Title VII of the Civil Rights Act of 1964 and 42 U.S.C . §§1981 and 1983, Baltazor

alleged that she was the victim of “reverse” racial discrimination as well as gender discrimination.

Baltazor began her employment with the School Board in July 1977 as a clerk at a grade 4

pay level. Baltazor’s employment continued and she progressed and was assigned as Secretary I in

the Child Nutrition Department until 1991, when she was transferred to a position in the Employee

Relations Department. Baltazor claims that upon her transfer in 1991, she was assigned the duties,

but not awarded the title of the former Office Services Manager, Allen Webre. Webre, a white male,

had recently retired from that position. Following her transfer in 1991, Baltazor continued to earn

$20,500 per year and was classified at a grade 6 secretarial pay level. Baltazor alleges that prior to

his retirement, Webre was earning $1486 bi-weekly at a grade 14 salary level in the office services

manager position in 1990. 1 Baltazor maintains that following her “assumption” of the position, she3

was kept at her secretarial pay and grade classification despite repeated requests for an increase in

salary.

Holmes and the School Board argue that Baltazor was never given the position or all of the

duties of office manager as she claims, but instead was transferred from the Chil d Nutri ti on

Department to Employee Relations. They maintain that the decision to keep Baltazor classified as

Secretary I at a grade 6 salary level was not uncommon. Holmes and the School Board explain that

the move to Employee Relations was precipitated by Baltazor’s October 1991 request for a transfer

out of the Child Nutrition Department. At that time, Baltazor claimed that the black female assistant

director for that department, Ms. Jackson, was “prejudiced” against her. Dr. Frank Fudesco, a white

male associate superintendent who was head of several administrative units, promptly responded to

Baltazor’s complaints and transferred her to his department following her request. According to

Baltazor, she served under Fudesco performing office manager-type job functions that included

greater responsibility than was previously accorded to her at the Secretary I level. Baltazor claims

that she persistently complained to Fudesco that: (1) unequal treatment was being inflicted upon her;

(2) she was not being compensated for her position and duties; and (3) such failure was in violation

of School Board policies.

Although Fudesco transferred Baltazor to his department and accorded her greater

respons i bilit

ies, he did not take any action on Baltazor’s request for a salary increase until his

departure in July 1994. Ensuring that he would not be responsible for any action taken based on his

suggestion, Fudesco mentioned toward the end of his June 10, 1994 exit memorandum that Baltazor

had assumed a busy management position and recommended that she be rec lassified to office

manager. By this time, Dr. Morris Holmes, a black male, had become Superintendent of the School2 In a subsequent memorandum, Henderson retracted this recommendation.

3 Voelkel’s tri al t est imony reveals that Holmes asked her to analyze Henderson’s memo and to

provide Holmes with her own recommendation. Voelkel’s response memo to Holmes is dated April

25, 1995.

4 Holmes testified to the fac t t hat he requested a recommendation from Voelkel and additional

input from Voelkel and Henderson, in part, to refresh his memory of Baltazor and to be brought up

to date on her situation. Holmes testified that once his memory of Baltazor was refreshed, he recalled

having had some contact with her in the eleven months as superintendent. In their brief, Holmes and

the School Board suggest that Holmes also sought counsel because of the magnitude of the requested

4 Board. Fudesco’s exit memorandum presented the first occasion for Holmes to become aware of her

requests.

Bal t azo r renewed and redirected her complaints to Fudesco’s successor, Associate

Superintendent, James Henderson, a black male. On March 10, 1995, Baltazor sent her direct

supervisor, Henderson, what Holmes and the School Board allege was her first written request to be

reclassified as office manager and to be raised from a grade 6 classification to a grade 12. She also

requested that the raise be made retroactive to October of 1991. In effect, the increase would cover

a 44-month period. Unlike Fudesco, Henderson took immediate actio n and attempted to have

Baltazor’s po sition reclassified to a higher grade level. On March 13, 1995, Henderson sent a

response and recommendation to Holmes endorsing, in part, Baltazor’s re quest. Specifically,

Hen derso n requested a reclassifaction from grade 6 to grade 10. Baltazor criticizes Henderson’s

recommendation because the proposed increase in grade level and salary was not commensurate with

Webre’s status or remuneration. 2

Holmes forwarded the matter for consideration and further recommendation to the School

Board’s Director of

Personnel, Ella Voel kel

. 3 Voelkel is a white female who has served as the

School Board’s Director of Personnel since 1987. 4 Voelkel disagreed with Henderson’spay raise.

5 Holmes testified:

Q. At the time that you received the memorandum, what did you do with it?

A. When I received t he memo randum, and as I recall, I discussed this issue with Dr. Lloyd, my

executive assistant, and Mrs. Voelkel, and it was sayi ng t o me that there was no rationale and

there was no system to make this move. So, at this point in time, then this recommendation was

acceptable to me, that I had no reason to believe that the Personnel Department had not looked

at all of the issues, because any time that I asked my staff to do something of this nature, it means

to do an analysis, to do all of the extraneous issues, take a look at the policies, take a look at the

statutes and practices, and advise.

Q. Did you rely on this memorandum in coming to your final decision concerning this lady’s request?

A. Yes, I did.

6 Specifically, Henderson withdrew his recommendation stating,

The duties of the previous Office Manager far exceeded [Baltazor’s] current assignment with the

following supervisory responsibilities: Telephone Services, Mail Room, Duplications Services,

Pool Typists, Maintenance (Janit o rial) Services, Office Supplies for all Administrative

Departments[.] Subsequently, the above responsibilities, with the exception of telephone and mail

room activities, were disseminated to other departments.

Defendant’s Exhibit 2.

5 recommendation to Ho lmes, and in her memo to Holmes set forth her determinations that: (1)

Baltazor had not been transferred to the position of office manager; (2) the previous office manager’s

duties had been reduced before his retirement; (3) if t he office manager position were to be

reestablished at a ne w salary level it would have to be “posted” for applications under the School

Board’s procedures; and (4) even if an office manager-type position were reestablished, the

classification levels sought by Baltazor and recommended by Henderson were both excessive. 5

Holmes received Henderson’s retracti on and reasons following receipt of Voelkel’s recommendation. 6

Relying on these two documents, Holmes denied the grade increase and reclassification.

Baltazor filed a claim with the Equal Employment Opportunity Commission (“EEOC”) on

M ay 18, 1995. Approximately four months after she filed her claim, Baltazor testified that she6

received “a carefully construed memo” in which Henderson notified her that he had changed his mind

on his decision to support, in part, her request fo r a reclassification. She resigned her position on

May 3, 1996. Her position was not filled following her resignation. On July 18, 1996, the EEOC

provided Ba lt azor with a right to sue letter under Title VII, prior to the completion of the School

Board’s investigation of her claim.

Baltazor filed this suit on January 16, 1996. She asserted separate causes of action under both

Title VII of the Civil Rights Act and under the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983.

Named as defendants were both the Scho o l Board and Holmes, as superintendent of the school

system. Ho lmes and the School Board timely moved for judgment as a matter of law pursuant to

Fed.R.Civ.P. 50(a) at the close of Baltazor’s case before the jury. The judge deferred his ruling and

the jur y awarded Baltazor compensatory damages in the amount of $200,000 against the School

Board and punitive damages in the amount of $125,000 against Superintendent Holmes. The court

entered judgment accordingly. Holmes and the School Board filed a renewed motion for judgment

as a matter of law under Fed.R.Civ.P. 50(b). The co urt again deferred its ruling, but eventually

denied both Rule 50 motions and set forth its reasons in a minute e ntry dated March 24, 1997.

Holmes and the School Board t imely appeal the jury verdict in Baltazor’s favor and the denial of their

Rule 50 motions.

S TANDARD OF R EVIEW

We accord great deference to the jury’s verdict when evaluating the sufficiency of the

evidence. Under this standard, we view all of the evidence in the light most favorable to the verdict

and reverse only if the evidence points “so strongly and overwhelmingly in favor of one party that the7

court beleives that reasonable [jurors] could not arrive at any contrar y conclusion.” B oeing v.

Shipman , 411 F.2d 365, 374 (5 th cir. 1969)(en banc).

We review de novo the l ower court ’s ruling on a motion for judgment as a matter of law

under Fed.R.Civ.P. 50(a). O mnitech Int’l, Inc. v. Clorox Co.

, 11 F.3d 1316, 1322-23 (5th Cir.), cert.

denied

, 513 U.S. 815, 115 S

. Ct. 71, 130 L.Ed.2d 26 (1994). Again, we view all evidence and

reasonable infe rences in favor of the non-movant. If reasonable persons could differ in their

interpretation of the evidence, the motion should be denied. Only when the facts and the reasonable

inferences are such that a reasonable juror could not reach a contrary verdict may the district court

properly grant a motion for judgment as a matter of law. T exas Farm Bureau v. United States , 53

F.3d 120, 123 (5 th Cir. 1995).

In McDonnell Douglas Corp. v. Green

, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

the Supreme Court held that a complainant, like Baltazor, in a Title VII trial carries the init ial burden

of establishing a prima facie case of racia l discrimination. I d. at 802, 93 S.Ct. at 1824; see also

,

Wallace v. Texas Tech Univ.

, 80 F.3d 1042, 1047 (5th Cir. 1996)(“To succeed on a claim of

intentional discrimination under Title VII, Section 1983, or Section 1981, a plaint iff must first prove

a prima facie case of discrimination.”) However, as this court held in H arrington v. Harris

, 118 F.3d

359 (5th Cir. 1997), the elements of a prima facie case can be inapposite:

[W]hen a case has been tried on the merits, a reviewing appellate court need not address the

sufficiency of plaint iff’s prima facie case, and may instead proceed dir ect ly to the ultimate

questions of whether plaint iff has produced suffic ient evidence for a jury to find that

discrimination occurred. In other words, the focus then shifts to the ult imat e question of

whether the defendant intentionally discriminated against the plaintiff.

Id . at 367 (internal quotations and citations omitted).8

We conduct a traditional sufficiency of the evidence analysis to determine whether reasonable

jurors could find discriminatory treatment. Travis v. Board of Regents of the University of Texas

,

122 F.3d 2 59, 263 (5 t h Cir. 1997). We are mindful that a Title VII plaintiff must prove that the

employer’s purported reasons for taking an adverse employment action are pretextual and that the

employer engaged in illegal discrimination. B oeing

, 411 F.2d at 374. Thus, in order to prove race

or gender based discrimination, the complainant must present evidence that gender or race were

determinative in the employment decision. However, subtle distinctions exist between an inference

of pretext and proof of actual discrimination. Given these distinctions, we have concluded that “it

is possible for a plain t iff’s evidence to permit a tenuous inference of pretext and, by extension,

discrimination, and yet for the evidence to be insufficient as a matter of law to support a finding of

discrimination.” T ravis

, 122 F.3d at 263 (citing Walton v. Bisco Industries

, 119 F.3d 368, 372 (5th

Cir. 1997)).

Discussion

Our analysis of the issues in this case requires us to evaluate first Baltazor’s claim that she was

denied a reclassificati o n and increase in salary based on her race or gender. Next we consider

whether Baltazor’s Sections 1981 and 1983 claims should have gone to the jury. Third, we turn our

a t t ent io n t o t he award of compensatory damages. Our discussion ends with an assessment of the

Title VII case against the Superintendent, Dr. Morris Holmes.

A.

This ca se centers on whether the School Board should have increased Baltazor’s

compensation since she assumed responsibilities beyond her job description; yet, it is masquerading

as a Title VII case. Given the legitimate controversy over proper compensation and application of7 Neither the jury instructions nor the verdict form offers a distinction between a finding of race

discrimination or gender discrimination. Consequently, the jury’s verdict is ambiguous on the issue

of whether it found race discrimination, gender discrimination or both. Without such a distinction,

our course is made more difficult.

9 the procedures of reclassifying Baltazor’s position, the ju ry co uld have reasonably concluded that

Baltazor was underpaid and overworked. The central question, however, is not whether appellants

should have paid Baltazor more money but whether the evidence can support a finding that the real

reason for the School Board’s decision not to raise her compensation bespeaks rac e or gender

discrimination. Our review of the record leads us to conclude that there is no evidence which could

lead a reasonable juror to conclude that the appellants discriminated against Baltazor on the basis of

either her race or gender. 7

The trial court declined to grant appellants motion for judgment as a matter of law because

it determined that “the jury heard credible evidence of the job responsibilities competently assumed

by plaint iff, the position perceived by others, her request for reclassification, the racial hostility extant

within the school administration and the school board’s proffered reasons for refusing to take action

on the m atter.” B altazor v. Holmes

, Civil Action No.: 96-150, Section “K” (Minute Entry March 24,

1997). Record 288-89. Baltazor echoes these same conclusions in her pleadings before this court.

These reasons are unpersuasive.

Fir st , t he job responsibilities “competently” assumed by Baltazor are not the same

responsibilities required of Webre. Baltazor failed to prove that she was in a position or performing

duties equal to Webre’s. Voelkel’s trial testimony demonstrates that Webre’s salary and grade levels

were increased and his position upgraded several times during his tenure at the School Board. Such

upgrades were due, in part, to Webre’s assump t ion of new duties and responsibilities. One of

Webre’s most significant duties-supervision of the Print Shop-was assigned to him in 1982. At that8 Specifically, Voelkel’s testimony ind icat es t hat Webre’s management of the Print Shop was

reassigned to another employee, Ms. Johnson, in 1984; his management of the Mail Room went to

Dr. Fudesco’s department and was reassigned to Baltazor, among others; and that Webre’s duty of

ordering supplies was decentralized following his retirement so that each department handled its own

supply needs. Additionally, Voelkel testified that Baltazor did, in fact, assume certain tasks that had

formerly been done by Webre including telephone services.

9 The previous existence of the Office Manager position does not mandate its continued existence,

especially when the costs of maint aining such a position outweighs th e benefit of having multiple

employees assume the responsibilities.

10 time, Webre was raised from a grade 12 to a grade 14. Voel kel testi fi ed that prior to Webre’s

retirement in 1990, many of Webre’s most significant job duties and responsibilities had been phased

out or reassigned to other employees. 8 Consequently, Baltazor could not have assumed responsibility

for all of the same responsibilities that Webre performed. Accordingly, the School Board was correct

to decline compensation on the same level as Webre. 9

While others may have perceived that Baltazor assumed the position of Office Manager, there

is no doubt that her immediate supervisor, Fudesco, and the supervisor of personnel understood that

she was not the Office Manager. Dr. Fudesco conceded as much in his exit memorandum imploring

the School Board to re-establish the position. The position had been abolished and its responsibilities

reassigned to others. Similarly, Voelkel repeatedly testified that she did not believe that Baltazor was

performing the same duties as Webre. No employer can discriminate for failing to fill a position

which no longer exists unless the employer eliminated the position as a means of discrimination. See

e.g.

, Mills v. Inter n. Broth. of Teamsters, et al. , 634 F.2d 282 (5 t h cir. 1981)(position must be

available). Despite how others perceived Balt azor’s duties, the responsibilities inherent to the

position were assigned to others and the position eliminated upon Webre’s retirement. Baltazor did11

not contend nor does the record support any indication that the position was eliminated as a means

of precluding Baltazor’s advancement.

Bal t azor’s requests for reclassification did not comply with board policy and there is no

indication that race or gender discrimination formed the basis of the School Board’s decision to deny

the request. The record indicates that Baltazor’s request for reclassification did not follow School

Board procedures. Voelkel testified that there are two ways in which a position within the School

Board is reclassified. First, the Superintendent may authorize an “all-call” request for reclassifications

from all dep art ment heads. Those department heads may recommend positions within their

departments for reclassification. Then, a committee is fo rmed t o review these requests and make

recommendations to the superintendent. The superintendent then approves or disapproves the

recommendations. For any reco mmendations approved, the superintendent then makes a

recommendation to the School Board.

Second, a department head seeks authorization from the superintendent f or a posi ti on

reclassification. If the authorization is obtained, the budget committee must then approve the

reclassification and the position is then announced for general app lications. Voelkel testified that

there is no reclassification procedure by which an individual can challenge her own sal ary in the

manner that Baltazor attempted. Voelkel’s recommendation against Baltazor’s reclassification was,

in part, motivated by these proc edures and her belief that neither Baltazor or other employees be

reclassified outside of a comprehensive scheme. In addition, Voelkel testified that African American

employees had been denied reclassification during Dr. Holmes’s tenure as superintendent.

Again, it is important to note that neither race nor gender played a role in this determination.

Dr. F udesco, a white male, failed to make the recommendation during his tenure as Baltazor’s12

supervisor. Instead he offered unsubstantiated assurances that Baltazor would be reclassified. On the

o t her hand, his successor, Henderson, a black male made an immediate effort to secure a

reclassification although below the level Baltazor requested. The exit memorandum and Henderson’s

requests were reviewed by V o elkel, a white woman, who offered sound reasons for her

recommendation that the superintendent decline the reclassification. Holmes adopted the

recommendation of his personnel specialist. Based on these facts, no reasonable juror could conclude

that the reason for the denial was related to race or gender.

Baltazor ’s attempts to obscure the weakness of her case by emphasizing that the adverse

personnel decision she complains of occurred in a climate of racial hostility. However, nothing in the

record connects “the racial hostility in the school ad minist rat io n” to Baltazor’s claim of racial

discrimination. Baltazor endeavored to prove by direct and circumstantial t est imony that she was

subject to racial animus on the part of the school boa rd. Baltazor asserts that the School Board’s

constant refrain “positions are reclassified, not people” is evidence of pret ext for its underly

ing

discriminatory animus. The record is wholly devoid of any indication that the policy for reclassifying

positions operates to the detriment of whites or women. Persons from different races and genders

were treated the same under the policy as articulated by Voelkel.

Despite objections by Holmes and the School Board, Baltazor presented two former School

Board employees, Boyd and Ducote, as witnesses who testified that Holmes downgrade d thei r

positions and negatively affected their salaries because they are white. Baltazor’s employment was

completely unrelated to either of these two persons. Boyd initially performed the duties of Director

o f Security and was later reassigned to Director of Investigations. The School Board employed

Ducote as the Director of Facility Planning. He also assumed Associate Superintendent1 0 We express no opinion on the merits of any action pending between these parties, the School

Board, and Dr. Holmes.

13 Responsibilities. The record is improperly infected with their accounts of racial hostility and like a

contagious disease it was spread to include Baltazor. 10

However these accounts may portray similarit ies in t he manner Holmes treated Boy d and

Ducote, they do not prove any relationship betwee n t he perceived animus and the decision not to

reclassify Baltazor. The probative value of their testimony is highly questionable. Indeed, the record

is devoid of any direct contact between Baltazor and Holmes regarding her request for a promotion.

Instead, it shows that she dealt only with Fudesco and Henderson. The absence of either a direct or

credible circumstantial nexus between Holmes and Baltazor precludes any finding of discriminatory

intent. Neither the general environment at the Scho o l Bo ard, no r the specific conduct of Holmes

regarding other employees support the inference that the denial of Baltazor’s request for a pay

increase was due to her race or gender.

Finally, the proffered reasons for declining the reclassification were wholly consisten t wi th

School Board practice and policy. In summary, Baltazor’s assumed duties did not merit the desired

reclassification given fundamental changes in the position prior to W e bre’s departure. In fact, the

office manager position no longer existed. Voelkel who acted upon the request for reclassification

followed the policy and procedure for reclassification. Nothing in that policy advances race or gender

discrim inat io n in the work place. Even if the School Board chose to reactivate the position, the

record indicates that Baltazor was not academically qualified to fill the grade 12 position.14

While the jury may have believed that Baltazor should have received greater compensation

for the work

she performed, the evidence does not support a finding that she was discriminated

against on the basis of her race or gender.

B.

We turn next to the sufficiency of the evidence regarding Baltazor’s §§ 1981 and 1983 claims

against both Superintendent Holmes and the School Board. Once again, we must review the ultimate

question whether Baltazor produced sufficient evidence for a jury to find that discrimination occurred.

Walther v. Lone Star Gas Co. , 952 F.2d 119, 122 (5th Cir. 1992). This determination is made with

an appreciation for the elements of a prima facie case. With regard to claims of discrimination in

violation os § 1981 discrimination, we review the sufficiency of the evidence to determine whether

it supports a finding that the defendant discriminated against the plaint iff. S ee

, LaPierre v. Benson

Nissan, Inc. , 86 F.3d 444, 448 n. 2 (5th Cir. 1996). Under §1981a, punitive damages may be

awarded against an employer proved to have, “engaged in discriminatory practice or discriminatory

practices with malice or reckless disregard t o t he federally protected rights of an aggrieved

individual.” 42 U.S.C. §1981a(b)(1).

In t he § 1983 liability, we review the sufficiency of the evidence to determine whether it

supports a verdict finding that a municipality or local government entity acted pursuant to an official

municipal policy that caused a constitutional tort. See

, Monell v. Dep’t. of Social Services of the City

of New York

, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978)(articulating the

elements of a prima facie Section 1983 claim). The M onell Court was e xplicit in it s holding that

§1983 “cannot be easily read to impose liability vicariously on governing bodies solely on the basis1 1 A subjective belief alone is insufficient to create a jury question. T ravis

, 122 F.3d at 266 (citing

Armendariz v. Pinkerton

, 58 F,3d 144, 153 (5th Cir. 1995), cert. denied,

--- U.S.

---, 116 S.Ct. 709,

133 L.Ed.2d 664 (1996)).

15 of the existence of an employer-employee relationsh ip with a tortf easor.” I d. at 692, 98 S.Ct. at

2036.

Monell held that policy may be made by a local governments’ lawmakers or by those whose

edicts or acts may be fairly said to represent official policy. Id . at 694. Baltazor bases her sections

1981 and 1983 claim against the School Board on the actions of Holmes. We are aware that it is rare

for a plaint iff to be in a position to provide direct evidence of discriminatory intent. L aPierre

, 86 F.3d

at 449. Thus, a plaint iff will be allowed to prove intentional discrimination through circumstantial

evidence and, specifically, evidence that the defendant’s articulated nondiscriminatory rationale was

pretextual

. H arrington v. Harris

, 108 F.3d 598, 606 (5th Cir. 1997) (citing McDonnell Douglas

Corp. v. Green , 411 U.S. 792, 803-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); Texas Dept.

Of Community

Affairs v. Burdine , 450 U.S. 248, 251-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207

(1981)).

Nevertheless, Baltazor did not produce sufficient proof to support her §§ 1981 and 1983

claims. The record does not support a finding that Holmes acted with malice or reckless disregard

of her federal rights to entitle her to the punitive damages awarded by the jury. Again, we underscore

the fact that Baltazor offers no proof of direct contact between herself and Holmes, or of any indirect

statements or actions against her by Holmes. Even she acknowledged that the perceived race and

g ender discrimination problems existed before Holmes became the superintendent. 11 Holmes received

the request for a reclassification some eleven months after he became the superintendent and referred16

the matter to Voelkel who advised him that there was no basis for the action. Nothing in the record

diminishes the validity of the Voelkel’s recommendation and by extension, Holmes’ decision to act

on that recommendation.

Moreover, we are hard-pressed to find that Holmes articulated nondiscriminatory rationale

was pretextual even when considering the circumstantial evidence presented in this case. The record

indicates that Baltazor, in fact, did not hold the same qualifications as those who were earning the

grade 12 salary. Neither in her brief, nor at oral argument did her attorneys demonstrate that she had

satisfactory qualifications for the job. We likewise reject the circumstantial evidence based on the

testimony of Boyd and Ducote be c ause of the absence of any nexus between the nature of their

contact with Holmes and the decision not to act on Baltazor’s request.

In support of her § 1983 claim, Baltazor notes that the Supreme Court as well as the Fifth

Circuit have held that liability may be found against a local government entity for its “official

policies”—which are not limit ed to statements, ordinances, regulations, or decisions that are o fficially

adopted by a design at ed po licy-making authority, but can also include persistent or widespread

practices which are so common as to constitute a local custom.” W ebster v. Houston

, 735 F.2d 838

(5th Cir. 1984) (en banc). Even the M onell Court recognized that a practice may be so persistent that

it constitutes a custom even though it has not been formally approved by the body’s official decision

makers. Monell , 436 U.S. at 691.

We find that Baltazor’s emphasis on Monell merely underscores the insufficiency of the

evidence she brought. Though Baltazor, through her witnesses Boyd and Ducote, put forth evidence

that racially insensitive remarks were made by Holmes to other School Board employees, she did not

meet her burden of proving that such remarks or atti tudes had so pervaded the workplace as to make17

them a “custom” for purposes of § 1983 litigation. Our review of the record indicates that only Boyd

and Ducote testified to the general discriminatory environment at the School Board. While some of

Balt azor’s other witnesses may have testified to the fact that Baltazor was performing at a higher

level than she was being recognized or that she deserved a promotion, they did not testify to a pattern

or policy of the School Board to which Holmes’ treatment of Baltazor can be attributed.

C.

Having determined that the evidence was not sufficient to support the jury’s verdict on the

merits of the case, we need not address the is sue of whet her the award of punitive damages were

excessive. We render a take-nothing judgment in favor of the appellants.

D.

Similarly, we find no reason to add ress the issue of whether the Title VII claim proceeded

against Holmes in his perso nal capacity. Again, the evidence simply does not support the jury’s

verdict in any respect.

C ONCLUSION

The trial court’s judgment based on the jury verdict is REVERSED, and a take-nothing

judgment is RENDERED in favor of Holmes and the School Board.18