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

Supreme Cou

FILE ft US.

) qd) . 10-118 su 19 2000

\\0" Fy O.

OFFICE OF THE CLERK

In The

Supreme Court of the United States

DAWN GEORGETTE MYERS,

Petitioner,

Uv.

CENTRAL FLORIDA INVESTMENTS, INC.,

ET AL.

Respondents.

Cross Petition for a Writ of Certiorari to the

United States Court of Appeals

For The Eleventh Circuit

CROSS PETITION FOR

A WRIT OF CERTIORARI

RICHARD E. JOHNSON

Counsel of Record

314 West Jefferson St.

Tallahassee, Florida 32301

(850) 425-1997

richard@nettally.com

QUESTIONS PRESENTED

1. Whether the Seventh Amendment and the

rules of civil procedure require that any question

absent from a verdict form be deemed resolved in

accordance with the verdict, where no party sought

inclusion of that question or objected to its omission

before the jury retired to deliberate.

2. Whether an affirmative defense may

substitute for a denial in meeting the requirement that

fulfillment of a condition precedent be denied

specifically and with particularity and whether a

boilerplate, generic allegation can meet that

requirement of specificity and particularity.

3. Whether the Seventh Amendment permits

a trial court to deny a plaintiff the opportunity to cure

an alleged defect in evidence raised by a defendant in

a Rule 50(a) motion.

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LIST OF PARTIES

The parties to the proceedings in the

court whose judgment is sought to be reviewed here

are Cross Petitioner/Respondent Dawn Georgette

Myers (“employee”), and _ Petitioners/Cross

Respondents David Siegel; Central Florida

Investments, Inc.; CFI Sales & Marketing, Ltd.;

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

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

(“employers’).

-111-

TABLE OF CONTENTS

Weumetion FROSOMENG, 6. kc ccd eee av eeeeen l

Rage OG POOR. 5.5 a aio b 2 a ee eee il

eee Oe COREE, 5s vas ke xka eee eee ee eee ll

Table of Cited Authorities..................... iv

RE ON cc tg ee oe ee eee ae v1

Statement of JUPIBGICHION. «6. 6c ce ees en V1l

Pertinent Statutory Provisions................ v1ll

CACOMOTt OF CAO TBO0.. kok 6 5k oc e's eee ken ees 1

Reasons for Granting the Writ................. 3

I. The Verdict Is Presumed To Include All Findings

NOCOBSETY TO GUOONE TL... cece a cece e ee nseees 3

II]. Pre-Verdict Failure To Object Waives Post-Verdict

Challenge

Te nn Ae ee ee 5

ll. Error In Allowing Statute of Limitation Question

COR We eon hese eee cbse eee sae es 6

IV. Error in Not Allowing Rebuttal Of Rule 50(a) Motion. . 9

Ce en MT rae cee eee 1]

~1V-

APPENDIX

APPENDIX A- Order Affirming Judgment Below, U.S.

Court of Appeals for the Eleventh Circuit, January 6,

APPENDIX B - Judgment on Appeal, U.S. Court of

Appeals for the Eleventh Circuit,

a oe ee ec eke 62a

APPENDIX C - Order on Post-Trial Motions, District

Court for the Middle District of Florida, October 23,

SS ett 6, er a ea ea ee a eee eee es 64a

APPENDIX D - Amended Judgment, U.S. District

Court for the Middle District of Florida, October 23,

SEE OR wi ER igen ot veer gr a 134a

APPENDIX E - Jury Verdict, District Court for the

Middle District of Florida,

PO TL Ss gS cee ee oe ee beeen 140a

APPENDIX F - Order on Petition(s) for Rehearing and

Petition(s) for Rehearing En Banc, U.S. Court of

Appeals for the Eleventh Circuit,

Pe ae ES es se oe ee kh coy ees ee ee 145a

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TABLE OF CITED AUTHORITIES

CASES CITED

Ashcroft v. Iqbal,

ize ot. 1957, 1963 (2008)... 3... .. 5.

Bell Atlantic Corp. v. Twombly,

Dow W.c. O64, GOO CHOU E). ows cee eee

Crawford v. Andrew Systems, Inc.,

39 F.3d 1151, 1153 (11th Cir. 1994). ...

E.E.0.C. v. Klingler Elec. Corp.,

636 F.2d 104, 106-7 (11th Cir. 1981)....

Farley v. Nationwide Mutual Ins. Co.,

197 F.3d 1322, 1329 (11th Cir. 1999). ..

Fredonia Broadcasting Co., Inc. v. RCA Co.

481 F.2d 781, 796 (5th Cir. 1973). ....

In re Rawson Food Service, Inc.,

846 F.2d 1343, 1348-9 (11th Cir. 1988)..

Johansen v. Combustion Engineering, Inc.,

170 F.3d 1320, 1330 (11th Cir. 1999). . .

Ross v. Rhodes Furniture, Inc.,

146 F.3d 1286. 1289 (11th Cir. 1998).

CONSTITUTIONAL PROVISION CITED

PAGE

8

eS

—« so

PE

Mea ee

ae ee

. 5,10

Seventh Amenament.......scccccveccvces vu1,3,5,6,

STATUTES CITED

ee Vly ae hk oo abo BO vi

pe re ]

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e, et seg............. vii,1,8

FEDERAL RULES CITED

a oes 646 0k eR wo v1i,7,8

I as obec ea eaen Vili, 3,4,6

Ee ek ane a eat eeue vili-1x,9,10

a ca tke nae whew vasys 1x,4,5,

OTHER AUTHORITIES

Wright & Miller, 9B Fed. Prac. & Proc. Civ.2d § 2507. 4

Wright & Miller, 9C Fed. Prac. & Proc. Civ.2d § 2553... 6

-Vil-

DECISIONS BELOW

The January 6, 2010, order of the Eleventh

Circuit Court of Appeals, affirming the judgment,

reported at 592 F.3d 1201 (11" Cir. 2010) , is reproduced

as Appendix A at la. The January 6, 2010, judgment

on appeal in the Eleventh Circuit Court of Appeals,

which is not officially reported, is reproduced as

Appendix B at 62a. The October 23, 2008, Order on

Post-Trial Motions in the District Court for the Middle

District of Florida, is reproduced as Appendix C at 64a.

The October 23, 2008, Amended Judgment, U.S.

District Court for the Middle District of Florida, is

reproduced as Appendix D at 134a. The February 20,

2008, Jury Verdict, District Court for the Middle

District of Florida, is reproduced as Appendix E at

140a. The April 19, 2010, Order on Petition(s) for

Rehearing and Petition(s) tor Rehearing En Banc, U.S.

Court of Appeals for the Eleventh Circuit, is

reproduced as Appendix F at 145a.

STATEMENT OF JURISDICTION

The decision of the Court of Appeals for the 11"

Circuit was entered on January 6, 2010. That Court

denied rehearing on April 19, 2010. The Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

-Vill-

PERTINENT CONSTITUTIONAL,

STATUTORY & RULE PROVISIONS

The Seventh Amendment to the Constitution of

the United States is as follows:

In Suits at common law, where the value

in controversy shall exceed twenty

dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury,

shall be otherwise re-examined in any

Court of the United States, than

according to the rules of the common law.

The attorney’s fee provision of Titie VII of the

Civil Rights Act of 1964 is codified at 42 U.S.C. §

2000e-5(k):

In any action or proceeding under this

subchapter the court, 1n its discretion,

may allow the prevailing party, other

than the Commission or the United

States, a reasonable attorney's fee

(including expert fees) as part of the costs

The pertinent language of Fed.R.Civ.P. 9(c) is as

follows:

(c) Conditions Precedent. In pleading

conditions precedent, it suffices to allege

generally that all conditions precedent

have occurred or been performed. But

when denying that a condition precedent

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has occurred or been performed, a party

must do so with particularity.

The pertinent language of Fed.R.Civ.P. 49(a)(3)

is as follows:

(3) Issues Not Submitted.

A party waives the right to a jury trial on

any issue of fact raised by the pleadings

or evidence but not submitted to the jury

unless, before the jury retires, the party

demands its submission to the jury. If the

party does not demand submission, the

court may make a finding on the issue. If

the court makes no finding, it is

considered to have made a finding

consistent with its judgment on the

special verdict.

The pertinent language of Fed.R.Civ.P. 50(a) is as

follows:

(1) In General. If a party has been fully

heard on an issue during a jury trial and

the court finds that a reasonable jury

would not have a legally sufficient

evidentiary basis to find for the party on

that issue, the court may:

(A) resolve the issue against

the party; and

(B) grant a motion for

-X-

judgment as a matter of law

against the party on a claim

or defense that, under the

controlling law, can be

maintained or defeated only

with a favorable finding on

that issue.

The pertinent language of Fed.R.Civ.P. 51(d) is as

follows:

(d) Assigning Error; Plain Error.

(1) Assigning Error. A party may

assign as error:

(A) an error in-— an

instruction actually given,

if that party properly

objected; or

(B) a failure to give an

instruction, if that party

properly requested it and —

unless the court rejected

the request in a definitive

ruling on the record — also

properly objected.

he

STATEMENT OF THE CASE

Cross Petitioner Myers (“employee”) seeks

certiorari to reverse the reduction of a jury verdict (by

about $4.8 million dollars) and the denial of prevailing

party fees despite a liability finding on a fee-shifting

statute, all affirmed by the Court of Appeals for the

Kleventh Circuit.

A jury awarded the employee $103,622.09 in

compensatory damages and $5,276,640.00 in punitive

damages on a count of common law battery. The jury

found liability on a claim of sexual harassment under

Title Vii and the Florida Civil Rights Act, but awarded

no damages after finding no act of harassment within

the statute of limitations period. The trial judge

upheld the compensatory award, but reduced the

punitive award to $500,000, a Florida statutory cap on

punitive damages that can apply in the absence of

specific intent to harm plus actual harm. ‘The trial

court denied the employee's motions seeking prevailing

party status on the sexual harassment claims and

challenging the propriety of the statute of limitations

question on the verdict form.

The employer appealed, seeking further

reduction or elimination of the verdict. The employee

cross appealed seeking restoration of the jury verdict

and prevailing party status to qualify for fees under

Title VII. One path to this goal was a challenge to the

inclusion of the statute of limitations question on the

verdict form.

A panel of the Eleventh Circuit affirmed on all

points. ‘The employee petitioned for rehearing and

rehearing en banc. The employer petitioned for

rehearing. The court denied all petitions. The

employers’ early certiorari petition in this court was

docketed July 6, 2010. Case No. 10-385. This timely

cross-petition follows.

kor many years, David Siegel subjected

Georgette Myers to a course of sexually harassing

conduct, including unwanted touching, that the

Kleventh Circuit panel described us "abhorrent." After

six days of trial, the trial court, with input from the

parties, issued a verdict form. Neither party nor the

court mentioned putting anything on the verdict form

seeking a findiny of specific intent to harm or actual

harm as to the punitive damage issue on the battery

claim. Even in post-trial motions, Defendants never

mentioned such an omission, nor the $500,000 state

statutory cap that the court held to apply in the

absence of such a finding. The reduction of punitive

damages on that basis by the trial court was

completely sua sponte

The employee objected to the statute of

limitations being on the verdict form and in the jury

instructions because that is an affirmative defense on

which the employer put on no evidence at trial. At the

close of their case, the employers made a Rule 50(a)

motion alleging that the employee had failed to give

enough detail on dates to show that any incident of

sexual harassment came after the limitations date. As

part of her rebuttal case, the employee sought to

provide additional testimony on time frames. The

court sustained objections to the employee's efforts to

‘,

rebut the employer’s claims because the employer had

not put on any evidence about the dates, but had

merely denied the occurrences.

REASONS FOR GRANTING THE WRIT

The Eleventh Circuit opinion affirmed the

amount of damages the district court awarded. This

petition seeks certiorari to restore the full jury verdict

on the battery count and to seek prevailing party

status and thus eligibility for fees on the statutory

claims. As shown below, each error assigned herein

amounts to a violation of the Seventh Amendment to

the Constitution.

I. The Verdict Is Presumed To Include All

Findings Necessary To Support It

Though no question appeared on the verdict

form asking the jury to decide the presence of specific

intent to harm plus actual harm, the law requires the

court to presume that the jury made such a finding

where the jury returned a verdict that needs such facts

to be sustained. Where the verdict form is silent on an

issue, Rule 49 requires that findings in accord with the

judgment rendered on that issue are deemed to have

been made. Fredonia Broadcasting Co., Inc. v. RCA Co.

481 F.2d 781, 796 (5th Cir. 1973) ("{[U]nder Rule 49(a),

Fed.R.Civ.P., as to any omitted question, it is deemed

that the court made a finding on the issue omitted in

ais

accordance with the judgment on the special verdict"). '

Neither the trial court nor the Court of Appeals

addressed the Rule 49 (or Rule 51) argument, though

the employee made that the very centerpiece of her

appeal. It is difficult to imagine what either court

could have said to the contrary. The panel, relying on

Johansen v. Combustion Engineering, Inc.,170 F.3d

1320, 1330 (11th Cir. 1999), stated that a court may,

of its own volition, modify a verdict in an unlawful

amount to its proper cap. But that has no application

here because in this case we deal with a verdict that is

not excessive per se such as in the situations discussed

in Johansen where unlawful interest is trimmed or a

court deems a verdict unconstitutionally excessive.

Here the issue is the absence of findings of specific

intent to harm plus actual harm. As shown above,

those findings were constructively made because Rule

49 requires that such findings be deemed made. Thus

they were made by the jury as far as the law is

concerned, so the court's only basis for reduction never

existed in the first place.

‘Wright & Miller, 9B Fed. Prac. & Proc. Civ.2d § 2507.

("The present rule puts the burden of securing a jury verdict on

all of the meaningful issues in the case squarely on the parties.

If the right to jury trial has been waived on an issue by a failure

to demand its submission, the trial judge should make his or her

own finding of fact on that issue. If the court does not do so, it

will be presumed on appeal that the lower court made whatever

finding was necessary in order to support the verdict and

judgment that was entered.")(collecting cases)(footnotes

omitted).

- *

Whether a court may attack the size of the

verdict on some other ground is a question not now

before us, but what we do know is the law does not

allow the panel's conclusion that the trial judge was

permitted to reduce an "unlawful" verdict for lack of

certain findings when the court was required to

presume that the jury did indeed make those findings.

Moreover, as the employee showed at length in

her Initial Brief in the Eleventh Circuit, Florida law,

like federal law, requires waiver of the statutory

punitive cap when no party timely insists upon its

presence on the verdict form. The claim that exceeding

the $500,000 cap on punitive damages requires

express findings on the verdict form is almost surely

wrong. But what is indisputably wrong is the claim

that these findings can not be waived (or presumed

made). That is contrary to Florida law as well as

federal law.

This is an issue critical to trial practice in the

courts. The ruling below encourages parties to sit

silent about objections to verdict forms and spring

them as an ace in the hole if the verdict comes out for

the opponent. The Seventh Amendment will simply

not permit a judge to dishonor a jury verdict simply

because a party has saved up its objections to the

verdict form to be sprung after losing. Ross v. Rhodes

Furniture, Inc., 146 F.3d 1286. 1289 (11th Cir. 1998).

II. Pre-Verdict Failure To Object Waives

Post-Verdict Challenge To Verdict Form

Rule 51(d) imposes waiver of any challenge to a

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verdict for lack of a question on the verdict form where

the challenging party failed to object to that omission

before the judge sent the case to the jury. Farley v.

Nationwide Mutual Ins. Co., 197 F.3d 1322, 1329 (Lith

Cir. 1999) ("We interpret Rule 51 strictly, and require

a party to object to a jury instruction or jury verdict

form prior to jury deliberations in order to preserve the

issue on appeal").* The importance of the question is

the same as that stated above for Rule 49 — parties

must not be given incentive to withhold objections to

verdict forms in hope of reversing losing verdicts on

technicalities or persuading a judge to supplant a jury.

Rule 49 deals with efforts to include something in jury

instructions or verdict forms; Rule 51 deals with efforts

to exclude something. The two rules often overlap, but

both require the challenging party (and the judge) to

speak or forever hold their peace before the jury goes

out to deliberate. The rules are essential to

preservation of the Seventh Amendment.

III. Error In Allowing Statute of Limitation

Question On Verdict Form

*Wright & Miller, 9C Fed. Prac. & Proc. Civ.2d § 2553 (“In

the absence of a properly specific objection under Rule 51(c)

made before the jury retires from the courtroom to begin its

deliberations, a party ordinarily cannot claim on appeal that the

trial court erred in the giving of an erroneous instruction in the

charge, a tremendous number of cases from courts throughout

the federal judicial system, many of which are cited as

examples in the note below, make that abundantly

clear.”’)(collecting cases) (footnotes omitted).

x, »

All parties and the court spoke of a "statute of

limitations" throughout trial. As it became obvious in

the post-trial briefing that this defense could not

stand, the employers re-labeled the issue as one of

"conditions precedent." The panel opinion .

acknowledges that Rule 9(c) requires a denial of a

plaintiff's claim to have fulfilled all conditions

precedent. The appellate panel also acknowledged

that the employers failed in this regard because their

denial is not made "specifically and with particularity,"

as the Rule requires. But the panel cut the employers

some slack because they added an affirmative defense

claiming that the employee did not timely file with

KEOC.

The panel cited In re Rawson Food Service, Inc.,

846 F.2d 1343, 1348-9 (1lth Cir. 1988), for its

explanation of the distinction between denials and

affirmative defenses. That discussion shows the

importance of that distinction. But the panel also cites

that discussion as precedent for excusing "technical

noncompliance with pleading requirements where the

substance of the pleading is sufficient." But one reads

and re-reads those pages without finding support for

aught but the contrary conclusion. Indeed, this

blurring of the difference between denials and

affirmative defenses is worthy of certiorari review

because it opens up vistas of concealment and

diversion in pleading where a defendant wishes to

sandbag an unsuspecting plaintiff into failing to meet

a burden of proof by claiming that burden as the

defendant's own and then shrugging it off later. The

rules of civil procedure are carefully worded precisely

for reasons such as these.

-8-

Second, the panel accepted the boilerplate,

generic allegation that the employee was untimely in

filing her EEOC charge as a statement meeting the

Rule 9(c) requirement of denying "specifically and with

particularity" fulfilment of conditions precedent. This

assertion is routinely pasted into nearly every answer

to a Title VII complaint, whether supported or not.

The claim falls short of even Rule 8 pleading

standards, let alone the more exacting requirements of

Rule 9(c). Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) ("Factual [averments] must be enough

to raise a right to relief above the speculative level, . .

. [T]he pleading must contain something more .

than ...a statement of facts that merely creates a

suspicion [of] a legally cognizable right.) (internal

citation omitted) and Ashcroft v. Iqbal, 129 S.Ct. 1937,

1953 (2009) ("Our decision in Twombly expounded the

pleading standard for ‘all civil actions," not only

securities actions.).

Even under earlier standards, defendants had to

do more, especially under Rule 9(c). See, e.g., Equal

Employment Opportunity Commission v. Klingler

Elec. Corp., 636 F.2d 104, 106-7 (11th Cir. 1981)

(specificity requirement was met by a detailed

affidavit about the facts of the particular case).

Research has not found cases in any circuit allowing

the boilerplate claim of untimely EEOC filing to

qualify as meeting the exacting specificity and

particularity requirements of Rule 9(c). At a

minimum, a claim that an EEOC charge was untimely

would have to allege when the charge was filed and

when it should have been filed to meet the specificity

SD.

and particularity requirements of Rule 9(c). If the

decisions below stand, they will muddy the clarity of

existing distinctions between denials and affirmative

defenses and general denials and particular ones. It

will encourage "hide-the-ball" pleading, concealment,

and evasion.

Where the defendants fail both the denial prong

of the test and the specificity/particularity prong, it is

just too much indulgence to give them a pass on both.

In doing so, the panel made new law that does not

square with the pleading rules nor this Court’s

insistence upon taking them seriously.

IV. Error in Not Allowing Rebuttal Of Rule

50(a) Motion

The panel misapprehended the point of the

employee’s disallowed rebuttal testimony. The panel

affirmed the trial court on this disallowance by

adducing authority for the noncontroversial

proposition that the trial judge has the authority,

within lmits, to control the scope of rebuttal

testimony. The panel stated that neither side

produced any evidence of timeliness in their respective

cases in chief, so since there was no testimony to rebut,

no rebuttal was possible because the "evidence of

timeliness that the employee attempted to introduce

on rebuttal, therefore, could not ‘explain, repel,

counteract, [n]or disprove’ the testimony offered by

defense witnesses." This would be all well and good if

the point of the attempted rebuttal was only to counter

the employers’ case in chief. But after their case in

chief and quite apart from it, the employers made a

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Rule 50(a) motion on the issue of the timeliness of the

EEOC filing. In this regard, employee was seeking to

rebut something of substance, not empty air. This is

an important point the panel misapprehended or

overlooked. The law on this is rigidly in favor of

allowing rebuttal of the Rule 50(a) motion because of

the Seventh Amendment right at issue.

Before the jury retires to deliberate, a plaintiff

must be allowed to cure any alleged defect in her case

raised by the defendant in a Rule 50(a) motion. Ross

v. Rhodes Furniture, Inc., 146 F.3d 1286. 1289 (11th

Cir. 1998) (Rule 50 was designed to protect Seventh

Amendment right to cure evidentiary deficiencies

before case goes to the jury); Crawford v. Andrew

Systems, Inc., 39 F.3d 1151, 1153 (11th Cir. 1994)

(requirement that Rule 50 motion be made prior to

submission of case to jury is to assure the responding

party an opportunity to cure any deficiency in that

party's proof that may have been overlooked until

called to the party's attention by a motion for

judgment). In holding the contrary, the panel opinion

is without precedent.

Moreover, the employee made a Rule 50(a)

motion of her own on the timeliness of the EEOC

filing, which, if granted, would have eliminated the

limitations question from the verdict form and assured

the employee her entitlement to fees when the jury

returned its verdict in favor of liability on the Title VII

claim.

The employee did put on some evidence showing

sexual harassment clearly within the stated

«lhe

limitations period. Obviously, the jury did not credit

that evidence. That may be because they did not

believe it, they did not remember it, they did not

understand it, they did not correctly place it in time, or

numerous other possibilities. But one key possibility

is that there was just not enough of the evidence. The

transcript shows some of what the court ordered

disregarded in the rebuttal case at the time of cutting

off the timeliness testimony. ‘Trial Transcript,

February 19, 2008, at 157-158. The trial court in a

post-trial order noted the employee's pre-trial evidence

of sexual harassment occurring in the Thanksgiving

weekend, well after the limitations date of September

15, 2000. Thus the record shows’ much

post-limitations period sexual harassment that would

have been put in had the rebuttal not been

interrupted.

Had the employee been allowed to add more

examples of sexual harassment after September 15,

2000, to flesh out those she put on in her case 1n chief

and those she got in during rebuttal before the court

shut down the testimony, that might have been

enough to persuade the jury to rule in her favor on the

limitations question as well as the liability question.

Perhaps even more pertinently, that additional

testimony might have persuaded the judge to

eliminate the limitations question from the verdict

form. In either of those circumstances, the employee

would now be entitled to fees.

CONCLUSION

The Court should grant the writ of certiorari

A. ®

and set a briefing schedule on the issues stated herein.

Respectfully submitted,

/s/Richard KE. Johnson

Richard E. Johnson

Counsel of Record

Law Office of Richard E. Johnson

314 West Jefferson St.

Tallahassee, FL 32301

(850) 425-1997

(850) 561-0836 (facsimile)

richard@nettally.com

APPENDIX A

IN THE UNITED STATES COURT OF

APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-16291

D. C. Docket No. 04-01542-CV-ORL-28

DAB

[Filed January 6, 2010]

DAWN GEORGETTE MYERS,

Plaintiff-Appellee

Cross-Appellant,

versus

CENTRAL FLORIDA INVESTMENTS,

INC.,

DAVID SIEGEL, et al.,

Defendants-

Appellants:

Cross-Appellees.

Appeals from the United States District

Court for the Middle District of Florida

Before MARCUS, FAY and ANDERSON,

Circuit Judges.

MARCUS, Circuit Judge:

Defendants Central Florida Investments,

Inc., Westgate Resorts, Inc., Westgate

Resorts, Ltd., CFI Sales and Marketing, Ltd.,

and David Siegel appeal and plaintiff Dawn

Georgette Myers cross-appeals the judgment

of the district court, after a jury trial, in

favor of Myers in the amount of $610,469.84.

Myers recovered $103,622.09 in

compensatory damages and $506,847.75 in

punitive damages arising from her claim of

state law battery, but took nothing on her

claims of sexual harassment under state and

federal civil rights acts. Defendants

challenge the awards under state and federal

law, asserting that the evidence can support

neither the compensatory award nor the

punitive award. Myers, in turn, asserts that

the district court improperly limited punitive

damages, barred evidence of harassment,

denied her fees, and dismissed her state law

claims. Because the district court correctly

answered the many questions raised in these

3a

appeals, we affirm its judgment in. all

respects.

I. Background

A. Facts

The essential facts adduced at trial

are these: Central Florida Investments, Inc.

(“CFI”), is the parent company for a number

of associated entities Westyate Resorts,

Inc., Westgate Resorts, Ltd., Westgate

Lakes, Inc., Westgate Lakes, Ltd., and CFI

Sales and Marketing, Ltd. - which

collectively comprise a real estate company

whose primary business is the development

and sale of time-share resorts throughout the

United States. Siegel is the chairman of the

board, president, chief executive officer, and

sole stockholder of CFI. CFI, which is the

largest privately held time share company in

the world, is valued at approximately

$471,000,000, while Siegel himself has a net

worth of some $324 ,000,000.

Dawn Myers testified that she first

came to work at CII as a salesperson tn

1986. She had a real estate license, and her

job required her to sell time-shares. Myers

was also an award-winning cosmetologist

who was licensed to do hair, nails, spa

treatments, and skin care. Cosmetology was

her professional passion, and she hoped one

day to develop a spa at one of CI*l’s resorts.

In 1994, Myers called the CFI

corporate office in order to request an

appointment with Siegel so that she could

4a

make her pitch. Siegel, on hearing her

thoughts, encouraged her to pursue” the

project, and, as Myers developed the concept,

the two went on to communicate about it

every week for about a year, Finally, Siegel

authorized the creation of the spa

During the ensuing period, Myers

claims that she spht her time at CEI,

working in the morning in sales and working

in the afternoon on the spa. She began to

draw a regular salary, rather than work on

straight commission. She also spent a lot of

time dealing with Siegel, and the two

developed a friendship. Myers would later

testify, “what he told me that we had in

common was the fact that we're both

ambitious, we both are hard workers, land]

we both, if we believe in something, you

know, we vo for it.”

Siegel was interested in Myers

romantically, and their friendship began to

change as Sievel made that increasingly

clear. According to Myers, it was at the CFI

Christmas dance in 1995 where Sievel made

his first unwanted advance. Sievel had asked

Myers to dance, and as they danced he

kissed her. Myers was shocked. Sieypel’s

overtures towards Myers continued. Tle twice

offered, at CEI functions and in) Myers’

presence, $1,000,000 to Myers’ boyfriend for

one might with Myers. Myers considered the

offers to be disrespectful and inappropriate

On several occasions, Siegel made marriage

5a

proposals to Myers, some more serious than

others, some on company property, and at

least one in the presence of other CFI

employees. He offered to buy Myers lavish

gifts, including a Porsche, if she agreed to

date him. And once, unsolicited, he even

gave her a $10,000 check. Myers was

devastated: “I started crying and | said, you

know, how could you do this? ... I said I

don’t need your help. Our friendship does not

have a price tag on it. How many times do |

have to tell you? I don’t want your money. |

don't need your help.”

Siegel’s pursuit of Myers also began to

color their interactions in the workplace.

Myers testified that he transferred her to a

new office, and informed her that he had

done it so that she would be closer to him. He

began to visit her in the office nearly every

day at 11 a.m., even asking for her if he

could not find her himself. When he did find

her, she testified at trial, he would give her a

hug and sometimes let his hands slip down

to her behind, in full view of her coworkers.

Sometimes he slapped her behind at work in

front of her staff. During lunches at CFI,

Siegel would fondle Myers’ legs for everyone

to see; he touched her legs at the company

restaurant at least twenty times, and

probably many more. Siegel also made

inappropriate comments to Myers at work.

He talked about her weight, and at the

company gym, he told her that “your ass is

6a

getting fat,” but that it was “okay, because

[your] boobs are big.” And, at a company

awards dinner one night, Siegel told the CFI

crowd that he had asked Myers to come as

his date, but that she had refused him. She

testified that the incident made her terribly

embarrassed.

Myers and Siegel frequently traveled

together, and these trips generally fueled the

tension between them. Thus, for example,

Siegel and Myers traveled together for

business to the Bahamas, where, she

testified, he propositioned her. Similarly, in

1997, Myers agreed to travel to New York

with Siegel on business. Myers, who was first

told that they would have separate hotel

rooms, and who was later told that they

would have separate bedrooms in the same

suite, said that she grew “absolutely furious”

upon discovering that their hotel room had

only bedroom. She went to the bathroom and

cried, but resolved nevertheless to go about

her business in New York as planned. Myers

also agreed to accompany Siegel -- as his

friend -- to attend the bar mitzvah of the son

of a CFI executive in Miami. She became

“very angry,” however, when Siegel invited

her on a romantic walk on the beach.

On multiple occasions, Myers asked

Siegel to stop his inappropriate behavior.

Myers testified that, “every time I went to

him and sincerely asked him, please, David,

stop,” he told her that he would not do it

Ta

again. “He seemed extremely sincere that he

would stop, with the exception of the times

that he would make a joke and say I want

people to think that, you know, we're

together or you’re my girlfriend.” Myers

testified that Siegel in fact wanted people to

think that they were together.

Yet Myers and Siegel continued to work

closely together, and continued to be friends.

Myers testified, “it never crossed my mind at

that time to sever my friendship with him,”

because “he was my friend and he was

important to me and he... had given me

this opportunity and I was extremely

grateful, extremely grateful.” Myers saw

Siegel as a mentor: “how many people get an

opportunity to have someone like Mr. Siegel

who’s brilliant in business in so many ways

to, you know, be their friend, to coach them,

to anytime if I need to talk to him and I

picked up the phone, he would take my call. I

mean it meant everything to me.”

Myers considered taking a harder line

with Siegel, but she said that she feared

losing her job: “number one, he’s my boss.”

She thought that, because she did not have a

college degree, she might flounder

professionally outside of CFI. She also

testified that she could not simply quit: “I

have a home... . I had bills to pay. I was

taking care of my mom. I can’t just quit my

job. I’m the only one that pays my bills. |

8a

couldn't do it. And I really thought that some

day it would stop.”

Work on the _- spa _ continued.

Construction began in 1997 or 1998, Myers

was named the executive director of the spa,

and she stopped working in sales in order to

devote her full attention to development of

the spa. She was given control over

management of the facility, including design

and staffing, subject to approval from the

front office.

According to Myers, once the spa opened

in November of 1999, it became a frequent

site of Siegel’s unwelcome advances. On

eight to ten occasions, Siegel came to the spa

looking for treatments from Myers. Towards

the end of these sessions, Siegel would,

Myers testified, “let his hands wander and

wander up the back of my legs and on to my

butt.” She asked him to stop, and pushed his

hands away, but he persisted. Furthermore,

on several occasions, towards the end of the

treatments, Siegel would expose himself

unnecessarily to Myers; he would do so with “a

big old smile on his face... , so | would think

he knew he was doing it.”

Several times Jackie Siegel, who was

Siegel’s third wife, joined Sicgel and Myers in

the spa. One time, while Jackie was present,

Siegel told Myers that “I wanted to have the

two of you together and, you know, well, at

least I have the two of you together now.”

9a

Myers’ said that her most public

humiliation occurred at a CFI charity event in

2000. There were hundreds of employees at the

event, some of whom had dressed as celebrities.

At one point Myers, who was dressed as

Marilyn Monroe, was summoned to the stage

by Siegel, the master of ceremonies, to sing

Happy Birthday. Though Myers did not want to

serenade him, Siegel played to a crowd that was

increasingly egging her on, and she felt that she

had no choice.

Myers took the stage, where Siegel

beckoned her to sit on his lap. Though

nervous, and completely shocked, Myers

tried “to be a good sport.” She placed a

napkin on his lap, intending to sit on it. She

testified, “as soon as I put it on his lap, he

took his hand underneath the napkin and

you know, like made it go up like that.” He

was feigning an erection. But she sat down,

sang the song -- at the end of which he kissed

her -- and rushed off the stage: “I just knew I

needed to get out of there. I just needed to

get out of there.” Her face had turned red,

she felt the onset of a migraine headache,

and as soon as she left the stage, she began

to cry; she felt humiliated. Myers said she

was “dying and mortified.”

Rumors inevitably began to spread

throughout CFI about Siegel and Myers.

Myers claimed that rumors of a relationship

between her and Siegel were ruining her

reputation. “[T]here were rumors flying all

10a

around the resort that I was having this wild

affair with Mr. Siegel and no one would

believe me that we were friends.” Indeed, she

said, there were hundreds of rumors about

Siegel and Myers, and it was well-known

that Siegel was in love with Myers. Myers

testified that the gossip was “horrible” and

“vicious,” and caused her to lose friendships.

She added that, during the celebrity waiter

event, she could hear the crowd snickering:

“the people . .. would always gossip and say

such hateful, . . . mean things.” This

atmosphere made it difficult for Myers to go

to work: “the whole company was gossiping

about me. Executives were gossiping about

me. Things were getting back to me that

executive’s wives were saying, people that

didn’t even know me. I didn’t want to go to

work.” Myers testified that, ultimately, some

CFI employees just thought of her as “a

dumb blonde bimbo with big boobs.”

When Myers began dating a new man

in May of 2000, her already rocky

relationship with Siegel took a turn for the

worse. She testified: “His attitude just

completely changed. He was angry, he was

just, when you were around him he tried to

just talk down to you and degrading and

humiliating.” He began to behave differently

towards Myers: “it was very, just aggressive

and mean and just demeaning and not like

how it was before .... It was a completely

different tone.”

lla

This new attitude manifested itself on

several ugly occasions. Once, Siegel pinned

Myers against the wall right in front of the

reception desk at the spa, and in front of the

three staff members who were working the

desk. Myers testified, “Georgette, he said,

your breasts look great in that sweater

you're wearing.” He had his hand on her

shoulder and was leaning into her. Myers

attempted to maintain her composure,

signaling to Siegel with her hands to back

off, and looked to be relieved once it was

over. Another time, after Siegel and Jackie

each had treatments, and again in the

presence of spa _ staff, Siegel approached

Myers and pinned her against a_ wall,

suggesting that Myers “come home and lay

around with” him and Jackie. He was

reaching out and touching Myers. Myers told

him to stop and tried to push him away.

After Myers extricated herself from the

situation, and while she was walking back

towards her office, Siegel further commented

that he wished Myers “would crawl all over”

him.

In 2000, Myers brought her concerns

to a number of company executives, but she

said that they were of little help. She spoke

with Mark Waltrip, CFI’s chief operating

officer, who told her that for her to date

another man was “like waving a red flag in

front of a bull. You know how he feels about

”

you.” She also spoke with Paul Bosch,

12a

director of resort operations at CFI, who told

her that she “should think about leaving the

company.” Finally, she complained to Sandy

Jones, CFI’s director of human resources,

who once told Myers, “what are you going to

do, he’s the president of the company,” and

another time explained, “that’s David.” Jones

was not the only one who believed that the

rules did not apply to the president; Siegel

himself testified that, even if there were

corporate rules binding him, he could change

them at his will.

Some CFI employees, including

executives, either played an active role in

Siegel’s pursuit of Myers or were asked to.

Jim Gissy, executive vice president of sales

and marketing, called Myers into his office to

tell her that he thought she and Siegel would

be great together. Michael Marder, CFI’s

general counsel, told Myers at his son’s bar

mitzvah that he was “really glad to see that

you're here with David.” Siegel approached

Roger Behrmann, a manager at CFI, on

numerous occasions, Gail Miller, a manager

in sales, and Mary Fetzner, a server at the

CFI restaurant, to ask them to put in a good

word for Siegel to Myers; they all complied.

Ultimately, the environment at CFI

took its toll on Myers. She testified that she

was “torn.” On one hand, she had been

“siven this amazing opportunity,” but on the

other hand, she felt “deflated” and “didn’t

want to go to work.” She testified that she

13a

felt as if she were “on an emotional roller

coaster all the time.”

And Siegel’s change in behavior only

made matters worse: “I was hurt. I was sad.

I didn’t understand.”

Myers was suspended in December of

2000, and her employment with CFI was

terminated later that month. In that final

year at CFI, she earned $102,223.14. On

September 14, 2001, Myers filed a complaint

with the Equal Employment Opportunity

Commission (“EEOC”).

B. Procedural History

On April 5, 2004, CFI sued Myers in

the County Court of the Ninth Judicial

Circuit in Orange County, Florida, seeking to

recover $6,230 on the theories of a

promissory note, money lent, and unjust

enrichment. On May 19, 2004, Myers

answered the suit and _ counterclaimed

against CFI and Siegel, alleging disparate

treatment and hostile work environment, in

violation of both the Florida Civil Rights Act

(“FCRA”), Fla. Stat. § 760, and Title VII of

the federal Civil Rights Act, 42 U.S.C. §

2000e, et seq., abuse of process, battery,

assault, conspiracy, and ~~ contractual

attorney’s fees.

The case was then removed to the

United States District Court for the Middle

District of Florida, remanded to county court,

and transferred to the Circuit Court for the

l4a

Ninth Judicial Circuit. The circuit court

dismissed CFI’s claim for the $6,230, without

prejudice, and ordered Myers to submit a

new complaint. On October 1, 2004, Myers

filed a new complaint. This one included the

same allegations contained in the May 19

counterclaim, but added counts for slander

and malicious prosecution. On October 20,

2004, the defendants removed the action to

federal court in the Middle District of

Florida.

On April 20, 2005, the district court

dismissed some of the claims, including

several of the state law claims -- abuse of

process, slander, malicious prosecution,

conspiracy and attorney’s fees -- over which

the court had _ declined to exercise

supplemental jurisdiction. Myers amended

her complaint again. The Second Amended

Complaint contained nine counts. Against

Siegel and CFI, Myers alleged false

imprisonment and battery, common law

claims in Florida, and inducement to

prostitution, in violation of Florida Statute §

796.09. Against CFI alone, she alleged sex

discrimination under Title VII and the

FCRA, retaliation under Title VII, the

FCRA, and the Florida Private

Whistleblower Act (“Whistleblower Act”),

Fla. Stat. § 448.101-105, and negligent

retention and supervision, a common law

claim. Thereafter, the district court

dismissed the Whistleblower Act claim, as

well as the inducement to prostitution and

negligent retention and supervision claims.

The two sexual harassment claims, the two

retaliation claims, the battery claim, and the

false imprisonment claim remained.

On April 24, 2006, the district court

granted summary judgment to CFI on the

sexual harassment and retaliation claims,

and remanded the two remaining state law

claims to state court. But, thereafter, a per

curiam panel of this Court reversed in part

the grant of summary judgment, finding that

Myers had presented sufficient evidence to

support her Title VII and FCRA hostile work

environment claims. The state law claims

that had been remanded were reinstated.

See Myers v. Cent. Fla. Invs., Inc., 237 F.

Appx. 452 (11th Cir. 2007).

After six days of trial’, the jury found

that Siegel had “subjected the Plaintiff to a

hostile or abusive work environment because

of her sex or gender,” but that none of the

acts of sexual harassment took place on or

after September 15, 2000, the point at which

the statute of limitations barred

! The jury heard evidence on only battery and

eexual harassment, as Myers had by that time

withdrawn her claim for false imprisonment.

l6a

recovery.’ The jury also found that Siegel had

committed battery against Myers, and that it

had occurred on or after May 21, 2000 after

May 21, 2000, the relevant date under

the statute of limitations.°

Because recovery was barred by the

statute of limitations under Title VII and the

FCRA, the jury did not reach the issue of

damages on the sexual harassment claims.

As for the battery claim, however, the jury

awarded Myers $102,223.14 in compensatory

damages and $5,276,640.00 in punitive

damages. ‘These damages were leveled

ayvainst both Siegel and CFI. Final judgment

was entered for Myers in the amount of

$5,378,853.14 on the battery claim.

2 A litigant under the FCRA must file a complaint

with the state of Florida or the EEOC within 365 days

of the purported violation. Fla, Stat. § 760.1 1(a).

Because Myers had filed a complaint with the EEOC

on September 14, 2001, the defendants could only be

held liable under the FCRA for sexual harassment

occurring on or after September 15, 2000. Moreover,

under Tithe VII, the EEOC complaint must be filed

within 300 days of any violation, 42 U.S.C, 2000e-

5(e); see also City of Hialeah, Fla. v. Rojas, 311 F.3d

1096, 1101 (1th Cir. 2002), meaning that defendants

could only be liable under Title VII for conduct

occurring on or after November 19, 2000

3 The statute of limitations for battery is four

years in Florida. See Fla. Stat. § 95.11(3)(o). Myers

first asserted battery in her counterclaim filed May

19, 2004.

l/a

Thereafter, the district court denied

several post-trial motions; it did, however,

grant the defense motion that the judgment

reflect that CFI had prevailed on the sexual

harassment claim. The district court also

determined that the jury had not made the

findings required under state law to support

a punitive award yvreater than $500,000.

Accordingly, the Amended Judgment noted

that Myers “shall take nothing” on the Title

VII and FCRA claims, and reflected that the

district court had reduced the punitive

damage award by $4,776,640. Adjusted for

interest, the compensatory damages were

listed as $103,622.09 and the punitive

damages as $506,847.75 for a total award of

$610,469.84. There was no award. of

attorneys’ fees.

This timely appeal and cross appeal

followed.

I]. Standard of Review

Kirst, the defendants argue that

Florida law cannot support a compensatory

award of this size on this record. They also

challenge the punitive award under state

law, asserting first that punitive damayes

are not permitted, and, in the alternative,

that the punitive damages were too great.

They also maintain that the punitive damape

award violates the federal Constitution.

Myers claims, in turn, first that the

district court improperly applied Florida’s

statutory cap on punitive damages, thereby

wrongfully reducing the punitive award to

lka

$500,000 when the evidence could support

yreater damayes. Second, she says that the

defendants had the burden of showing that

their unlawful behavior occurred before

September 15, 2000, the relevant date under

the statute of limitations. Vhird, she states

that the district court, durng rebuttal,

improperly prevented her from putting. on

evidence that the defendants sexually

harassed her on or after September 15, 2000,

this evidence, she claims, would prove that

her suit was timely. Fourth, she asserts that

she should be considered a prevailing party

under ‘Tithe VII, and is therefore entitled to

attorney's fees under the statute. lifth, and

finally, she argues that it was) reversible

error for the district court to dismiss, rather

than remand a number of state law claims

over which the court had declined to exercise

supplemental jurisdiction

A number of standards povern review

of the questions raised in this case. We

review for abuse of discretion the propriety of

the compensatory award under Florida law,

see Bogle vo. MeClure, 3832 F.Sd 1447, 13859

(lJth Cir. 2003) (eitation omitted), the

district court’s application of state statutory

law to a jury award, Browning Ferris Indus

of Vt.. Inc. v. Keleo Disposal, Inc., 492 U.S

257, 280 (1989); Johansen v. Combustion

Eny’y, Inc., 170 F.8d 1320, 1334 n.28 (1th

Cir. 1999); see also Engle vo Liggett Group,

Inc., 945 So.2d 1246, 12638 CFla. 2006), the

district court's limitation of rebuttal, Conroy

19a

v. Abraham Chevrolet-Tampa, Inc., 375 F.3d

1228, 1232 (11th Cir. 2004), and the district

court’s refusal to exercise supplemental

jurisdiction over state law claims. Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1088-89

(11th Cir. 2004) (citation omitted).

We review for clear error, however,

the district court’s findings of fact, Johansen,

170 F.3d at 1334; Head v. Medford, 62 F.3d

351, 354 (11th Cir. 1995), and the district

court’s determination that parties have met

the pleading requirements concerning the

fulfillment of conditions precedent under

Rule 9 of the Federal Rules of Civil

Procedure. Fitz-Patrick v. Commonwealth

Oil Co., 285 F.2d 726, 730 (5th Cir. 1960).4

Finally, we review de novo the

propriety of punitive damages, Goldsmith v.

Bagby, 513 F.3d 1262, 1275 (11th Cir. 2008)

(citation omitted), the constitutionality of a

punitive award, Johansen, 170 F.3d at 1334;

see also id. at 1331 (“[A] court has a

mandatory duty to correct an

unconstitutionally excessive verdict so that it

conforms to the requirements of the due

process clause.”) (citation omitted), and

whether a party has prevailed under federal

4 Cases decided by the Fifth Circuit prior to the

close of business on September 30, 1981, are binding

on this Court. See Bonner v. City of Prichard, Ala.,661

F.2d 1206, 1209 (11th Cir. 1981).

20a

law. Head v. Medford, 62 F.3d 351, 354 (11th

Cir. 1995).

I11. Compensatory Damages

The jury awarded $102,223.14 in

compensatory damages to Myers on her

battery count, and the district court

accordingly entered judgment for Myers in

that amount. CFI and Siegel challenge this

award under Florida law, asserting both that

the size of the award is too great for what

they claim is an ordinary battery, and that

the specific amount, which is equal to Myers’

earnings during the year of her discharge,

demonstrates that the jury inappropriately

considered her termination during

deliberations. We are unpersuaded.

A federal court’ reviewing a

compensatory award on a state law claim

must evaluate the propriety of the award

under state law. See Gasperini v. Ctr. For

Humanities, Inc., 518 U.S. 415, 435 (1996)

(citation omitted); Johansen, 170 F.3d at

1331. Under Florida law, jury awards are

evaluated under a five-factor test:

In determining whether

an award is_ excessive or

inadequate in light of the facts

and circumstances presented to

the trier of fact and _ in

determining the amount, if any,

2ia

that such award exceeds a

reasonable range of damages or

is inadequate, the court shall

consider the following criteria:

(a) Whether the amount

awarded is_ indicative’ of

prejudice, passion, or corruption

on the part of the trier of fact;

(b) Whether it appears that

the trier of fact ignored the

evidence in reaching a verdict

or misconceived the merits of

the case relating to the amounts

of damages recoverable;

(c) Whether the trier of fact

took improper elements of

damages into account or arrived

at the amount of damages by

speculation and conjecture;

(qd) Whether the amount

awarded bears a_ reasonable

relation to the amount. of

damages proved and the injury

suffered; and

(e) Whether the amount

awarded is supported by the

evidence and is such that it

could be adduced in a logical

manner by reasonable persons.

22a

Fla. Stat. § 768.74(5). Taking each factor

in turn, we hold that the district court did

not abuse its discretion in upholding the

jury’s award of compensatory damages.

The first factor asks whether the award

evinces passion or prejudice. The district

court cited Goldsmith v. Bagby, 513 F.3d

1262, 1275 (11th Cir. 2008), to show the

validity of an emotional damages award

equal to a claimant’s salary. See Myers v.

Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-

28DAB, 2008 WL 4710898, at *15 n.13 (M.D.

Fla. Oct. 23, 2008). But the validity of the

compensatory award was not at issue in

Goldsmith, see 513 F.3d at 1267-68, 1276-77,

and, as the defendants argue, its relevance to

our inquiry is therefore limited. Cf. Bravo v.

United States, 532 F.3d 1154, 1166-67 (11th

Cir. 2008) (holding that damages are to be

compared only against awards tested for size in

reported appellate decisions), reh’g denied, 583

F.3d 1294 (2009).

Defendants are also correct to note that

the jury was prohibited from awarding Myers

money for her termination. See Myers, 237 F.

Appx. at 457 (“Myers cannot sustain a viable

retaliation claim.”). Indeed, the district court

expressly gave the jury instructions to this

effect. Nevertheless, CFI and Siegel have failed

to convince us that the compensatory award for

emotional damages cqual to a claimant’s annual

23a

income evinces prejudice, passion or corruption

on the part of the jury.

A jury” instructed to — consider

compensatory damages for emotional harm is

asked to place a dollar amount on one person’s

suffering. The inquiry is inherently subjective,

see Ferrill v. Parker Group, Inc., 168 F.3d 468,

476 (1ith Cir. 1999), as jurors bring their own

experiences to bear on another person’s

humiliation, discomfort, and shame. The

objective -- to make a plaintiff whole, see

Sheely_v. MRI Radiation Network, P.A., 505

F.3d 1173, 1199-1200 (11th Cir. 2007) --

plainly is a difficult one, cf. Williams v. Trans

World Airlines, Inc., 660 F.2d 1267, 1273 (6th

Cir. 1981) (“[I]t is admittedly difficult to place

a value upon the resulting emotional injury

from the deprivation of a constitutional right.”’),

and the means employed are far from perfect.

Cf. Consorti_ v. Armstrong World Indus., Inc.,

72 F.3d 1003, 1009 (2d Cir. 1995)

(“[C]lompensation for suffering can _ be

accomplished only in a symbolic and arbitrary

fashion.”’). But we wiil not prohibit jurors from

considering a legitimate measure as they go

about their task.

A plaintiff's income is relevant insofar

as it affords some indication, however

imprecise, of the costs imposed on an

employee whose time in the workjpiace is

inundated and spoiled by a _ defendant’s

behavior. Many of the touchings described by

Myers, particularly the two incidents during

24a

which Siegel pinned her against the wall in

the spa, occurred in 2000, the year in which

Myers earned $102,223.14 from CFI. She

testified that Siegel’s behavior during this

period humiliated her in front of her

coworkers and drained her of her desire to go

to work. In attempting to set a dollar amount

that would properly compensate her for

emotional suffering, the jury was permitted

to consider, among other things, her salary

for the time in which she was subjected to

the unlawful behavior. Her salary at the very

least gives some indication to the jury as to

how Myers valued her time at work, from

which they may properly infer the amount of

emotional suffering that flowed from those

workplace batteries. To hold otherwise, and

deprive juries of resort to income, would

make the jury’s difficult task that much

more improbable.

The second statutory factor asks

whether the jury ignored evidence or

misconceived the merits of the case. As we

have noted, the jury was permitted to

conclude that several instances of battery

occurred on or after May 21, 2000, the

statutory cutoff. There is no reason to believe

that a jury which has discounted the

testimony of defense witnesses and the

explanations of defense counsel has

misapprehended a case. Cf. Bogle, 332 F.3d

at 1359 (“The standard of review for awards

of compensatory damages for intangible,

emotional harm is deferential to the fact

25a

finder because the harm is subjective and

evaluating it depends considerably on the

demeanor of the witnesses.”) (quotation

marks and citations omitted).

Florida’s third statutory factor asks

whether improper elements were considered,

or if the verdict was based on conjecture.

Defendants argue that emotional damages

were never proven by medical testimony. But

emotional damages need not be supported by

medical testimony in Florida. See Hagan v.

Coca-Cola Bottling Co., 804 So.2d 1234 (Fla.

2001). Defendants also say that no

reasonable jury could award $100,000 for a

single battery, and that the award, therefore,

took into account incidents unrelated to the

battery, including time- barred material.

Even if we were to assume that the jury did

consider material external to the battery

itself, we conclude that the award may still

stand. Under Florida law, a tortfeasor is

hable for the “entire unapportionable

injuries” sustained by a plaintiff, even if

those injuries were heightened by prior

incidents for which the defendant cannot be

held liable. Cf. Gross v. Lyons, 763 So.2d

276, 279 (Fla. 2000) (noting that “subsequent

tortfeasors have been liable for entire

unapportionable injuries”); C.F. Hamblen,

Inc. v. Owens, 172 So. 694, 696 (Fla. 1937)

(“It is settled law that where injuries

aggravate an existing ailment or develop a

latent one the person whose negligence

caused the injury is required to respond in

26a

damages for the results of the disease as well

as the original injury.”). The jury was

permitted to consider the role the sexual

harassment and prior batteries played in

heightening the damages flowing from this

battery, even if that behavior was itself time-

barred. Cf. Stockett v. Tolin, 791 F. Supp.

1536, 1556-57 (S.D. Fla. 1992) (stating that a

plaintiffs “pre-existing” vulnerability, or

“greater sensitivity, ... does not warrant any

reduction in her recovery. The Defendants

must take the plaintiff as they find her’)

(citations omitted).

The fourth statutory factor asks

whether the award is reasonably related to

the damages suffered. This compensatory

award of a little over $100,000 is not so great

as to bear no reasonable relation to the

damages she_ suffered. See Baldwin _v.

McConnell, 643 S.E.2d 703, 705-06 (Va. 2007)

(approving a $100,000 compensatory award for

assault and battery); Nash v. Sue Har Equities,

LLC, 846 N.Y.S.2d 215, 216 (N.Y. App. Div.

2007) (awarding $100,000 for assault).

Furthermore, since this battery involved a boss

plainly taking advantage of his employee over

an extended time frame, we can tolerate

damages which may be higher than normal. Cf.

Stockett v. Tolin, 791 F. Supp. 1536, 1555 n.4

(S.D. Fla. 1992) (“[C]ases in which a supervisor

has conducted a continued course of sexual

advances and harassment, followed by refusals

by the employee, and retaliation By the

27a

supervisor in the form of denying promotions or

making the atmosphere of the work place

oppressive, involved conduct that 1s

outrageous.”) (quoting Fawcett v. IDS Financial

Sves., Inc., No. 85-853, 1986 WL 9877, at *5

(W.D. Pa. Jan. 7, 1986)); Hughston v. New

Home Media, 552 F. Supp.2d 559, 567 (E.D.

Va. 2008) (“There can be few more insulting

injuries than being subjected to unwelcome

sexual touchings by a supervisor, accompanied

by lewd _ solicitations for sex, in_ the

workplace.’’).

The fifth and final statutory factor

asks whether the award is supported by

evidence and can be logically adduced by

reasonable people. For all the reasons

outlined above -- the existence of the battery,

the existence of prior harassment and

touchings that might have heightened

damage flowing from the battery, and the

superior-subordinate relationship of Siegel

and Myers -- this award is supported by the

evidence and appears to be the result of a

logical process conducted by reasonable

people.

Since the compensatory award falls

within a range of damages reasonable under

Florida law, it does not constitute a clear

abuse of discretion for the district court to let

it stand. Cf. Fla. Stat. § 768.74(6) (“The

Legislature recognizes that the reasonable

actions of a jury are a fundamental precept

of American jurisprudence and that such

28a

actions should be disturbed or modified with

caution and discretion.”). Defendants are

correct that a smaller award would have

been reasonable, too, but this award is

entitled to a presumption of validity, see

Bogle, 332 F.3d at 1359, and they have failed

to overcome that presumption.

IV. Punitive Damages

The jury awarded $5,276,640 to Myers

in punitive damages flowing from the battery

count, but the district court, relying on the

Florida statutory cap on punitive damages,

reduced the award to $500,000. This capped

award was then adjusted for interest,

resulting in the $506,847.75 award.

A. Florida Law

The defendants challenge the punitive

award under Florida law, arguing that

punitive damages should not have been

allowed at all, and, in the alternative, that

the award was excessive. Myers contends

that the district court was not empowered to

reduce the award absent a proper motion

from defendants, which she contends was not

made.

Florida law provides that:

29a

A defendant may be held liable for

punitive damages only if the trier of

fact, based on clear and convincing

evidence, finds that the defendant was

personally guilty of intentional

misconduct or gross negligence. As

used in this section, the term:

(a) “Intentional misconduct” means

that the defendant had actual

knowledge of the wrongfulness of

the conduct and _ the high

probability that injury or damage

to the claimant would result and,

despite that knowledge,

intentionally pursued that course

of conduct, resulting in injury or

damage.

Fla. Stat. § 768.72(2). Decades of Florida

case law have made it clear that a finding of

battery is sufficient to trigger punitive

damages. See, e.g., Canseco v. Cheeks, 939

So.2d 1122, 1123 (Fla. Dist. Ct. App. 2006)

(“[I]ntentional battery supplies the requisite

proof of malice, justifying a _ punitive

damages award.”) (citations omitted); see

also Joab, Inc. v. Thrall, 245 So.2d 291, 293

(Fla. Dist. Ct. App. 1971) (In Florida it is

clear that an act of intentional assault and

battery committed without legal justification

30a

supplies proof of malice.”).° Inasmuch as the

Florida courts have on this issue been

unequivocal, the district court did not err by

allowing punitive damages here.

The district court was empowered,

however, to remit the award if it determined

that it was unreasonable. See id. §

768.73(1)(d). The factors the trial court is

obliged to consider when assessing the

excessiveness of a punitive award are the

same factors it must consider when assessing

the amount of a compensatory award. See id.

§ 768.74(5). In Florida, the courts must

conduct this review in order “to make certain

that the manifest weight of the evidence does

not render the amount of punitive damages

assessed out of all reasonable proportion to

the malice, outrage, or wantonness of the

tortious conduct.” Engle v. Liggett Group,

Inc., 945 So. 2d 1246, 1263 (Fla. 2006).

“Under Florida law, the purpose of

punitive damages is not’ to further

compensate the plaintiff, but to punish the

defendant for its wrongful conduct and to

deter similar misconduct by it and other

actors in the’ future.” Owens-Corning

*’ While the Supreme Court of Florida has never

stated this rule, we may rely on the interpretation of a

state’s intermediate courts absent some indication

from the state’s highest court to the contrary. See

Galindo v. ARI Mut. Ins, Co., 203 F.3d 771, 775 (1th

Cir. 2000).

sla

Fiberglas Corp. v. Ballard, 749 So. 2d 483,

486 (Fla. 1999). The Supreme Court of

Florida, therefore, has determined that the

wealth of the defendant is a factor for

consideration in determining the

reasonableness of a punitive award: “an

award must be reviewed to ensure that it

bears some relationship to the defendant's

ability to pay and does not result in economic

castigation or bankruptcy of the defendant.”

Mingle, 945 So. 2d at 1263; see also Rinaldi v

Aaron, 314 So. 2d 762, 764 (Fla 1975); St

John v. Coisman, 799 So. 2d 1110, 1115 (Fla

Dist. Ct. App. 2001). While it is not “an

accurate rule of law that the yvreater a

defendant's wealth, the yvreater must be

punitive damages,” Bankers Multiple Line

Ins. Co. v. Karish, 464 So. 2d 530, 533 (Fla

1985), a “jury may properly punish each

wrongdoer by exacting from his pocketbook a

sum of money which, according to his

financial ability, will hurt, but not

bankrupt.” Bould v. Touchette, 349 So. 2d

1181, 1186-87 (Fla. 1977).

This punitive award of $500,000 does

not offend Florida Statute § 768.7405). Given

the many years during which Sievel touched

and harassed Myers in the workplace, his

repeated and publhe humiliations of her, and

his refusal to desist despite her repeated

requests, the award can hardly be said to

evince passion, prejudice, or corruption. The

award does not reveal that the court iynored

42a

evidence or considered improper clement

nor is the award otherwise illogical. Simply

stated, the trial court could find that the

$500,000 pumitive award bore a reasonabl

relation to the damaye that would flow from

a battery preceded hy Oo mueh exual

misconduct in the workplace

furthermore, the punitive damaye

award would not result im the economu

castigation or bankruptey of the defendant:

The district court heard testimony that CEI

net worth exceeded $47). 000.000 — and

Siegel $32.4 000,000 Since defendants

ability to pay the ormwinal $5,378,865.14

judgment 1s by ther own post trial

admission, plain, the amended $500,000

punitive award cannot be said to bear an

unreasonable relationship to their ability to

pay

Under Florida law, punitive damage

also are subject to au tatutory cap, and

Myers asserts that it was improperly apphed

here. Section 768.7450) )(a) of the Florida

Statutes provides that “an award of punitive

damages may not exceed the preater of |

Three times the amount of Compensatory

damages awarded to each claimant entitled

thereto, consistent with the remarminy

provisions of this section, or 2. The sum of

$500,000 Sut there are tatutory

exceptions to this general rule, one of which

provides that, “lwlhere the fact finder

determines that at the time of injury the

defendant had a specific intent to harm the

33a

claimant and _ determines’ that the

defendant’s conduct did in fact harm the

claimant, there shall be no cap on punitive

damages.” Id. § 768.73(1)(c). In other words,

in order for a punitive award greater than

$500,000 to stand, a Florida jury must have

found both specific intent to harm and actual

harm.

There is no question that the jury did

not make any such overt findings. The jury

answered eight questions on the verdict

form, none ® of which addressed specific

§ The interrogatories answered by the jury were

these:

Claim One Do you find from a preponderance of

the evidence:

1. That Plaintiff Georgette Myers was an

independent contractor? No...

2. That Plaintiff Georgette Myers was an

employee of any of the following business entities? .

Central Florida Investments, Inc. Yes

CFI Sales and Marketing, Ltd. Yes

Westgate Resorts, Inc. Yes

Westgate Resorts, Ltd. Yes

3. That David Siegel subjected the Plaintiff to a

hostile or abusive work environment because of her

sex or gender? Yes...

4. That at least one of the acts of sexual

harassment took place on or after

September 15, 2000? No...

Claim Two

7. Do you find from a preponderance of the

evidence that Defendant David Siegel committed

battery against Plaintiff? Yes...

34a

intent to harm or actual harm. However, the

inquiry does not end there. The jury verdict

is considered alongside the jury instructions,

and if the two can be read together to show

that the jury made the required findings,

then a heightened award may still stand. Cf.

McNely v. Ocala Star-Banner Corp., 99 F.3d

1068, 1072 (11th Cir. 1996) (stating that the

sufficiency of jury instructions should be

evaluated in light of the jury verdict).

The district court’s instructions to the

jury regarding battery read this way:

A battery is an_=. intentional

infliction of harmful or offensive

contact upon the person of another. To

prevall on her battery claim, the

Plaintiff must prove each of the

following facts by a preponderance of

the evidence:

8. Do you find from a preponderance of the

evidence that conduct constituting battery occurred on

or after May 21, 2000? Yes...

9. Do you find from a preponderance of the

evidence that Plaintiff should be awarded

compensatory damages on the battery claim? Yes. If

Yes, in what

amount? $102,223.14...

10. Do you find by clear and convincing evidence

that punitive damages should be awarded on the

35a

First: That David Siegel intended

to touch the Plaintiffs person:

Second: That David Siegel actually

touched the Plaintiff against her will:

and

Third: That the contact was

harmful or offensive to the Plaintiff.

There is no natural reading of the verdict

alongside the instructions that yields the

conclusion that the jury made the requisite

findings. As the instructions make clear, a

civil battery might be supported where a

defendant had specific intent to offend, not

harm, and where the defendant effected an

offensive, but not harmful, contact. See Paul

v. Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist.

Ct. App. 1997). Therefore, it can hardly be

said that the findings of specific intent to

harm and actual harm inhere in a jury

verdict of civil battery.

The district court did make passing

reference to the twin requirements when

issuing instructions on punitive damages,

battery claim? Yes. If Yes, in what amount, based on a

preponderance of the evidence? $5,276,640.00 . ..

The jury did not reach questions five and six, which

concerned damages for sexual harassment, because it

answered question four in the negative.

36a

encouraging the jury to “consider

whether, at the time of the injury or damage,

David Siegel had a specific intent to harm

the Plaintiff and the conduct of David Siegel

did in fact harm the Plaintiff.” Yet the court

never instructed the jury that it must find

specific intent to harm or actual harm.

Furthermore, the district court was

entitled to apply the statutory cap of its own

volition: “where a portion of a verdict is for

an identifiable amount that is not permitted

by law, the court may simply modify the

jury’s verdict to that extent and enter

judgment for the correct amount.” Johansen,

170 F.3d at 1330 (citing New York, L. E. &

W. R. Co. v. Estill, 147 U.S. 591 (1893)); see

also Browning-Ferris Indus. of Vt., Inc. v.

Kelco Disposal, Inc., 492 U.S. 257, 279

(1989). Because the Florida statute does not

require a motion by the aggrieved party, see

Fla. Stat. §768.73(1)(a), we need not consider

whether the defendants properly moved for

application of the statutory cap.

B. Constitutional Law

The defendants also challenge the

constitutionality of the $500,000 punitive

award, asserting that they did not have fair

notice that they might be hable to pay a

punitive award so much greater than the

compensatory award.

The foundation of the due process

inquiry is found in B.M.W. of North America,

Inc. v. Gore, 517 U.S. 559 (1996).

37a

“Elementary notions of fairness enshrined in

our constitutional jurisprudence dictate that

a person receive fair notice not only of the

conduct that will subject him to punishment,

but also of the severity of the penalty that a

State may impose.” Id. at 574. While

“[p]unitive damages may properly be imposed

to further a State’s legitimate interests in

punishing unlawful conduct and deterring its

repe*ition,” id. at 568 (citations omitted), and

states “have considerable flexibility — in

determining the level of punitive damages that

they will allow,” id., an award runs afoul of the

due process clause when it “can fairly be

categorized as ‘grossly excessive’ in relation to

these interests,” id. (quoting TXO Prod. Corp.

v. Alliance Resources Corp., 509 U.S. 443, 454

(1993)). To help determine when an award is

grossly excessive, the Supreme Court has

adopted three guideposts for a _ court’s

consideration: “the degree of reprehensibility”

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.” Id. at 574-75.

Proper due process analysis of a

punitive award in the Eleventh Circuit

“requires first that we identify the state’s

interest in deterring the relevant conduct

and the strength of that interest. Next, we

review the district court’s findings regarding

38a

the three BMW guideposts.” Johansen, 170

F.3d at 1335. While we are “mindful of the

difficulty of our task,” id. at 1333 n.22 (citing

Gore, 517 U.S. at 606 (Scalia, J., dissenting)),

we are guided by the understanding that the

constitutional question ultimately hinges on

whether a defendant “had adequate notice

that its conduct might subject it to this

punitive damage award.” Id. at 1335; see also

Action Marine, Inc. v. Cont’] Carbon, Inc.,

481 F.3d 1302, 1318 (11th Cir. 2007) (‘We do

not view these guideposts as an analytical

straitjacket, and we maintain as our

overarching aim eliminating the risk that a

defendant is punished arbitrarily or without

fair notice of the possible consequences of its

actions.”) (quotation marks and citations

omitted).

The state’s interest in deterring

defendants’ conduct is strong. As_ the

Supreme Court of Florida has stated:

There can be no doubt at this

point in time that both the state of

Florida and the federal government

have committed themselves strongly

to outlawing and eliminating sexual

discrimination in the workplace,

including the related evil of sexual

harassment. The statutes, case law,

and administrative regulations

uniformly and without exception

condemn sexual harassment in the

strongest possible terms.

39a

Byrd v. Richardson-Greenshields Secs., Inc.,

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

Furthermore, the _ state’s interest in

protecting workers from sexual

discrimination extends to both statutory and

common law claims: “Pubhe policy now

requires that employers be held accountable

in tort for the sexually harassing

environments they permit to exist, whether

the tort claim is premised on a remedial

statute or on the commen law.” !d. at 1104.

There is no question that Florida has

a considerable interest in protecting workers

from the kind of sexual misconduct to which

Myers was subjected for so many years. The

jury found a battery by a superior on an

employee in the workplace. This battery

followed a long period during which Siegel

and CFI subjected Myers to _ sexual

harassment, but for which recovery was

barred by the statute of lhmitations.

Furthermore, Myers’ repeated complaints,

both to Siegel and other CFI executives, were

ignored and_ rebuffed. This unchecked

pattern of “antisocial behavior” from Siegel

and CFI underscores the need for punitive

damages as a means “to correct evil-doing in

areas not covered by the criminal law.” See

Campbell v. Govt Employees Ins. Co., 306

So. 2d 525, 531 (Fla. 1974).

With awareness of the powerful state

interests in play, we turn next to the Gore

guideposts. The first is the degree of

reprehensibility, and it is “the most

40a

important indicium.” State Farm Mut. Auto

Ins. Co. v. Campbell, 538 U.S. 408, 419

(2003); see also Goldsmith, 513 F.3d at 1283

(calling the first prong the “dominant

consideration”). The Supreme Court, in State

Farm, identified five specific factors for

consideration:

We have instructed courts to

determine the reprehensibility of a

defendant by considering whether: the

harm caused was physical as opposed

to economic; the tortious conduct

evinced an indifference to or a reckless

disregard of the health or safety of

others; the target of the conduct had

financial vulnerability; the conduct

involved repeated actions or was an

isolated incident; and the harm was

the result of intentional malice,

trickery, or deceit, or mere accident.

538 U.S. at 419; see also Goldsmith, 513

F.3d at 1283 (citing EEOC v. W&O, Inc., 213

F.3d 600, 614-15 (11th Cir. 2000)). While

there is no requirement that a certain

number of the five State Farm factors be

present in order to support a finding of

reprehensibility, reprehensibility grows more

likely as more factors are present. See State

Farm, 538 U.S. at 419.

The district court took each State

Farm factor in turn. On the first factor, the

court noted that “the harm here was

emotional rather than economic.” Myers,

4la

2008 WL 4710898 at *17. As the jury heard

evidence that Myers felt upset, embarrassed,

humiliated, and degraded by Siegel’s actions

at CFI, this finding of fact does not

constitute clear error.

On the second factor, the district court

noted that “there is some disregard of health

at play insofar as Plaintiffs emotional health

was involved.” Id. Since there was plenty of

evidence here, concerning both the battery

and the sexual harassment, suggesting an

indifference or reckless disregard towards

Myers’ health, whether’ physical or

emotional, it was not clear error for the

district court to so find.

On the third factor, the district court

found that the employment relationship

mattered: “financial vulnerability is

implicated somewhat because, although this

battery claim did not involve financial

consequences for Plaintiff per se, the events

did occur in the workplace and Plaintiffs

boss -- who controlled Plaintiffs earnings --

was the one who committed the acts.” Id.

Myers presented evidence that she feared

making too big a deal of the touchings and

harassment because Siegel was her boss and

she did not want to lose her job. She testified

that she stayed at CFI in part because she

needed the money, and because she knew

that her chosen industry would not be as

kind to a person without a college degree as

had been CFI. The district court’s

determination, therefore, that the

42a

superiorsubordinate relationship between

Siegel and Myers injected a sense of financial

vulnerability into their interactions cannot

constitute clear error. Cf. Stockett v. Tolin,

791 F. Supp. 1536, 1555 n.4 (S.D. Fla. 1992);

Hughston v. New Home Media, 552 F.

Supp.2d 559, 567 (E.D. Va. 2008).

On the fourth factor, the district court

wrote, “there is some evidence of repeated

actions, though only a six-month time period

is at issue.” Myers, 2008 WL 4710898 at *17.

We note, however, that a jury may consider

material external to the charge in

determining the _ reprehensibility of the

charge itself. See Gore, 517 U.S. at 576-77

(“Certainly, evidence that a defendant has

repeatedly engaged in prohibited conduct

while knowing or suspecting that it was

unlawful would provide relevant support for

an argument that strong medicine is

required to cure the defendant’s disrespect

for the law.”) (citing TXO, 509 U.S. at 462

n.28); State Farm, 538 U.S. at 423 (noting

the relevance to the reprehensibility inquiry

of similar “prior transgressions”) (citing

TXO, 509 U.S. at 462 n.28); Johansen, 170

F.3d at 1333 (similar). Moreover, “evidence

of other acts need not be identical to have

relevance in the calculation of punitive

damages.” State Farm, 538 U.S. at 423-24.

In this case, there was voluminous

evidence of repetition presented to the jury.

Myers described a pattern of sexual touching

from Siegel beginning in 1995 and ending in

43a

2000. He touched her in the office, in the

restaurant, in the spa, in the treatment

room, and on the dance fioor. He touched her

legs, her behind, and her shoulders. He

touched her when they were alone and when

other CKFl employees were around. While

these touchings were not all identical, it did

not constitute clear error for the district

court to determine that the battery for which

defendants were held liable “replicateld] the

prior transgressions.” Cf. id. at 423 (citing

TXO, 509 U.S. at 462 n.28). 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 flow from our precedents. See Gore,

423 (citing TXO, 509 U.S. at 462 n.28);

Johansen, 170 F.3d at 1333.

On the fifth and final factor, the district

court noted that “battery 1s an intentional tort,

although malice is not required for its

commission.” Myers, 2008 WL 4710898 at *17.

Inasmuch as battery in Florida can be sustained

by an intent to do mere offense, see Paul v.

Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist. Ct.

App. 1997), the district court’s determination

that intentional malice was not present is not

clearly erroneous.

After the analysis of the State Farm

factors, the district court turned to Gore and

concluded that “Mr. Sicgel’s conduct is at the

44a

low to middle range of the reprehensibility

scale.” Id. This is a _ factual finding, see

Johansen, 170 F.3d at 1334, for which the

district court is allowed in tts discretion to

weigh the severity of each factor, see State

Farm, 538 U.S. at 419. In light of the ample

evidence that Myers suffered emotional distress,

that she decided to stomach the objectionable

conduct for fear of losing her job and her

income, that the behavior persisted for years

and over her frequent objections, and that no

one at CFI seemed to care, we cannot say that

the distmct court’s conclusion — regarding

reprehensibility 1s clearly erroneous

The second Gore guidepost ts the ratio of

punitive damages to actual harm inflicted on the

plaintiff. The “proper inquiry is whether there 1:

a reasonable relationship between the punitive

damages award and the harm likely to result

from the defendant’s conduct as well as the

harm that actually has occurred.” Gore, 517

U.S. at S&I (citing TXO, 509 U.S. at 460)

(emphasis in original) (quotation marks

omitted). On this issue, “comparison between

the compensatory award and the punitive award

is significant.” Id. at 581 (citing TXO, 509 U.S.

at 459; Pacific Mut. Life Ins. Co. v. Haslip, 499

U.S. 1, 23 (1991)). In particular, the ratio of

punitive to compensatory damages 1s

Nevertheless, the Supreme Court has

“consistently rejected the notion that the

t

45a

constitutional line is marked by a. simplh

mathematical formula, even one that compares

actual and potential damages to the punitive

award.” Gore, 517 U.S. at 5&2 (citing TXO, S09

U.S. at 458); see also State Farm, 538 U.S. at

425: Goldsmith, 513 F.3d at 1283

In this case, the amended judgment set

punitive damapes at $506,847.7% — and

compensatory damapyes at $103,622.09. Since

this yields a ratio Of punitive to compensatory

damages of approximately 4.89:], the district

court's finding that the ratio was “less than 5S to

1.” Myers, 200% WL 471089% at *17, 15 not

clearly erroneous. Cf. Johansen, 170 F.3d at

1334 (“[T]he ratio of the actual to the punitive

damayes 1s an historical fact. We accept that

finding unless it 1s clearly erroneous.”’). The

district court then concluded that “Tt {has ralio

does not sugvest an excessive award Myc

200% WL 4710898 at *17/

Notably, this Court has approved of a

number of punitive awards where the ratio of

punitive to compensatory damapes exceeded

4.89:1. See Johansen, 170 FL3d at 1327, 1839

{ratio of 100:1); Goldsmith, 513 F.3d at 1283

1285 (ratio of 9.2:1); U.S. EEOC v. W&O,

Inc., 214 F.3d 600, 616-17 G1th Cir. 2000)

(ratio 0f8.3:1); Action Marine, Inc. v. Cont’)

Carbon, Inc., 481 F.3d 1402, 1321, 1325

(Jith Cir. 2007) Gratio of 5.5:1); see also

sjople v. McClure, 332 F.3d 1347, 1462 11th

Cir. 2003) (ratio of 3.8%:1). Furthermore, on

the one occasion where this Court has struck

down # punitive award for constitutional

COxce it reduced an award with a ratio of

S692.) to an award with a ratio of 14h]

see Kemp v. Am, Tel. & Vel Co, 398 FoSd

M654, 1465 Olith Cir. 2004) Greducing the

punitive award from $1,000,000 to $250,000

‘)

when compensatory damapyes amounted to

S11O.05) Those Cease like thy) Cory

im phleated powerful tate interest Prom

protection of tne environment ee Johansen

170 bod at 1339; Action Marine, 481) FoSd at

1319, to the ehmination of workplace

discrimination, see Goldsmith, 514 koSd sat

1267, HMOC vi WAaO, 215 Fd at 607) Boyle

$32 Fo Sd at 1450, to the protection of

consume) (*¢ Komp $93 I Sd at 1457

Apyain, the state interest in protecting

employer Irom repeated offensive exual

touchinys by the bo in the workplace 4

strony furthermore th $506,447.75

punitive award bea i reasonablh

relationship both to the harm Myers ha

ulfered and to the harm likely to result

hould CFI not be poe nalized now. The district

court, therefore, did not err in determining that

the punitive ratio of 4.89°1 docs not offend

constitutional due process

Detendants ure, NEVE mheless, that under

Ixxon Shipping Co. v. Baker, 12% S. Ct. 260!

(200%), any rato preater than teloo4

constitubbonally suspect lhem relmance on

hxxon is misplaced. In bxxon, the Supreme

Court was quite explicit that it was dealing: with

47a

maritime law, and not due process of law. See,

e.g., id. at 2626 (“Today’s enquiry differs from

due process revicw because the case arises

under federal maritime jurisdiction, and we are

reviewing a jury award for conformity with

maritime law, rather than the outer limit

allowed by duc process .. . .”); id. at 2626-27

(“Our review of punitive damages today, then,

considers not their intersection with the

Constitution, but the desirability of regulating

them as a common law remedy for which

responsibility lics with this Court as a source of

judge-made law in the absence of statute.”).

Defendants’ suggestion that the punitive award

violates the Constitution of the United States

can therefore find no support in Exxon.

The third and final Gore guidepost is a

comparison between “the punitive damages

award and the civil or criminal penalties

that could be imposed for comparable

misconduct.” 517 U.S. at 583. When

considering criminal penalties, a reviewing

court conside. = both fines and imprisonment.

See Pacific Mut. Life Ins. Co. v. Haslip, 499

U.S. 1, 23 (1991); see also Gore, 517 U.S. at

583 (citing Haslip, 499 U.S. at 23). These

peripheral sanctions are significant because

they can serve to give fair notice to potential

tortfeasors of the magnitude of sanctions

they might face for their actions. See Gore,

517 U.S. at 584; Johansen, 170 F.3d at 1337.

48a

The third guidepost presents a

mixed question of law and fact:

[T]he selection of the most

appropriate point of comparison —

actual fine imposed, the maximum

possible penalty or penalties in similar

cases ~- is an issue of law. We,

therefore, review the district court’s

determination of the appropriate

comparison de novo. However, the

district court’s finding regarding this

comparison, 1.e., the disparity between

the amount of the punitive damages

award and the amount of the other

civil or criminal sanctions, is an

historical fact which we review for

clear error.

Johansen, 170 F.3d at 1334.

The district court determined that

Florida’s statutory cap on punitive damages

was the most appropriate comparison point.

See Myers, 2008 WL 4710898 at *18. This

was error. The fact that some torts can be

punished up to $500,000 does not put people

on notice that battery might be punished up

to $500,000. Rather, the district court should

have comparea the punitive award to the

49a

sanctions available for a criminal battery.”

However, even after determining that

the district court applied the wrong

comparison point, we still ultimately affirm

its conclusion. We do so because the proper

comparison point did provide unambiguous

notice to the defendants of the seriousness of

their tort. Battery is a crime in Florida

punishable by up to a year in prison, see Fla.

Stat. §§ 784.03(1), 775.082(4)(a),

775.083(1)(d), which is a serious criminal

sanction. The due process clause is violated

when® defendants do not have fair notice of

the magnitude of the punitive sanctions they

might face. Because battery can carry a

prison term of a year, residents of Florida

have fair notice that battery is an offense

with formidable consequences. A $500,000

punitive award fits comfortably within this

array of potential sanctions.

7 Under Florida law, the criminal “offense of

battery occurs when a person: 1. Actually and

intentionally touches or strikes another person

against the will of the other: or 2. Intentionally causes

bodily harm to another person.” Fla. Stat. §

784.03(1)(a).

8 As Myers argues, Siegel, with a net worth of

$324,000,000, would likely pay $500,000 to avoid a

year in prison.

50a

As a final matter, under controlling

case law, the courts of this Circuit are

empowered to consider the financial

resources of the defendant when determining

the constitutionality of an award. See

Johansen, 170 F.3d at 1338; W&O, 213 F.3d

at 616-17 (similar); Kemp, 393 F.3d at 1364.

Undeniably, the $500,000 punitive award is

a serious sanction and may not be taken

lightly. It will not, however, bankrupt or

cripple these wealthy defendants. Moreover,

the trial judge could readily find that a lesser

award would not provide the same level of

deterrence.

We can discern nothing to suggest

that the punitive award in this case is in any

way violative of the Constitution. Siegel

engaged in a pattern of offensive sexual

touchings in the workplace, heaping upon

Myers, his subordinate, indignities both

private and public. CFI, alerted to Siegel's

abhorrent behavior on numerous occasions

by Myers, did nothing to stop it, and even in

some instances encouraged it. It can hardly

be said that the defendants did not have fair

notice that years of such behavior --

culminating in the battery for which they

were found liable -- might expose them to a

substantial punitive damages award. The

jury and the district court, after hearing

extended testimony, plainly meant for the

defendants to understand that their conduct

towards Myers was wholly unacceptable and

that it would be punished in a substantial

Sia

manner. Ultimately, the Constitution

permits the district court to fashion a

punitive remedy that will effectively deliver

this message.

V. Statute of Limitations

Because Myers filed her complaint

with the EEOC on September 14, 2001, the

defendants could only be held lable for

sexual harassment that had occurred on or

after September 15, 2000, under the FCRA,

see Fla. Stat. § 760.11(a), and on or after

November 19, 2000, under Title VII. See 42

U.S.C. 2000e-5(e); City of Hialeah, Fla. v.

Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002).

Nevertheless, Myers presented little

testimony during her case-in-chief

concerning when the complained-of behavior

occurred. While her witnesses described

much harassing conduct, they did not state

clearly when it had occurred, or if any had

occurred after September 15, 2000. Nor did

the defendants put on evidence regarding

when the events described by Myers’

witnesses purportedly occurred. When,

during rebuttal, Myers attcmpted to develop

testimony that would show that some

harassment had indeed occurred after

September 15, 2000, the district court did

not allow it. Myers argues, nevertheless, that

her failure to put on evidence of timeliness

52a

should not preclude her from recovery under

Title VII and the FCRA, because it was the

defendants who bore the burden of proving

that their conduct occurred before’ the

relevant dates, and because they failed to

discharge that burden.

The filing of a complaint with the

KEOC is a condition precedent to a sexual

harassment suit. See Wilkerson v. Grinnell

Corp., 270 F.3d 1314, 1317 (11th Cir. 2001);

see also 42 U.S.C. § 2000e-5(b). A

harassment suit may go forward under some

circumstances, however, if the plaintiff has

failed to do so, because “filing a_ timely

charge of discrimination with the EEOC is

not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a

statute of limitations, is subject to waiver,

estoppel, and equitable tolling.” Zipes v.

Trans World Airlines,Inc., 455 U.S. 385, 393

(1982); see also Weaver v. Casa Gallardo,

Inc., 922 F.2d 1515, 1521 (11th Cir. 1991).

“In pleading conditions precedent, it

suffices to allege generally that all conditions

precedent have occurred or been performed.

But when denying that a condition precedent

has occurred or been performed, a party

must do so with particularity.” Fed. R. Civ.

P. 9(c). Should a defendant make that denial,

“It]he plaintiff then bears the burden of

proving that the conditions precedent, which

the defendant has specifically joined in issue,

have been satisfied.” Jackson v. Seaboard

Coast Line R.R. Co., 678 F.2d 992, 1010

53a

(11th Cir. 1982). Should a defendant “not

deny the satisfaction of the conditions

precedent specifically and_with particularity,

however, the allegations are assumed

admitted and cannot later be attacked.” Id.

at 1009.

In this case, the ninth paragraph of

Myers’ Second Amended Complaint

addressed conditions precedent. It read:

“Plaintiff received her Notice of Right to Sue

letter from the U.S. Equal Employment

Opportunity Commission within 90 days

before filing this action, and has otherwise

fulfilled all conditions precedent to

institution of this action.” This general

statement from Myers was _ sufficient to

discharge her duty under Rule 9 of the

Federal Rules of Civil Procedure. See EEOC

v. Times-Picayune Publ’g Corp., 500 F.2d

392, 392 (5th Cir. 1974).9 We consider, then,

the sufficiency of any denials interposed by the

defendants.

® Opinions of the Fifth Circuit rendered before the

close of business on September 30, 1981, are binding

on this Court. See Bonner _v. City of Prichard, Ala.,

661 F.2d 1206, 1209 (11% Cir. 1981).

54a

Defendants’ first denial consisted of

the following: “Defendants deny the

allegations contained in paragraph 9 of the

Plaintiffs Second Amended Complaint.”

Defendants’ Answer’ and Affirmative

Defenses to Plaintiffs Second Amended

Complaint at 2, Myers v. Cent. Fla. Invs.,

Inc., No. 6:04-cv-1542-Orl- 28DAB (M.D. Fla.

Oct. 25, 3005). This is as general as a denial

can be, and therefore cannot meet the

particularity requirements of Rule 9 of the

Federal Rules. See, e.g., Wilshin v. Allstate

Ins. Co., 212 F.Supp.2d 1360, 1370 (M.D. Ga.

2002).

However, paragraph nine was not the

only place in the Answer where defendants

addressed the fulfillment of conditions

precedent. In a_— section concerning

affirmative defenses appeared the following:

338. Plaintiff failed to exhaust all

administrative remedies and _ thus

cannot obtain relief pursuant to Title

VII or the Florida Civil Rights Act,

Chapter 760.

339. Plaintiff did not exercise her

right to sue or to file her EEOC

Complaint within the time prescribed

by the statute.

Defendants Answer and Affirmative

Defenses to Plaintiff's Second Amended

Complaint at 32, Myers, No. 6:04-cv-1542-

55a

Orl-28DAB (M.D. Fla. Oct. 25, 3005). These

paragraphs state which particular condition

precedent they claim Myers failed to fulfill

(the EEOC complaint), and the reason for

the failure (untimeliness). The denial is

sufficiently particular.

While affirmative defenses are, of

course, distinct from denials, see, e.g., In re

Rawson Food Service, Inc., 846 F.2d 1343,

1349 (11th Cir. 1988), and while Rule 9(c)

calls for a denial, this Court has excused

technical noncompliance with pleading

requirements where the substance of the

pleading is sufficient. See id. at 1348-49 n.9;

EEOC vy. Klingler Elec. Corp., 636 F.2d 104,

107 (5th Cir. 1981). Here, the Answer gave

Myers ample notice that defendants believed

that she had failed to timely file a complaint

with the EEOC. This notice served to

discharge defendants’ duty under Rule 9c)

and successfully shifted the burden of going

forward back to Myers to present evidence of

timeliness. This she did not do.

Moreover, the district court did not

abuse its considerable’ discretion § in

preventing Myers from putting on evidence

of timeliness during rebuttal. “The trial

judge has the authority, within limits, to

control the scope of rebuttal testimony.”

United States v. Renfro, 620 F.2d 497, 502

(5th Cir. 1980) (citing Geders v. United

States, 425 U.S. 80, 86 (1976)). Here, Myers

offered no evidence of timeliness during her

case-in-chief, and the defendants did not

56a

mount evidence on the issue during their

case. The evidence of timeliness that Myers

attempted to introduce’ on_ rebuttal,

therefore, could not “explain, repel,

counteract, [nlor disprove” the testimony

offered by defense witnesses, cf. United

States v. Mock, 523 F.3d 1299, 1303 (11th

Cir. 2008) (quoting United States v. Frazier,

387 F.3d 1244, 1269 (11th Cir. 2004) (en

banc)); there was no evidence to rebut.

VI. Prevailing Party Status

While under Florida law, attorney’s

fees were not available to Myers on the state

law battery count, see United Svcs. Auto.

Ass’n v. Kiibler, 364 So. 2d 57, 58 (Fla. Dist.

Ct. App. 1978), Title VII provides that “the

court, in its discretion, may allow the

prevailing party ... a reasonable attorney’s

fee... .” 42 U.S.C. § 2000e- 5(k); see also

Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 414 (1978).

Determining when a party prevails

is a complex question:

If the plaintiff has succeeded on

any significant issue in_ litigation

which achieveld] some of the benefit

the parties sought in bringing suit, the

plaintiff has crossed the threshold to a

fee award of some kind .. . The

touchstone of the prevailing party

5/a

inquiry must be the material

alteration of the legal relationship of

the parties in a manner” which

Congress sought to promote in the fee

statute.

In Walker v. Anderson Elec. Connectors,

944 F.2d 841, 846 (11th Cir. 1991) (quoting

Tex. Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 791-93 (1989))

(alterations in original) (quotation marks

omitted). The “moral satisfaction” that

accompanies a judicial determination that

one has been aggrieved is insufficient to

establish prevailing party status. Sce

Helms, 482 U.S. 755, 762 (1987)). Rather,

the prevailing party must have settled “some

dispute which affects the behavior of the

defendant towards the plaintiff,” Farrar v.

Hobby, 506 U.S. 1038, 110 (1992) (quoting

Hewitt, 482 U.S. at 761) (quotation marks

omitted), and the judgment must be

“enforceable,” id. at 111. Ultimately, “a

plaintiff ‘prevails’ when actual relief on the

merits of his claim materially alters the legal

relationship between the parties’ by

modifying the defendant’s behavior in a way

that directly benefits the plaintiff.” Id. at

111-12; see also Taylor v. Sterrett, 640 F.2d

663, 669 (5th Cir. 1981) (“‘IT}he proper focus

is whether the plaintiff has been successful

on the central issue as exhibited by the fact

5#a

that he has acquired the primary relief

sought.”).

In Walker v. Anderson _ [tlectrical

Connectors, 944 F.2d 841 (1th Cir. 1991),

the plaintiff alleged a violation of Title VII

and two accompanying violations ol state

tort law, namely invasion of privacy and

outrage. See id. at 842. The jury determined

that the defendant had sexually harassed

the plaintiff, and committed the state torts,

but awarded nothing in damayves on either

claim. See id. at 843. The jury found that the

harassment had not resulted in damages.

See id. We determined that Walker was not a

prevailing party under Title VII, “holdling]

that to be a prevailing party for purposes of

42 U.S.C. § 2000e°5(k), requires the

attainment of something more tangible than

a jury finding of sexual harassment.” Id. at

#47. Yet this broad holding does not reach

this case, where Myers did attain something

more tangible than a jury finding of sexual

harassment -- namely, a $610,469.84 award

on her battery claim.

The Second Circuit, however, has

encountered a case that is squarely on point

In Bonner v. Guccione, 178 F.3d 581 (2d Cir

1999), the plaintiff asserted, amony other

things, sexual harassment claims under Title

VII and the New York Human Rights Law

The jury found that the plaintiff had been

sexually harassed, that damage had occurred

within the applicable state time-frame, but

that none had occurred during the applicable

59a

federal time-frame. Id. at 583. She therefore

recovered $90,000 on the state claim, but

nothing on the federal claim. Id. The court

determined ultimately that the plaintiff was

not a prevailing party under Tithe VIL,

reasoning that there was simply nothing to

enforce: “Plaintiff here failed to obtain either

an enforceable judgment or settlement

ayreement ayainst the defendants on her

Tithe VII cause of action.” Id. at 594

The analysis of the Second Circuit i:

persuasive, The jury’s determination § that

CFI and Siegel subjected Myers to sexual

harassment, but that recovery was time

barred, does nothing to advance the legal

rights asserted by Myers against the

defendants Based on the 9 judyment

rendered, the defendants need not curtail

their behavior nor pay Myers money, cf

Farrar, 506 U.S. at 111°12, and the leyal

relationship between the parties has not

been altered. Cf. Walker, 944 F.2d at 846

Moreover, on the ‘Tithe Vil count

judgment was even entered in favor of the

defendants. Cf, Bonner, 178% F.3d at 599

(“(T'he jury found that the Tithe VIL claim for

damayes (the only relhef sought) was time

barred. If the jury had returned a special

verdict containing such an express finding,

the defendants would have been entitled to

the entry of a judgment in their favor.”). In

short, Myers 1s not a prevailing party on the

| |

60a

Tithe VHP claim and as not entitled = to

attorney's fees!

VIE. Reinstatement of Other State Law

Claims

As a final matter, Myers asks us to

instruct the district court) to reinstate a

variety of state law claims that were

dismissed in April of 2005. While we apree

that federal district courts in removal cases

must remand, rather than dismiss, state

claims over which they decline to exercise

supplemental jurisdiction, see Cook vo Sheriff

of Monroe County, 402 Bud 1092, 1125 ith

Cir, 2005), Lewis v. City of St. Petersbury,

260 F.3d 1260, 1267 Cth Cir, 2001), Myers

neglected to raise this issue when this case

first came before this Court. Nearly five

' Vietory on the battery charge played no causal

role in the decision of the distriet court not to award

attorney's fees on the Tithe Vil charge Hf, however,

the trial court had declined to award fees under Tithe

Villon account of an award of fees on a related matter,

our analysis would be different Ch Bridges vy

Kastman Kodak Co, 10% Fo4d 56, 54% (2d Cir) 1996),

Hall v, W. Prod, Co,, 98# Fo2d 1050 Oth Cir, 1994)

bla

years have passed since these claims were

dismissed, and we decline now to upset the

decision of a lower court that should have

been challenged before us more than two and

a half years ago. Cf. Nationalist Movement v.

City of Cumming, Ga., 92 F.3d 1135, 1138-39

(11th Cir. 1996); Caban-Wheeler v. Elsea, 71

F.3d 837, 842 (11th Cir.1996); Martin v.

Atlantic Coast Line R.R. Co., 289 F.2d 414,

416 (5th Cir. 1961).

Accordingly, the judgment of the district

court is AFFIRMED.

AFFIRMED.

APPENDIX B

United States Court of Appeals

For the Eleventh Circuit

No. 08-16291

District Court Docket No.

04-01542-CV-ORL-28-DAB

FILED

U.S. COURT OF APPEALS

KLEVENTH CIRCUIT

[Filed Jan 6, 2010]

THOMAS K. KAHN

CLERK

DAWN GEORGETTE MYERS,

Plaintiff-Appellee

Cross’ Appellant,

Versus

CENTRAL FLORIDA INVESTMENTS.

ING...

DAVID SIEGEL, et al..,

63a

Defendants-Appellants

Cross-Appellees,

Appeals from the United States District

Court

for the Middle District of Florida

JUDGMENT

It is hereby ordered, adjudged, and

decreed that the attached opinion included

herein by reference, is entered as_ the

judgment of this Court.

Entered: January 6, 2010

For the Court: John P. Ley, Acting

Clerk

By: Patch, Jeffrey

b4a

APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DAWN GEORGETTE MYERS,

Plaintiff,

~~

Case No. 6:04-cv-1542-Orl-28DAB

CENTRAL FLORIDA INVESTMENTS,

INC., CFI SALES AND MARKETING,

LTD., WESTGATE RESORTS, INC.,

WESTGATE RESORTS, LTD., and

DAVID SIEGEL,

Defendants.

[Filed October 23, 2008]

ORDER

Plaintiffs claims of sexual harassment

under the Florida Civil Rights Act (“FCRA”)

and Title VII of the Civil Rights Act of 1964,

as well as her claim of battery under Florida

law, were tried to a jury over a six-day period

in February 2008. On the sexual harassment

claims, the jury returned a verdict finding

that Plaintiff had been = subjected to

65a

harassment but that none of the acts of

sexual harassment occurred on or after

September 15, 2000--within the 3865 days

prior to the filing of her administrative

charge, as required for her claims to be

timely under the administrative scheme.

Because of this finding of untimeliness, the

jury did not reach the issue of damages on

the sexual harassment claims.

On the battery claim, the jury

returned a verdict for Plaintiff, finding that

Defendant David Siegel did commit battery

against Plaintiff and that conduct

constituting battery occurred on or after May

21, 2000—within the four years prior to the

filing of the battery claim and thus within

Florida’s four-year statute of lhmitations for

such a claim. The jury awarded

compensatory damages of $102,223.14 on the

battery claim, as well as $5,276,640.00 in

punitive damages. Judgment for Plaintiff

was entered in these amounts on February

29, 2008. (Doc. 241).

Pursuant to Federal Rule of Civil

Procedure 62(b) and agreement of the

parties, enforcement of the judgment and of

the bill of costs has been stayed, without

bond, until ten days after disposition of the

parties’ post-trial motions.' (Order, Doc. 264).

1In light of Plaintiffs agreement not to require a

bond (see Doc. 249) and the entry of the Order (Doc.

264) staying the judgment until after disposition of

66a

These post-trial motions, which are

numerous, are now before the Court for

disposition.

L. Motions Filed by Plaintiff

A. Plaintiffs Renewed Motion _ for

Judgment as a Matter of Law (Doc. 257).

Plaintiffs Renewed Motion for

Judgment as a Matter of Law Pursuant to

Rule 50 on Statute of Limitations (Doc. 257)

pertains to Plaintiffs sexual harassment

(hostile work environment) claims under

Title VII and the FCRA. The jury found that

Plaintiff was subjected to a hostile or abusive

work environment but that none of the acts

of sexual harassment took place on or after

September 15, 2000—within 365 days before

the filing of her EEOC charge—barring relief

on these statutory claims.

Plaintiff argues that the timeliness

issue, which she describes as a “statute of

limitations,” was an affirmative defense on

post-trial motions, Defendants’ Unopposed Motion to

Seal (Doc. 245) documents containing financial

information was rendered moot and will be denied as

such in this Order. Plaintiffs latest motion pertaining

to the requirement of a bond (Doc. 285) will be denied

without prejudice in light of the other rulings in this

Order, rendering Defendants’ second Unopposed

Motion to Seal (Doc. 286) moot.

67a

which Defendants bore the burden of proof.

She contends that the Court erred in

instructing the jury as to the timeliness issue

after allegedly precluding her from

addressing the issue in her rebuttal case.

She reauests that “the affirmative defense of

the statute of limitations” be stricken; that

the jury’s finding of this defense be nullified;

that she be awarded nominal damages based

on the jury’s finding of liability on the hostile

environment claim; and that she be found to

be entitled to attorney’s fees under Title VII

and the FCRA. Defendants maintain that

the timeliness issue is a condition precedent

on which Plaintiff bore the burden and that

Defendants were not obligated to present

any evidence as to timeliness when Plaintiff

did not establish timeliness in her case-in-

chief.

Plaintiffs contentions in this motion

are without merit. Plaintiff is incorrect in

characterizing the timing of the hostile work

environment events as a “statute of

limitations issue”; she was not precluded

from presenting evidence regarding the

timing of events; and the question of when

the events at issue occurred was plainly one

of fact for the jury’s resolution.

The timeliness of the — sexual

harassment claims is not a true “statute of

limitations” issue on a which Defendants

bore the burden of proof. In Zipes v. Trans

World Airlines, Inc.,455 U.S. 385, 393 (1982),

68a

the Supreme Court held “that filing a timely

charge of discrimination with the EEOC is

not a jurisdictional prerequisite to suit in

federal court, but a requirement that, lke a

statute of limitations, 1s subject to waiver,

estoppel, and equitable’ tolling.” The

Supreme Court later stated in that opinion

that the legislative history of Title VII

“indicates that Congress intended the filing

period to operate as a statute of limitations

instead of a jurisdictional requirement.” Id.

at 394. However, the Supreme Court did so

not in the context of allocating burdens of

proof but rather in determining whether the

untimeliness of a claim would deprive a

court of jurisdiction over the claim.

It is clear that in this circuit, the

plaintiff bears the burden of proof on the

issue of timely administrative filing, a

condition precedent to suit. in Jackson _ v.

Seaboard Coast Line Railroad Co., 678 F.2d

992 (11th Cir. 1982), the Eleventh Circuit

Court of Appeals explained, in discussing

Title VII’s' presuit requirements, that

pursuant to Federal Rule of Civil Procedure

9(c), a plaintiff must allege in his complaint

that he has fulfilled all conditions precedent,

and if the defendant disagrees, the defendant

may deny such satisfaction of preconditions.

Id. at 1010. If the defendant does so, “[t]he

plaintiff then bears the burden of proving

that the conditions precedent, which the

defendant has specifically joined in issue,

69a

have been satisfied.” Id.; see also Mahgoub v.

Miami Dade Cmty. Coll., No. 05-11520, 2006

WL 952278, at *1 (11th Cir. Apr. 13, 2006)

(“Plaintiff has not carried his burden of

showing that at least one incident occurred

within 300 days of his 29 April 2003 EEOC

filing.”); Rizo v. Ala. Dep’t of Human Res.,

228 IF. App’x 832, 836 (11th Cir. 2007)

(“Generally, the plaintiff must allege in the

complaint filed in his lawsuit that he has

met the prerequisites olf] a valid and timely-

filed EKOC charge. If the defendant denies

that the plaintiff hals] met those

requirements, the burden of proof is on the

plaintiff to prove that he has.”) (citation

omitted). But see Salas v. Wisc. Dep’t of

Corr., 493 F.3d 913, 922 (7th Cir. 2007)

(holding that “la] plaintiffs failure to

exhaust administrative remedies is an

affirmative defense, which is the defendant’s

burden to prove”).

In this case, Defendants alleged

failure to timely file at their first opportunity

and maintained that position throughout the

ease, through trial, plainly putting timely

filing at issue and placing the burden on

Plaintiff. Plaintiff pled fulfillment = of

conditions precendent (see Second Am.

Compl. Doc. 47 49), and Defendants

responded that “Plaintiff did not exercise her

right to sue or to file her RROC Complaint

within the time prescribed by the statute”

(Defs.’ Answer & Affirmative Defenses to

70a

Pl.’s Second Am. Compl., Doc. 85, at 32).

Defendants then filed a motion to dismiss

(Doc. 54) and untimeliness was among their

arguments; that motion was denied because

Plaintiff had alleged that some _ events

occurred as late as Thanksgiving 2000. (See

Docs. 63 & 76).

Defendants raised the issue again in their

summary judgment motion (Doc.93), but

because there was evidence presented at the

summary judgment stage depicting events

occurring around Thanksgiving 2000, which

had to be accepted as true for summary

judgment purposes; that motion also was

denied with regard to this issue (Order, Doc.

143, at 29).

The issue of the timeliness of the

filing of Plaintiffs administrative charge was

plainly a factual matter for the jury, as was

the question of whether Plaintiffs state law

battery claim was timely under Florida’s

four-year statute of limitations—a “true”

statute-of-limitations issue on which

Defendants bore the burden of proof. 2 See,

2 The timeliness issues regarding the sexual

harassment claims and the battery claim were at

times argued simultaneously by counsel, resulting in

some confusion and overlap of the labels “statute of

limitations” and “condition precedent.” It is clear,

however, that the jury found for Defendants on the

issue (timely administrative filing) on which Plaintiff

Tila

e.g., Ramos v. Philip Morris Cos., 743 So. 2d

24, 30 (Fla. 3d DCA 1999) (“[Tlhe statute of

limitations 1s an affirmative defense which

must be plead and_ proved by the

defendant.”). The jury resolved the latter

issue in Plaintiff's favor, and Plaintiff has

not raised a post-trial challenge to the

submission of the battery — statute-of

limitations issue to the jury.

This case involved vastly disparate

testimony from the parties’ witnesses—a

classic “he said, she said” case where the jury

was compelled to chouse which side it found

credible. The questioning of the witnesses

throughout the trial pertained to what

happened (or did not happen) and when.

After Plaintiff rested her case-in-chief,

Defendants made an ore tenus Rule 50

motion on the issue of whether any of the

events described by Plaintiff occurred within

the 300 days* prior to the filing of her

administrative charge. (Trial Tr. Feb. 14,

bore the burden of proof and for Plaintiff on the issue

(battery within the statute of limitations) on which

Defendants bore the burden of proof.

3 Later, Defendants agreed that the operative time

period is 365 days rather than JOO days. (See ‘Trial 'I'r.

Feb. 20, 2008, Doc. 243, at 8 & 12). During most of the

trial, however, Defendants argued (outside the

presence of the jury) for a 300-day limitation, (See,

e.g., Trial Tr. Feb, 14, 2008, Doc, 240, at 60°61, 64).

72a

2008, Doc. 240, at 59-66). The Court reserved

ruling on the motion (id. at 66), and the trial

continued with the Defendants’ presentation

of their case. After the Defendants rested,

Plaintiff made a “partial Rule 50 motion,” in

part with regard to this issue as_ to

timeliness. (Trial T'r. Feb. 19, 2008, Doc. 242,

at 133). Plaintiff argued that “[t]he defense

has rested without raising anything in

support of its affirmative defense of a lack of

activity within the statute of limitations time

period.” (id. at 133-34). Plaintiff continued

that “the defendant pled the statute of

limitations, but they rested their case before

they put on the first thing to shift the burden

back to the plaintiff on that issue.” (Id. at

134). Plaintiff argued that she had “put on

evidence of incidents well up into the period,

and... that [the Defendants] have not met

their burden to even properly raise it for

consideration.” (Id. at 135).

Defendants responded by arguing that

it was plaintiff's burden of proof as to when

the act(s) supporting her battery claim

occurred and as to whether she _ had

“instituted the administrative process l[iln a

timely fashion” with regard to her Title VII

claim. (Id. at 138). Defendants argued that

Plaintiff was improperly trying to put the

burden on Defendants to “prove a negative”

because it was Defendants’ theory that none

of the events of harassment occurred at any

time. (Id. at 139). Defendants further argued

that Plaintiff had not presented any evidence

as to events happening within the requisite

time period toward the end of her

employment. Ud. at 139-40). Defendant, still

relying on a 3800-day period instead of a 365

day period at this point in the trial, ayain

asserted that Plaintiff had to show events

happening in November or December 2000 in

order for the Tithe VII claim to be timely. Ud

at 142). Defendants also argued that in any

event they had shown untiméliness through

Mr. Siegel's testimony. (Ud. at 143). The

Court reserved ruling on the “statute of

limitations argument.” Ud. at 152)

Plaintiff then began her rebuttal case,

with Plaintiff testifying once ayain. (Ud. at

152-53). Plaintiffs counsel questioned

Plaintiff about when the events that anothe)

witness, Kelly Ochrle. had testified about

had occurred. (Ud. at 157). After defense

counsel made an objection that wa

sustained on hearsay yvrounds, Plaintiff

testified without objection that the first

incident that Ms. Oehrle witnessed occurred

“a couple of months after [Ms. Oehrle| had

already worked there, and the second time

was right before she left” in October or

November 2000. Ud. at 157-158).4 The rest of

Immediately after this testimony, the followimy

exchange occurred

(). She saw an incident in July and an incident in

November, December, correct’

744

Plaintiffs “rebuttal testimony” pertained to

other issues. (See id. at 159 64).

During the charge conference held at

the conclusion of the trial testimony, the

parties again sparred over whether the issue

with regard to the timeliness of both the

battery claim and the sexual harassment

Claims should be submitted to the jury. (Prial

Tr. Feb. 20, 200%, Doe. 245, at 5 12)

A. Yes, pir

Mr. Mitnik [defense counsel), Laudeny

The Court: Sustained

Mr. Mitnik: Move to strike

The Court) Ladies and pentlemen, disreyard the last

question and answer

Q). When did she see the mendents?

Mr Mitnik: Objection. May we approach?

The Court. First, the obyection is sustamed. Phas

is an opportunity to put on rebuttal testimony and

asking a witness when another person happened to

see something isn't rebuttal

Mr. Johnson [Plaintiffs counsell Okay. What

about when did at happen, this event that he dened?

The Court: It's to rebut the testimony of somebody

else, it’s not to redo your case in ehief

Mr. Johnson Well, doesn't at make ot more

credible to be able to place atin tore detail on tine

and place than previously?

The Court’ Well, but that may be helpful in the

case im chief, but ino rebuttal you're pretty much

limited to just having pure rebuttal testimony That's

the purpose of it) Is not to rehash what was done in

the case in chief, So yust try to stick with rebuttal

(END OF BENCH CONFERENCKH )

(Id. at 154-59) .

75a

Plaintiff's counsel asserted that he “wanted

to tighten up the statute of limitations

problem in rebuttal” but “was not allowed to

because it wasn’t responsive to anything that

happened in the defense.” (Id. at 6).

Plaintiffs counsel also asserted that he has

“never seen that in a jury instruction.” (Id.).

The Court included the issue of timing

in the jury instructions as to both the battery

claim and the sexual harassment claims, and

the verdict form asked the jury whether

events constituting battery and_= sexual

harassment occurred on or after the

respective pertinent dates for these claims.

(See Jury Instructions, Doc. 232, at 15-16 &

21-22; Verdict, Doc. 233, at 2-3).

The assertion by Plaintiffs counsel that

such issues are never included in jury

instructions is not well-founded. Where there

is an issue as to whether an act occurred at a

certain time so as to render a claim timely

under an administrative scheme or a statute

of limitations, the issue is one of fact for a

jury, and courts instruct juries accordingly.

See, e.g., Weaver v. African Methodist

Episcopal Church, 54 S.W.3d 575, 587 (Mo.

Ct. App. 2001) (holding that “the issue of

whether the battery occurred more than two

years before the date of filing was one of fact

for resolution by the jury’ under the

circumstances of the case); see also, e.g., Fla.

Std. Jury Instructions in Civil Cases 3.8(g) &

Verdict Form 8.9 (including © special

T6a

interrogatory for jury to determine statute-

of-limitations compliance in medical

malpractice cases).

In sum, the issue of whether events

occurred in late 2000 that would render the

filing of Plaintiffs administrative charge

timely was manifestly a factual one for the

jury to resolve. Accordingly, the Court did

not grant either side’s Rule 50 motion during

trial and submitted the issues of timeliness

as to both battery and sexual harassment to

the jury. The Court did not preclude anyone

from presenting evidence pertaining to the

time that events occurred, and abundant

evidence was presented regarding when

things happened or did not happen. Plaintiff

is not entitled to judgment as a matter of law

on this issue, and her motion (Doc. 257) is

thus denied.

B. Plaintiffs Motion for Remand _ of

Certain State Claims (Doc. 280)

In this motion, Plaintiff seeks remand

of some of her state law claims to the Florida

circuit court from which this case was

removed. These claims, set forth in Plaintiff's

First Amended Complaint (Doc. 17), alleged:

abuse of process (Count I); slander (Count

VIID; malicious prosecution (Count IX);

conspiracy (Count X); and contractual

attorney’s fees (Count XI). On April 20, 2005,

this Court, in ruling on Defendants’ motions

to dismiss (Docs. 22-24), declined to exercise

77a

supplemental jurisdiction over these state

law claims because they were unrelated to

Plaintiffs employment discrimination claims

and there was a risk that they would

predominate. (See Order, Doc. 46). The Court

dismissed these five state law claims. (See id.

at 7). Plaintiff was then given leave to

amend her complaint; she filed her Second

Amended Complaint (Doc. 47) one week

later, and the case proceeded with regard to

the counts set forth in the Second Amended

Complaint.

Plaintiff now seeks to revive the five

dismissed state law claims, arguing that the

Court should have remanded them to state

court in April 2005 instead of dismissing

them. However, the case authority Plaintiff

cites does not support this argument.

Moreover, Plaintiff has waited far too long in

seeking this relief. Plaintiff did not bring this

alleged error to the Court’s attention in April

2005 when it occurred, nor did Plaintiff seek

this relief after entry of the first judgment in

this case (Doc. 144) in April 2006.

Somewhat astoundingly, Plaintiff now

contends that “[nlo appeal has yet been

docketed in this case” (See Doc. 280 at 2),

attempting to invoke Federal Rule of Civil

Procedure 60(a)’s “before an appeal has been

docketed” time limit for motions to correct

“clerical mistakes.” However, judgment in

favor of Defendants was first entered in

April 2006 pursuant to the granting of

78a

Defendants’ summary judgmert motion, and

Plaintiffs then remaining state law claims

for battery and false imprisonment were

remanded to state court at that time. (See

Docs. 143 & 144). In May 2006, Plaintiff

sought reconsideration of the summary

judgment ruling but did not raise any issue

about the 2004 state law claim dismissals.

(See Doc. 146). Plaintiff then appealed the

April 2006 judgment (See Doc. 161), and in

August 2007 the Eleventh Circuit Court of

Appeals issued its mandate affirming in

part, reversing in part, and remanding the

case to this Court for further proceedings.

(See Doc. 170). Pursuant to that mandate,

the case proceeded to trial in February 2008

on Plaintiffs claims of battery and sexual

harassments—the trial that precipitated the

instant flurry of post-trial motions. Plaintiff

cannot now challenge as error the April 2004

dismissal of her other state law claims.

Indeed, the Court doubts it even has the

power to “remand” claims that it dismissed

5 During the pretrial conference on January 31,

2008, the parties agreed that the false imprisonment

and battery claims were properly before this Court for

trial despite having been remanded to state court in

April 2006 and that the only claims for trial were the

sexual harassment claims and the battery claim.

Plaintiff voluntarily dismissed her false imprisonment

claim prior to trial. (See Doc. 216).

79a

more than three years ago. Plaintiffs motion

for remand of these claims is denied.

C. Plaintiff's Motion to Establish

Entitlement to Fees (Doc. 258)

Shortly after the jury returned its

verdicts, Plaintiff moved, with consent of

Defendants, for bifurcation of the issues of

entitlement to attorney’s fees and amount of

attorney's fees, noting that under Rule 4.18

of the Local Rules of this Court, a motion as

to both issues usually must be filed within

fourteen days of entry of judgment. (See

Doc.244). The magistrate judge granted the

motion to bifurcate Qudge granted the

motion to bifurcate (See Order, Doc. 248),

and Plaintiff has since filed her Motion to

Establish Entitlement to Fees under Title

VII and Florida Civil Rights Act (Doc. 258).

In this motion, Plaintiff claims

,

y

entitlement to prevailing-party attorney’s

fees under Title VII and the FCRA. Title

VII's attorney's fee provision states that “[iln

any action or proceeding under this

subchapter the court, in its discretion, may

allow the prevailing party. . . a reasonable

attorney’s fee (including expert fees) as part

of the costs.” 42 U.S.C. §2000e-5(k).* Plaintiff

6 The FCRA’s attorney's fee provision states: “In

any action or proceeding under this subsection, the

court, in its discretion, may allow the prevailing party

a reasonable attorney's fee as part of the costs. It is

the intent of the Legislature that this provision for

SOa

claims that she is a “prevailing party” if her

Rule 50 motion is granted and that she also

is a “prevailing party” if her Rule 50 motion

is not granted. The Court has already, within

this Order, denied Plaintiffs Rule 50 motion,

so the only potential basis for fees is that

Plaintiff is a “prevailing party” under Title

VIL even with that motion having been

denied.

Plaintiff begins this portion of her

argument by acknowledging that “(tlhe

verdict in the instant case presents some

issues in determining whether Plaintiff is a

prevailing party.” (Doc. 258 at 5). Plaintiff

asserts that she “won liability on the

statutory claims but was barred’ from

winning damages by the — statute’ of

limitations finding.” Id. She nevertheless

claims “prevailing party” status. The Court

disagrees.

In Walker _v. Anderson _ Electrical

Contractors, 944 F.2d 841 (11th Cir. 1991),

the Eleventh Circuit noted the “prevailing

party” standard established by the Supreme

Court: “If the plaintiff has succeeded on “any

significant issue in htigation which

attorney's fees be interpreted in a manner consistent

with federal case law involving a Title VII action.”

§ 760.1145), Fla. Stat. Thus, the analysis in the text of

the issue of entitlement to fees under Title VII applies

equally to the matter of entitlement to fees under the

FCRA.

8la

achieveld] some of the benefit the parties

sought in bringing suit,” the plaintiff has

crossed the threshold to a fee award of some

kind .... The touchstone of the prevailing

party inquiry must be the material

alteration of the legal relationship of the

parties in a manner which Congress sought

to promote in the fee statute.” Id. at 846

(quoting Tex. Teachers Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 791-93 (1989)

(alterations in original). The jury in Walker

found that the plaintiff was _ sexually

harassed but that she sustained no monetary

damages as a result. The appellate court

affirmed the district court’s denial of fees,

holding that a jury’s finding of sexual

harassment, “without more, will not ordain a

litigant the prevailing party” because such a

finding does not alter the legal relationship

between the parties as required by the

Garland standard. Id. at 847. The court

explained that the plaintiff's “only claim to

the spoils of victory is a jury finding of sexual

harassment. “That is not the stuff of which

legal victories are made.’ Therefore, ... we

hold that to be a _ prevailing party for

purposes of 42 U.S.C. §2000e-5(k)[] requires

the attainment of something more tangible

than a jury finding of sexual harassment.”

Id. (quoting Hewitt v. Helms, 482 U.S. 755,

762 (1987)).

In the instant case, Plaintiff's

potential claim to an_ entitlement to

82:

“prevailing party” statis is even weaker than

in Walker. Presumably, the Walker plaintiff

had established a_ claim’ of — sexual

harassment within the time period required

for an actionable Title VII claim; Plaintiff

here did not do so. The jury found that

Plaintiff had been subjected to harassment

but not within the period required to have

rendered her claim timely. The jury’s finding

that no acts of harassment occurred within

the required time frame is not merely a

technicality; it is a bar to relief, whether in

the form of damages or attorney’s fees. See

Bonner v. Guccione, 178 F.3d 581, 583, 594

(2d Cir. 1999) (concluding, in case where

plaintiff “was not awarded damages on her

Title VII hostile work environment sexual

harassment claim because she failed to

establish that she sustained any damage

within the period of her employment that

was not time-barred,” that the plaintiff was

not entitled to fees under Title VII because

she “failed to obtain either an enforceable

judgment or settlement agreement against

the defendants on her Title VII cause of

action,” as “[t]he jury’s liability finding on

the Title VII cause of action entitled plaintiff

to none of these—there was simply nothing

to ‘enforce”’).

Here, the jury did not even reach the

question of damages; having found no event

occurring within the requisite time period, it

would have been improper for the jury to

83a

have made any damage award. If this case

had been more straightforward as to timely

filing—that is, if there had not been a factual

issue involved and the Court had been able

to rule on the matter of timeliness prior to

trial—surely Plaintiff would not be the

“prevailing party.” The result is no different

where a jury finds as a matter of fact that

the claim was not brought within the

timeline required by the administrative

scheme. An untimely claim is an untimely

claim, whether determined to be so by a

judge or by a jury; a party cannot “prevail”

on such a claim.

Plaintiff also asserts that she is

entitled to fees because she obtained a

monetary recovery on her state law battery

claim, a claim which she alleges “shares a

common nucleus of operative fact” with the

Title VII claim. Plaintiff contends that “the

successful battery claims all sound in sexual

harassment and would be in the same time

frame.” (Doc. 258 at 10). This argument is

not well-taken.

Courts have sometimes allowed fees

where a plaintiff prevails only on state law

claims, but those cases are distinguishable

from this one. For example, in Skokos

v.Rhoades, 440 F.3d 957, 962 (8th Cir. 2006),

the court explained, citing the legislative

history of 42 U.S.C. § 1988, that “where a

federal court grants relief on a state-law

claim to avoid a constitutional issue, it may

84a

award attorney’s fees if the constitutional

claim was ‘substantial’ and both the

constitutional and the state-law claims arose

out of a ‘common nucleus of operative fact.”

However, in this case relief was not granted

on a state-law claim to avoid a constitutional

issue; there is no _ constitutional issue

involved here at all. Instead, the jury made a

factual determination that none of the events

underlying the sexual harassment claim

occurred within the requisite time frame. See

Bonner, 178 F.3d at 595 (finding that

piaintiff was not entitled to “prevailing

party” attorney’s fees under Title VII even

though she prevailed on state law sexual

harassment claim, stating that the argument

that the “fortuitous circumstances” of her

federal and state claims being tried together

“entitle her to prevailing party status is akin

to the equation of 0 + 0 = 1” and “would

award plaintiff hundreds of thousands of

dollars on a time-barred Title VII claim, thus

nullifying the ‘value judgment [made by

Congress] concerning the point at which the

interests in favor of protecting valid claims

are outweighed by the interest in prohibiting

the prosecution of stale ones” (quoting

Johnson v. Ry. Express Agency, Inc., 421

U.S. 454, 463-64 (1975)) (alteration in

original).

Plaintiff relies on Bridges v. Eastman

Kodak Co., 102 F.3d 56 (2d Cir. 1996), and

Hall v. Western Production Co., 988 F.2d

B5a

1050 (10th Cir. 1993), but they are easily

distinguished. In Bridges, the _ three

plaintiffs’ Title VII sexual harassment claims

were tried to the court at the same time their

state law sexual harassment claims were

tried to a jury. The jury awarded backpay

and compensatory damages on the state law

claims, but the jury then subtracted all of the

backpay of one of the plaintiffs becaise that

plaintiff had not mitigated her damages. The

court echoed the jury’s findings but declined

to award additional damages under Title VII

because to do so would have resulted in

duplicative awards. The Second Circuit

affirmed the district court’s finding that all

three plaintiffs were “prevailing parties”

even the one whose backpay had _ been

negated by failure to mitigate. The only

reason that plaintiff had not been awarded

compensatory damages on her Title VII

claim, however, was that she had already

been awarded such damages on her parallel

state law claim. Such is not the situation

here.

Hall is distinguishable for the same

reason. There, the plaintiff brought a federal

claim under the Age Discrimination in

Employment Act (“ADEA”) and a state law

claim for breach of contract. Both claims

were tried to a jury. The jury found ape

discrimination but that the plaintiff had

sustained no damages on that claim, and it

further found for plaintiff on the breach of

Ha

contract claim, awarding $41,793 mn

damages. ‘I'he court then awarded attorney's

fees to the plaintiff as the “prevailing party”

under the ADEA. The appellate’ court

affirmed the award, noting that the jury had

been specifically instructed that it could find

for plaintiff on both of his claims but it could

not award duplicative damages. In the

instant case, by contrast, the reason the jury

did not award damages to Plaintiff on the

Title VII claim was not because of a

“duplicative damages” issue but because the

jury never reached the question of damages

due to its finding that no timely event

occurred.

Plaintiff was not the “prevailing

party’ on her Title VII or FCRA claims. Her

request for a declaration of entitlement to

attorneys fees under those statutes is

therefore denied

I]. Motions Filed by Defendants

A. Defendants’ Motion for Remittitur

(Doc. 252); Defendants’ Motion for New Trial

(Doc. 253); and Defendants’ Renewed Motion

for Judgment as a Matter of Law (Doc. 254)

Pursuant to Federal Rule of Civil

Procedure 50(b),? Defendants have moved for

’ Plaintiff argues in her opposition memorandum

that the Court may not grant rehef on Defendant:

Rule 50(b) motion because the motion “addresse:

completely different subject matter than the Rul

s'/a

judgment as a matter of law, arguing: that

“Itlhe record does not support the jury’

finding that Siegel committed a_ battery

upon” Plaintiff, that “Itlhe record does not

support the jury s conclusion that

compensable damaves were directly and

proximately caused by the purported

battery”; that “ltlhe record does not support

the compensatory damages awarded by the

jury”; that “[t]he record does not support a

finding, by clear and convincing evidence,

that punitive damages were warranted”; and

that “[t!he amount of punitive damages far

exceeds anything that the record supports

(Doc. 254 at 2). Defendants have also, under

Rule 59, moved for a new trial (Doc. 253) on

the bases that the damapes awards are

excessive; that the battery verdict is ayvainst

the clear weight of the evidence, and that

juror concealment tainted the verdict. Also

5O(a) motion made at trial.” (Doc. 270 at 1). Plaintiff

contends that Defendants moved for judgment as a

matter of law at trial only on the sexual harassment

claims and not with regard to the battery claim. CSes

id). Plaintiff is mistaken. Defendants clearly moved

for judgment as a matter of law on the battery claim

ina timely fashion. (See Trial. Tr. Feb. 19, 2008, Doc

Y2A2, at 140); see also Fed. R. Civ. P. 5OCa)(2) CA

motion for judgment as a matter of law may be mad

at any time before the case is submitted to the jury.”)

The Court finds all Rule 50 issues properly preserved

by Defendant:

Inder Rule 59. Detendant eek remittitul

me damare mward (| oe 7)

tandurds for Rule 50 and Rule 59

Motion

Judyment » matte t ofa

appropriate when a plauitill present 1)

legally ulfimient evidentiary basi lor &@

reasonable jury to find for him on a material

clement of his cause of action (Christophe!

Mlonda, 449 Fsd 1360, 1364 Oth Cir

O06) Sutal there 4 ubstantial conthet a

the evidence uch that ‘reasonable and fau

minded persons in the exercise of impartial

,

sudgyment might reach different conclusio!

the motion must be denied ld. (quoting

Walker ' Nation Ian 7) hha N \ ed | »()

1694 looo (lith Cus 1995). A i (calilornmia

district oOurt explained whet pdare n

motions under Rul Wand ov

ludyment natter of ta

lOLlOWID i jul? erdict

proper 1f the evidence

construed mW Lrye rt mo

lavorapble LO Lyris MOnIMOVI!

party permit Only Orne

reasonable conclusion md that

CONCUSIO!I contra! LO Line

hurry Judyment as a matter of

iA inproper | frieere

89a

substantial evidence to support

the jury’s verdict. “Substantial

evidence” is admissible evidence

that reasonable minds might

accept as adequate to support a

conclusion. In considering a

motion under Rule 50, the court

does not assess the credibility of

witnesses, and does not weigh

the evidence, but [instead]

draws all factual inferences in

favor of the nonmoving party.

Finally, the court may not

substitute its judgment of the

facts for the judgment of the

jury.

Similarly, the Court has

discretion to grant a new trial

under Rule 59 if the verdict

appears ... to be against the

weight of the evidence. A new

trial 1s warranted where the

verdict is contrary to the clear

weight of the evidence and the

verdict results in the

miscarriage of justice.

Westerfield _v. Wade, No. CV 05-6645

ABC (CWx), 2008 WL 1931240, at *1 (C.D.

Cal. Apr. 9, 2008) (citations and internal

quotations omitted) (alterations in original).

“On a Rule 59 motion, a district court may

90a

set aside the jury's verdict and grant a new

trial only if ‘(1) the verdict is against the

clear weight of the evidence, or (2) is based

upon evidence which is false, or (3) will

result in a miscarriage of justice, even

though there may be substantial evidence

which would prevent the direction of a

verdict.” Hughston v. New Home Media, 552

F. Supp. 2d 559, 570 (E.D. Va. 2008) (quoting

Bennett v. Fairfax County, 432 F. Supp. 2d

596, 602 (E.D. Va. 2006)).

2. Evidence of Battery

Defendants seek judgment as a matter

of law on the basis that the record does not

support the jury’s finding that a_ battery

occurred. They challenge whether there was

evidence of a battery occurring after May 21,

2000 as required for the claim to be timely,

and they also contend that a reasonable jury

could not conclude that any touchings caused

“harm or offense” to Plaintiff. Further,

Defendants claim that they are entitled to a

new trial because the verdict is against the

clear weight of the evidence and will result

in a miscarriage of justice if allowed to stand.

These assertions are not well-taken.

The jury found that conduct

constituting battery occurred within the

required time frame—on or after May 21,

2000. Plaintiff testified that during the

“latter half of the year 2000, after May,”

there were “many” “incidents where David

Sla

Siegel came to the spa and touched” her.

(Trial Tr. Feb. 12, 2008, Doc. 238, at 885).

This included an occasion where he pushed

her against a wall. (Id. at 85-86). Plaintiff

also testified that Mr. Siegel slapped her on

the buttocks and that she was “upset,” “sad,”

and “hurt” about these events that occurred

“during [her] last few months _ of

employment”; did not want to go to work;

and felt deflated when she went home at

night; and was “on an emotional roller

coaster” because she loved her job but did not

enjoy Mr. Siegel’s actions. (Id. at 88, 103,

109-10). Plaintiff was employed with the

company until December 2000, so the “last

few months of employment” were clearly

within the post-May 20 timeframe.®§

Another witness, Kelly Oecehrle,

testified that she saw Mr. Siegel touch

Plaintiff at the spa. (Trial Tr. Feb. 13, 2008,

Doc. 239, at 86). Ms. Oehrle worked at the

spa from May 1, 2000 until December 1, 2000

§Plaintiff also testified that she performed eight to

ten spa treatments called “seaweed gamage” on Mr.

Siegel at the spa and that while he was in the “cocoon

stage” of the treatments “he would let his hands

wander and wander up the back of [her] legs and on to

lher) butt.” (Trial Tr. Feb. 12, 2008, Doc. 238, at 89-

91; see also Trial Tr. Feb. 13, 2008, Doc. 239, at 43-

45). However, there was no testimony about exactly

when these incidents occurred, though they must

have been sometime after November 1999, when the

spa opened.

(id. at 84); thus, all but the first three weeks

of her employment was within the required

time frame for the battery. Ms. Oehrle

recounted two occasions where she observed

Mr. Siegel touching Plaintiff. First, she

described an afternoon when Mr. Siegel and

his wife came into the spa and Mr. Siegel

“reachled] out and touchled]” Plaintiff. (Id. at

86). According to Ms. Oehrle, Mr. Siegel

“leanled] into” Plaintiff and invited Plaintiff

to come home with him and his wife. (Id. at

86-87). Plaintiff tried “to be as professional

as she possibly could be” during this

incident, and Ms. Oehrle saw her try to push

Mr. Siegel away and say “Don’t do that.” (d.

at 87). Mr. Siegel’s young daughter was also

present, running around Mr. Siegel’s legs;

after Plaintiff commented that the daughter

should not crawl on Mr. Siegel’s legs, Mr.

Siegel said something to Plaintiff hike “why

don’t you come home and crawl all over [my]

legs and... . body.” (Id. at 86-89). After this

occurred, Plaintiff offered her apologies to

Ms. Oechrle for having to witness. the

incident. (id. at 89). In the second incident

that Ms. Oehrle observed, Mr. Siegel was

standing very close to Plaintiff in the

hallway of the spa, with his hand on her

shoulder, “leaning into her.” (Id. at 89-90).

Plaintiff's back was up against the wall, and

Plaintiff was trying to maintain her

composure and was motioning with her

hands for Mr. Siegel to “back off.” (id. at 90).

93a

When the incident was over, Plaintiff

appeared relieved. (Id.). As noted earlier in

this Order, during her rebuttal case, Plaintiff

testified that Ms. Oehrle was present for

pinning incidents a couple of months after

Oehrle was hired and again right before Ms.

Oehrle left. (Trial Tr. Feb. 19, 2008, Doc.

242, at 157-58). This testimony is sufficient

to support a finding by the jury that a

battery occurred sometime on or after May

21, 2000.9

Additionally, a jury issue was clearly

presented regarding the matters of “offense

or harm” and causation. “A battery consists

of the infliction of a harmful or offensive

contact upon another with the intent to

cause such contact or the apprehension that

such contact is imminent.” Paul v. Holbrook,

*The Court rejects Defendants’ argument that the

jury must have concluded that the battery occurred

after September 15, 2000. This argument is based on

the fact that the jury found no act of sexual

harassment occurring on or after September 15, 2000,

yet found that an incident of battery occurred on or

after May 21, 2000. Although a battery of the kind

described at trial could form part of a_ sexual

harassment claim, it need not necessarily be part of

one. In other words, the jury could have found that an

act of battery occurred between May 21, 2000 and

September 14, 2000 that was not part of the sexual

harassment that the jury determined occurred

sometime before September 15, 2000.

94a

696 So. 2d 1311, 1312 (Fla. 5th DCA 1997).

“[Tlhe tort of battery exists to protect the

integrity of the person.” Id. (citing W. Page

Keeton, et al., Prosser and Keeton on Torts §

9 (5th ed. 1984)). “Proof of the technical

invasion of the integrity of the plaintiffs

person by even an entirely harmless, but

offensive contact entitles the plaintiff to

vindication of the legal right by an award of

nominal damages, and the establishment of

the tort cause of action entitles the plaintiff

also to compensation for the resulting mental

disturbance, such as fright, revulsion or

humiliation.” Id. (quoting Prosser and

Keeton § 9). Further, “[t]he element of

personal indignity involved always has been

given considerable weight. Consequently, the

defendant is liable not only for contactls]

which do actual harm, but also for those

relatively trivial ones which are merely

offensive and insulting ... .” Id. (quoting

Prosser and Keeton § 9). “No evidence of an

intention to cause harm is necessary.” Id.; cf.

Beard v. Flying J, Inc., 266 F.3d 792, 803

(8th Cir. 2001) (rejecting defendant’s

argument that he was entitled to a judgment

notwithstanding the verdict because there

was no evidence that the plaintiff was

injured by the battery, noting that under

Iowa law “lwlhen, as here, the defendant’s

conduct was intentional, a_ plaintiff is

entitled to damages for emotional distress . .

95a

even if he or she suffered no physical

injury”).

“Offensiveness is an essential element

of the tort,” and the Paul court found that

“Itlhe act of approaching a co-worker from

behind while on the job and attempting to

massage her’ shoulders” presented “a

question of fact for the trier of fact to decide.”

696 So. 2d at 1312. So, too, in this case; there

was conflicting evidence for the jury to

resolve as the finder of fact on the issues of

offensiveness and _ causation. Although

Defendants assert that other events going on

during this timeframe caused whatever

distress Plaintiff was suffering, there was

evidence from which the jury could

reasonably conclude that Mr. Siegel’s

touching of Plaintiff caused her emotional

harm. Defendants are not entitled to

judgment as a matter of law on the issue of

whether a battery occurred.

Moreover, Defendants’ motion for a

new trial on the basis that the verdict on the

battery claim is against the clear weight of

the evidence (see Doc. 253 at 5-7) is without

merit. In support of this part of their new

trial motion, Defendants assert that “[t]he

jury here deliberated for barely three (3)

hours in [a] cause which took six days to try”

and aver that “laln honest and fair

deliberation by eight impartial jurors could

not be conducted in that time.” (Id. at 6).

Defendants further argue that the jury

96a

“responded in a trivial way” to “the

complicated interplay between the _ hostile

work environment and battery analyses,” the

timing issues, and other matters presented

at the trial. However, these points are not

well taken.

First, “the length of time the jury

deliberates is immaterial” so long as “the

evidence is sufficient to support the verdict.”

Marx v. Hartford Accident & Indem. Co., 321

F.2d 70, 71 (5th Cir. 1963). As discussed

earlier, the evidence is sufficient in this case.

Moreover, a three-hour deliberation in a six’

day case is not unduly short or indicative of

any lack of attention by the jury in any

event, and indeed, the fact that the jury

reached different conclusions with regard to

the timeliness of the hostile environment

and battery claims indicates that the jury

paid careful attention to the details and the

issues before them. The jury’s verdict for

Plaintiff on the battery claim is not against

the clear weight of the evidence that was

presented at trial, and Defendants are not

entitled to a new trial on this basis.

3. Compensatory Damages

Defendants challenge both the award

of compensatory damages on the battery

claim and the amount of those damages.

They argue that Plaintiff did not establish

emotional pain caused by the battery so as to

support an award of damages, and they

97a

contend that the amount of damages

awarded is excessive and not supported by

the evidence. Defendants also claim

entitlement to a new trial based on the size

of the award.

The Court will not disturb the

compensatory damages award. It was

undisputed that Plaintiff was not physically

injured by the battery, and accordingly the

jury was instructed that the elements of

compensatory damage on the battery claim

were “emotional pain and mental anguish.”

(See Jury Instructions, Doc. 232, at 17).

Plaintiffs trial testimony is sufficient to

establish compensable damages; medical

testimony in corroboration of emotional

distress is not required. See, e.g., Munoz v.

Oceanside Resorts, Inc., 223 F.3d 1340, 1348-

49 (11tr Cir. 2000) (upholding award of

compensatory damages for emotional

distress on FCRA claim despite lack of

medical testimony; plaintiffs “testimony

concerning the emotional and dignitary

impact of [his] termination was sufficient to

justify the jury’s award”); Malta v. Slagle,

No. 05-CV-342S, 2008 WL 4147134, at *3-4

(W.D.N.Y. Sept. 3, 2008) (declining to vacate

award of damages for emotional distress in §

1983 case, stating that the “failure to provide

medical evidence of injuries does not

preclude an award of emotional distress

damages” and that “there was evidence of

harassing conduct by Defendants which

G8a

substantiated lone of the plaintiffs]

testimony concerning her anxiety and

emotional distress”). Although the

Defendants contend that Plaintiff did not

describe at length the emotional pain and

mental anguish she suffered, there was

sufficient testimony at trial from Plaintiff

and Ms. Oehrle supporting an award of

damages for emotional pain and mental

anguish in this case.

Defendants also argue that the

compensatory damages award of $102,223.14

is excessive. In a case such as this where a

pendent state law claim is involved, the issue

of the excessiveness of a damage award is

governed by federal standards but guided by

state law. In other words, “[t]he role of the

district court is to determine whether the

jury’s verdict is within the confines set by

state law, and to determine, by reference to

federal standards developed under Rule 59,

whether a new trial or remittitur should be

ordered.” Gasperini v. Ctr. for Humanities,

Inc., 518 U.S. 415, 435 (1996) (quoting

Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 279 (1989)); see

also Johnson v. Clark, 484 F. Supp. 2d 1242,

1256 (M.D. Fla. 2007) (“The decision whether

to grant a new trial or remittitur on the

grounds of excessive damages is a matter

within the sound discretion of the district

court. In a diversity case, the court looks to

state substantive law to determine whether

99a

the verdict is excessive.”); cf. Lundgren _v.

McDaniel, 814 F.2d 600, 605 (11th Cir. 1987)

(“[T]he #rie doctrine also applies to pendent

state claims litigated in federal courts.”).

The Florida statute regarding court

assessment of a jurys damage awards

provides in pertinent part that “liJn any

action . . . wherein the trier of fact

determines that lability exists on the part of

the defendant and a verdict is rendered

which awards money damages to. the

plaintiff, it shall be the responsibility of the

court, upon proper motion, to review the

amount of such award to determine if such

amount is excessive .. . in light of the facts

and circumstances which were presented to

the trier of fact.” § 768.74(1), Fla. Stat. This

statute expressly states that “lilt is the

intention of the Legislature that awards of

damages be subject to close scrutiny by the

courts and that all such awards be adequate

and not excessive.” Id. § 768.74(3). Moreover:

In determining whether an

award is excessive or

inadequate in light of the facts

and circumstances presented to

the trier of fact and _ in

determining the amount, if any,

that such award exceeds a

reasonable range of damages or

is inadequate, the court shall

consider the following criteria:

LOOa

(a) Whether the amount

awarded is indicative of

prejudice, passion, or corruption

on the part of the trier of fact

(b) Whether it appears that

the tner of fact ignored th

evidence in reaching a verdict

or misconceived the merits of

the case relating to the amount

of damages recoverable;

(c) Whether the trier of fact

took improper’ clement of

damages into account or arrived

at the amount of damages by

speculation and conjecture;

(d) Whether the amount

awarded bears a_ reasonabl

relation to the amount of

damages proved and the injury

suffered; and

(e) Whether the amount

awarded is supported by the

evidence and is such that it

could be adduced in a logical]

manner by reasonable persons

Id. § 768.74(5). As Florida’s Fourth

District Court of Appeal recently noted,

“(t]his is a generic list,” City of Hollywood vy

Hogan, 986 So. 2d 634, 648 ‘Fla. 4th DCA

2008), and in the employment discrimination

lOla

setting other criteria that court have

considered include “whether the plaintiff lost

the esteem of her peers,” “suffered physical

injury as a consequence of her emotional

distress, “received psychological counseling

or other medical treatment,” or “suffered a

lo of income’; “the degree of emotional

distress.” “the context *) | the event

surrounding the distre “the evidence

tending to corroborate — the plaintif!

testimony ; the nexu between the

challenged conduct and th emotional

distress. and any mitigating

circumstance id. (citing Price v. City of

Charlotte, 93 F.3d 1241, 1254 (4% Ch

1996))

Considering the tatutory and

judicially-noted criteria, the Court is unabl

to conclude that the award of just over

$100,000 in this cuse 3) outside the

“reasonable range, though it 1s certainly at

the upper end of that range. Courts have

recognized that review ol ‘award ol

compensatory damare lor Intangibl

emotional harms is deferential to the fact

‘lhe Court recognizes that the claim now at! iT

is Plaintiffs battery claim and not her Title VII o1

FCRA claim. However, the battery occurred in the

employment etting and WH related to her

discrimination claim Thu the fluctor noted in the

employment discrimination eLiiny ire

mstructive here

mac! HDecause thie nary | uibye rive ane

evaluating it depends considerably on. the

gemeanol )] th Wilne ( Munoz

Oceanside Resort brie 23 bd 1440. 1349

(Lith Car Z0O00) \quotiny kerrill \ Varker

Croup bra I6% F Sd 468 M76 (llth Gn

1999)); accord Landis v. Land) 664 Nin. ’vd

4, 757 Und. Ct. App. 1996) “Awards for

Dalh ullering bight humiliation ana

mental anguist ire part tlarly within the

province of the jury because they mivolve the

weaning QO! evidences ma redibilit (

itn r }

\wM ra ré ( f " i ty

lamar Vary widel and judyument hol

100,000 or more have been upheld eve

where a plaintiff relies on her own testimor

to establish emotional distre | Muno

25 RF Sd oat) 1349) Capholdin 61 50,000

emotional aistre verdict r Lire

discrimination CUS Where pliagntall

LeEstimony was the ole evidence of Cmotional

damage); City of Hollywood v. Hogan, 986

Oo. 2d 634, 649 (Fla. 4th DCA 2008) Cnoti

(hat in discrimination casé mm award of

$150,000 for emotional distre hould be

viewed a in upper threshold (quot

Bernstein ephora, 182 } upp qd 1414

1229 (S.D). Ila. 2002))) Landis, 664 |

a t}

103a

at 758 (finding that award of $537,200 for

pain, suffering, and emotional distress in

case involving claims of assault and battery,

intentional infliction of emotional distress,

and intentional interference with business

relationship was not excessive); Baldwin v.

McConnell, 643 S.E.2d 703, 705-06 (Va.

2007) (reversing, as abuse of discretion, trial

court’s remittitur of compensatory damages

on counterclaim for assault and battery from

$240,000 to $1000 and reinstating verdict to

extent of $100,000 as claimed in ad damnum

clause); Nash v. Sue Har Equities, LLC, 846

N.Y.S.2d 215, 216 (App. Div. 2007) (reducing

damages on assault claim from $190,000 to

$100,000, noting that “although [the court

was] mindful that considerable deference is

awards hover in the range of $5,000 to $30,000” and

that such cases generally involve evidence of damages

only in the form of “testimony of the plaintiff, who

describes the emotional distress in vague or

conclusory terms, presents minimal or no evidence of

medical treatment, and offers little detail of the

duration, severity, or consequences of the condition.”

986 So. 2d at 649 (quoting Reiter v. Metro. Transp.

Auth. of N.Y., No. 0] Civ. 2762(JGK), 2003 WL

22271223, at *9 (S.D.N.Y. Sept. 30, 2003)). The court

nevertheless set the cap for noneconomic damages in

the case before it at $150,000 for one of the plaintiffs,

who testified that he felt stressed and had been

diagnosed with highblood pressure but did not present

evidence of a causal connection between his denied

promotion and his high blood pressure. See id. at 647-

50.

104a

to be afforded the jury’s interpretation of the

e

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