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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 890

## Text

Supreme Cou
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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.

-ij-
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

-\V-

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

-~l1X-

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

-6-

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

-10-

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2241%3A1. Public record. Not legal advice.