IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60419

ADDIE STOVER

Plaintiff-Appellant

v.

HATTIESBURG PUBLIC SCHOOL DISTRICT

Defendant-Appellee

Appeals from the United States District Court 

for the Southern District of Mississippi

Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.

STEWART, Circuit Judge: 

Plaintiff-Appellant Addie Stover (“Stover”) appeals the Final Judgment

entered pursuant to a jury verdict in favor of Defendant-Appellee Hattiesburg

Public School District (“School District”), the denial of a motion for a new trial,

and the district court’s grant of attorney’s fees to the School District. On appeal,

Stover argues that(1)the district court made evidentiary errors during the trial,

(2)the district court erroneously permitted the “same actor”jury instruction, (3)

the jury verdict was against the overwhelming weight of the evidence, and (4)

the district court erroneously awarded attorney’s fees to the School District. For

the following reasons, we affirm in part, reverse and vacate in part, and render

in part. 

United States Court of Appeals

Fifth Circuit

F I L E D

November 18, 2008

Charles R. Fulbruge III

Clerk
No. 07-60419

1 Stover had already filed charges with the EEOC and her federal lawsuit by the time

Dr. Wimbish became the Superintendent. 

2

I. FACTUAL AND PROCEDURAL BACKGROUND

In early 1996, Stover, an African American female, began working as a

temporary secretary to Jimmy Hopkins in the Personnel Department at the

School District. Hopkins, an African American, was the Associate

Superintendent and head of the Personnel Department. Stover holds a

bachelor’s degree in English with a minor in Paralegal Studies. In June 1996,

Stover began working as a full-time secretary to Hopkins, and Stover’s beginning

salary was $12,945. For the 1997-98 term, Stover was assigned to work for Dr.

Gordon Walker, a white male, instead of Hopkins. Dr. Gordon Walker was the

Superintendent at the time Stover was his secretary. Dr. Walker resigned in

1999, and Dr. James Davis, an African American, became Superintendent. In

June 2005, Dr. Davis retired, and Dr. Annie Wimbish,1 an African American

female, became Superintendent. Stover’s salary at the time she resigned in 2006

was $37,438. Stover is not a licensed educator, and she did not have an

employment contract with the School District.

During his tenure as Superintendent, Dr. Davis had a “cabinet” of highlevel administrators, including Perrin Lowery, Tressie Harper, Penny Wallin,

and Jimmy Hopkins; Stover was not a member of the cabinet. Perrin, Harper,

and Wallin held doctorate degrees in education, and Hopkins held a master’s

degree and was working on his doctorate degree. In 2001, Dr. Harper resigned

to become a superintendent for another district. The School District did not

immediately replace Dr. Harper because of budget considerations. Stover

contends that she assumed many of the responsibilities of Dr. Harper when Dr.

Harper resigned; Dr. Davis testified that he assumed most of Dr. Harper’s

responsibilities, and the other responsibilities were spread out among others.
No. 07-60419

3

Approximately two years after Dr. Harper resigned, the School District

decided to fill the vacuum created by Dr. Harper’s resignation. This action arose

from the School District’s decision to hire Alan Oubre, a white male, as the

Central Office Administrative Coordinator in August 2003. The School District

concedes thatit did not advertise the available position. Oubre’s starting salary

was $48,380 for the partial school year and $62,845 for the full school year.

Oubre holds a bachelor’s degree in secondary school English and a master’s

degree in Educational Administration. Oubre has a contract of employment with

the School District. 

Upon learning of Oubre’s salary, Stover argued that both Oubre and she

were Administrative Assistants who performed substantially equal work, and

therefore, they should be paid the same. In August 2004, Stover filed a charge

of discrimination with the Equal Employment Opportunity Commission

(“EEOC”), alleging that the School District discriminated against her on the

basis of race and violated the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d). On

June 23, 2005, Stover filed a complaint in federal district court for claims of race

discrimination under Title VII and violation of the EPA. On June 30, 2005, she

filed another charge with the EEOC, adding allegations of gender discrimination

and retaliation. Stover amended the complaint twice, and on January 9, 2006,

Stover filed her second amended complaint alleging race and sex discrimination

under Title VII, retaliation under Title VII, and violation of the EPA.

The School District moved for summary judgment on all claims. On

February 8, 2007, the district court found no direct evidence of discrimination

and applied the McDonnell Douglas burden-shifting framework to determine

whether Stover made out a prima facie case of discrimination under Title VII.

The court concluded thatthere was sufficient evidence in the record to withstand

a motion for summary judgment as to the Title VII race and sex discrimination

claims. Specifically, the district court stated the following:
No. 07-60419

2 Stover did not allege a claim for constructive discharge in her second amended

complaint. Stover raised the claim in her response to the School District’s motion for summary

judgment. The district court considered the claim, concluding that “to the extent this is being

asserted by plaintiff as a separate claim for relief, summary judgment for defendant is

granted.” We find no error in the district court’s consideration of the constructive discharge

claim. See Debowale v. US Inc., 62 F.3d 395, 395 (5th Cir. 1995) (“The district court should

have construed [the plaintiff’s] Bivens claim, raised for the first time in his response to the

summary judgment motion, as a motion to amend the complaint under Fed. R. Civ. P. 15(a)

and granted it.”) (citations ommitted); Cash v. Jefferson Assocs., Inc., 978 F.2d 217, 218 (5th

Cir. 1992) (deciding that a response to a motion to dismiss, in which plaintiff first alleged that

she had been willfully discriminated against, should be treated as a motion to amend her

pleadings); Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir. 1972) (determining that a

new allegation raised in a memorandum in opposition to a motion for summary judgment

should have been construed as an amendment to the original complaint). 

4

There is evidence in the record that Ms. Stover and Mr. Oubre

performed similar duties and that their job functions overlapped

and that Mr. Oubre assumed some of Ms. Stover’s duties during her

employment at [the School District]. There is also evidence in the

record demonstrating differences between Mr. Oubre’s and Ms.

Stover’s jobs. At certain times Mr. Oubre and Ms. Stover

apparently shared the same title of “administrative assistant.” 

The district court denied the School District’s motion for summary judgment as

to the race and sex discrimination claims under Title VII. Citing the same

evidence,the district court similarly denied the School District’s motion as to the

claim under the EPA. 

The district court also held that there was sufficient evidence to support

Stover’s retaliation claim and denied the School District’s motion as to that

claim. The court pointed to evidence that “there had been no performance

problems on Ms. Stover’s part until Mr. Oubre was hired, and thatin 2004, 2005

and 2006[,] there were increasing issues with Ms. Stover’s performance being

raised by Dr. Davis and Mr. Hopkins.” The court granted the School District’s

motion as to Stover’s claim of constructive discharge, holding that the alleged

conduct did not rise to the level of constructive discharge.2
No. 07-60419

5

The case proceeded to a jury trial on February 12-16, 2007. The district

court precluded certain evidence, including evidence of the School District’s

pattern and practice not to advertise positions of employment. Citing Frank v.

Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003), the district court held that

pattern and practice evidence should be excluded. 

During the jury trial, the School District moved for judgment as a matter

of law pursuant to Federal Rule of Civil Procedure 50(a). The district court took

the motion under advisement and permitted the case to go to the jury. The jury

returned a unanimous special verdictin favor ofthe School District on all claims,

and the district court entered Final Judgment in favor of the School District on

February 28, 2007. Stover filed a motion for a new trial, which the district court

denied. 

The School District moved for an award of attorney’s fees and costs, which

Stover opposed. The district court awarded attorney’s fees to the School District

in the amount of $144,058.50 and taxed costs against Stover in the amount of

$10,570.06. In deciding the attorney’s fees issue, the district court stated that

there were “[n]umerous examples of the diverseness of [Stover’s and Oubre’s]

jobs [] brought out during the testimony.” 

While at trial it was obvious that the case was baseless, frivolous

and without merit, the plaintiff and her attorney did not have the

benefit of all of the information learned in discovery at the time of

filing suit. However, the Court finds that the latest time that the

plaintiff should have realized that her suit was frivolous and

baseless was by the conclusion of discovery. She certainly should

have recognized this at that time. Therefore, the Court does hereby

find that from the end of discovery forward the plaintiff should be

required to reimburse the defendant’s attorney[’]s fees.

Stover filed a timely notice of appeal, assigning the following errors by the

district court: (1) not permitting alleged admissions of discrimination and

discriminatory intentto be considered as direct evidence of discrimination atthe
No. 07-60419

6

trial; (2) permitting evidence of Oubre’s qualifications during the trial; (3)

permitting evidence during the trial that attacked Stover’s character; (4)

excluding evidence of the School District’s pattern and practice; (5) precluding

evidence regarding constructive discharge; (6) submitting the “same actor” jury

instruction to the jury; (7)the jury verdict was againstthe overwhelming weight

of the evidence; and (8) awarding attorney’s fees to the School District. We now

turn to a discussion of these assigned errors. 

II. DISCUSSION

Stover’s eight assignments of error fall into five broad categories: the

summary judgment ruling on the constructive discharge claim, evidentiary

rulings during the trial proceedings, objections to the jury instructions, the jury

verdict, and the award of attorney’s fees. We will discuss each category in turn.

A. Constructive Discharge Claim

The district court granted the School District’s motion for summary

judgment on Stover’s claim for constructive discharge. We review a district

court’s grant of summary judgment de novo. LeMaire v. La. Dep't of Transp. &

Dev., 480 F.3d 383, 386 (5th Cir. 2007). Summary judgment is appropriate when

“the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” FED. R. CIV.P. 56(c). A genuine issue

of material fact exists if the summary judgment evidence is such that a

reasonable jury could return a verdict for the non-movant. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). All the facts and evidence must be taken

in the light most favorable to the non-movant. LeMaire, 480 F.3d at 387.

To establish a constructive discharge claim, an employee “must offer

evidence that the employer made the employee’s working conditions so

intolerable that a reasonable employee would feel compelled to resign.” Brown
No. 07-60419

7

v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000) (quoting Barrow v. New

Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1994)). This objective test

has been referred to as the reasonable employee test. See Haley v. Alliance

Compressor LLC, 391 F.3d 644, 650 (5th Cir. 2004). The evidence “must

demonstrate a greater severity or pervasiveness of harassment than the

minimum required to prove a hostile working environment.” Landgraf v. USI

Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (citation omitted). We have

considered the relevancy of the following events in determining whether a

reasonable employee would feel compelled to resign: 

(1) demotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading work; (5)

badgering, harassment, or humiliation by the employer calculated

to encourage the employee’s resignation; or (6) offers of early

retirement that would make the employee worse off whether the

offer were accepted or not.

Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 481 (5th Cir. 2008) (quoting

Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 771-72 (5th Cir. 2001)). 

Stover contends that she was not paid appropriately, but she does not

present any evidence that she received a reduction in salary. Rather, Stover

received increases in her salary. Also, she does not argue that she received a

demotion, reassignment to menial or degrading work, or offers of early

retirement, so neither of these factors supports Stover’s assertion that she felt

compelled to resign. As to the reduction of job responsibilities, Stover actually

testified, that her “plate was full” and “she was happy for the help.” It is

therefore inconsistentto assertthat she felt compelled to resign based in part on

a reduction in job responsibilities.

The only factor Stover can rely on to meet the reasonable employee test is

“badgering, harassment, or humiliation by the employer calculated to encourage
No. 07-60419

8

the employee’s resignation.” Aryain, 534 F.3d at 481. Stover contends that she

was not provided the same career development opportunities as Oubre; her

complaints of discrimination were not investigated; she was not allowed comp

time while Oubre and others were allowed comp time; Mr. Hopkins exhibited

anger, violence, shouting, and waved his arms at Stover; and she was excluded

from prestigious retreats. The evidence that Stover cites in support of her

constructive discharge claim does not amount to conditions or an environment

so intolerable that a reasonable employee would feel compelled to resign. At

best, the evidence shows that Stover was disgruntled that Oubre, a high-level

administrator, was provided greater benefits while employed with the School

District than she was provided and that she encountered difficulty in dealing

with her supervisor, Mr. Hopkins. 

Even assuming arguendo that Stover was subjected to a hostile working

environment, none ofthe evidence increases the severity or pervasiveness of any

harassment to the level required to support a constructive discharge claim. See

Brown, 207 F.3d at 782-83 (affirming grant of summary judgment even where

employee was demoted and given fewer job responsibilities). We conclude that

the district court properly granted summary judgment in the School District’s

favor on the constructive discharge claim. 

B. Evidentiary Rulings

Stover challenges several evidentiary rulings. We review evidentiary

rulings under the deferential abuse of discretion standard. Kelly v. Boeing

Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995). We will reverse a

judgmentfor an evidentiary ruling only if it affected the substantial rights ofthe

parties. EEOC v. Manville Sales Corp., 27 F.3d 1089, 1093 (5th Cir. 1994)

(citation omitted).
No. 07-60419

9

1. Direct Evidence

Stover argues that evidence that the School District admitted

discriminatory conduct and violation of the EPA should have been considered as

direct evidence of discrimination, and Stover should have been allowed to argue

to the jury the impact and importance of direct evidence. Notably, the only

evidence of the alleged admissions was Stover’s testimony. She contends that

the district court abused its discretion by not allowing “the Direct Evidence mode

of evidentiary production,” and if it would have been permitted, the McDonnell

Douglas framework could have been avoided. The School District argues that

the district court allowed Stover to present the statements she contends were

direct evidence, and therefore, the jury had the benefit of weighing Stover’s

testimony and credibility in reaching its jury verdict. 

Stover’s discrimination claims survived summary judmgent and proceeded

to trial. Stover does not argue that the evidence was excluded at trial, but

rather, she concedes that her “proof was there.” At trial, Stover testified to

many statements that she contends were the School District’s admissions that

it was violating the EPA and anti-discrimation laws. For example, Stover

testified to the following at trial:

When I spoke with Mr. Hopkins in August of 2003 after Dr. Davis

notified us that he was hiring Alan [Oubre], Mr. Hopkins made

indication to Dr. Davis in my presence that Dr. Davis could not

employ Alan Oubre as administrative assistant as it was a violation

of the Equal Pay Act and other laws. Dr. Davis said, “Well, we’ll

just call him something else.”

. . . .

I asked Mr. Hopkins ifthere was a job announcement or any posting

indicating that a second position was being created. And Mr.

Hopkins said there was none. That they just wanted to hire a white

male. 

. . . .

Mr. Hopkins said [Oubre] got the job because he was white.
No. 07-60419

10

When a full trial on the merits has been conducted, as in this case, our

focus is on whether the record contains sufficient evidence to support the jury’s

finding of no race or sex discrimination—not on the plaintiff’s prima facie case

or the McDonnell Douglas framework. Raggs v. Mississippi Power & Light Co.,

278 F.3d 463, 468 (5th Cir. 2002); accord Dilworth v. Cont’l Const. Co. Inc., No.

07-60850, 2008 WL 2468397, at *2 (5th Cir. 2008) (unpublished). 

At trial, Dr. Davis testified that “it would have been highly inappropriate

to have [Stover] part of the cabinet. She didn’t . . . bring to the table the skills

and knowledge, and she wasn’t part of the decision making team . . . .” Dr. Davis

also testified that while Stover did attend board meetings, she attended the

meetings to take the minutes. According to Dr. Davis, Stover did not create

agenda items, but rather, she typed and organized information that was

provided to her. Dr. Davis also testified that Stover was not qualified for the

position which Oubre filled. There was sufficient evidence presented at trial for

the jury to conclude that the School District did not discriminate against Stover

on the basis of race or sex. Therefore, Stover cannot prevail on this assignment

of error. 

2. Comparison of Qualifications

Next, Stover argues that the jury should not have been permitted to

consider Oubre’s qualifications. Stover argues in her brief, however, that an

issue at trial “was whether Ms. Stover and Mr. Oubre were similarly situated.”

The district court properly instructed the jury that to prevail on the Title VII

discrimination claim, Stover had to show by a preponderance of the evidence

that, inter alia, “others similarly situated were treated more favorably because

of their race or gender.” Further, Stover’s claim under the EPA required a

comparison of Stover’s and Oubre’s “skill, effort, and responsibility” for the

performance of their jobs. The EPA requires that an employer not discriminate

“between employees on the basis of sex . . . for equal work on jobs the
No. 07-60419

11

performance of which requires equal skill, effort, and responsibility, and which

are performed under similar working conditions.” 29 U.S.C. § 206(d)(1). To

determine whether an EPA violation occurred, the district court properly

permitted evidence demonstrating the skill, effort, and responsibility required

of the jobs performed by Oubre and Stover. The district court did not abuse its

discretion by permitting this evidence at trial. 

3. Character Evidence

Stover also contends thatthe district court erroneously permitted evidence

that Stover destroyed or deleted computer information. The School District

argues that it was entitled to defend itself against Stover’s allegations of

retaliation. Stover argued that she did not have one blight on her record until

she complained of discrimination when Oubre was hired. The School District

contends that it countered against Stover’s claim of retaliation with evidence of

a pattern of Stover’s conduct that showed a deteriorating professional attitude

and work ethic, and the deletion of the files on the day Stover resigned was the

final demonstration of her unprofessional conduct. 

One of the issues at trial was Stover’s claim of retaliation. In overruling

the objection to the evidence at trial, the district court stated that Stover had

portrayed herself to be a victim and work attitude was at issue. The court

permitted the evidence for purposes of impeachment. The court also ruled that

it was more probative than prejudicial. Having fully reviewed the record, we

find that the district court did not abuse its discretion on this issue.

4. Systematic Practices of the School District

Stover argues that the district court erroneously refused to permit

evidence of the School District’s business habit and practice of not advertising

positions or allowing competition for positions. Stover contends that it was

“plainly discriminatory” not to advertise the position. She also states that

pattern and practice evidence should have been allowed to prove intent and/or
No. 07-60419

3 Stover even states in her appellate brief that “the existence of the system is not

disputed and was conceded before trial and during trial.” Appellant Br. at 40 (emphasis

added).

12

pretext. Further, Stover argues that the School District’s hiring system “allowed

. . . complete racial and gender discrimination.” 

The School District argues that regardless of the district court’s pre-trial

exclusion of this evidence by granting the School District’s motion in limine, the

jury heard the evidence, and therefore, the issue is moot.3 At trial, Stover

testified that the district was “culpable for failing to advertise th[e] position.”

Dr. Davis testified to the following:

Q. Did Mr. Oubre have any competition for the job?

A. No.

Q. Did you place any advertisement for the position?

A. No.

The jury,therefore, heard evidence thatthe School District did not advertise the

position for which Oubre was hired.

The School District also contends that failure to have a policy requiring

employment positions to be advertised does not mean its hiring practices are

discriminatory. We agree that the lack of a policy requiring advertisement

under these circumstances is not evidence of discrimination. Stover provides no

Mississippi law or School Board policy requiring the School District to advertise

the position for which Oubre was hired or any other position in the district.

Also, Stover’s contention that the School District’s systematic practice of not

advertising positions allowed complete racial and gender discrimination is

unsupported by any evidence in the trial record. We find no reversible error on

this issue.
No. 07-60419

13

C. Jury Instructions

Stover argues that the district court erroneously permitted the “same

actor” jury instruction. Specifically, Stover states that the district court

instructed the jury that it could infer that discrimination was not the motive

behind the challenged employment action if Mr. Hopkins hired her. We will

reverse a jury verdict based on the jury charge only if “the charge as a whole

‘leaves us with substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations.’” McCullough v. Beech Aircraft Corp., 587

F.2d 754, 759 (5th Cir. 1979) (citation omitted).

The referenced jury instruction provided as follows: 

If you find that the same person who hired the plaintiff is also one

of the people who allegedly discriminated against her, you may

consider it inherently inconsistent that an individual who is willing

to hire or promote a person who is a member of a protected class will

discriminate against that same individual because she is a member

of that class. 

This instruction is not a misstatement of the law. Compare Haun v. Ideal

Indus., Inc., 81 F.3d 541, 546 (5th Cir. 1996) (stating that such evidence is

relevant but declining to establish a rule that no inference of discrimination

could arise under the same actor circumstances), with Brown v. CSC Logic, Inc.,

82 F.3d 651, 658 (5th Cir. 1996) (noting acceptance of same actor inference by

several other circuits and expressing approval of the inference). This

assignment of error is without merit.

D. Jury Verdict

Stover contends that the jury verdict was against the overwhelming

weight of the evidence, and therefore, we should reverse. The School District

argues that there was sufficient evidence to support the jury verdict.

“Challenges to the sufficiency of the evidence must be raised in a Federal Rule

of Civil Procedure 50(a) motion for judgment as a matter of law before
No. 07-60419

4 Although neither party provides the applicable standard of review for this issue, we

must apply the appropriate legal standard of review to each assignment of error. See United

States v. Duhon, 541 F.3d 391, 396 n.2 (5th Cir. 2008) (“[N]o party has the power to control our

standard of review.”(quoting United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992))).

“The parties’ failure to brief and argue properly the appropriate standard may lead the court

to choose the wrong standard. . . . A reviewing court may reject both parties approach to the

standard.” Vontsteen, 950 F.2d at 1091.

14

submission of the case to the jury.” United States ex rel. Wallace v. Flintco Inc.,

143 F.3d 955, 960 (5th Cir. 1998). During the trial, Stover did not raise a Rule

50 motion for judgment as a matter of law before the case went to the jury; only

the School District raised such a motion. Where Stover failed to raise a Rule 50

motion for judgment as a matter of law, we consider the sufficiency of the

evidence under a plain error standard,4reversing “only if the judgment

complained of results in a ‘manifest miscarriage of justice.’” Flintco, Inc., 143

F.3d at 963-64. 

On plain error review “the question before this Court is not whether there

was substantial evidence to support the jury verdict, but whether there was any

evidence to support the jury verdict.” McCann v. Texas City Refining, Inc., 984

F.2d 667, 673 (5th Cir. 1993). “If any evidence supports the jury verdict, the

verdict will be upheld.” Flintco, Inc., 143 F.3d at 964 (citing Polanco v. City of

Austin, 78 F.3d 968, 974 (5th Cir. 1996)); accord Dilworth, 2008 WL 2468397, at

*3 (“We have reviewed the record and confirmed that Dilworth indeed failed to

move for judgment as a matter of law on the issue of the sufficiency of the

evidence before the case was submitted to the jury. We must therefore consider

Dilworth’s current challenge to the sufficiency of the evidence under the plain

error standard . . . .”). 

In this case, there clearly exists some evidence to support the jury

determination. When Dr. Davis was questioned about the allegation of race

discrimination, he testified that 
No. 07-60419

15

I never in my whole career based any decision on race. That just

simply was not a part of the way I did business or functioned as a

leader. . . . [I]t was disconcerting because it was just so farfetched.

It was just totally fictitious that any decision was made in that

central office based on race. It just didn’t happen.

There was also evidence from which the jury could conclude that Stover and

Oubre were not similarly situated. While Oubre and Stover at some time carried

the same title of Administrative Assistant, Dr. Davis explained that 

there are different degrees of assistance. Some assistance takes a

highly qualified person with some kind of administrative

certification like Dr. Harper . . . . Then there might be someone else

who might be called administrative assistant who doesn’t have to be

nearly as highly qualified and may not do the kind of heavy lifting

. . . that another person who may have that title.

There was also evidence from which the jury could conclude that Stover’s and

Oubre’s positions were not substantially equal. Dr. Davis testified that there

were “vast, vast differences in what [Oubre and Stover] would do.” Dr. Davis

also testified that Stover attended meetings to take the minutes and “wasn’t part

of the decision making team.” Oubre, on the other hand, was a member of the

cabinet. According to Dr. Davis, Oubre supervised the technology department,

helped to supervise the department of building and grounds and the department

of transportation, and he managed high-dollar grants. Evidence supports the

jury verdict, and this assignment of error is also without merit.

E. Award of Attorney’s Fees

Finally, we turn to Stover’s argument that the district court erroneously

awarded attorney’s fees to the School District. The parties are not clear as to the

designation of attorney’s fees and costs. The School District states in its brief

that the district court taxed costs against Stover in the amount of $5,285.03.

The docket in the court below indicates that costs were actually taxed against

Stover in the amount of $10,570.06. The district court’s order provides that

“attorney’s fees in the amount of $144,058.50 and costs of $10,570.06 are
No. 07-60419

16

assessed to Plaintiff Addie Stover.” The district court separately considered an

exhibit seeking costs in the amount of $5,285.03 and other exhibits pertaining

to costs pursuant to Rule 54(d). Based on the aggregate total, the district court

assessed costs in the total amount of $10,570.06. 

Stover does not separately raise the issue of costs on appeal. Based on

Stover’s calculation of “attorney fees,” it appears that Stover has lumped the

district court’s award of attorney’s fees and costs into one issue. Stover assigns

error to the attorney’s fee award of“$154,628.56,” which apparently results from

the combined attorney’s fees in the amount of $144,058.50 and costs in the

amount of $10,570.06. We will separately consider the district court’s award of

attorney’s fees and costs to the School District. 

1. Costs

Federal Rule of Civil Procedure 54(d) provides that “[u]nless a federal

statute, these rules, or a court order provides otherwise, costs - other than

attorney’s fees - should be allowed to the prevailing party.” FED. R. CIV. P.

54(d)(1). Stover does not address Rule 54's application to this case, and she does

not contend that the School District was not the prevailing party. The School

District was the prevailing party, and the district court could tax costs in favor

of the School District pursuant to Rule 54(d). 

However, the district court assessed an improper amount of costs to

Stover. First, the Bill of Costs submitted by the School District stated costs in

the amount of $5,285.03. In calculating costs, the district court not only

considered this amount, but it also considered the School District’s exhibits

substantiating this amount. The effect of this dual consideration was to assess

double the amount of taxable costs, that is, $5,285.03 plus $5,285.03 for a total

of $10,570.06. 

On appeal, the School District, citing the district court’s Order dated May

31, 2007, states that the district court taxed “costs in the amount of $5,285.03.”
No. 07-60419

17

The referenced Order actually orders that “costs of $10,570.06 are assessed to

plaintiff Addie Stover.” The School District implicitly acknowledges in its brief

that the proper amount of taxable costs was $5,285.03, though neither party

brought this clear error in calculation to the attention ofthe district court or this

court. Because the district court improperly awarded costs in excess of those

allowable under Rule 54(d)(1), we vacate the costs award in the amount of

$10,570.06 and render costs against Stover and in favor of the School District

in the amount of $5,285.03. 

We now turn to the district court’s award of attorney’s fees.

2. Attorney’s Fees

This court reviews a district court’s award of attorney’s fees for abuse of

discretion. Boehms v. Crowell, 139 F.3d 452, 462 (5th Cir. 1998). As a general

rule, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v.

Wilderness Soc’y, 421 U.S. 240, 247 (1975). Congress has provided exceptions

to this rule, allowing the prevailing party to recover attorney’s fees under certain

circumstances. See, e.g., 42 U.S.C. § 2000a-3(b) (“In any action commenced

pursuantto this subchapter,the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee as part of the

costs, and the United States shall be liable for costs the same as a private

person.”). Notwithstanding the “prevailing party” language, the exceptions

generally serve to protect plaintiffs. Fee-shifting statutes usually create “a

presumption in favor of awarding fees to a prevailing plaintiff but allows fees to

be awarded to a prevailing defendant only if the suit was frivolous.” Sullivan v.

William A. Randolph, Inc., 504 F.3d 665, 670 (5th Cir. 2007).

In Christianberg Garment Company v. EEOC, 434 U.S. 412 (1978), the

Supreme Court discussed the differentiating considerations applicable to an

award of attorney’s fees to a prevailing plaintiff and an award of attorney’s fees

to a prevailing defendant, even where a statute on its face may provide for an
No. 07-60419

18

award of attorney’s fees to either the plaintiff or defendant as the prevailing

party. 

First, . . . the plaintiff is the chosen instrument of Congress to

vindicate “a policy that Congress considered ofthe highest priority.”

Second, when a district court awards counsel fees to a prevailing

plaintiff, it is awarding them against a violator of federal law. As

the Court of Appeals clearly perceived, “these policy considerations

which support the award of fees to a prevailing plaintiff are not

present in the case of a prevailing defendant.” A successful

defendant seeking counsel fees . . . must rely on quite different

equitable considerations.

Christiansburg Garment Co., 434 U.S. at 418-19. The Supreme Court ultimately

concluded that “a district court may, in its discretion, award attorney’s fees to

a prevailing defendant in a Title VII case upon a finding that the plaintiff’s

action was frivolous, unreasonable, or without foundation, even though not

brought in subjective bad faith.” Id. at 421. 

The Court cautioned, however, that the district court should “resist the

understandable temptation to engage in post hoc reasoning by concluding that,

because a plaintiff did not ultimately prevail, his action must have been

unreasonable or without foundation.” Id. at 421-22. This Court has explained

that under Christiansburg,to determine whether a suit is frivolous, a court must

ask whether “the case is so lacking in arguable merit as to be groundless or

without foundation rather than whether the claim was ultimately successful.”

Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). 

In Pelmer v.Parsons-Gilbane, 713F.2d 1127 (5th Cir. 1983), we considered

a case significantly analogous to this action. In Pelmer, the plaintiff brought a

Title VII and EPA suit against her employer. Pelmer, 713 F.2d at 1130. The

case proceeded to trial, and the district court entered judgment in favor of the

defendant employer. Id. at 1131-32. Finding that the plaintiff’s claims were

“simply frivolous,” the district court awarded attorney’s fees to the defendant.
No. 07-60419

5 For example, in reference to the retaliation claim, the district court stated that

“reduction or reassignment of job duties and negative evaluations” were more serious and that

“there is evidence that there had been no performance problem on Ms. Stover’s part until Mr.

Oubre was hired.” In regard to other claims, the district court cited evidence that Stover and

Oubre performed similar duties and at certain times apparently shared the same title of

“administrative assistant.” 

19

We reversed the award of attorney’s fees, stating thatthe district court appeared

to have “engaged in exactly the post hoc reasoning and hindsight logic that the

Supreme Court proscribed.” Id. at 1141. 

In this case, the district court found that “the latest time that the plaintiff

should have realized that her suit was frivolous and baseless was by the

conclusion of discovery.” Subsequent to the close of discovery, the School District

filed a motion for summary judgment. The court referenced numerous examples

of evidence supporting Stover’s claims5 and found that there was sufficient

evidence in the record to survive summary judgment on the race and gender

discrimination claims under Title VII, the retaliation claim under Title VII, and

the EPA claim. Stover proceeded to trial on those claims. 

During the trial,the School District moved for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50 after Stover rested. Referencing

the “tremendous amount of testimony,” the district court took the motion under

advisement and allowed the trial to proceed to a jury verdict. The jury returned

a verdict in favor of the School District on all the claims.

In awarding attorney’s fees to the School District, the district court, as the

district court in Pelmer did, appears to have engaged in post hoc reasoning to

find that Stover’s action was frivolous. The record does not support a finding

that Stover’s action was frivolous, unreasonable, or without foundation. There

was plausible evidence supporting Stover’s claim, as set forth in the district

court’s order on summary judgment and the testimony at trial. The unanimous

jury verdict for the School District does not totally negate that evidence; it
No. 07-60419

6 The district court’s standard for assessment of attorney’s fees mentioned only the Title

VII claims; it made no reference to the EPA claim. It appears, however, that the School

District’s request for attorney’s fees included fees incurred in relation to both the Title VII

claims and the EPA claim. The EPA provides in part that “[t]he court in such action shall, in

addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s

fee to be paid by the defendant.” 29 U.S.C. § 216(b). Unlike Title VII, the EPA’s attorney’s fee

provision does not, on its face, allow for the award of attorney’s fees to a prevailing defendant.

Compare 29 U.S.C. § 216(b) with 42 U.S.C. § 2000e-5(k) (“In any action or proceeding under

this subchapter the court, in its discretion, may allow the prevailing party, other than the

Commission or the United States, a reasonable attorney’s fee (including expert fees) as part

of the costs, and the Commission and the United States shall be liable for costs the same as

a private person.”) (emphasis added). Because we conclude that Stover’s action was not

frivolous and the School District was not entitled to attorney’s fees, we need not address the

different statutory authorities supporting the fee award.

20

simply means that the jury unanimously concluded that the weight of the

evidence was not in Stover’s favor. 

The district court erroneously awarded attorney’s fees6to the School

District, and we reverse and vacate the award of attorney’s fees.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment in part, reverse and

vacate in part, and remand in part. We REVERSE and VACATE the award of

attorney’s fees and costs, RENDER costs in the amount of $5,285.03 against

Stover and in favor of the School District, and AFFIRM the judgment in all

other respects.