Lisa M. Holland v. David A. Gee

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 11-11659 & 11-11884 APRIL 17, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:08-cv-02458-VMC-AEP

LISA M. HOLLAND,

llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant - Cross-Appellee,

versus

DAVID A. GEE,
in his official capacity as Sheriff
of Hillsborough County,

llllllllllllllllllllllllllllllllllllllll Defendant - Appellee - Cross-Appellant.

________________________

Appeals from the United States District Court
for the Middle District of Florida
________________________

(April 17, 2012)

Before MARTIN, HILL and EBEL,* Circuit Judges.

*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
MARTIN, Circuit Judge:

After hearing the evidence in this pregnancy discrimination case, the jury

returned a verdict in favor of the plaintiff, Lisa Holland, and awarded her $80,000

in back pay and $10,000 for emotional distress. The defendant, Sheriff David Gee,

moved for judgment as a matter of law. The District Court sustained the jury’s

finding of liability, but vacated the award of back pay. After careful review of the

record and of the parties’ briefs, and with the benefit of oral argument, we affirm in

part, reverse in part, and remand for the entry of judgment on the jury’s verdict.

I. BACKGROUND

Ms. Holland joined the Hillsborough County Sheriff’s Office in 2003 as a

data processing telecommunications technician (“DP Tech”). Her responsibility as

a DP Tech was to provide on-site computer and hardware support at various

facilities operated by the Sheriff’s Office. In November 2006, Ms. Holland

informed the office that she was pregnant. Several months later, in March 2007,

Ms. Holland was transferred to the Help Desk. Ms. Holland protested the decision,

but to no avail. Eventually, however, Ms. Holland was transferred back to her DP

Tech duties. In June 2007, she was terminated.

In November 2008, Ms. Holland filed suit against Hillsborough County

Sheriff David Gee, in his official capacity, asserting claims under Title VII of the

2
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the

Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), and under the Florida Civil

Rights Act of 1992 (FCRA), Fla. Stat. §§ 760.01 et seq. Sheriff Gee filed an

answer, denying liability. In that pleading, he did not assert the affirmative defense

of after-acquired evidence.

The case proceeded to trial before a jury. At the close of Ms. Holland’s case

and again at the close of all of the evidence, Sheriff Gee moved for judgment as a

matter of law. The District Court reserved ruling and submitted the case to the

jury. Ultimately, the jury returned a verdict in favor of Ms. Holland. It found that

Ms. Holland’s transfer and her termination were both adverse employment actions

and that Ms. Holland’s pregnancy was a motivating factor for both decisions. The

jury also awarded Ms. Holland $80,000 in back pay and $10,000 for emotional

distress.

The District Court granted in part and denied in part Sheriff Gee’s motion

for judgment as a matter of law. The District Court held that there was enough

evidence to support the jury’s finding of discrimination. However, the District

Court vacated the award of back pay on the ground that it was precluded under the

doctrine of after-acquired evidence. Sheriff Gee renewed his motion for judgment

as a matter of law, arguing that the evidence was not sufficient to support the

3
finding of liability. The District Court denied that motion, and the parties timely

appealed.

II. STANDARDS OF REVIEW

We review de novo a district court’s ruling on a motion for judgment as a

matter of law. Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999). We

also examine de novo whether a jury instruction misstated the law or was

otherwise misleading. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283

(11th Cir. 2008).

III. DISCUSSION

A. SUFFICIENCY OF THE EVIDENCE

1. Legal Framework

Title VII prohibits employment discrimination on the basis of sex. See 42

U.S.C. § 2000e-2(a).1 The Pregnancy Discrimination Act amended Title VII to

provide that discrimination on the basis of sex includes discrimination “on the

basis of pregnancy, childbirth or related medical conditions.” Id. § 2000e(k). “The

analysis for a pregnancy discrimination claim is the same type of analysis used in

other Title VII sex discrimination suits.” Armindo v. Padlocker, Inc., 209 F.3d

1
Although Ms. Holland asserted a claim under the FCRA as well, “decisions construing
Title VII guide the analysis under [that statute].” Harper v. Blockbuster Entm’t Corp., 139 F.3d
1385, 1389 (11th Cir. 1998).

4
1319, 1320 (11th Cir. 2000).

Under Title VII, a plaintiff may prevail on a claim by showing that her

pregnancy “was a motivating factor” for an employment decision. 42 U.S.C. §

2000e-2(m). To prove this, a plaintiff may offer either direct evidence or

circumstantial evidence. Dixon v. Hallmark Cos., Inc., 627 F.3d 849, 854 (11th

Cir. 2010). Direct evidence is “evidence that, if believed, proves the existence of a

fact without inference or presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1086 (11th Cir. 2004) (quotation marks omitted). “[O]nly the most blatant

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

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

(quotation marks omitted).

In cases involving circumstantial evidence, we apply the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973). The Supreme Court developed this framework because it recognized that

“direct evidence of an employer’s motivation will often be unavailable or difficult

to acquire.” Combs v. Plantation Patterns, 106 F.3d 1519, 1537 (11th Cir. 1997)

(quotation marks omitted). Thus, the burden-shifting scheme of McDonnell

Douglas is a procedural device designed to help the parties progressively “sharpen

the inquiry into the elusive factual question” of the employer’s motivations. Tex.

5
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n.8, 101 S. Ct. 1089, 1095

n.8 (1981).

Under McDonnell Douglas, the plaintiff must initially establish a prima facie

case, which generally consists of the following: 1) the plaintiff was a member of a

protected class, 2) she was qualified to do the job, 3) she was subjected to an

adverse employment action, and 4) similarly situated employees outside of the

protected class were treated differently. See Wilson, 376 F.3d at 1087, 1091. The

prima facie case serves the basic function of “eliminat[ing] the most common

nondiscriminatory reasons for the plaintiff’s rejection”—namely, that the employee

was not qualified for the position. Burdine, 450 U.S. at 253–54, 101 S. Ct. at

1094. “The burden of establishing a prima facie case . . . is not onerous.” Id. at

253, 101 S. Ct. at 1094.

The prima facie case creates a presumption of discrimination, the role of

which is to “forc[e] the defendant to come forward with some response.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11, 113 S. Ct. 2742, 2749 (1993).

Thus, once a plaintiff makes a prima facie case, “the burden of production shifts to

the employer to articulate a legitimate, nondiscriminatory reason for its actions.”

Wilson, 376 F.3d at 1087. “The employer need not persuade the [finder of fact]

that it was actually motivated by the proffered reasons.” Id. (quotation marks

6
omitted). However, “the defendant must clearly set forth . . . the reasons for the

plaintiff’s rejection.” Burdine, 450 U.S. at 255, 101 S. Ct. at 1094.

Once the employer identifies a legitimate, nondiscriminatory reason for its

decision, the presumption of discrimination disappears, and the burden shifts back

to the plaintiff “to demonstrate that the proffered reason was not the true reason for

the employment decision.” Id. at 256, 101 S. Ct. at 1095. The plaintiff “cannot

recast the reason but must meet it head on and rebut it.” Wilson, 376 F.3d at 1088.

The plaintiff must show “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the employer’s rationale. Combs, 106 F.3d at

1538 (quotation marks omitted). To do so, the plaintiff may rely on the evidence

offered initially to establish the prima facie case. Wilson, 376 F.3d at 1088.

At this stage, the plaintiff’s burden of rebutting the employer’s proffered

reasons “merges with the [plaintiff’s] ultimate burden of persuading [the finder of

fact] that she has been the victim of intentional discrimination.” Burdine, 450 U.S.

at 256, 101 S. Ct. at 1095. Thus, “the question becomes whether the evidence,”

when viewed as a whole, “yields the reasonable inference that the employer

engaged in the alleged discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1326 (11th Cir. 2011). Put another way, the issue is whether there is “a

convincing mosaic of circumstantial evidence that would allow a jury to infer

7
intentional discrimination.” Id. at 1328 (quotation marks and footnote omitted).2

We have recognized that “[a]fter a trial on the merits, [we] should not revisit

whether the plaintiff established a prima facie case.” Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004); accord Tidwell v. Carter

Prods., 135 F.3d 1422, 1426 n.1 (11th Cir. 1998) (“Our task is not to revisit

whether the plaintiff below successfully established a prima facie case of

discrimination.”); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.

1995) (“[T]he district court erred by visiting whether [the plaintiff] had established

a prima facie case . . . after the action was fully tried on the merits . . . .”);

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

(“We are mindful . . . that when a disparate treatment case is fully tried . . . both the

trial and the appellate courts should proceed directly to the ultimate question in the

case.”).

This rule reflects the fact that the basic function of the prima facie case is to

“eliminate[] the most common nondiscriminatory reasons for the plaintiff’s

rejection,” Burdine, 450 U.S. at 253–54, 101 S. Ct. at 1094, and to “forc[e] the

defendant to come forward with some response,” Hicks, 509 U.S. at 510–11, 113

2
The “mosaic” may consist only of the plaintiff’s prima facie case and of the evidence
rebutting the employer’s proffered reasons. See Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 148, 120 S. Ct. 2097, 2109 (2000).

8
S. Ct. at 2749. It is a procedural device designed to help “sharpen the inquiry” into

the employer’s motivations. Burdine, 450 U.S. at 256 n.8, 101 S. Ct. at 1095 n.8.

“[T]he employer is in the best position to put forth the actual reason for its

decision.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.

Ct. 2097, 2109 (2000). Thus, once an employer proffers a reason for the action it

took, “the factual inquiry proceeds to a new level of specificity.” Burdine, 450

U.S. at 255, 101 S. Ct. at 1095.

The principle that the courts are not to revisit the existence of the prima facie

case does not necessarily mean that the evidence introduced to support the prima

facie case is irrelevant. First, “[w]here a component of the prima facie case is also

an element of the claim,” a court must look back to determine whether the evidence

is sufficient to support that element, insofar as it is in dispute. Collado v. United

Parcel Serv., 419 F.3d 1143, 1153 (11th Cir. 2005). In a Title VII case, an adverse

employment action is not only an element of the prima facie case, Wilson, 376

F.3d at 1091, but also of the claim itself, see Davis v. Town of Lake Park, 245 F.3d

1232, 1246 (11th Cir. 2001). Thus, if that element is in dispute, a court must look

back to see whether the element has been established.

Second, in order to discredit the employer’s rationale, a plaintiff may use

“the same evidence offered initially to establish the prima facie case.” Wilson, 376

9
F.3d at 1088. Also, “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit the

trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530

U.S. at 148, 120 S. Ct. at 2109. Thus, to determine whether a jury’s ultimate

finding of discrimination may be sustained, a court may look back to the evidence

related to the prima facie case. See id.; see also Combs, 106 F.3d at 1539 n.11. In

sum, while we may look back to that body of evidence, “we do not revisit the

existence of the prima facie case itself.” Combs, 106 F.3d at 1539 n.11.

Here, Sheriff Gee urges us to overturn the jury’s verdict on the ground that

Ms. Holland did not establish a prima facie case. But this case has been fully tried

on the merits, and the District Court refused to “dismiss the action for lack of a

prima facie case.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

714, 103 S. Ct. 1478, 1481 (1983).3 Thus, it is not now appropriate for us to look

back to determine whether Ms. Holland in fact established one. See Cleveland,

369 F.3d at 1194; see also Richardson, 71 F.3d at 804–06.

Instead, we must “proceed directly to the ultimate question.” Carmichael,

738 F.2d at 1129 (quotation marks omitted). Here, Ms. Holland’s claim concerns

3
Sheriff Gee made a Rule 50(a) motion at the close of Ms. Holland’s case and again at
the close of all of the evidence. The District Court later denied that motion, insofar as it argued
that Ms. Holland failed to establish a prima facie case.

10
two actions that the Sheriff’s Office took: first, transferring her to the Help Desk,

and second, terminating her. To determine whether the jury’s verdict may be

sustained, we must “review all of the evidence in the record.” Reeves, 530 U.S. at

150, 120 S. Ct. at 2110. In doing so, we “must draw all reasonable inferences in

favor of [Ms. Holland].” Id. We “may not make credibility determinations or

weigh the evidence,” id., and we “must disregard all evidence favorable to the

[Sheriff] that the jury [was] not required to believe.” Id. at 151, 120 S. Ct. at 2110.

2. Ms. Holland’s Transfer to the Help Desk

Sheriff Gee argues that the jury could not have found that Ms. Holland’s

transfer to the Help Desk was an adverse employment action or that it was

motivated by her pregnancy. We are not persuaded by these arguments.

a. Adverse Employment Action

“[T]o prove [an] adverse employment action in a case under Title VII’s anti-

discrimination clause, an employee must show a serious and material change in the

terms, conditions, or privileges of employment.” Davis, 245 F.3d at 1239. “[T]he

employment action must be materially adverse as viewed by a reasonable person in

the circumstances.” Id. We have been careful to recognize that Title VII “does not

require proof of direct economic consequences in all cases.” Id.; see also Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64–65, 106 S. Ct. 2399, 2404 (1986).

11
Thus, a transfer can be adverse “if it involves a reduction in pay, prestige or

responsibility.” Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 832, 829 (11th

Cir. 2000) (emphasis added).

Here, there was evidence that Ms. Holland’s transfer to the Help Desk was

intended to be permanent. Indeed, Teresa Sterns,4 a supervisor who made the

decision to transfer Ms. Holland, said so in an email conveying the decision.

Beyond this, several witnesses at trial testified to the difference in the nature of the

work. Chief Deputy Docobo said that those at the Help Desk perform work that is

less technical and more administrative. Ms. Sterns explained that personnel at the

Help Desk answer and resolve issues over the phone, while DP Techs go on-site to

help end-users. Anthony Gay, a former co-worker, said that the staff at the Help

Desk provide “level one support” while DP Techs provide “level two support.”

Both Ms. Sterns and Mr. Gay testified that some of the employees staffed at the

Help Desk had a lower pay grade than DP Techs. And Mr. Gay said that he would

have viewed Ms. Holland’s transfer as a demotion.

When viewed in the light most favorable to Ms. Holland, this evidence

4
When Ms. Holland first joined the Sheriff’s Office, her immediate supervisor was
George Wihle. Mr. Wihle was later replaced by Vickie Lay. During the period of time that Ms.
Lay was Ms. Holland’s immediate supervisor, Ms. Lay reported to Ms. Sterns. Ms. Lay and Ms.
Sterns were together the day-to-day supervisors of Ms. Holland. Ms. Sterns reported to Chris
Peek, who in turn reported to Chief Deputy Jose Docobo.

12
supports the jury’s finding that the transfer was an adverse employment action.

Indeed, the jury could have found that the transfer was a permanent “reassignment

with significantly different” duties, Davis, 245 F.3d at 1239 (quotation marks

omitted), one that carried a reduction in both prestige and responsibility, Hinson,

231 F.3d at 829. Sheriff Gee draws our attention to evidence that the move was

intended to be temporary. But this argument does not view the evidence in the

light most favorable to Ms. Holland. Sheriff Gee also suggests that there was no

adverse employment action because there was no reduction in pay. This argument,

however, conflicts with the principle that Title VII “does not require proof of direct

economic consequences in all cases.” Davis, 245 F.3d at 1239; see also Meritor

Sav. Bank, 477 U.S. at 64, 106 S. Ct. at 2404.

b. Ms. Holland’s Pregnancy as a Motivating Factor

The District Court concluded that there was direct evidence that Ms.

Holland’s pregnancy was a motivating factor for her transfer. Sheriff Gee argues

that the District Court erred in so holding. This argument is unpersuasive. As the

District Court noted, Ms. Sterns was asked at trial whether the transfer had

“anything to do with Ms. Holland’s pregnancy.” Ms. Sterns testified that

I’ve thought about this quite a bit, and I’m sure that part of my decision
was that as a mother, with knowing the history of her miscarriage,
knowing how my pregnancy was rather difficult, I — I can only assume
that part of that decision was that I felt it was — it was to be nice and to
13
 give Lisa a desk job. Concerned [sic] with her pregnancy was part of my
reasoning. It was not the official reasoning, but it was certainly part of
what I felt was — was right.

Ms. Sterns was also asked, “And you were the one who made the decision to

transfer her?” Ms. Sterns testified, “Yes, I made the decision . . . . And I decided

that [Ms. Holland] was the best candidate.” Again, Ms. Sterns was asked “And

part of that consideration in your mind was her pregnancy?” Ms. Sterns

responded, “Yes.”

Clearly, these are remarks that, “if believed,” would prove that Ms.

Holland’s pregnancy was a motivating factor for the decision to transfer her to the

Help Desk. Wilson, 376 F.3d at 1086. The fact that Ms. Sterns may have acted

out of concern that Ms. Holland previously had a miscarriage—in other words, the

fact that Ms. Sterns may have had benign intentions—is beside the point. After all,

“[c]oncern for a woman’s existing or potential offspring historically has been the

excuse for denying women equal employment opportunities.” Int’l Union, UAW

v. Johnson Controls, Inc., 499 U.S. 187, 211, 111 S. Ct. 1196, 1210 (1991).5

5
For this reason, insofar as Sheriff Gee insists that there must be proof of ill will or
“animus,” that suggestion is misguided. See Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.
Ct. 1764, 1769 (1973) (plurality opinion) (noting that discrimination on the basis of sex
historically reflected “an attitude of ‘romantic paternalism’ which, in practical effect, put
women, not on a pedestal, but in a cage”); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
132, 114 S. Ct. 1419, 1423 (1994) (noting that discrimination on the basis of sex was historically
“couched . . . in terms of the ostensible need to protect women”).

14
 Sheriff Gee resists this conclusion by drawing our attention to other portions

of Ms. Sterns’s trial testimony. First, Ms. Sterns was asked about an email in

which she said that the transfer was not because of Ms. Holland’s pregnancy. Ms.

Sterns testified: “I said today that part of my consideration was the fact that she

was pregnant. However, it was not the reason for the reassignment, and it certainly

wasn’t the reason for the need for the reassignment.

. . . It was not a factor in the sense of the reasoning for the position.” Second, Ms.

Sterns testified that transferring Ms. Holland “was a matter of applying the

resource where it was best needed.” She said that she “needed additional resources

to help with answering phones.”

Sheriff Gee is correct that, if these other parts of Ms. Sterns’s testimony

were believed, they would undercut her prior statement that Ms. Holland’s

“pregnancy was part of my reasoning.” However, it is not our role at this juncture

to “make credibility determinations or [to] weigh the evidence.” Reeves, 530 U.S.

at 150, 120 S. Ct. at 2110. Bearing that in mind, we conclude that there was

sufficient evidence for the jury to find that Ms. Holland’s pregnancy was a

motivating factor for her transfer to the Help Desk.

3. Ms. Holland’s Termination

Sheriff Gee argues that there is not enough evidence to show that Ms.

15
Holland’s pregnancy was also a motivating factor for her termination. This

argument fails as well.

a. The Proffered Reasons for the Termination

Sheriff Gee first argues that Ms. Holland was terminated because of her

“failure to complete various work orders and of her attitude based on her belief that

no one could touch her because of her father.” This reflects the thrust of Chief

Deputy Docobo’s testimony. At trial, Chief Deputy Docobo testified that it was

his decision to terminate Ms. Holland and that the reason was that

there had been, uh, a series of problems involving Ms. Holland going
back quite some time. And, uh, it was clear to me that, uh, the manner
in which she was conducting herself in her failure to do the job, uh, she
was, uh, taking advantage of what I interpreted the relationship of her
father, Mr. Richard Holland, with the Sheriff’s Office, uh, almost with
impunity and, uh, I was no longer going to deal with it.

When asked what the “series of problems” was, Chief Deputy Docobo stated that it

went “back literally, uh, well over a year,” that there were “problems with her work

performance,” and that Ms. Holland “was creating morale problems within the

division.” He also said that Ms. Holland “never obtained the requisite

certifications, uh, for the position, uh, of DP telecom tech.”

Our review of the record persuades us that there was sufficient evidence for

the jury to disbelieve this explanation. First, Chief Deputy Docobo conceded that

he had no personal knowledge of Ms. Holland’s work performance and that the
16
information he had was from Mr. Peek. However, Mr. Peek testified that as far as

he knew, the termination was not disciplinary. Similarly, Ms. Sterns said that the

termination was “[ab]solutely not” disciplinary. Mr. Gay testified that to the best

of his knowledge, Ms. Holland performed her job satisfactorily. And finally, Ms.

Holland herself said that her supervisors “always said I did a great job, and thanked

me.” She told the jury, “I thought I was doing a good job. Actually they told me I

was doing a good job.” For this reason, she said, she was “devastated” when she

was terminated.

The second proffered reason for Ms. Holland’s termination—that she was

“taking advantage of” her father’s relationship with the Sheriff’s Office—is

“closely related” to the first. Woodard v. Fanboy, LLC, 298 F.3d 1261, 1267 (11th

Cir. 2002). Indeed, according to Chief Deputy Docobo, Ms. Holland believed that

she could get away with “her failure to do the job” because her father had ties to

the Sheriff’s Office. In view of the evidence that Ms. Holland’s performance was

not deficient, however, the jury could have found this additional reason “fishy and

suspicious as well.” Id. (quotation marks omitted).

Third, with regard to the purported “morale problems,” Chief Deputy

Docobo was asked at trial to describe the nature of those issues. In response,

however, he did not specify any negative effect that Ms. Holland might have had

17
on other employees’ productivity or engagement with work. Instead, he circled

back to the purported problems with Ms. Holland’s work performance. At trial,

when asked whether Ms. Holland had a demoralizing effect, Mr. Gay stated, “No,

absolutely not.”

Fourth, with regard to the certifications, there is testimony suggesting that

the Sheriff’s Office requested that DP Techs obtain them. However, both Mr. Peek

and Ms. Sterns testified that there were other DP Techs who were not required to

do so. Mr. Peek said that “[t]here are techs that were hired prior to 2005 that do

not have those certifications,” and he agreed that “[t]he ones who don’t have their

certifications, they’re capable of performing the job.” Mr. Gay identified two DP

Techs who did not have the certifications.

Fifth and finally, Sheriff Gee focuses on the fact that Ms. Holland began to

decline work orders after she was transferred back from the Help Desk. This

argument is also unavailing. The evidence showed that, after Ms. Holland was

transferred back, she was directed to provide a doctor’s note regarding restrictions

on her work because of her pregnancy. The doctor advised Ms. Holland that she

could continue to work, but that she should not be “in contact directly with any

prison inmates.” Upon receiving the doctor’s notes, however, the Sheriff’s Office

decided not to accept them; instead, it asked Ms. Holland to “write [her] own

18
restrictions.”

After some back and forth, Ms. Holland did so, and in an email, Ms. Sterns

acknowledged receiving them. She also indicated that she would get back to Ms.

Holland on this issue. However, the evidence showed that she never did so. In the

meantime, there was evidence that Ms. Holland was given work orders that would

have involved contact with inmates. Ms. Holland told the jury that she expressed

her concerns to Ms. Lay. Ms. Lay promised to get back to her, but she never did as

well. Thus, the evidence showed that the work orders that Ms. Holland could not

complete were ones that she could not fulfill because of her pregnancy.6

Sheriff Gee argues that he did not honor Ms. Holland’s restrictions because

he believed that she was a contractor at the time. Sheriff Gee acknowledges that

his belief was, in fact, mistaken. Indeed, in June 2007, the IRS issued a letter

advising that under the Internal Revenue Code, Ms. Holland was an employee, and

not a contractor. Sheriff Gee insists, however, that his belief was genuine and in

good faith. This argument fails as well. Indeed, there was sufficient evidence by

6
We pause to note that the evidence, when viewed in the light most favorable to Ms.
Holland, does not show that Ms. Holland sought “preferential treatment” on the basis of her
pregnancy. Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). Rather, the
evidence supports the finding that the Sheriff’s Office denied Ms. Holland “a benefit generally
available to temporarily disabled workers” in the same position. Id. at 1313; see also Byrd v.
Lakeshore Hosp., 30 F.3d 1380, 1383–84 (11th Cir. 1994). Indeed, there was evidence that the
restrictions of DP Techs were routinely honored and that pregnant workers were accommodated
in the same way as those who were temporarily disabled.

19
which the jury could have made a contrary finding, which would, in turn, have

supported a finding of pretext. See Woodard, 298 F.3d at 1265–66.

The evidence showed that when Ms. Holland joined the Sheriff’s Office, she

was initially classified as a temporary employee. At the time, however, the

Hillsborough County Civil Service Board prohibited the employment of temporary

employees for more than 240 calendar days. To work around that rule, the

Sheriff’s Office had the practice of changing the job title of the temporary

employee at the end of the 240-day period, which had the effect of restarting the

240-day clock. Eventually, the Sheriff’s Office was advised that it could no longer

engage in that practice. And in response, the Sheriff’s Office reclassified Ms.

Holland and the other temporary DP Techs as contractors.

The evidence, however, supported the finding that, despite making this

change, the Sheriff’s Office remained well aware that Ms. Holland was an

employee, and not a contractor. Indeed, prior to making its decision, the Sheriff’s

Office sought the advice of counsel. Counsel informed the office that the DP

Techs were employees, and not contractors, because they had set work schedules,

were subject to direct supervision, and were required to accomplish specific tasks.

Counsel further advised that “the terms of the job would [need to] change” if the

DP Techs, like Ms. Holland, were to be deemed contractors.

20
 But the evidence showed that the Sheriff’s Office did not adjust any of these

aspects of the DP Techs’ work relationship when it reclassified them as

contractors. This contravened not only the advice of counsel, but also the

recommendation of Ms. Sterns, who had written a memorandum on this subject,

which was admitted into evidence. The evidence also showed that Mr.

Wihle—who was initially Ms. Holland’s immediate supervisor—also had

concerns, and that he relayed his reservations to Ms. Holland and to management.

Eventually, Ms. Holland made an inquiry with the IRS. In June 2007, the

IRS confirmed that under the Internal Revenue Code, Ms. Holland was, in fact, an

employee, and not a contractor. As part of that process, the Sheriff’s Office was

asked to turn in a form describing the nature of Ms. Holland’s work. On that form,

which was signed by Chief Deputy Docobo, the Sheriff’s Office stated that “Ms.

Holland has no set schedule,” that she “functions without any direct supervision,”

and “works on items she [chooses] to.” The jury could have found that this

contradicted what the Sheriff’s Office knew.

Beyond all of this, the evidence showed that, even though Ms. Holland was

repeatedly asked about her restrictions, and even though both Ms. Lay and Ms.

Sterns indicated that they would get back to her on that issue, neither of them ever

did. Thus, the evidence showed that Ms. Holland was never informed of the

21
reason why her restrictions could not be honored, let alone told that it was because

she was a contractor. Indeed, Sheriff Gee points to no evidence showing that such

an explanation was ever given to Ms. Holland.

In light of this, the jury could easily have found that, contrary to Sheriff

Gee’s assertion, his belief that Ms. Holland was a contractor was neither genuine

nor in good faith. The jury thus could have found that this explanation for the

decision to deny Ms. Holland light duty was, in fact, cover for discrimination. See

Woodard, 298 F.3d at 1265–66.

Apart from Ms. Holland’s work performance, Sheriff Gee suggests that there

was a second reason for the termination—that he no longer needed Ms. Holland’s

services after he had hired Richard Sanchez as a DP Tech. It is true that Mr.

Peek’s testimony supports this idea. However, this alternative rationale cannot be

reconciled with Sheriff Gee’s insistence that it was Chief Deputy Docobo’s

decision “alone” to terminate Ms. Holland and Chief Deputy Docobo’s testimony

that the termination was due to Ms. Holland’s work performance. Beyond this, as

the District Court noted, Ms. Holland was kept for about four months after Mr.

Sanchez started working.

Finally, Sheriff Gee argues that “there clearly appears on the face of this

record another possible motivation”—the fact that Ms. Holland inquired with the

22
IRS about her classification. Again, this suggestion cannot be reconciled with

Sheriff Gee’s assertion that it was Chief Deputy Docobo’s decision “alone” to

terminate Ms. Holland and his testimony that Ms. Holland was terminated because

of her work performance. Indeed, Chief Deputy Docobo testified at trial that the

Sheriff’s Office did not “think anything ill of Ms. Holland for making [the]

inquiry.” A reasonable jury could have rejected the idea that Ms. Holland’s

inquiry led to her termination.

In sum, there was sufficient evidence for the jury to disbelieve all of the

proffered rationales for Ms. Holland’s termination.

b. Other Evidence

We now examine whether there is “additional evidence” that, combined with

the disbelief of the proffered reasons for Ms. Holland’s termination, would have

allowed the jury to find that Ms. Holland’s pregnancy was a motivating factor for

her termination. Cleveland, 369 F.3d at 1195. The issue is whether there is a

“convincing mosaic of circumstantial evidence” that would support such a finding.

Smith, 644 F.3d at 1328 (quotation marks omitted). Our review of the record

persuades us that there is such a body of evidence.

First, there was evidence that after she informed the Sheriff’s Office of her

pregnancy in November 2006, Ms. Holland was treated differently from all of the

23
other DP Techs. Cf. Cleveland, 369 F.3d at 1195 (noting that discrimination could

be inferred from evidence that the plaintiff was treated differently “after she came

back to work with her disability”). Indeed, there was evidence that unlike all of

other DP Techs—all of whom were male—Ms. Holland was transferred to the

Help Desk, and her restrictions not honored.

Second, there was evidence that after Ms. Holland disclosed her pregnancy,

that fact became part of the decisionmaking processes regarding her. As we have

discussed, Ms. Sterns testified that Ms. Holland’s pregnancy “was part of [her]

reasoning” for transferring her to the Help Desk. Similarly, Mr. Peek testified that

“at various points” in that process, Ms. Lay and Ms. Sterns “raised” Ms. Holland’s

pregnancy as an issue. Mr. Peek explained to the jury that Ms. Sterns “was a

mother” and that Ms. Lay “was sensitive [to] those types of issues.”

There was also evidence that Ms. Holland’s pregnancy was a subject of the

discussions that led to her termination. Mr. Peek testified that the question of Ms.

Holland’s pregnancy came up when he talked to Ms. Sterns: they noted that Ms.

Holland “was far enough along in the pregnancy that the Sheriff’s Office uniforms

would not fit.” Mr. Peek also testified that, when he talked to Chief Deputy

Docobo, he informed his supervisor of Ms. Holland’s pregnancy. All of this would

have buttressed a finding of discrimination. Cf. Smith, 644 F.3d at 1346 (“[The]

24
injection of race into [the] decision-making process yields an unavoidable

inference that the employee’s race impacted the [decision].”).

Third and finally, we note that the credibility of Chief Deputy Docobo, the

ultimate decisionmaker, was heavily challenged at trial, well apart from the fact

that there was evidence to rebut his proffered reasons for terminating Ms. Holland.

For instance, Chief Deputy Docobo denied that he “ever” knew that Ms. Holland

was pregnant. Mr. Peek, however, testified to the contrary. Beyond this, Chief

Deputy Docobo reviewed and signed the form in which the Sheriff’s Office stated

to the IRS that Ms. Holland “functions without any direct supervision” and has “no

set schedule.” The jury knew, however, that he was a recipient of Ms. Sterns’s

memorandum, which stated this was not the case.

All of this could have been the basis for the jury to make an adverse

credibility determination as to Chief Deputy Docobo and thus further supported the

finding of discrimination. See Cleveland, 369 F.3d at 1194 (“Once [the

decisionmaker’s] credibility was damaged, a rational jury could infer that he did

not fire [the plaintiff] because of the [proffered reason], but rather because of her

disability.”); see also Reeves, 530 U.S. at 147, 120 S. Ct. at 2108 (noting “the

general principle of evidence law that the factfinder is entitled to consider a party’s

dishonesty about a material fact as affirmative evidence of guilt” (quotation marks

25
omitted)).

In sum, viewing the evidence in the light most favorable to Ms. Holland, we

think the jury could have reasonably found that Ms. Holland’s pregnancy was a

motivating factor for her termination.7 It may also be true that a reasonable jury

could have reached the opposite conclusion. But the law is well settled that “if

reasonable jurors could reach different results,” judgment as a matter of law is

improper. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 714 (11th Cir.

2002) (quotation marks omitted).

B. BACK PAY

The jury found that Ms. Holland was entitled to recover $80,000 in back pay

and $10,000 for emotional distress.8 The District Court vacated the award of back

7
Sheriff Gee’s remaining arguments are not persuasive. First, he argues that, as part of
her prima facie case, Ms. Holland failed to show that she was qualified to be a DP Tech.
However, there was evidence that DP Techs who did not have certain types of certifications were
deemed “capable of performing the job.” Second, Sheriff Gee argues that Ms. Holland did not
produce sufficient comparator evidence as part of her prima facie case. But, at this juncture, this
is beside the point. Cleveland, 369 F.3d at 1194 (rejecting the argument that, after trial on the
merits, the lack of comparator evidence, in and of itself, required judgment as a matter of law).
The presence of a comparator “is not an element of a [Title VII] claim.” Collado, 419 F.3d at
1154; see also Smith, 644 F.3d at 1328. The key question is whether, when viewed as a whole,
“the circumstantial evidence raises a reasonable inference that the employer discriminated
against the plaintiff.” Smith, 644 F.3d at 1326.
8
Back pay under Title VII is an equitable remedy, and as a result, it does not include a
right to a jury determination. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1184 (11th Cir.
2010). Under Federal Rule of Civil Procedure 39, however, a district court may, with the
consent of the parties, have an issue be tried “by a jury whose verdict has the same effect as if a
jury trial had been a matter of right.” Fed. R. Civ. P. 39(c)(2). The record indicates that the
parties gave consent. See Whiting v. Jackson State Univ., 616 F.2d 116, 123 (5th Cir. 1980);

26
pay on the ground that it was precluded under the doctrine of after-acquired

evidence. On appeal, Ms. Holland argues that the District Court erred in doing so

because after-acquired evidence is an affirmative defense, and Sheriff Gee waived

it by not pleading it in his answer. Ms. Holland also asserts that the District Court

misapplied the doctrine because there was no evidence that she engaged in

wrongdoing while she worked at the Sheriff’s Office.

Sheriff Gee initially disputed these arguments. In his brief, he asserted that

the after-acquired evidence doctrine does not require employee wrongdoing; that

he preserved the defense, even though he did not plead it in his answer; and that

the District Court correctly applied the doctrine. At oral argument, however,

Sheriff Gee abandoned all of these arguments. Sheriff Gee conceded that the

doctrine applies only to cases involving employee wrongdoing and that there is no

evidence that Ms. Holland engaged in any misconduct. Sheriff Gee thus

acknowledged that the District Court erred when it vacated the award of back pay

on the ground that it was precluded under the after-acquired evidence doctrine.

We agree with both parties that the District Court erred, and we take this

opportunity to explain why. The doctrine of after-acquired evidence finds its

Stockton v. Altman, 432 F.2d 946, 950 (5th Cir. 1970). At trial, Ms. Holland asked the jury to
award her $130,000 in back pay, but the jury found that she was entitled only to $80,000.

27
genesis in the Supreme Court’s decision in McKennon v. Nashville Banner

Publishing Co., 513 U.S. 352, 115 S. Ct. 879 (1995). There, after the employee

was terminated, the employer came to discover that, during the employee’s tenure,

she had removed and copied company records in violation of her job

responsibilities. Id. at 354–55, 115 S. Ct. at 882–83. With those facts in mind, the

Supreme Court sought to delineate “[t]he proper boundaries of remedial relief in

the general class of cases where, after termination, it is discovered that the

employee has engaged in wrongdoing.” Id. at 361, 115 S. Ct. at 886.

The Court held that if the employer “establish[es] that the wrongdoing was

of such severity that the employee in fact would have been terminated on those

grounds alone if the employer had known of it at the time of the discharge,” an

award of back pay should generally be limited to the period of time “from the date

of the unlawful discharge to the date the new information was discovered.” Id. at

362–63, 115 S. Ct. at 886–87. This rule, the Court explained, best took into

account “the lawful prerogatives of the employer in the usual course of its business

and the corresponding equities that it has arising from the employee’s

wrongdoing.” Id. at 361, 115 S. Ct. at 886.

McKennon arose under the Age Discrimination in Employment Act, 29

U.S.C. §§ 621 et seq. See McKennon, 513 U.S. at 354–55, 115 S. Ct. at 883. In

28
our en banc decision in Wallace v. Dunn Construction Co., Inc., 62 F.3d 374 (11th

Cir. 1995), we held that the after-acquired evidence doctrine also applies to cases

arising under Title VII. Id. at 377. We further clarified that an “employee’s

misrepresentations in a job application” permits the application of the doctrine, just

as “employee wrongdoing during employment” does. Id. at 379. In Wallace, the

plaintiff denied in her job application that she had ever been convicted of a crime,

even though she had a prior drug conviction. Id. at 377. We held that this

misconduct supported the application of the after-acquired evidence doctrine. Id.

at 379–80.

In vacating the award of back pay, the District Court cited our decision in

Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001). The District Court

focused on our statement that “the City could have fired [the plaintiff] for a lawful

reason—lack of certification—on the same day that it fired him for a

discriminatory reason.” Id. at 1021. The District Court read that sentence to mean

that the after-acquired evidence doctrine applies so long as the employer

demonstrates that it could have terminated the employee for any lawful reason.

We agree with both parties that the District Court misconstrued that sentence.

The plaintiff in Crapp was a police officer, id. at 1018, and following the

events that gave rise to his Title VII suit, he was retroactively “decertified for

29
conduct unbecoming [of] an officer”—namely, lying in the course of an internal

affairs investigation. Id. at 1018–19 & n.5. Thus, what gave rise to the “lawful

reason” for terminating the plaintiff in that case was the plaintiff’s own

misconduct. See id. Our decision in Crapp does not stand for the proposition that

back pay may be denied simply because the employer could have terminated an

employee for any lawful reason. Rather, consistent with the Supreme Court’s

decision in McKennon, it rests on the “equities that [the employer] has arising from

the employee’s wrongdoing.” 513 U.S. at 361, 115 S. Ct. at 886.

Under the doctrine of after-acquired evidence, the burden is on the employer

to prove that “the wrongdoing was of such severity that the employee in fact would

have been terminated on those grounds alone.” Id. at 362–63, 115 S. Ct. at

886–87. Thus, it is an affirmative defense that an employer must plead in its

answer or otherwise ensure that it is a subject of the pretrial order. See Pulliam v.

Tallapoosa Cnty. Jail, 185 F.3d 1182, 1185 (11th Cir. 1999) (noting that the failure

to plead an affirmative defense “is not fatal as long as it is included in the pretrial

order”). Here, in view of Sheriff Gee’s concession that he did not plead or argue

this affirmative defense and that there is no evidence that Ms. Holland engaged in

wrongdoing, we conclude that the District Court erred in applying the doctrine to

vacate the award of back pay.

30
 At oral argument, Sheriff Gee advanced the idea that the award is invalid

under the law of back pay itself—that is, the amount of back pay was not

calculated correctly. But, as Sheriff Gee acknowledged, that is a question that is

entirely distinct from the issue of after-acquired evidence, and it is governed by a

different line of case law.9 The only argument that Sheriff Gee presented in his

9
McKennon recognized two sets of equitable considerations: the employee’s interests in
invoking the national policy against employment discrimination and “the legitimate interests of
the employer . . . [in] exercising significant other prerogatives and discretions in the course of
the hiring, promoting, and discharging of [its] employees.” 513 U.S. at 360–63, 115 S. Ct. at
885–87. It is the balancing of these equities that may limit recovery of back pay in a given case.
See, e.g., id. at 361–62, 115 S. Ct. at 886–87. In a given case, the employer’s interests may
involve responding to an employee’s misconduct, which the employer learned about after the
discriminatory discharge, as in McKennon, Wallace, and Crapp. But in other cases, the
employer’s interest may involve, more broadly, the employer’s ability to continue to make other
lawful employment decisions that still might adversely affect the wrongfully discharged
employee’s continued employment status, independent of any discrimination.
The after-acquired evidence doctrine addresses those situations where the employer, after
its discriminatory discharge of an employee, learns of that employee’s misconduct sufficient to
justify the employer’s decision, after the fact, to discharge the employee for lawful,
nondiscriminatory reasons. The Eleventh Circuit, however, has not applied the after-acquired
evidence doctrine to circumstances where, after a discriminatory discharge, the employer learns
of information, unrelated to the employee’s misconduct, which also disqualifies that employee
from continued employment. Instead, in those circumstances, the Eleventh Circuit has applied
other equitable defenses to an award of back pay (and front pay), defenses that protect the
employer’s continuing interest in being able to make nondiscriminatory policy, organizational,
or personnel decisions.
Under our precedent, an employee seeking to recover back pay bears the initial burden of
demonstrating wages lost as a result of the employment decision. Walker v. Ford Motor Co.,
684 F.2d 1355, 1361 (11th Cir. 1982). In a case where the plaintiff employee’s position is
eliminated immediately after her termination, back pay might be reduced if the employer can
“establish by a preponderance of the evidence that [the] plaintiff would not have been retained in
some other capacity.” Archambault v. United Computing Sys., Inc., 786 F.2d 1507, 1515 (11th
Cir. 1986). To preclude back pay under this line of authority, the employer need not prove
employee misconduct, but instead must show that the employee would not have been transferred
to another position or otherwise be retained. See id. at 1515–16; cf. Munoz v. Oceanside
Resorts, Inc., 223 F.3d 1340, 1350–51 (11th Cir. 2000) (holding that, to preclude front pay, an
employer must show that the employee would not have been retained in any capacity at the time

31
brief is the assertion that the District Court correctly applied the doctrine of after-

acquired evidence. He did not discuss, let alone cite, any cases concerning the

proper calculation of back pay. See generally Fed. R. App. P. 28(a)(9)(A), (b)

(requiring an appellee to develop an argument “with citations to the authorities . . .

on which [he] relies”).

Under these circumstances, we cannot accept Sheriff Gee’s last-minute

attempt to raise this alternative argument. “[T]he law is by now well settled in this

Circuit that a legal claim or argument that has not been briefed before the court is

deemed abandoned and its merits will not be addressed.” Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Although we may affirm a

district court’s decision on grounds not reached by that court, Chappell v. Chao,

388 F.3d 1373, 1376–77 (11th Cir. 2004), we do not consider arguments “not

raised in a party’s initial brief and made for the first time at oral argument,” APA

Excelsior III L.P. v. Premiere Techs., Inc., 476 F.3d 1261, 1269 (11th Cir. 2007).

Here, given that Sheriff Gee has waived this alternative argument by not discussing

it in his brief, see La Grasta v. First Union Sec., Inc., 358 F.3d 840, 847 n.4 (11th

Cir. 2004), we do not find it appropriate to address it on its merits. See Access

of trial).

32
Now, 385 F.3d at 1330.10

C. SUPPLEMENTAL JURY INSTRUCTION

Sheriff Gee’s final argument is that the District Court erred in its response to

a question from the jury. While it was deliberating, the jury sent a note to the

District Court asking, “Was Ms. Holland at the time of her termination an

employee of the Hillsborough County Sheriff’s Office?” After conferring with the

parties, the District Court told the jury:

The Court has found as a matter of law that for the purposes of the laws
at issue in this case, Title VII of the Civil Rights Act of 1964, and the
Florida Civil Rights Act, Ms. Holland was an employee of the Sheriff’s
Office and not an independent contractor.

We examine jury instructions de novo to determine whether they misstate

the law or mislead the jury to the prejudice of the party who objects to them.

Morgan, 551 F.3d at 1283. We have stressed, however, that “the standard is

deferential.” Id. (quotation marks omitted). “Our practice is not to nitpick the

instructions for minor defects.” Id. “When the instructions, taken together,

10
Even if we were to do so, we are doubtful that Sheriff Gee’s argument would prevail.
According to Sheriff Gee, “[t]he undisputed evidence clearly shows that [he] had no ability to
employ [Ms.] Holland as a DP Tech following [the] IRS’s determination.” However, to
foreclose back pay, Sheriff Gee had to prove that Ms. Holland “would not have been retained in
some other capacity.” Archambault, 786 F.2d at 1515 (emphasis added). While the evidence
may very well demonstrate that Ms. Holland could not have been retained as a full-time DP
Tech, Sheriff Gee did not, either in his brief or at oral argument, cite to any portion of the record
that would suggest that Ms. Holland would not be retained in some other position at the Sheriff’s
Office. Thus, even if we were to consider this alternative argument, we would have to reject it.

33
properly express the law applicable to the case, there is no error even though an

isolated clause may be inaccurate, ambiguous, incomplete or otherwise subject to

criticism.” Id. (quotation marks omitted).

Here, prior to trial, the District Court found as a matter of law that Ms.

Holland was an employee under Title VII and the FCRA. Sheriff Gee has not

contested that determination, and the supplemental instruction conveyed only that

finding. Under these circumstances, we are hard-pressed to see how the instruction

could have been improper. Sheriff Gee suggests that the instruction “gave the jury

the impression that [he] could not have actually believed that [Ms.] Holland was an

independent contractor at the time of her termination.” However, the instruction

states only that the District Court made its determination after the fact and under

Title VII and the FCRA. It obviously left it to the jury to determine whether, at the

time of Ms. Holland’s termination, the Sheriff could have genuinely believed that

she was otherwise a contractor.

IV. CONCLUSION

For these reasons, we affirm the District Court’s decision to sustain the

jury’s finding of liability, we reverse its decision to vacate the award of back pay,

and we remand for the entry of judgment on the jury’s verdict.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

34
35