[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 28, 2008
THOMAS K. KAHN
No. 06-13276
CLERK
Non-Argument Calendar
________________________
D. C. Docket Nos. 03-03241-CV-1-RBP-TMP & 03-03247-CV-PT
1:03-cv-03241-RBP
SONIA L. THOMAS,
Plaintiff-Appellee,
versus
ALABAMA HOME CONSTRUCTION,
Defendant,
AHCI MANAGEMENT COMPANY, INC.,
Defendant-Appellant.
__________________________________________________
4:03-cv-03247-RBP
BETH F. GERHARDT, and the Class
She Seeks to Represent,
Plaintiff-Appellee,
versus
ALABAMA HOME CONSTRUCTION, INC.,
a Corporation,
Defendant-Appellant,
LAVELLE SMITH, an individual,
Defendant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(March 28, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Alabama Home Construction, Inc. (“AHC”) and AHCI Management
Company, Inc. (“ACHI”) appeal (1) final judgments in favor of plaintiffs Beth F.
Gerhardt and Sonia L. Thomas following a jury trial on their retaliation claims
brought pursuant to Title VII of the Civil Rights Act of 1964; (2) the district
court’s denial of their motions for judgments as a matter of law on Gerhardt and
Thomas’s punitive damages claims; (3) the district court’s denial of the
defendants’ post-trial motions (a) to dismiss and (b) for discovery related to the
award of attorneys’ fees.
Both Gerhardt and Thomas were employed by the defendants in their Pall
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City, Alabama office. Both plaintiffs alleged that they were terminated from their
jobs based on their complaints to management of defendant Lavelle Smith’s sexual
harassment. The jury found that Thomas was entitled to damages to compensate
her emotional pain and mental anguish in the amount of $25,000, as well as
punitive damages in the amount of $25,000 because AHCI acted with malice or
reckless indifference. The jury also found that Gerhardt was entitled to
compensatory damages in the amount of $81,000, damages for emotional pain and
anguish in the amount of $25,000, and punitive damages in the amount of
$50,000.1
Following the trial, both defendants filed a motion to dismiss arguing that
the district court lacked subject matter jurisdiction because the plaintiffs failed to
prove that each defendant employed the requisite number of employees to be held
liable under Title VII. The district court denied these motions, finding that the
“number of employees” element was not jurisdictional, so defendants had waived
the issue by not raising it before judgment. The district court also denied
plaintiffs’ motions for judgments as a matter of law on the issue of punitive
damages and their request for additional discovery related to attorney’s fees. We
affirm each of the district court’s judgments.
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The district court later reduced Gerhardt’s total award to $131,000.
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I. Motions to dismiss
We review a district court’s denial of a motion to dismiss for lack of subject
matter jurisdiction de novo. Mexiport, Inc. v. Frontier Communications Services,
Inc., 253 F.3d 573, 574 (11th Cir. 2001).
Under Title VII, an “employer” is “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar year. . . .” 42
U.S.C. § 2000e(b). In Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the Supreme
Court held that the “threshold number of employees for application of Title VII is
an element of a plaintiff’s claim for relief, not a jurisdictional issue.” Id. at 516.
The Supreme Court noted that “[n]othing in the text of Title VII indicates that
Congress intended courts, on their own motion, to assure that the employee-
numerosity requirement is met.” Id. at 514.
The defendants argue that no reasonable juror could conclude that AHC or
AHCI was a Title VII employer based on the record that was before the district
court in this case. However, because the Supreme Court decided during the
pendency of this case that the employee-numerosity requirement was not a
jurisdictional issue, the district court did not err in denying the defendants’ motions
to dismiss. The record reveals that neither defendant raised the issue in its answer,
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at the close of the plaintiffs’ case-in-chief, or at any other time during the trial.
Because the defendants failed to raise this issue challenging an element of
plaintiffs’ claim before the close of the trial on the merits, it cannot be raised now.
Id. at 507 (objection that complaint fails to state a claim “may not be asserted post
trial”).
Moreover, even if they had not waived this issue, the plaintiffs submitted
sufficient evidence to show that the defendants had the requisite number of
employees. First, the defendants stipulated before trial that they “flunked the
economic realities test” because there was common ownership and control between
them. The evidence at trial established that Philip Gilbert was the president of
AHC, while Suzanne Gilbert, his wife, was president of AHCI. Philip Gilbert’s
testimony revealed that, in August 2000, the month before Gerhardt and Thomas
were both terminated, AHC employed eight or nine salespeople, which included all
of its offices, and a secretary in the Pell City office. Gerhardt’s and Billy
Daugherty’s testimony revealed that two salespeople worked in the Albertville,
Fort Payne, Jasper, Oneonta, Oxford, Pell City, and Northport offices, and the
defendants’ corporate offices employed several people, including four to five
superintendents and their assistants, as well as a person who worked on
advertising. Given this testimony, the plaintiffs submitted sufficient evidence to
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conclude that the defendants did have the requisite number of employees for
purposes of Title VII. Accordingly, the district court did not err in denying the
defendants’ motion to dismiss.
II. Motions for judgment as a matter of law: Retaliation claims
We review the denial of a motion for judgment as a matter of law de novo.
Gupta v. Florida Bd. of Regents, 212 F.3d 571, 582 (11th Cir. 2000). Upon
review, we consider all of the evidence and reasonable inferences arising therefrom
in the light most favorable to the nonmoving party. Id. We will not substitute our
own judgment for that of the district court if its verdict is supported by sufficient
evidence. Ritch v. Robinson-Humphrey Co., 142 F.3d 1391, 1393 (11th Cir.
1998).
To establish a prima facie case of retaliation under Title VII, a plaintiff must
show that (1) she participated in a statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there was a causal connection between the two
events. Gupta, 212 F.3d at 587. To establish a causal connection between a
protected activity and adverse employment action, “a plaintiff need only show that
the protected activity and the adverse action were not wholly unrelated.” Brungart
v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (quotations
omitted). To satisfy this showing, a plaintiff must generally establish “that the
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decision maker was aware of the protected conduct at the time of the adverse
employment action.” Id. We have held that the amount of time between the
protected activity and the adverse employment action is one factor that may tend to
prove or disprove a causal link in a retaliation case. See Donnellon v. Fruehauf
Corp., 794 F.2d 598, 601 (11th Cir. 1986) (holding that one month is sufficiently
proximate).
Here, the district court did not err in denying the defendants’ motions for
judgment as a mater of law because both plaintiffs produced sufficient evidence to
support their retaliation claims. First, the evidence at trial established that there
was an incident during which Smith lifted up Thomas’s skirt while Thomas was
taking a telephone call at work. Contrary to the defendants’ arguments, the skirt
lifting incident supports the conclusion that Thomas had a reasonable good faith
belief that she was sexually harassed, and that she opposed conduct that is made
unlawful by Title VII. Thomas told Gilbert about the skirt incident during an
interview concerning the matter on August 21, 2000, and she also told him that
Smith made her feel uneasy. Thomas was fired within weeks of the skirt incident
and her interview with Gilbert.
With respect to Gerhardt, the defendants do not dispute that Gerhardt had a
good faith subjective and objective belief that the conduct Smith engaged in during
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the fall of 1999 constituted sexual harassment. Additionally, during the trial, the
defendants conceded that Gerhardt complained about Smith’s conduct in October
and November 1999. Further, the record revealed that Gerhardt began
complaining about Smith’s conduct directed at her and others less than two weeks
after Smith was hired up until the day that she was locked out of the Pell City
office, which happened about a month after skirt incident. Gerhardt complained
about Smith’s conduct to Billy and Janie Daugherty, the regional AHC managers,
on a regular basis. She complained to Philip Gilbert about the skirt incident, and
also asked Billy Daugherty if she could be transferred from the Pell City office
after Thomas’s departure. Moreover, as with Thomas, Gerhardt has shown
sufficient temporal proximity between her complaints to her employer, which were
ongoing, and her termination as to establish causation. Accordingly, in light of the
foregoing, there is sufficient evidence to support the jury finding of retaliation and
the district court did not err in denying the defendants’ motion for judgment as a
matter of law.
III. Motions for judgment as a matter of law: Punitive damages
Though we undertake the same de novo review of the district court’s denial
of the defendants’ motions for judgment as a matter of law regarding the award of
punitive damages in this case, we also review the factual determinations made by
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the district court for clear error. Hamer v. City of Atlanta, 872 F.2d 1521, 1526
(11th Cir. 1989).
Under the Civil Rights Act of 1991, a plaintiff can recover punitive damages
where a defendant “engaged in unlawful intentional discrimination” prohibited by
Title VII. 42 U.S.C. § 1981a(a)(1). Punitive damages are permissible “if the
complaining party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). In
order to be liable for punitive damages under 42 U.S.C.§ 1981a(b)(1), “an
employer must at least discriminate in the face of a perceived risk that its actions
will violate federal law.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999).
Here, both plaintiffs presented sufficient evidence to show that the
defendants engaged in unlawful discrimination against them with malice or with
reckless indifference to their federally protected rights. Philip Gilbert
acknowledged that during the relevant time period, AHC did not have any policies
or procedures in place for employees to complain about being sexually harassed,
and Gerhardt complained repeatedly about Smith’s inappropriate sexual conduct in
the workplace to her supervisors, who took no corrective action. From this
evidence, a jury could find that both defendants did not attempt in good faith to
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comply with Title VII, and that they acted with malice or with reckless indifference
to Gerhardt’s and Thomas’s federally protected rights.
IV. Motions for discovery concerning the fee-award process
We review the denial of post-judgment motions for an abuse of discretion.
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000). “[T]he
Supreme Court has counseled that the request for attorney’s fees should not result
in a second major litigation . . . .” McKenzie v. Cooper, Levins & Pastko, Inc., 990
F.2d 1183, 1184 (11th Cir. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)).
We find that the district court did not abuse its discretion by denying the
defendants’ request to conduct further discovery as to the fee-award process. The
defendants had the opportunity to, and in fact did, respond to the plaintiffs’
motions for attorneys’ fees. Moreover, the defendants have cited no authority in
support of their argument that they had a constitutional right to cross-examine fee
petition witnesses, and none exists. Accordingly, in light of the foregoing, we
affirm the district court’s decision.
AFFIRMED.
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