Equal Employment Opportunity Commission v. Ferman Management Services Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

v. Case No. 8:18–cv–2055–CPT

CIGAR CITY MOTORS, INC., et al.,

Defendants.

_________________________________/

O R D E R

Before the Court are Defendants Cigar City Motors, Inc., Tallahassee CCM,

LLC, Gulf Coast CCM, Inc., and Panama City Beach Cycles, LLC’s (collectively,

Cigar City) renewed motion for judgment as a matter of law pursuant to Federal Rule

of Civil Procedure 50(b) (Doc. 166) and Plaintiff Equal Employment Opportunity

Commission’s (EEOC) post-trial motion for injunctive relief (Doc. 156). The Court

conducted hearings on these motions and sought supplemental briefing from the

parties relative to the EEOC’s request for injunctive relief. (Docs. 192, 201–203).

Upon careful review of the parties’ submissions and for the reasons set forth below,

Cigar City’s renewed motion for judgment as a matter of law is denied and the EEOC’s

motion for injunctive relief is granted in part and denied in part.

I.

This case stems from a decision made by Cigar City in April 2015 not to

promote one of its employees, Virginia Duncan, to the position of General Manager

(GM) at its Harley-Davidson dealership in Tampa, Florida. In its operative complaint,

the EEOC averred that Cigar City engaged in this adverse employment action based

on Duncan’s sex in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42

U.S.C. § 2000e-2. (Doc. 19). To address this alleged conduct, the EEOC sought

damages, as well as declaratory and injunctive relief. Id.

At the close of discovery, Cigar City filed a motion for summary judgment

(Docs. 49, 58, 64), which the Court denied (Doc. 85). The case thereafter proceeded

to a jury trial that lasted seven days. (Docs. 163, 169, 175–78, 185). Counsel for both

sides—Beatriz Andre and Brandi Meredith for the EEOC and Thomas Gonzalez and

Jake Proudfoot for Cigar City—were well-prepared throughout the trial and

represented their respective clients with the highest degree of professionalism.

During the course of the trial, the parties introduced numerous exhibits and

elicited testimony from multiple witnesses, including Duncan. Id. That evidence,

viewed in the light most favorable to the EEOC and construing all reasonable

inferences in its favor, revealed the following.

At all times relevant to this case, Cigar City operated Harley-Davidson

dealerships in five Florida cities: Tampa, Brandon, New Port Richey, Tallahassee, and

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Panama City Beach.1 (Doc. 185 at 53). Cigar City’s Vice-President, Gary Bang,

oversaw the operations of these five dealerships and had the sole authority to hire the

GM for each location. (Doc. 178 at 119; Doc. 185 at 53). Cigar City did not internally

advertise or post announcements for its GM vacancies (Doc. 178 at 119) but did at

times utilize a mentoring program to assist participants in the program in securing

these positions. (Doc. 163 at 231; Doc. 178 at 165–67). Bang himself eschewed any

formal process for selecting GMs, electing instead simply to identify those individuals

he thought could fill the role and then choosing one of them for the job. (Doc. 178 at

190–92).

Bang did, however, consider a number of criteria in picking GMs. These criteria

included the individual’s experience in sales, which Bang believed to be essential,

along with the individual’s familiarity with all major departments of a Harley–

Davidson dealership, which Bang preferred but did not require. Id. at 120–21. He also

favored candidates who were already employed at the company, especially those who

were working at the dealership with the GM vacancy. Id. at 121–22. In the end, most

of the GMs Bang selected had previously served as General Sales Managers—which

was the position immediately under the GM slot—before becoming GMs. Id. at 123–

24. That said, Bang never promoted any females to the GM position irrespective of

1 The parties described the Panama City Beach dealership on occasion as the Panama City dealership.

The Court will refer to it as the Panama City Beach dealership for the sake of consistency.

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whether they had been a General Sales Manager until after the EEOC filed the instant

lawsuit. Id. at 196–98, 201–202.

Prior to being employed by Cigar City, Duncan held a number of jobs in the

motor vehicle industry. For roughly a year, she owned and operated an aftermarket

store that repaired Harley–Davidson motorcycles and sold both parts and apparel.

(Doc. 176 at 230–32). After this position, Duncan worked in various departments at

a small Harley–Davidson dealership in Augusta, Georgia, ultimately becoming its

GM. Id. at 232–34. For the next ten years, Duncan served in several capacities at a

large car dealership and, in the two or three years immediately before joining Cigar

City, was the General Sales Manager at a Harley–Davidson dealership in Whitfield,

Virginia, a Financing and Insurance (F&I) Manager at a Harley-Davidson dealership

in Melbourne, Florida, and, later, a Sales Manager at the same Melbourne dealership.

Id. at 235–43.

Duncan was hired by Cigar City in 2012 and was assigned to its New Port

Richey location, where she co–managed the F&I and Sales departments with Scott

Pilman. Id. at 245–49. Ken Edwards, a former colleague of Duncan’s who was

selected to be the GM at the New Port Richey store, recommended that Cigar City

bring Duncan on board. Id. at 245–46.

Duncan made her interest in the GM position known to Cigar City’s upper

management early on in her employment there. (Doc. 163 at 102–103). During her

tenure at the New Port Richey dealership, for example, Duncan began participating in

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the company’s GM training program, which had participants engage in monthly

mentoring sessions with Bang. (Doc. 177 at 39).

When Edwards stepped down from his post as the New Port Richey GM, Cigar

City chose Pilman to take his place. Id. at 53–54. Duncan testified that Cigar City did

so despite Edwards recommending that she succeed him. Id. at 53. Also around this

time, the General Sales Manager at the Brandon location, Robert Hammers, was

promoted to be the GM at that dealership. (Doc. 176 at 64–67; Doc. 185 at 54).

Duncan eventually became the General Sales Manager of the Tampa store,

where she reported to the dealership’s GM, Mike Rendine. (Doc. 177 at 54–56).

Rendine subsequently departed that location and was replaced by Patrick Hunt, who

had been the GM at the Tallahassee store. Id. at 61, 77–78; (Doc. 178 at 266).

About nine months after Hunt became the Tampa GM, Cigar City asked him

to resume being the GM at the Tallahassee location, thereby creating a GM vacancy

at the Tampa dealership. (Doc. 177 at 77–78). Hunt—like his predecessor, Edwards—

recommended that Duncan fill this spot. (Doc. 178 at 271).

Before Cigar City chose Hunt’s permanent successor in Tampa, it requested that

Gary Postle serve as the store’s interim GM. Id. at 76–79. Postle’s title with Cigar

City was Executive Manager, and one of his functions was to provide training both to

new hires and to existing employees who were transitioning into new positions. (Doc.

176 at 74). While the interim GM in Tampa, Postle was asked by Bang to train

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Duncan and also to assess whether she was ready to become the full-time GM at that

location. (Doc. 178 at 165).

Throughout her evaluation period, Duncan continued to perform her duties as

General Sales Manager and shadowed Postle as well. (Doc. 177 at 80–89). After a

few months had passed, Postle told Bang that he did not believe Duncan was ready to

assume the role of GM. (Doc. 163 at 240). Although Bang tasked Postle with offering

such a recommendation, the final decision as to whether Duncan was to be promoted

rested with Bang. (Doc. 178 at 154–55). Cigar City then chose Steven Snell, who was

the Sales Manager at the Brandon dealership at the time, to replace Hunt as the Tampa

GM. (Doc. 176 at 130–32; Doc. 185 at 55). Snell testified that he did not want this

position but felt pressured to accept it in order to remain at the company. Id. at 166–

67. Duncan resigned shortly thereafter. (Doc. 177 at 92).

At the close of the evidence, each side orally moved for a judgment as a matter

of law pursuant to Federal Rule of Civil Procedure 50(a) (Docs. 146, 147), and the

Court reserved ruling on those motions. After a period of deliberation, the jury

returned a verdict in favor of the EEOC on the issue of liability and awarded it

$500,000 in punitive damages but no compensatory relief. (Doc. 145; Doc. 169 at 6–

7). The Clerk of Court entered a judgment reflecting the jury’s verdict several weeks

later. (Doc. 154). The instant motions followed.

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II.

The Court commences its analysis with Cigar City’s motion for judgment as a

matter of law pursuant to Rule 50(b). (Doc. 166). In support of that motion, Cigar

City contends that neither the jury’s liability finding nor the jury’s punitive damages

award is adequately substantiated by the record. Id. The Court will consider each of

these contentions in turn.

A.

Title VII generally prohibits an employer from discriminating against its

employees because of their sex. 42 U.S.C. § 2000e–2(a)(1). An employer is deemed

to engage in such prohibited conduct when sex “was a motivating factor for [an]

employment practice, even though other factors also motivated the practice.” 42

U.S.C. § 2000e–2(m).

Intentional employment discrimination can be proven in one of three ways: (1)

by presenting direct evidence of discriminatory intent; (2) by satisfying the burden–

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

or (3) by producing a “convincing mosaic” of circumstantial evidence warranting an

inference of intentional discrimination. Lewis v. City of Union City, Ga., 918 F.3d 1213,

1220 & n.6 (11th Cir. 2019) (en banc) (citation omitted).

“Direct evidence is evidence that establishes the existence of discriminatory

intent behind the employment decision without any inference or presumption.” Sirpal

v. Univ. of Miami, 509 F. App’x 924, 926 (11th Cir. 2013) (per curiam) (citation

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omitted);2 see also E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)

(same) (citation omitted). The Eleventh Circuit has observed that “[o]nly the most

blatant remarks whose intent could mean nothing other than to discriminate on the

basis of some impermissible factor constitute direct evidence of discrimination.”

Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (citation omitted).

If a plaintiff provides direct evidence of discrimination, the employer must show

“by a preponderance of the evidence that the same employment decision would have

been reached in the absence of the discriminatory motive.” Burns v. Gadsden State Cmty.

Coll., 908 F.2d 1512, 1518 (11th Cir. 1990) (citations omitted); see also Van Voorhis v.

Hillsborough Cty. Bd. of Cty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (per curiam)

(same) (citation omitted). “Production of nondiscriminatory reasons is not enough in

a direct evidence case,” however. Burns, 908 F.2d at 1518 (citation omitted). Instead,

the employer “must prove that there was a gender-neutral reason for its employment

decision.” Id.; see also Harris v. M.C. Dean, Inc., 2017 WL 11072170, at *3 (M.D. Fla.

Dec. 28, 2017) (“If the plaintiff proves through direct evidence that an illegal motive

was a significant or substantial factor in an employment decision[,] the defendant can

rebut the inference of discrimination ‘only by proving by a preponderance of the

evidence that the same decision would have been reached even absent the presence of

2 Unpublished opinions are not considered binding precedent but may be cited as persuasive authority.

11th Cir. R. 36-2.

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that factor.’”) (quoting Kincaid v. Bd. of Trs., 188 F. App’x 810, 815–16 (11th Cir.

2006)).

When proceeding under the McDonnell Douglas burden shifting framework, a

plaintiff must first establish a prima facie case of discrimination. Lewis, 918 F.3d at

1220–21 (citation omitted). The elements of a prima facie case for a failure to promote

claim—such as the one at issue here—are: (1) the plaintiff was a member of a protected

class; (2) the plaintiff “was qualified for and applied for a position the employer was

looking to fill;” (3) the plaintiff was rejected despite her qualifications; and (4) the

position was given to an individual outside of the plaintiff’s protected class. U.S.

E.E.O.C. v. Mallinckrodt, Inc., 590 F. Supp. 2d 1371, 1377 (M.D. Fla. 2008) (citing

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005)). If a plaintiff

satisfies these criteria, “the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its actions.” Lewis, 918 F.3d at 1221 (citation omitted).

If the defendant crosses this threshold, the burden then shifts back to the plaintiff to

“demonstrate that the defendant’s proffered reason was merely a pretext for unlawful

discrimination.” Id. (citation omitted). To show pretext, a plaintiff must “produce

sufficient evidence to allow a reasonable finder of fact to conclude that the . . .

articulated reasons were not believable.” Brooks v. Cty. Comm’n of Jefferson Cty., Ala.,

446 F.3d 1160, 1163 (11th Cir. 2006) (citation omitted). A plaintiff can do this “by

pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the proffered explanation.” Id. (internal quotation marks and

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citation omitted). An employer’s reason is not a pretext for discrimination, however,

“‘unless it is shown both that the reason was false, and that discrimination was the real

reason.’” Id. (citation omitted).

A plaintiff seeking to show a “convincing mosaic” of circumstantial evidence

may do so by tendering testimony and exhibits that demonstrate, among other things

(1) “suspicious timing, ambiguous statements[,] and other bits and pieces from which

an inference of discriminatory intent might be drawn;” (2) “systematically better

treatment of similarly situated employees;” and (3) “the employer’s justification [was]

pretextual.” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (internal quotation

marks and citation omitted).

Where, as here, a court is presented with a post-trial motion for judgment as a

matter of law under Rule 50(b), the details of these analytical approaches become less

pertinent. Indeed, when a disparate treatment lawsuit like this action is fully tried, a

court reviewing the verdict “should proceed directly to the ‘ultimate question’ in the

case: ‘whether the defendant intentionally discriminated against the plaintiff.’”

Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984) (quoting

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714–15 (1983)); see also Reeves

v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 153 (2000) (“The ultimate question in

every employment discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional discrimination.”); Holland, 677 F.3d

at 1057 (citing Carmichael, 738 F.2d at 1129). When answering this question:

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Evidence must be considered as a whole, rather than asking whether any

particular piece of evidence proves the case by itself—or whether just the

“direct” evidence does so, or the “indirect” evidence. Evidence is

evidence. Relevant evidence must be considered and irrelevant evidence

disregarded, but no evidence should be treated differently from other

evidence because it can be labeled “direct” or “indirect.”

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016).

At the end of the day, a party endeavoring to overturn a jury verdict bears a

heavy burden. In short, “[j]udgment as a matter of law is appropriate only if the facts

and inferences point overwhelmingly in favor of one party, such that reasonable people

could not arrive at a contrary verdict.” E.E.O.C. v. Exel, Inc., 884 F.3d 1326, 1329 (11th

Cir. 2018) (internal quotation marks and citation omitted). In applying this test, a

court must view “all the evidence, and the inferences drawn therefrom, in the light

most favorable to the nonmoving party.” Id. (citation omitted). This means that while

“the court should review the record as a whole, it must disregard all evidence favorable

to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 135.

Stated differently, a court should credit the evidence favoring the nonmovant and

should only credit that “evidence supporting the moving party [which] is

uncontradicted and unimpeached, at least to the extent that [such] evidence comes

from disinterested witnesses.” Id. at 151 (citation and internal quotation marks

omitted).

Against this backdrop, the Court turns to Cigar City’s claim that there is not

enough evidence to buttress the jury’s liability finding. To bolster this claim, Cigar

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City argues at the outset that the evidence demonstrates Duncan was not promoted to

GM of the Tampa dealership for legitimate, non-discriminatory reasons. (Doc. 166).

This assertion does not survive scrutiny.

It is well settled that a defendant, like Cigar City, may offer an objective or

subjective reason for not promoting a plaintiff. Chapman v. Al Transport, 229 F.3d 1012,

1033–34 (11th Cir. 2000) (collecting cases). It has also long been established that a

plaintiff responding to such a reason cannot simply “recast” it or “substitute [its]

business judgment for that of the employer,” but must instead “meet th[e proffered]

reason head on and rebut it.” Id. at 1030 (citations omitted). Importantly, however,

to afford a plaintiff “a full and fair opportunity to demonstrate pretext” in this context,

the “defendant’s explanation of its legitimate reason[ ] must be clear and reasonably

specific.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (internal

quotation marks and citations omitted); see also Increase Minority Participation by

Affirmative Change Today of Nw. Fla., Inc. (IMPACT) v. Firestone, 893 F.2d 1189, 1194

(11th Cir. 1990) (“A mere statement that the employer hired the best qualified person

leaves no opportunity for the employee to rebut the given reason as a pretext, which

the employee must do if a proper reason is articulated.”).

In this case, Cigar City insists that its decision not to advance Duncan was

because Postle concluded as a result of his training period with Duncan that she was

“not ready.” (Doc. 163 at 240); (Doc. 166 at 14) (“Postle and Bang believed Duncan

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was not ready to be a GM yet.”).3 Postle testified in this regard that he told Bang that

Duncan’s “organizational skills were good but [that he] had some concern about some

of the leadership aspects of [her] being the senior leader of a dealership.” (Doc. 163 at

240).

The problem with Cigar City’s proffered explanation is that it does not include

adequate factual details substantiating its determination that Duncan was not prepared

to be a GM. (Doc. 166 at 14–18). Without factual examples bolstering this

assessment, it is unclear how Duncan could fairly refute Cigar City’s subjective

determination of readiness. See Willis v. Koch Agronomic Servs., LLC, 846 F. App’x 787,

795–96 (11th Cir. 2021) (noting that an employer was required to set forth factual

examples to support its subjective opinion that an employee was terminated due to

“lack of leadership”). Thus, as a threshold matter, Cigar City’s own characterization

of its claimed justification for not promoting Duncan lacks the type of specificity

necessary for Duncan to rebut it. Burdine, 450 U.S. at 258.

Despite this deficiency, the EEOC attempts to respond to Cigar City’s purported

rationale by focusing on the only two factual predicates Postle offered to buttress his

assertion that Duncan was not ready—namely, that she supposedly did not discipline

her subordinates enough and spent too much time in her office. (Doc. 166 at 14–17).

3 Defense counsel made the same argument in orally moving for judgment as a matter of law at the

close of the EEOC’s case, asserting that “the evidence is clear that the only reason given . . . why . . .

Duncan was not promoted to the Tampa dealership [GM] position was because she was considered

not ready.” (Doc. 185 at 69).

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Although not expressly adopting these criticisms as the grounds for its decision not to

advance Duncan, Cigar City nonetheless maintains that the EEOC fails to discredit

them. Id. This line of argument by Cigar City is unpersuasive.

By the Court’s lights, a reasonable jury could conclude that these alleged

reasons provided by Postle as to why Duncan was not elevated were, in fact, a pretext

for sex discrimination. There is evidence in the record that a male supervisor at Cigar

City—Robert Hammers—was identified during his training period with Postle as

possessing the same faults as Duncan was claimed to have and yet was still promoted

to GM. There is also evidence that two other upper level male employees at Cigar

City—Patrick Hunt and Steven Snell—had a management style similar to Duncan’s

but were likewise selected to be GMs.

With respect to Hammers, as noted previously, he was awarded the GM slot at

the Brandon location during Duncan’s tenure at Cigar City. (Doc. 176 at 64–67; Doc.

185 at 54). Hammers testified that when Postle was training him for the GM position,

Postle told him that he spent “too much time in [his] office” and that his “management

style” was “too laid back,” was not “aggressive enough,” and should be “a little bit

more strict.” (Doc. 176 at 79–83). Hammers further testified that he told Postle that

his management style “was never going to change” and that even Postle came to

realize a GM did not “have time to leave [his or her] office and go out and do other

things a lot during the day.” Id. A reasonable jury could find from this testimony that

Postle levied the same type of criticisms at a male trainee, Hammers, as he did at

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Duncan, that Hammers essentially brushed off those criticisms, and that Hammers

was still promoted to the GM position at the end of his training period.

As for Hunt and Snell, Hunt testified that when he was a Sales Manager at Cigar

City, he did not issue any disciplinary notices. (Doc. 178 at 259). Hunt explained that

this was due to his “management style,” which he advised was based upon his belief

that “support and encouragement yield[ed] better results.” Id. at 259–60. He also

testified that Cigar City never asked him to modify the manner in which he supervised

the employees in his charge. Id. Snell largely offered similar testimony, explaining

that his approach to overseeing his subordinates consisted of “coaching and cheering

[them] on and being there to help them and [to] assist them in achieving their goals.”

(Doc. 176 at 165). A reasonable jury could conclude from this evidence that two

additional male Cigar City supervisors with a management style akin to that utilized

by Duncan were promoted to GM while Duncan was not.

Cigar City’s efforts to blunt this proof are unavailing. Although conceding that

Hammers, Hunt, and Snell “testified to having the same management style as

Duncan,” Cigar City argues that two of the three were not successful GMs. (Doc. 171

at 4 n.1). This response misses the point. Whether Cigar City made sound business

decisions in selecting their GMs is of little moment, as Cigar City highlights elsewhere

in its briefing. It may be that Cigar City would have been wise to avoid choosing any

GMs who were not disciplinarians. What is pertinent here is that if Cigar City

advanced men with a certain management style to the GM position while refusing to

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do the same with a woman with that same management style—and, as just discussed,

there is evidence in the record to bolster such a finding—a reasonable jury could view

that as a strong indicator of sex discrimination.

Cigar City next contends that Duncan fails to demonstrate—as she must—not

only that Cigar City’s proffered justification for refusing to promote her was false, but

that “discrimination was the real reason.” (Doc. 166 at 2–3) (quoting Brooks, 446 F.3d

at 1163). It is true in this respect that the Supreme Court has recognized the distinction

between deceitful and discriminatory behavior, stating that proof a “defendant’s

explanation is unworthy of credence is simply one form of circumstantial evidence

[which] is probative of intentional discrimination”—evidence that “may be quite

persuasive” but will not “always be adequate to sustain a jury’s finding of liability.”

Reeves, 530 U.S. at 147–48.

That said, the Supreme Court has also made clear that the significance of

showing the falsity of an employer’s proffered reason for its adverse employment

action should not be minimized.

In appropriate circumstances, the trier of fact can reasonably infer from

the falsity of the explanation that the employer is dissembling to cover up

a discriminatory purpose. Such an inference is consistent with the

general principle of evidence law that the factfinder is entitled to consider

a party’s dishonesty about a material fact as affirmative evidence of guilt.

Moreover, once the employer’s justification has been eliminated,

discrimination may well be the most likely alternative explanation,

especially since the employer is in the best position to put forth the actual

reason for its decision.

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Id. at 147 (citations and internal quotation marks omitted). Indeed, the Supreme has

held that when a prima facie case of employment discrimination is “combined with

sufficient evidence to find that the employer’s asserted justification is false,” this

pairing can be enough to “permit the trier of fact to conclude that the employer

unlawfully discriminated.” Id. at 148.

Here, Cigar City acknowledges that Duncan made a threshold showing of

employment discrimination. (Doc. 49 at 22). And, as referenced above, a reasonable

jury could find that Cigar City’s proffered rationale for not elevating Duncan was false,

insofar as three men—Hammers, Hunt, and Snell—were all promoted to GM, while

a woman—Duncan—was not, despite evidence showing that Duncan shared the same

managerial style and in-office work habits as her male counterparts.

This, therefore, may well be a case where a prima facie showing of employment

discrimination coupled with adequate “evidence to find that the employer’s asserted

justification [was] false” are enough to sustain the jury’s liability finding. Reeves, 530

U.S. at 148. After all, this is not a situation where the record “conclusively reveal[s]”

a “nondiscriminatory reason for the employer’s decision,” or where a plaintiff has

“created only a weak issue of fact as to whether the employer’s reason was untrue”

and there is “abundant and uncontroverted independent evidence that no

discrimination” occurred. Reeves, 530 U.S. at 148; see also Fisher v. Vassar Coll., 114

F.3d 1332, 1338 (2d Cir. 1997) (“[I]f the circumstances show that the defendant gave

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the false explanation to conceal something other than discrimination, the inference of

discrimination will be weak or nonexistent.”) (quoted by Reeves, 530 U.S. at 148).

The Court, however, need not decide the question of whether this is one of the

instances where “a prima facie case and sufficient evidence to reject the employer’s

explanation . . . permit a finding of liability.” Reeves, 530 U.S. at 149. This is because

the EEOC has tendered what a reasonable jury could deem to be further evidence of

discrimination. Much of that evidence can be grouped into three categories: (1)

comments made by Bang and Postle; (2) a comparison of Duncan and Snell as GM

candidates; and (3) Bang and Postle’s credibility.

Before addressing the first of these categories, it is worth pausing to articulate

why Postle’s remarks are relevant. As described above, although Bang made the final

decision about Duncan’s promotion to the Tampa GM position, he asked Postle to

evaluate Duncan and make a recommendation on the matter. A reasonable jury could

conclude from this evidence that Postle was an “integral part” of the process used to

determine whether to advance Duncan, and that if Postle had “a discriminatory

animus” against Duncan because of her sex, this animus “tainted” the promotion

process. Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999).

There is evidence that both Bang and Postle made remarks to the effect that

Duncan was not suitable for the GM job because she was “motherly.” Hammers

testified, for example, that Bang told him Duncan “is not going to be a [GM]” because

“I need a manager, not a mother figure.” (Doc. 176 at 91–92). Hammers also testified

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that Postle told him Duncan “won’t be a GM[, a]nother motherly figure I don’t need.”

Id. Consistent with this evidence that Postle harbored a dismissive attitude towards

Duncan, Hammers testified—without objection—that, in his opinion, Postle “had a

problem with women in general in charge of anything.” Id. at 142.

This testimony by Hammers cohered with that provided by Denise Presley, who

worked for Harley-Davidson’s bank for more than twenty years and served as a liaison

between the bank and certain Harley–Davidson dealerships. (Doc. 177 at 175–76,

198–99). In light of Presley’s interactions with these dealerships and their employees,

Cigar City would sometimes ask Presley for her thoughts on potential hires and

promotions. Id. at 192. Presley was familiar with Duncan and told Bang and Postle

in separate conversations that Cigar City should award the Tampa GM spot to her.

Id. at 182–92. Presley testified that when Postle informed her that Cigar City had not

done so, she asked why and was advised by Postle that Bang felt Duncan “was too

motherly.” Id. at 198–99.

In response to this evidence, Cigar City asserts that these pronouncements by

Bang and Postle should only be construed as pertaining to Duncan’s management

style, not her gender. The flaw with this argument is that the meaning of the comments

was a matter for the jury, not the Court, to decide.

The sex discrimination cases Cigar City cites which involve references to an

employee being “motherly” (or words to that effect) do not dictate a contrary

conclusion. (Doc. 166 at 10–12). In the first of those decisions—Fischer v. Sentry Ins.

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A Mut. Co.—the challenged remark was made in the context of a performance review

where a “motherly/fostering” supervisory approach was explicitly contrasted with

another management style. 2020 WL 2575374, at *15 (W.D. Wis. May 21, 2020).

And in the second case—Hinds v. Chertoff—the court’s finding was based upon the

“plaintiff’s own description” of the statements. 2008 WL 360718, at *3 (W.D. Mich.

Feb. 8, 2008).4

Here, by contrast, the characterizations of Duncan as being “motherly” were

made in materially different circumstances. For one thing, Postle testified that he

never referred to any male employees as a “mother hen” (Doc. 163 at 244), and a

reasonable jury could interpret this concession as undermining Cigar City’s contention

that the description of Duncan was gender-neutral. For another, the comments about

Duncan were not made in the context of a performance review or the banter of the

workplace, but as a curt explanation for why she was not promoted. In short, given

the facts of this case, the jury was not compelled to believe that the challenged remarks

about Duncan were purely related to her management style. See Dejong v. CompUSA,

Inc., 2001 WL 37125216, at *3 (D.N.M. Feb. 9, 2001) (finding comments that the

4 Cigar City cites a third case as well—Davis v. Kimbel Mech. Sys., Inc.—but there the court concluded

that the statements at issue failed to rise to the level of “direct evidence” of discrimination, not that

they did not constitute any evidence of discrimination at all. 322 F.R.D. 470, 489 n.16 (W.D. Ark.

2017). It bears emphasizing in this regard that the EEOC does not claim the references to Duncan

being “motherly” amount to direct evidence of discrimination. Instead, the EEOC merely argues that

the Court should not determine the meaning of those pronouncements as a matter of law. (Doc. 180

at 11).

20

female plaintiff was “mothering” her subordinates was evidence of the employer’s

motivation to force the plaintiff out of the company because she was a woman).

The second category of additional evidence of discrimination, viewed in the

light most favorable to the EEOC, is a comparison of the testimony and exhibits from

which a juror could reasonably infer that Duncan was a better GM candidate than

Snell.5 To begin, at the time Bang made the decision to promote Snell over Duncan,

Duncan had worked for Cigar City for three years and at the Tampa location for two

years, while Snell had been employed by Cigar City for less than a year and not at the

Tampa store. (Doc. 176 at 163). Further, unlike Duncan, Snell did not participate in

the GM training program and did not even want to be the Tampa GM. Id. at 165–67.

In fact, a reasonable jury could conclude that Snell’s sole impetus for accepting the job

was because he believed that if he turned down the position, it would reflect negatively

on him within Cigar City. Id.

A reasonable jury could also draw support for the proposition that Duncan was

a superior option to Snell from the fact that Hunt recommended Duncan to replace

him as the Tampa GM (Doc. 178 at 268–72), and that Hunt deemed her to be more

qualified to be a GM than he was (Doc. 185 at 19). That sentiment was echoed by

Hammers, who likewise testified that Duncan was better equipped to be a GM than

5 As noted previously, Cigar City does not dispute that Duncan made out a prima facie case of

discrimination, which includes a finding she established a valid comparator. Thus, the Court

addresses Cigar City’s differential treatment of Duncan and Snell solely “in the context of whether

that differential treatment could otherwise reasonably support an inference of discrimination.” Willis,

846 F. App’x at 797 n.11.

21

he was (Doc. 176 at 89), and by Presley, who stated that Duncan would be her top

choice for GM if she owned a Harley-Davidson dealership (Doc. 162 at 202).

On the other hand, Hammers, who was Snell’s supervisor at the time Snell was

chosen to be the Tampa GM, testified that Snell was not a “rock star” and that Snell

did not have his “stamp of approval” for the Tampa GM post. (Doc. 176 at 91–92).

Nor was this an opinion that Hammers kept to himself. According to his testimony,

he conveyed his reservations about Snell directly to Bang when Bang asked him

whether Snell was “[GM] material.” Id.

The Supreme Court has held that testimony and exhibits regarding a plaintiff’s

qualifications “may suffice, at least in some circumstances, to show pretext,” Ash v.

Tyson Foods, Inc., 546 U.S. 454, 457 (2006), which is to say that such evidence can

sometimes demonstrate discrimination, Kragor v. Takeda Pharms. Am., Inc., 702 F.3d

1304, 1308 n.1 (11th Cir. 2012) (“The opportunity provided to a plaintiff to show

pretext is simply an opportunity to present evidence from which the trier of fact can

find unlawful discrimination.”). Cigar City counters that for qualification evidence to

substantiate a showing of pretext, the disparity in qualifications between the prevailing

candidate and the rejected one must be “of such weight and significance that no

reasonable person, ‘in the exercise of impartial judgment, could have chosen the

candidate selected.’” (Doc. 166 at 17–18) (quoting Springer v. Convergys Customer Mgmt.

Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (per curiam)). Cigar City is correct that

where a plaintiff “seeks to prove pretext through qualifications alone, the difference in

22

qualifications must be so glaring that no reasonable impartial person could have

picked” the winning candidate. Vessels, 408 F.3d at 772 (emphasis added) (citation

omitted). The Eleventh Circuit made clear in Vessels, however, that “where the

qualifications disparity is not the sole basis for arguing pretext, the disparity need not

be so dramatic to support an inference of pretext.” Id. (citation omitted)

In this case, as explained above, there is evidence from which a reasonable juror

could conclude that a comparison between Duncan and Snell as GM candidates

reveals a qualifications disparity sufficient enough to serve as at least some evidence

of sex discrimination. This is especially true in light of Snell’s testimony that he did

not want to be the Tampa GM. In sum, Duncan presented adequate proof to show

“that [Cigar City’s] proffered explanation [was] unworthy of credence.” Burdine, 450

U.S. at 256 (citation omitted).

The third and final category of additional evidence of discrimination revolves

around Bang and Postle’s credibility (or lack thereof) relative to their handling of

Duncan’s GM candidacy. By way of example, Postle not only flatly denied he made

the comments Hammers and Presley attributed to him, but he also went so far as to

claim that he never conversed with Hammers about Duncan and that he never spoke

to Presley about why Duncan was not promoted. (Doc. 178 at 45–50). Bang similarly

denied ever discussing Duncan with Hammers, much less telling Hammers that

Duncan was not going to be a GM because she was too motherly. Id. at 228. He

23

further denied ever saying to anyone that he did not want a “motherly” GM. Id. at

228–29.

By way of another example, Bang and Postle each made assertions while on the

stand that seemed inconsistent with statements they made at their respective

depositions. And the EEOC attempted to impeach each of them on this ground.

Assessing what weight, if any, to afford testimony like that offered by Bang and

Postle on the question of Duncan’s promotion is the responsibility of the jury. See

Reeves, 530 U.S. at 150 (noting that “[c]redibility determinations” are “jury functions,

not those of a judge”). Construing the evidence in the light most favorable to the

EEOC, the jury could have reasonably found that Bang and/or Postle were not being

truthful, which would have entitled them to infer that Bang and/or Postle were also

prevaricating when they testified that Duncan’s sex had nothing to do with why she

was not elevated. See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194

(11th Cir. 2004) (stating that once a decisionmaker’s “credibility is damaged, the jury

could infer” on that basis that the decisionmaker made the adverse employment

decision not because of the reason(s) it proffered but because of discrimination).

One last point bears mentioning regarding Cigar City’s challenge to the

sufficiency of the evidence on the issue of liability. In its renewed motion, Cigar City

references each piece of testimony or documentary proof that could buttress the jury’s

liability finding as if it were to be viewed in isolation, seemingly asking the Court to

discern whether each such evidentiary item taken on its own is enough to uphold the

24

jury’s determination. But that is not the correct approach to evaluating a sufficiency

challenge. Exel, Inc., 884 F.3d at 1329 (observing that, in assessing a motion for a

judgment as a matter of law, a court must “consider all the evidence”) (emphasis

added) (citation omitted); Ortiz, 834 F.3d at 765 (noting that, in weighing the merits of

a Rule 50(b) motion in an employment discrimination case, “[e]vidence must be

considered as a whole, rather than asking whether any particular piece of evidence

proves the case by itself”).

In sum, considering the entirety of the testimony and exhibits before the Court

in the light most favorable to the EEOC, and construing all reasonable inferences in

its favor, a reasonable jury could conclude that Cigar City unlawfully discriminated

against Duncan on the basis of her sex.

B.

Cigar City's second argument in support of its renewed motion for a judgment

as a matter of law—as stated earlier—is that there is insufficient evidence to bolster the

jury’s punitive damages figure. (Doc. 166 at 19–25). Two points of clarification are

necessary before deciding the merits of this challenge. First, although the jury awarded

$500,000 in punitive damages to the EEOC, Title VII caps such damages at $200,000

given the number of individuals Cigar City employed during the pertinent time frame.

(Doc. 165 at 2–3). The EEOC does not claim otherwise. (Doc. 181 at 2).

Second, Cigar City originally contended that the jury’s punitive damages

finding could not stand in the absence of an award of compensatory damages and that

25

the punitive damages figure was excessive in any event. (Doc. 165). Cigar City has

since abandoned these contentions. (Doc. 191).

Having disposed of these preliminary items, the Court turns to Cigar City’s

challenge to the jury’s reduced punitive damages figure. (Doc. 166 at 19–25). This

challenge fails for a number of reasons.

As an initial matter, Cigar City is procedurally barred under Rule 50 from

making this claim in its renewed motion. As the Eleventh Circuit has explained in this

respect, a motion for judgment as a matter of law pursuant to Rule 50(a) must “‘specify

the judgment sought and the law and the facts on which the moving party is entitled

to the judgment[,]’” and while the “motion can be renewed after trial under Rule 50(b),

. . . a party cannot assert grounds in the renewed motion that it did not raise in the

earlier motion.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1245 (11th Cir.

2001) (quoting Fed. R. Civ. P. 50(a)(2) and citing Litman v. Mass. Mut. Life Ins. Co., 739

F.2d 1549, 1557 (11th Cir. 1984)); see also Doe v. Celebrity Cruises, Inc., 394 F.3d 891,

902 (11th Cir. 2004) (finding that a district court “clearly erred because it lacked

authority to enter judgment under Rule 50(b) for the defendants on a ground not raised

prior to the submission of the case to the jury”).

Here, Cigar City failed to mention punitive damages in their motion for

judgment as a matter of law under Rule 50(a), much less make an argument that there

was not satisfactory evidence to support a punitive damages award. (Doc. 185 at 68–

26

75). As a result, Cigar City is foreclosed from raising this contention in their renewed

motion under Rule 50(b).

Even were that not the case, Cigar City’s sufficiency challenge is without merit

in any event. Title VII authorizes punitive damages for intentional employment

discrimination if the employee—or the EEOC on behalf of the employee—

demonstrates that the employer “engaged in a discriminatory practice . . . with malice

or with reckless indifference to the [employee’s] federally protected rights.” 42 U.S.C.

§ 1981a(b)(1); see also Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999) (“With the

passage of the 1991 [Civil Rights] Act, Congress provided for additional remedies,

including punitive damages, for certain classes of Title VII . . . violations.”). “Malice

means an ‘intent to harm’ and recklessness means ‘serious disregard for the

consequences of [one’s] actions.’” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,

1280 (11th Cir. 2008) (quoting Ferrill v. Parker Grp., Inc., 168 F.3d 468, 476 (11th Cir.

1999)). To be liable for punitive damages under section 1981a, “an employer must at

least discriminate in the face of a perceived risk that its actions will violate federal

law.” Kolstad, 527 U.S. at 536. Section 1981a, however, “does not require a showing

of egregious or outrageous discrimination independent of the employer’s state of

mind[, n]or does the statute’s structure imply an independent role for ‘egregiousness’

in the face of congressional silence.” Id. at 535.

In an attempt to escape the strictures of section 1981a, Cigar City asserts that

there is not a satisfactory evidentiary basis for a reasonable jury to find that Bang

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“engaged in a pattern of discrimination, acted with spite or malevolence, or acted in

blatant disregard for civil obligations.” (Doc. 166 at 22). The problem with this

argument is that Bang, who was Cigar City’s Vice-President and the final

decisionmaker as to whether Duncan was to be promoted, testified he was aware that

“discrimination against women in the promotion process is against the law.” (Doc.

178 at 119). Furthermore, there was evidence that undermined Cigar City’s proffered,

nondiscriminatory rationale for not elevating Duncan and that demonstrated male

GM candidates received more favorable treatment. Moreover, Bang and Postle both

made statements indicating that they would be unwilling to advance Duncan to the

GM post due to her gender (i.e., because she was too “motherly”) and then later denied

making those comments at trial.6 Taken together, and viewed in the light most

favorable to the EEOC, this testimony and other evidence are sufficient to uphold the

jury’s punitive damages award. See E.E.O.C. v. W&O, Inc., 213 F.3d 600, 612 (11th

Cir. 2000) (finding that adequate evidence of intentional discrimination plus “evidence

tending to show that” defendants knew the discrimination at issue “violated federal

law” was enough to buttress a punitive damages award against the defendants)

(citation omitted); Austrum v. Fed. Cleaning Contractors, Inc., 190 F. Supp. 3d 1132, 1135

(S.D. Fla. 2016) (“[A decisionmaker’s] knowledge that it is illegal to treat applicants

for employment differently based on race, coupled with credible evidence that he

6 For the reasons stated above, the Court does not find as a matter of law that these comments were

gender neutral.

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intentionally did so, is sufficient for a reasonable jury to find that he acted with malice

or reckless disregard for [the plaintiff’s] federally-protected rights.”) (citing Lambert v.

Fulton Cnty., 253 F.3d 588, 597 (11th Cir.2001)).

III.

The final matter before the Court is the EEOC’s motion for non-monetary

injunctive relief, which the EEOC maintains is necessary “to ensure that unlawful sex

discrimination in hiring and promotion does not recur at [Cigar City’s] Harley-

Davidson dealerships throughout Florida.” (Doc. 156). The specific injunctive relief

the EEOC requests covers a period of three years and includes the following terms: (1)

a “general injunction” prohibiting Cigar City from discriminating against female

employees, applicants, and former employees in the hiring and/or promotion to the

GM position at any of the Cigar City dealerships; (2) a requirement that Cigar City

notify any purchasers, successors, or assigns of the Court’s award of injunctive relief;

(3) the adoption and implementation of written policies relating to the prevention of

sex discrimination in the hiring and promotion of individuals to the GM position; (4)

the appointment of an independent injunctive relief manager to perform various tasks

designed to guarantee Cigar City’s compliance with the Court’s injunction; (5) the

provision of in-person annual training to employees by the injunctive relief manager

to address, inter alia, Cigar City’s policies regarding sex discrimination in the hiring

and promotion of individuals to the GM position, as well as the type of conduct that

may constitute unlawful discrimination, such as sex stereotyping and the improper

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consideration of sex in hiring decisions; (6) the posting of a “Notice of Court Order”

regarding the jury’s verdict and the approved injunctive relief in all Cigar City

dealerships in areas accessible to the public and its employees; (7) regular reporting by

the injunctive relief manager to the EEOC relative to Cigar City’s adherence to the

terms of the injunction; (8) the right of the EEOC at any time to review Cigar City’s

compliance with the terms of the injunction by requesting information and documents;

(9) the right of the EEOC at any time up to and including three months after the end

of the compliance period to ask the Court to remedy any breach of the injunction

without any objection from Cigar City to either the Court’s jurisdiction or the EEOC’s

ability to bring such an enforcement action; and (10) authorization for the EEOC to

recover its reasonable costs incurred in proving a violation of the injunction, along

with any other relief deemed proper by the Court. (Doc. 202).

It is well established that when the EEOC initiates an enforcement action, it

may “seek[ ] to vindicate a public interest, not simply provide make-whole relief for

the employee, even when it pursues entirely victim-specific relief.” E.E.O.C. v. Waffle

House, Inc., 534 U.S. 279, 295–96 (2002). Consistent with this principle, the Eleventh

Circuit has held that when a plaintiff proves discrimination, injunctive relief is

warranted unless the defendant proves there is no reasonable possibility of further

noncompliance with the law. U.S. E.E.O.C. v. Fed. Express Corp., 180 F. App’x 865,

867 (11th Cir. 2006) (per curiam) (“‘[T]he EEOC is normally entitled to injunctive

relief where it proves discrimination against one employee and the employer fails to

30

prove that the violation is not likely to recur.’”) (per curiam) (quoting U.S. E.E.O.C. v.

Massey Yardley, 117 F.3d 1244, 1253 (11th Cir. 1997)); see also 42 U.S.C. § 2000e–

5(g)(1) (“If the court finds that the [defendant] has intentionally engaged in . . . an

unlawful employment practice charged in the complaint, the court may enjoin the

[defendant] from engaging in such unlawful employment practice, and order such

affirmative action as may be appropriate. . . .”).

A court ultimately has broad discretion in determining whether, and the extent

to which, injunctive relief should be imposed. Kilgo v. Bowman Transp., Inc., 789 F.2d

859, 879–80 (11th Cir. 1986) (citations omitted). That discretion is not unbounded,

however. Instead, an award of injunctive relief must be fashioned only “so far as

possible [to] eliminate the discriminatory effects of the past as well as bar like

discrimination in the future.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)

(internal quotation marks and citation omitted; emphasis added). In other words, in

a sex discrimination lawsuit such as this one, the injunction should be “reasonably

tailored to address deficiencies in [the defendant’s challenged] policies, inform and train

employees regarding the relevant law, and prevent similar conduct from recurring” in

the future. E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 469–70 (5th Cir. 2013)

(emphasis added); see also E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th

Cir. 1997) (finding that “the district court did not abuse its discretion in granting

injunctive relief narrowly tailored to the discrimination proven by the Commission”)

(emphasis added).

31

Here, as noted, the jury entered a verdict finding that Cigar City discriminated

against Duncan and did so with either malice or reckless indifference to Duncan’s

federally protected rights. (Doc. 145). The EEOC has therefore satisfied the first

element necessary for an award of injunctive relief.

As for the second element, Cigar City fails to show that there is no reasonable

possibility of further noncompliance with the law. In an effort to demonstrate

otherwise, Cigar City points out, inter alia, that it hired a female GM during the

pendency of the lawsuit, although it later fired her for dishonesty before the trial

commenced. (Doc. 171 at 17–18). Cigar City also purports that there is an absence of

proof of recurrent violations and asserts that changes to its policies would not have

prevented discrimination, nor would teaching about stereotypes. Id.

The evidence before the Court, however, reveals that Bang remains the Vice-

President of Cigar City’s multiple locations, that he continues to act as the sole

decisionmaker for the GM vacancies, and that he has not been disciplined for what

the jury determined was discriminatory conduct. Massey Yardley, 117 F.3d at 1254

(holding a district court abused its discretion in denying all equitable relief and failing

to provide any reasons for doing so, where “[t]he discriminatory conduct [at issue] was

primarily that of [two individuals], both of whom remain[ed] in the same supervisory

positions at the dealership without, so far as [could] be ascertained, having been

disciplined for their behavior” and “no one at the company seem[ed] to have admitted

to any wrongdoing”); Ilona, 108 F.3d at 1579 (“[I]njunctive relief is justified in a case

32

like this where the individuals who were found to have discriminated remain the

defendant’s primary [decisionmakers].”) (citation omitted); E.E.O.C. v. Exel, Inc., 2014

WL 12538889, at *2–3 (N.D. Ga. Mar. 13, 2014) (concluding that the defendant failed

to demonstrate a Title VII violation was unlikely to recur where the record showed the

discriminatory conduct at issue was primarily attributable to one of the defendant’s

employees who remained in a management position, there was no evidence that the

employee was sanctioned for his behavior, and the defendant had not admitted to any

wrongdoing) (citation omitted); cf. U.S. E.E.O.C. v. Fed. Express Corp., 180 F. App’x

865, 867 (11th Cir. 2006) (holding that the district court did not abuse its discretion in

denying injunctive relief after finding the discriminatory conduct was not likely to

reoccur where it was committed by a single manager who was no longer employed).

While Cigar City has since promoted at least one woman to a GM position, the timing

of such an appointment after the EEOC’s charge in this action mitigates its effect (Doc.

178 at 245–47), as does Cigar City’s lack of an acknowledgment of wrongdoing or any

offer by it to make any changes to the GM hiring process in response to the verdict.

The fact that the EEOC is entitled to any injunction, however, does not end the

inquiry. The question the Court must then address is what the contours of that relief

should be. In response to the EEOC’s proposal described above, Cigar City expresses

a willingness to accede to certain terms if the Court finds that an injunction to be

appropriate. It contends though that the majority of the conditions sought by the

EEOC are not properly tailored to the circumstances of this case, i.e., a finding of

33

discrimination against a single employee. (Docs. 171, 203). The Court agrees with

Cigar City in part and notes that the cases upon which the EEOC relies in support of

the contested terms in its proposed injunction involved more egregious or otherwise

inapposite factual scenarios. Two examples will suffice to illustrate this point.

The first is E.E.O.C. v. Danny’s Restaurant, LLC, 2021 WL 3622139 (S.D. Miss.

Aug. 16, 2021), which the EEOC highlights to buttress, among other suggested

conditions, its request for the appointment of an injunctive relief manager. See (Doc.

156 at 12–13; Doc. 202-1 at 2–12). In Danny’s Restaurant, the court found that the

defendant—a cabaret—had for years subjected multiple Black women to disparate

terms and conditions of employment based upon their race in violation of Title VII.

Id. In deciding the nature and scope of the injunctive relief to be awarded, the court

observed that “there was extensive testimony regarding [the d]efendant’s willful non-

compliance with Title VII despite the EEOC’s many attempts to eradicate

discrimination at [the c]abaret.” Id. at *2. This included evidence that the

“[d]efendant continued to discriminate against its Black employees [even though the

defendant] sign[ed] three Consent Decrees explicitly forbidding said discrimination.”

Id. The court also noted that the cabaret did not object to the appointment of an

injunctive relief manager, nor did it oppose much of the other injunctive relief sought

by the EEOC. Id. Needless to say, the circumstances present in Danny's Restaurant

cannot be fairly equated to those that exist in this case.

34

The second example is E.E.O.C. v. Favorite Farms, Inc., No. 8:17-cv-1292-JSM-

AAS, which the EEOC references to bolster a number of the terms in its sought-after

injunction, including—again—the use of an injunctive relief manager. In Favorite

Farms, the EEOC brought hostile work environment claims under Title VII that were

predicated on sex and retaliation. Id., (Doc. 226). At trial, the court heard testimony

from a female seasonal laborer that she was raped by her male supervisor when he

came over to “inspect” the apartment which the woman’s employer—a strawberry

farm—had provided for her and her children. Id. According to the evidence, the male

supervisor worked in the fields with this woman and was also responsible for assigning

the woman and other field laborers to housing units operated by the farm. Id.

The court in Favorite Farms additionally heard testimony from a second woman

that the same male supervisor approached her several years earlier and pressured her

to have a sexual relationship with him. Id. According to this second female, the

supervisor threatened that he would fire her and force her to move out of her apartment

if she did not give in to his demands. Id. Despite the fact that the woman thereafter

reported this conduct to the farm, the male supervisor continued to oversee her and

the “other female field laborers[,] kept the keys to their housing, inspected their

housing, and received no training.” Id. Unwilling to work under such a difficult

situation, the second female felt it necessary to quit her job. Id.

Not only are the facts of Favorite Farms materially distinguishable from this

action, so too is the relief. In addressing the particulars of the injunction to be imposed

35

in that lawsuit, the court did not appoint an injunctive relief manager with the type of

duties sought by the EEOC in this case. Id., (Doc. 277). Instead, it directed that a

singular training session on sexual harassment and retaliation be performed by an

independent subject matter expert mutually agreed upon by the EEOC and the farm.

Id. In short, Favorite Farms is of little help to the EEOC here.7

Having considered each of the EEOC’s specific requests for injunctive relief,

Cigar City’s response to same, the authority cited by both sides, the evidence adduced

at trial, and the matters raised in the post-trial hearings on the EEOC’s motion, the

Court will issue a separate judgment granting some, but not all, of the injunctive relief

sought by the EEOC.

IV.

In light of all the above, it is hereby ORDERED:

1. The parties’ respective ore tenus motions for a judgment as a matter of law

(Docs. 146, 147) are denied.

2. The Defendants’ Renewed Motion for Judgment as a Matter of Law (Doc. 166)

is denied.

7 Other decisions cited by the EEOC are similarly unhelpful. Prime among these is E.E.O.C. v. Fla.

Commercial Sec. Servs. Corp., No. 1:13-cv-20465-JJO (S.D. Fla. Dec. 8, 2014), which was an American

with Disabilities Act action. (Doc. 202-1). One of the issues with the EEOC’s reliance on Florida

Commercial is that while the injunctive relief authorized in that case includes many of the provisions

requested here, the court in Florida Commercial did not provide any analysis as to why the terms it

adopted were reasonably tailored to the facts before it. It appears from a review of the docket that this

was because the defendant in the suit did not oppose any of the suggested terms and, in fact, did not

even file a response to the EEOC’s motion for injunctive relief.

36

3. The Plaintiffs Post-Trial Motion for Injunctive Relief (Doc. 156) is granted in

part and denied in part for the reasons described herein and as reflected in the

separately issued judgment of injunctive relief.

SO ORDERED in Tampa, Florida this 5th day of April 2023.

Nite edce A!

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record

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