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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
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

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
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

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
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

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
4

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
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

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
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

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
7

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
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

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
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

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
10

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
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

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).
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

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);
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

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
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

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
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

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
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

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.

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