Petition for Writ of Certiorari — Central Florida Investments, Inc. v. Myers

Supreme Court

a FILED

xh JUL 2- 2010

Supreme Court vot CREEK THSSLER

CENTRAL FLORIDA

INVESTMENTS, INC., et al.,

Petitioners,

DAWN GEORGETTE MYERS,

Respondent.

$—

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

S

PETITION FOR WRIT OF CERTIORARI

va aicaieualea

Richard W. Epstein

Counsel of Record

Victor Kline

GREENSPOON MARDER, PA

100 West Cypress Creek Road

Fort Lauderdale, Florida 33309

(954) 491-1120

richard.epstein@gmlaw.com

victor. kline@gmlaw.com

Counsel for Petitioners Dated: July 2, 2010

aE Se

ee

THE LEX GROUP?®© ¢@ 1750 K Street NW. ¢@ Suite 475 @ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Pax: (202) 955-0022 @www.thelexgroup.com

QUESTIONS PRESENTED

In this case, the Eleventh Circuit Court, of

Appeals affirmed an Amended Judgment finding the

petitioners lable for compensatory and punitive

damages on a common law battery claim. The

questions presented are:

l. Whether the Eleventh Circuit Court of

Appeals erred when it decided — in conflict with two

other Circuits — that punitive damages awarded for

a common law battery claim may be based on

conduet from a time-barred Title VIT claim

z. Whether awarding punitive damages

x ) -Di Pa =CcC ct violates the . e ocess

for time-barred conduct violates the .Due Proce

Clause of the Constitution or conflicts with this

Court's pronouncements on the proper ratio of

punitive damages to compensatory damages.

Ll

LIST OF PARTIES

The parties to the proceedings in the court

whose judgment is sought to be reviewed here are

Petitioners David Siegel: Central Florida

Investments, Inc.; CFI Sales & Marketing, Ltd

Westgate Resorts, Inc.; Westgate Resorts, Ltd.:

Westgate Lakes, Inc.:; and Westgate Lakes, [td

(collectively “CFI’); and Respondent Dawn Georgette

Myers (“Myers’).

LU

CORPORATE DISCLOSURE

Pursuant to Supreme Court Rule 29.6,

Petitioners, David Siegel: Central Florida

Investments, Inc.; CFI Sales & Marketing, Ltd

Westgate Resorts, Inc.; and Westgate Resorts, Ltd.,

identify Central Florida Investments, Inec.’s parent

corporations as the David A. Siegel Irrevocable Trust

(99%) and the David A. Siegel Revocable Trust (1%);

and identify Westgate Resorts, Ltd.'s parent

corporations as Central Florida Investments, Inc.

(99%) and the David A. Siegel Irrevocable Trust

(5%). Petitioners further state that there is no

publicly held company owning 10% or more of the

stock of any of the foregoing entities.

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

CORPORATE DISCLOSURE

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..

OPINIONS BELOW .......

STATEMENT OF JURISDICTION

PERTINEN' STATUTORY

CONSTITUTIONAL PROVISIONS.....

STATEMENT OF THE CASE................

A. Factual Background

B. Procedural Background

Page

1V

ok ee

AND

1. The Distmet Court: Removal and

Summary Disposition .............

2. The first appeal to the

Eleventh

Circuit and first Petition for Writ of

Certiorari to this Court

3. The Post-Trial Proceedings.........

.6

1. The second appeal to the Eleventh

a i ee Ne 7

C. Basis for Federal Jurisdiction in first

court of first instance ....................... ea

REASONS FOR GRANTING THE PETITION ......... f

. THE OPINION IS IN CONFLICT WITH

DECISIONS OF TWO OTHER

CIRCUITS ON THE SAME IMPORTANT

MATTER... se ATE Wie S

A. Two other Curcuits have refused to let

stand a punitive damages award

where it could not be determined what

portion of the award was attributable

to tune-barred claims..... EON REE

B. Two other Circuits have refused to

punish a defendant for conduct beyond

that which harmed the plaintiff ...............13

Il. THE DECISION VIOLATES DUE

PROCESS AND CONFLICTS WITH

THIS COURT'S PROUNOUNCEMENTS..... 16

V1

A. The award of punitive damages here

violates fundamental Idue process

principles by allowing time-barred

conduct to establish reprehensibility ....... 17

B. The Decision Is Contrary to BMW and

State Farm because it approves a

Punitive Damages Ratio of nearly 5:1...... 21

SE a ec cpcavanssiscnsstessceiscursesvcvesens Sav cxueacanec ae

APPENDIX

Order of

The United States Court of Appeals

For the Eleventh Circuit

Re: Affirming Judgment of the

District Court

entered January 6, 2010............... App. 1

Order of

The United States Court of Appeals

For the Eleventh Circuit

Re: Denying Petition for Rehearing and

Petition for Rehearing En Banc

entered April 19, 2010................ App. 54

Order of

The United States Court of Appeals

For the Eleventh Circuit

Re: Denying Petition for Rehearing and

Petition for Rehearing En Banc

entered April 19, 2010................ App. 56

Vil

Judgment of

The United States Court of Appeals

For the Eleventh Circuit

entered January 6, 2010. App. 58

V1

TABLE OF AUTHORITIES

Page(s)

CASES

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974).......... Pee e ie ide iced twecsodadusns 14

Annis v. County of Westchester,

136 F.3d 239 (2d Cir. 1998)............... 10, 15, 16

Bach v. First Union.Nat’l Bank,

456 F.30 160 (6th Cir. 2007) ..........00..0.s000055. SO

BMW of North America, Inc. v. Gore,

Oe re, BH ID oasis cicctesacdocececsncesoscnns passim

Boute v. City of Columbia,

isos cua eyasehcukeantennieeeens i9

Byrd v. Richardson-Greenshields Secs..,

552 So. 2d 1099 (Fla. 1989)..................... 17, 18

Cooper Industries, Inc. v.

Leatherman Tool Group, Inc..,

0 ihe Pe COED vivcccencsscccvansness Musdexintveiens ae

EEOC v. University of Pennsylvania,

850 F.2d 969 (3d Cir. 1988).......................06.. 10

Myers v. Central Florida Investments, Inc.,

237 Fed. Appx. 452 (11th Cir. 2007)............... 2

1X

Order of R.R. Tele. v. Ry. Express Agency, Inc..,

ee elie ssccececccsssercscccsecccccene GU

Rush v. Scott Spectalty Gases, Inc.,

113 F.3d 476 (3d Cir. 1997)........... 9, 10, 15, 16

State Farm Mut. Auto. Ins. Co. v. Campbeil,

SSS UD. GOS CAG) ccccccccccssecesee. aecesaniens passim

TXO Prod. Corp v. Alliance Res. Corp..,

509 U.S. 443 (1998) ooecccccecceee. ecesseeee 12, 22

United Air Lines v. Kvans,

431 U.S. 553 (1977) .ccccccccececceceseeceeseee eT

CONSTITUTIONAL PROVISION

U.S. CONST. amend. XIV, § 1...... be 1, 2

STATUTES

28 U.S.C. § 1264(1)............. ica, PNR rsskstdsacukasersse 1

28 U.S.C. § 1881.....:., Neen ese cdivanseseccescescces 7

42 U.S.C. §§ 2000e, et seq................ .....-Passim

42 U.B.C.,, © Beer evicsssecvevesscnsvecsescees. 1, 2,14

Chapter 760, Florida Statutes. .................... ccc cee cesses. 2

RR 2, 3, 15

FL, CRE woe eocccusscccccccvcscescocsces 5

Fla. Stat. 760.11(a) (414

Fla. Stat. 796.09 r

OTHER AUTHORITY

John Calvin Jeffries, Jr., A Comment on the

Constitutionality of Punitive Damages,

72 Va. L. Rev. (1986) 3 18

PETITION FOR A WRIT OF CERTIORARI

CFI respectfully petitions for a Writ of

Certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit

(“Eleventh Circuit”) in this case.

UPINIONS BELOW

The January 6, 2010 Eleventh Circuit order,

which is the subject of this Petition and is officially

reported at 592 F.3d 1201, is reproduced as App. 1-

53 (the “Opinion” or “Decision”). The April 19, 2010

Kleventh Circuit Order denying CFI’s motion for

rehearing and Myers’ motions for rehearing and for

rehearing en banc, which are not officially reported,

are reproduced as App. 54; App. 56, respectively.

The January 6, 2010 Eleventh Circuit Judgment is

reproduced as App. 58

STATEMENT OF JURISDICTION

On January 6, 2010 the Eleventh Circuit

entered its judgment. On April 19, 2010 the

Eleventh Cuircuit denied a timely petition for

rehearing. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

PERTVINENT STATUTORY AND

CONSTITUTIONAL PROVISIONS

The Constitutional provision at issue in this

case is U.S. Const. amed. XIV, § 1. The statutory

provisions at issue are Section 706(c) of Title VII, 42

U.S.C. § 2000e-5(e)(1) (1982), Florida Civil Rights

Act (“FCRA”), Chapter 760, Florida Statutes and §

95.11(3)(0), Fla. Stat. (2006).

The Due Process Clause of the Fourteenth

S. Constitution provides:

Amendment to the U

Section 1. All persons born or naturalized in

the United States and subject to the

jurisdiction thereof, are citizens of the United

States and of the State where they reside. No

State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the Umited States: nor shall any

State deprive any person of life, lberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the luws

Section 706(c) of Title VIT,4 42 U.S.C. § 2000e

(e)(1) (1982) provides

A charge under this Section shall be filed

[with the Equal Employment Opportunity

Commission] within 180 days after the alleged

unlawful employment practice occurred

except [when] the person aggrieved has

initially instituted proceedings with ua state or

local agency with authority to grant or seek

relief from such practice _ such charve shull

be filed [with the Kqual Employment

' Myers’ claum for violation of the Florida Civil Rights Act

(“FCRA”), § 760, Fla. Stat. (2006), stands or falls with the Title

VII claims. See Myers v. Central Florida Investments, Inc., 237

Fed. Appx. 452, 454 (11th Cir. 2007) (unpublished opinion)

Thus, CFI’s analysis focuses on Title VII

Opportunity Commission]... within 300 days

after the alleged unlawful employment

practice occurred...

§ 95.11(3)(0), Fla. Stat. (2006) provides:

Actions other than the recovery of real

property shall be commenced as follows:

(3) WITHIN FOUR YEARS-

(o) An action for assault, battery, false arrest,

malicious prosecution, malicious interference,

false imprisonment, or any other intentional

tort, except as provided in subsections (4), (5),

and (7).

STATEMENT OF THE CASE

Factual Background

Myers sued her former employer, CFI, and its

CEO, alleging various wrongs, including federal and

state statutory claims for sexual harassment and a

common law battery claim. (App. 11, 12 ).

Ultimately, Myers tried the case just on her

harassment and battery claims. (App. 13, 14)

During the six-day trial Myers testified to conduct

spanning the entire period of her employment with

CFI, dating from early 1995 and ending in 2000.

(App. 3-11).

On her Title VII claim, the jury found that

none of the alleged acts of harassment took place on

or after September 15, 2000, the point at which the

statutory limitations period barred recovery. On her

‘battery claim, the jury found that two acts Myers

testified to occurred within the statute of limitations,

in a 117-day period. (App. 13, 14).

On the battery claim the jury awarded Myers

compensatory damages of $102,223.14 and punitive

damages of $5,276,640.00, for a total judgment of

$5,378,863.14. (App. 14).

The District Court entered judgment on the

verdict in that amount. (App. 14).

After hearing post-trial motions, the district

court entered an Amended Judgment that Myers

take nothing from CFI on her claims under Title VII

or the FCRA, but that she recover $103,622.09 in

compensatory damages, as well as $506,847.75 in

punitive damages on her common law battery claim.

(App. 14, 15).

B. Procedural Background

: The District Court: Removal and

Summary Disposition

CFI timely removed Myers’ original action to

the United States District Court for the Middle

Distnct of Florida from the Circuit Court of the

Ninth Judicial Circuit of Orange County, Florida.

Myers thereafter filed a nine count Second

Amended Complaint. The amended claims included

sexual harassment under Title VII, 42 U.S.C. §§

2000e, et seq. and the FCRA, Chapter 760, Florida

Statutes; retaliation under Title VII and the FCRA;

retaliation in violation of the Florida Private

Whistleblower Act (“Whistleblower”), § 448.101-105,

Florida Statutes; and Florida common law claims of

negligent retention and supervision, false

imprisonment and battery, and a state statutory

claim for inducement to prostitution, § 796.09,

Florida Statutes. (App. A at 13).

The District Court dismissed Myers’

Whistleblower, inducement to prostitution and

negligent retention and supervision claims, and then

eranted CFI summary judgment on the remaining

claims of sexual harassment and retahation. (App.

13). The District Court then remanded the battery

and false imprisonment claums to state court. (App.

13).

The first appeal to the Eleventh

Circuit and first Petition for Writ

of Certiorari to this Court

Myers appealed the summary disposition to

the Eleventh Circuit, which affirmed, in part, and

vacated, in part, finding principally that Myers had

presented sufficient evidence to get to trial on her

hostile work environment claims. (App. 13). In light

of that determination, the Eleventh Circuit

reinstated Myers’ state-law battery and _ false

imprisonment clauns.

Thereafter, Myers petitioned this Court for

Writ of Certioram in Case No. 07-660. Myers

challenged both the Distrmct Court’s summary

disposition of her statutory tangible employment

action and retalation claims and the Eleventh

Circuit’s Decision to the extent it affirmed the

District Court.

This Court denied Myers Petition for Writ of

Certiorari in Case No. 07-660, on February 25, 2008.

i The Post-Trial Proceedings

After trial, the parties filed various post-trial

motions. While the District Court denied several of

these. motions, the District Court determined that

the jury had not made the required findings under

state law to support a punitive damages award

greater than $500,000.00 and that the judgment

should reflect that CFI had prevailed on the sexual

harassment claim. (App. 14, 15).

On these bases, the District Court entered an

Amended Judgment stating that Myers “shall take

nothing” on the Title VII] and FCRA claims and

reducing the punitive damage award by

$4,776,640.00, to $500,000.00. (App. 15). Adjusted

for interest, the Amended Final Judgment reflected

an award to Myers of compensatory damages of

103,622.09 and punitive damages of $506,847.75

and a total judgment of $610,469.84. (App. 15).

4, The second appeal to the Eleventh

Circuit

Both CFI and Myers appealed the Amended

Judgment to the Eleventh Circuit. (App. 15).

The Eleventh Circuit affirmed the Amended

Judgment in all respects, {App. 1-53) and denied

CFI’s Motion for Reheuring (App. 54, 55) and Myers’

Motion for Rehearing and Rehearing en banc (App.

56, 57)

.. Basis for Federal Jurisdiction in first

court of first instance

The District Court had jurisdiction in the first

instance on removal based on a federal question

under 28 U.S.C. § 1331 since Myers asserted a claim

under ‘Title VIl of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq.

REASONS FOR GRANTING

THE PETITION

The Eleventh Circuit Opinion conflicts with

decisions in the Second and Third Circuits on the

same matter because it leaves standing a punitive

damages award based on time-barred conduct. The

Decision here, therefore, permits a defendant in the

Eleventh Circuit to be punished not only for the

conduct that harmed the plaintiff, but also for

conduct that is not otherwise actionable.

The Opinion also conflicts with this Court's

rulings in BMW of North America, Inc. v. Gore, 517

U.S. 559 (1996) and State Farm Mut. Auto. Ins. Co.

v. Campbell, 538 U.S. 408 (2003) on two of the three

“suideposts” for evaluating the appropriateness of a

punitive damages award. In this regard, the Opinion

goes beyond the procedural and_ substantive

limitation these cases place on punitive damages

awards. The Decision thus raises’ important

questions about the constitutional propriety of the

Eleventh Circuit using conduct the jury found was

time-barred, to support a conclusion that there was a

pattern of similar repeated conduct and

reprehensibility, which, in turn, justified the more

severe and enhanced ratio of punitive — to

compensatory damages awarded.

THE OPINION IS IN CONFLICT WITH

DECISIONS OF TWO OTHER CIRCUITS

ON THE SAME IMPORTANT MATTER.

Because the statute of limitations under Title

VII and the FCRA barred Myers’ claim, the jury did

not reach the issue of damages on her sexual

harassment claims. Evidence introduced at trial

relating to Myers’ time-barred statutory sexual

harassment claims, however, infected the jury’s

deliberations and ultimately influenced the amount

of punitive damages awarded on her common law

battery claim. That same time-barred evidence

affected the Eleventh Circuit’s reasoning in

affirming the District Court’s Amended Judgment,

including the punitive damages award. In effect, the

award shreds the applicable statute of limitations by

permitting Myers, despite the time bar, to recover

punitive damages based on conduct, which was not

actionable and was separate from the two acts the

jury concluded were a battery.

A. Two other Circuits have refused to

let stand a punitive damages award

where it could not be determined

what portion of the award was

attributable to time-barred claims.

Although the District Court reduced the jury's

punitive damages award to $500,000.00; the

Eleventh Cuircuit left the award standing. The

reasoning in the Opinion that the time-barred

conduct supported a “pattern” of battery and

justified punitive damages, conflicts with decisions

in two other Circuits on this same important matter.

In Rush v. Scott Specialty Gases, Inc., 113

Kk.3d 476, 477-78 (3d Cir. 1997) Rush sued her

employer for sex discrimination, hostile environment

sexual harassment, constructive discharge and

retaliation, Equal Pay Act violations, and state

common-law tort and contract claims. After a two-

week trial, the jury found for Rush and awarded her

compensatory and punitive damages.

The Third Circuit, however, reversed and

remanded. The Court held that the presence of a

time-barred claim and the introduction of evidence

related to and supporting it “infected” the jury’s

verdicts on liability on the other timely claims and

on the damages award. Id. at 484-85. The Court

explained that to allow a stale claim to proceed in

this way would thwart the administrative procedure

established by Title VII, which requires timely filing

10

of charges for prompt resolution of discrimination

controversies. Rush, 113 F.3d at 485 citing EEOC uv.

University of Pennsylvania, 850 F.2d 969, 978 (3d

Cir. 1988) (“Upholding the University’s first-filed

suit in this context would undermine. the

congressional policy favoring prompt resolution of

discrimination claims.”), affd on other grounds, 493

U.S. 182 (1990). The Court explained that it had:

no intention of shredding the 300-day

limitations period by automatically allowing

an employee who alleges actionable conduct ...

to make claims with respect to any adverse

employment actions that occurred during his

or her entire period of employment.

Id. at 484-85. On this reasoning the Rush Court

concluded that when “[i]t 1s not possible to ascertain

what portions of the compensatory and punitive

dumages awards were attributable” to claims that

were time-barred, the damages awards must be

vacated. Jd. at 485.

The Second Circuit in Annis v. County of

Westchester, 1386 F.3d 239 (2d Cir. 1998) followed

Rush and vacated a punitive damages award in a sex

discrimination suit. The Court explained that jury

confusion and prejudice to the defendant far

outweighed the probative value of the time-barred

evidence of sexual harassment. The Second Circuit

held that if a‘court cannot determine what portion of

a punitive damages award is attributable to time

barred claims, the damages awards must be vacated.

Id. at 248.

11

Because the jury here heard, but rejected

Myers’ time-barred sexual harassment claims, her

battery claim could only succeed and damages could

only be awarded based on the two isolated and

discrete incidents of battery. These two incidents

occurred within a very narrow 117-day period

(between May 21 and September 14, 2000), which is

the only period that CFI’s CEO could have touched

Myers in an uninvited and harmful or offensive way

that would have created any lability. (App. 13, 14).

Although the jury found CFI liable only for the two

incidents of battery, the jury still awarded Myers

$5,276,640.00 in punitive damages for the claim, an

amount later reduced by the District Court to

$500,000.00. (App. 14, 15).

The only explanation for the jury’s $5 million

punitive damages award is the presence and

introduction of evidence related to and supporting

the time-barred sexual harassment claims, which

“infected” the jury’s verdict, and the award and

amount of punitive damages. That evidence also

affected the Eleventh Circuit’s reasoning in

affirming the Amended Juagment.

To justify the result here, the Eleventh Circuit

borrowed a “continuing violation” theory from Title

VII and applied it to Myers’ common law battery

claim. In so doing, the Court used the “public

interest” to explain how the jury could consider and

use the time-barred conduct in punishing CFI. (App.

34, 35). As the Court explained, “Myers described a

pattern of sexual touching ... beginning in 1995 and

ending in 2000.” (App. 37). “[A] jury,” therefore,

“may consider material external to the charge...”

12

because “transgressions that are time-barred” are

relevant in a determining whether to award punitive

damages. (App. 37). In this regard, the Eleventh

Circuit specifically wrote:

The district court's only error was the

suggestion that the similar prior

transgressions that are time-barred are in no

way relevant to the reprehensibility inquiry:

such a conclusion does not follow our

precedent. See Gore, 517 U.S. at 576-77

State Farm 538 U.S. at 423 ... (citing TXO

Prod. Corp v. Alliance Res. Corp., 509 U.S. 443

at 462 n. 28) (1993)....

Neither Gore nor State Farm support what the

Eleventh Circuit implies: that a claim, for which

there would be no liability, is relevant to the

reprehensibility inquiry. For sure the cases speak to

the issue of a recidivist’s conduct and about the

“frequency of past conduct,” but on their facts Gore,

State Farm, and TXO do not condone what happened

here: affirming a “make-up” punitive damages award

for a time-barred Title VII claim. Indeed, this Court

made clear in State Farm that “The reprehensibility

guidepost does not permit courts to expand the scope

of the case so that a defendant may be punished for

any malfeasance....” Id. at 424 (1525). The results-

driven Opinion here, which is at odds with two other

Circuits, establishes as law in the Eleventh Circuit,

that a time-barred harassment claim is _ still

compensable through a punitive damages award

based on any alleged malfeasance.

13

Practically speaking and in light of the

Decisicn, the need to prove liability on a time-barred

Title VII claim no longer exists in the Eleventh

Circuit. If a plaintiff brings a state law claim, the

common law tort becomes a surrogate for a time-

barred statutory claim, an avenue to an award of

punitive damages to “make-up” judicially for the fact

the plaintiff did not exercise the required diligence

in timely pursuing her Title VII claims. Now, in the

Eleventh Circuit, a dilatory plaintiff is excused from

suffering the consequences of her own lack of

diligence if at trial the alleged Title VII harassing

conduct can be re-cast as an intentional tort, and

testimony of allegedly unwelcome, salacious

harassing Title VII conduct is adduced that invites

punitive damages under the common law claim. The

award and amount of punitive damages here is out

of proportion to the conduct that harmed Myers. 1.e.,

two instances of battery in a 117-day period, and

makes it impossible to determine what portion of the

punitive damages is attributable to the time-barred

claims and to the harm she suffered from the

battery.

B. Two other Circuits have refused to

punish a defendant for conduct

beyond that which harmed the

plaintiff.

As the foregoing discussion demonstrates, the

testimony with the most dramatic impact on the

Eleventh Circuit's rationale and justification for

letting the punitive damages award stand was time-

barred. If Myers had just brought federal and state

discrimination claims there would have been no

14

liability, and a complete defense verdict. Instead, the

reasuning in the Decision revived the stale

discrimination claims by linking the time-barred

conduct to.two discrete acts of battery that occurred

within the limitations period. To allow Myers to use

alleged conduct from her stale sexual harassment

claim to support a hypothetical “pattern” of battery

limitations period on both statutory harassment

claims and punishes CFI for conduct beyond that

which harmed Myers.

Section 70G(e) of Title VII establishes the

applicable federal limitations period here. An

aggrieved employee must first file a claim with an

administrative agency prior to proceeding to court.

42 U.S.C. § 2000e-5(e)(1). That charge of

discrimination must be filed within 300 days of the

allegedly unlawful employment action.* Jd.; United

Air Lines v. Evans, 431 U.S. 5538, 555 n.4; (1977)

(holding that “[t]imely filing is a prerequisite to

maintenance of a Title VII Action.”) This Court

made clear that Congress defined the jurisdictional

prerequisites of Title VII “with precision,” Alexander

v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). There

is no statutory exception to the limitations period

Myers, however, testified at length about allegedly

unlawful, but time-barred Title VII harassing

conduct that she claims occurred throughout her

employment, dating from early 1995 and ending in

2000. The jury considered that evidence and the

Eleventh Circuit condoned its use “as a means ‘to

om

2 Under the FCRA a complainant must file an administrative

complaint with the State of Florida or the EEOC within 365

days of the purported violation. § 760.11(a), Fla. Stat.

correct evil-doing im areas not covered by the

criminal law” (App. 35), in affirming the award of

punitive damages. In so doing, the Court approved

punitive damages for more than the conduct the jury

found harmed Myers

Likewise, on her common law claim, Section

95.11(3)(0), Fla. Stat. required Myers to sue upon

each incident she now cluims umounted to a battery

within four (4) years of its occurrence. Myers did not

file her claim until May 19, 2004, which meant that

any harmful or offensive contact that might have

supported a battery claim predating May 21, 2000

was time-barred; yet, she still testified at great

length about conduct prior to that date

30th Aush and Annis reflect what this Court

established in State Farm: that a defendant should

be punished only for the conduct that harmed the

plaintiff, not for any other reason. State Farm at

422-23. Due process doves not permit courts, in the

calculation of punitive damages, to adjudicate the

merits of a hypothetical claim or to permit u time

barred claim against a defendant to form the basis

for a damages award. See Id.; see also Rush at 485

Yet, in affirming here, the Eleventh Cuircuit

permitted the jury to punish CFI for conduct other

than the two instances of battery upon which

liability was based, saying that a jury may consider

any “external” evidence of “prior transgressions” 10

awarding punitive damages. (App. 37).

If left to stand, the Decision allows an

employee who alleges an actionable common law

claim to present evidence and recover punitive

damages with respect to any purported adversi

employment actions that occurred during her entire

period of employment, irrespective of any statute of

limitations. Because—as explained in Rush and

Annis --there is no way to determine what portion of

the punitive damages award the jury here attributed

to the time-barred conduct, certiorari must be

granted to resolve the conflict in the Circuits over

whether time-barred conduct can be used to

establish a pattern of egregious conduct. sufficient to

award punitive damages

II. THE DECISION VIOLATES DUR

PROCESS AND CONFLICTS WITH THIS

COURT'S PRONOUNCEMENTS

In the Opinion, the Eleventh Circuit

recognized that the foundation of the du proces

inquiry for punitive damages is found in BMW

which established three “guidepost bo determin

when an award 1s appropriate or grossly excessive

These three yuidepost: are ‘the degree of

reprehe osibility’ of the defendant's actions: “the

disparity between the harm or potential harm

suffered by [the plaintiff] and his punitive damages

award: and the difference between this remedy and

the civil penalties authorized or imposed in

comparable cases.” BMW at 574-75. As discussed

next, the Opinion here casts doubt on the continuing

viability in the Kleventh Circuit of the first and

second BMW guideposts in constraining punitive

damages awards

17

A. The award of punitive damages

here violates fundamental due

process principles by allowing

time-barred conduct alone to

establish reprehensibility.

The Eleventh Circuit said that “the dominant

consideration” in this case was the first Gore

guidepost, the degree of reprehensibulity. (App. 35).

In its analysis of this guidepost, the Eleventh Circuit

relied on inductive reasoning, to reach a generalized

conclusion about the interest being protected and the

appropriateness of the punishment the jury imposed

on CFI. Along the way, the Court marginalized the

statute of limitations on Myers’ time-barred Title VII

discrimination claim to rationalize and affirm and

sanction a more severe punitive damages penalty to

compensate Myers for her time-barred claims. (App.

35).

Basically the Court, quoting a state court

worker's compensation case, Byrd v. Richardson-

Greenshields Secs., 552 So. 2d 1099, 1102 (Fla. 1989)

reasoned that the state had a general interest in

protecting against “sexual discrimination ... on a

remedial statute or on the common law.”? Jd. Then

3 ‘The Court’s reliance on Byrd to justify the punitive damage

award is misplaced. Byrd, a case simply addressing the

application of the exclusivity rule on Florida’s worker's

compensation statutes, did not address either punitive

damages or time-barred sexually harassing conduct. The

state’s interest in protecting employees from pervasive sexual

harassing conduct must not remain unchecked. The Court’s

“ends-justifying-the-means” Decision is devoid of any authority

supporting an utter disregard of all apphcable statutes of

limitations.

the Court characterized the harm to be punished in

this case as an “unchecked pattern of ‘antisocial

behavior.” Jd. While the Court acknowledged that

CFI’s hability on the battery pertained to just two

instances of such conduct in “a sixth-month time

period,” the “antisocial behavior” to which the Court

pointed was undeniably the alleged conduct

underlying the time-barred discrimination claim to

which. the Eleventh Circuit said “Myers wus

subjected [to] for so many years.” Jd. Then, barely

hiding its eagerness to excuse Myers’ lack of

diligence in pursuing a timely harassment claim, the

Court said CFI’s “antisocial behavior” “underscores

the need for punitive damages as a means ‘to correct

evil-doing.” Jd. The Eleventh Circuit's analysis

based on moral outrage over time-barred conduct,

however, begs the reprehensibility question and

overlooks the constitutional limitations placed on

punitive damages.

The punitive damages award here against a

corporate defendant and its CEO predicated on time-

barred conduct represents a radical departure from

the protections inherent in the traditional htigation

model and creates an unreasonable risk of arbitrary

punitive awards. In traditional litigation, the “jury

had only to assess the particular transaction before

it and to determine on that basis whether the

defendant’s conduct warranted a punitive award.”

John Calvin Jeffries, Jr.. A Comment on the

Constitutionality of Punitive Damages, 72 Va. L.

Rev. 139, 141 (1986). Thus, “[aJlthough not

constrained by the same procedural requirements as

other forms of punishment, punitive damages at

least were based on a manageable jury inquiry” that.

15

served to anchor punitive damages to the plaintiffs

harm. Jd. Indeed, that is precisely what both BMW

and State Farm require, but what is lacking here

In Myers’ case, the particular conduct was two

instances of battery in a 117-day period, which the

Eleventh Circuit had to stretch into a “pattern” over

“many years” to justify punitive damages on the very

conduct the jury found was time-barred, and not

actionable. In effect, the Eleventh Circuit created a

pattern of “reprehensibility” for Myers by looking at

the time-barred conduct from a separate claim and

linking it to the two instances of touching that

constituted the battery. In so doing, the Eleventh

Circuit justified the imposition and severity of the

punitive damages award for what the Court called

“evil-doing,” where Myers could not.4 “Elementary

notions of fairness enshrined in our constitutional

jurisprudence,” however, “dictate that a person

receive fair notice not only of the conduct that wil

subject him to punishment, but also of the severity of

the penalty that a State may impose.” Jd. at 574:

Boute v. City of Columbia, 378 U.S. 347, 353 (1964)

(there is a “potentially greater deprivation of the

right to fair notice ... where ... a statute precise on its

* The reprehensibility required for harsh punitive damages

entails a high degree of culpability. BMW, 517 U.S. at 580. To

meet the reprehensibilty required for high punitive damages,

the Court implied that (as in TXO) the misconduct should be

intentional, perhaps be gravely deplorable, deserving of severe

coudemnation, even threatening basic interests of an individual

beyond purely economic loss. Conduct deserving the harshest

punitive damages would be odious. It would pass moral bounds,

be wicked or outrageous, and constitute a grave offense against

right or decency, which two instances of battery alone do not

support.

20

face has been unforeseeably and _ retroactively

expanded by judicial construction, than in the

typical ‘void for vagueness situation”).

One of the key procedural mechanisms for

ensuring notice, and concomitantly for protecting

against severe punishments is the limitations period

for a claim. Statutes of limitations

promote justice by preventing surprises

through the revival of claims that have been

allowed to slumber until evidence has been

lost, memories have faded, and witnesses

have disappeared ... even if one has a just

claim it is unjust not to put _ the

adversary on notice to defend within the

period of limitation and that the right to

be free of stale claims in time comes to

prevail over the right to prosecute them.

Order of R.R. Tele. v. Ry. Express Agency, Inc., 321

U.S. 342 (1944) (emphasis added). No matter how

just Myers’ time-barred harassment claim may have

appeared to the Eleventh Circuit, there is little

doubt that—for whatever reason—she did not bring

her claim within the applicable statute of limitations

period. CFI has, and had, a right to fair notice not

only of the conduct that would subject it to

punishment, but also the severity of the punishment.

It also has a right to be free of stale claims,

particularly where punitive damages might be

imposed. The net effect of the Eleventh Circuit's

expansion of the statute of limitations by judicial

construction here, however, is the literal revival of a

claim that was left to slumber, revival not through a

21

lability determination, but through a_ punitive

damages award on a common law claim.

In the end, the Congressionally-legislated

requirements of Title VII, including the statute of

limitations, cannot be sacrificed for the sake of a

plaintiff who lacked diligence in pursuing her claim,

but for whom the jury and Eleventh Circuit felt

sympathy and supplied reprehensibility in order to

give her a “make-up” punitive damages award out of

proportion to her actual harm. As the foregoing

demonstrates, the continuing viability of the first

procedural guidepost in_ restraining punitive

damages awards in the Eleventh Circuit is

questionable where time-barred “prior

transgressions’ singularly establish the

reprehensibility factor.

B. The Decision Is Contrary to BMW

and State Farm _ because it

approves a Punitive Damages Ratio

of nearly 5:1.

In State Farm, this Court significantly

reduced the scope of defendant conduct that a state

may subject to punitive lability, and pointedly

clarified the rigorous three-guidepost analysis the

Court established in BMW, offering highly

structured guidance on the outer limits of punitive

damages awards. State Farm, 538 U.S. 408. In

BMW, the Court made clear that “exemplary

damages must bear a ‘reasonable relationship’ to

compensatory damages.” BMW, 517 U.S. at 580.

State Farm went one step further and made clear

that “the conduct must have a nexus to the specific

harm suffered by the plaintiff.” 538 U.S. at 422. The

second Gore guidepost, therefore, focuses a court’s

analysis on the nexus, on the “relationship between

the penalty and the harm to the victim caused by the

defendant's actions,” Cooper Industries, Inc. v.

Leatherman Tool Group, Inc., 532 U.S. 424, 435

(2001).

In the simplest terms, the second guidepost

ties the punitive award to the facts underlying the

plaintiffs successful claim and the harm suffered. If

there is no link between the two, the award is

unreasonable or excessive. The “most commonly

cited indicium of an unreasonable or excessive

punitive damages award is its ratio to the actual

harm inflicted on the plaintiff.” Jd. Although this

Court in 7XO upheld a punitive award where “the

relevant ratio was not more than 10 to 1,” BMW, 517

U.S. at 581, the Court also has stated that a punitive

damage award of four times the amount of

compensatory damages (4 to 1) is “close to the hne”

in terms of constitutional propriety. BMW, 517 U.S.

at 581.

eee

The punitive damages award here is beyond

the line. At an unreasonable or excessive ratio of

nearly 5 to 1, the award does not reflect the actual

harm occasioned by just two incidents of battery ina

117-day period since the nexus between the punitive

and compensatory damages is attenuated. After all,

the compensatory damages award did not redress

physical harm ordinarily suffered in a battery, but

instead was, as the Eleventh Circuit described it, an

“award for emotional damages equal to” Myers’

annual income. (App. 20). While admittedly there is

no formulaic approach to computing such damages,

it is inconceivable that the “emotional harm,

emotional damages and emotional suffering” Myers

endured as the result of two incidents of battery

comprising, at best, a few seconds of contact caused

$102,223.14 in harm, coincidentally her to-the-penny

salary. Be that as it may, there is little doubt that

for the harm occasioned by the two instances of

battery, the compensatory damages are substantial.

See e.g., Bach v. First Union Natl Bank, 486 F.3d

150, 156-57 (6th Cir. 2007) (holding $400,000

compensatory damage award was “substantial” and

remitting $2.2 million punitive damage award to

$400,000).

To complete the ratio analysis here, the

Eleventh Circuit had to analyze the nexus between

the substantial damages awarded for the actual

harm and the amount of punitive damages. ‘I'he

Court did so, and as the Opinion makes clear, the

nexus between the “harm” and the punitive damages

was judicially supplied, since there is no way to

establish as required by BMW and State Furm that

the jury only looked at the actual harm, t.e., the two

instances of battery.

The Decision leaves lhttle doubt that the

Eleventh Circuit not only believed the jury relied on

time-barred conduct in awarding punitive damages,

but the Court also condoned the jury doing so. In the

end, the Eleventh Circuit approved an Amended

Judgment that awarded a year’s’ salary as

compensatory damages of $103,622.09 for emotional

distress and punitive damages of $506,847.78. These

numbers yield a ratio of punitive to compensatory

24

damages of approximately 4.89:1,5 which, even if

punitive damages were appropriate, reflects an

unreasonable and excessive punitive damages. award

when compared to the substantial compensatory

damages awarded for the two instances of battery.

(App. 41). In State Farm, this Court urged the lower

court on remand consider a 1:1 ratio appropriate in

light of the “substantial” amount of compensatory

damages. 538 U.S. at 429.. Even if the Eleventh

Circuit here did not supply the nexus for Myers, the

ratio (between the compensatory and punitive

damages) is excessive and should at best be at a

ratio of 1:1.

In sum, the Eleventh Circuit affirmed a

judgment where Myers’ extracted a _ punitive

damages award based on a pattern of conduct that

was time-barred, not on the harm caused by the two

instances of battery in a six-month period. The

decision, if allowed to stand, creates a precedent that

subverts the central due process requirements of

fairness, proportionality and reasonableness and

exposes defendants in the Eleventh Circuit to

arbitrary punishment in the form of punitive

damages awards based on conduct that is time-

barred. This result contravenes the principles set

forth by this Court in BMW and State Farm and

warrants a grant of certiorari.

5 These figures are inclusive of interest accruing since the

original judgment was entered. While the numbers are

incrementally greater than the jury verdicts, the resulting ratio

is little changed.

CONCLUSION

For the reasons discussed above, the Petition

for a Writ of Certiorari should be granted

Respectfully submitted on behalf of David

Siegel; Central Florida Investments, Inc.; CFI Sales

& Marketing, Ltd.; Westgate Resorts, Inc.; Westgate

Resorts, Ltd.; Westgate Lakes, Inc.; and Westgate

Lakes, Ltd. (collectively “CFI”) this 2nd day of July,

2010.

Respectfully submitted,

GREENSPOON MARDER, PA

Richard W. Epstein, Esquire

COUNSEL OF RECORD

Florida Bar No. 229091

Richard.epstein@gmlaw.com

Victor Kline, Esquire

Florida Bar No. 438219

Victor.kline@gmlaw.com

100 West Cypress Creek Road

Fort Lauderdale, FL 33309

Telephone: (954) 491-1120

Facsimule: (954) 343-6958