A. Griffin v. City of Opa-Locka

A. GRIFFIN, Plaintiff-Appellee,

v.
CITY OF OPA-LOCKA, Earnie P. Neal, Defendants-Appellants.

No. 00-12200.

United States Court of Appeals,
Eleventh Circuit.

Aug. 17, 2001.

Appeals from the United States District Court for the Southern District of Florida. (No. 98-0155-CV-PAS),
Patricia A. Seitz, Judge.

Before ANDERSON, Chief Judge, and FAY and BRIGHT*, Circuit Judges.

FAY, Circuit Judge:

I. Introduction
This is an appeal from a $2 million jury verdict and award in favor of Plaintiff A. Griffin ("Griffin")

against the City of Opa-Locka ("the City") and its former City Manager, Earnie Neal ("Neal"), stemming from
Neal's sexual harassment and assault against Griffin. Both the City and Neal appeal. Neal argues that the
district court erred in denying his motion to bifurcate the trial against him and the City; that the district court

committed reversible error in permitting expert testimony to bolster Griffin's allegations that she was raped;
and that the district court abused its discretion in denying Neal's motion for a new trial due to emotional
outbursts by Griffin and another witness in the presence of the jury. The City argues that the district court

erred in denying the City's Renewed Motion for Judgment as a Matter of Law, Motion for New Trial, and its
Motion for Remittitur.
We review the district court's rulings on the admissibility of evidence, mistrial, bifurcation, and

requests for new trial for abuse of discretion. Alexander v. Fulton County, Georgia, 207 F.3d 1303, 1324-25

(11th Cir.2000); Hicks v. Talbott Recovery System, Inc., 196 F.3d 1226, 1242 (11th Cir.1999); Messer v.

Kemp, 760 F.2d 1080, 1087 (11th Cir.1985), cert. denied, 474 U.S. 1088, 106 S.Ct. 864, 88 L.Ed.2d 902

(1986). A trial court's denial of a motion to remit is reviewed for clear abuse of discretion. Farley v.

Nationwide Mutual Ins. Co., 197 F.3d 1322, 1335 (11th Cir.1999). We review the district court's denial of

the motion for judgment as a matter of law de novo, considering the evidence in the light most favorable to

*
Honorable Myron H. Bright, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
Griffin. If a reasonable jury could have found in favor of Griffin, we will affirm the trial court's decision.

Hicks, 196 F.3d at 1236. For the reasons set forth more fully below, we affirm the district court's final

judgment in favor of Griffin as against Defendant Neal on all claims. We reverse the district court's judgment
against the City only as to the City's liability for the sexual assault against Griffin under § 1983. We affirm

in all other respects.
II. Factual and Procedural History

Griffin is a 32-year old single mother who, prior to the birth of her son, attempted to pursue a musical

career. In 1992, she commenced employment with the City as a temporary employee and eventually became
a permanent billing clerk in the City's water department in 1993. The City, located in northwest Miami-Dade

County is a small municipality with fewer than 200 employees. In June 1995, the City hired Earnie Neal as

City Manager. As City Manager, Neal was the Chief Executive Officer for the City, in charge of its

day-to-day operations and personnel decisions.
Almost immediately after Neal started his job with the City, he began harassing Griffin. He
summoned her to work with him on the first day by demanding that the "big tit" or "big breasted" girl be sent

to his office.1 Immediately, he began asking her a series of personal questions regarding where she lived, who
she lived with, who cared for her child, whether she was married, whether she had a boyfriend, and where

was her child's father. The next day, Neal telephoned Griffin and asked her to guess what the "P" in his name
stood for. Griffin testified that Neal was referring to his penis and that he would not get off of the phone until

she guessed. Neal told her that he was looking for a girlfriend and wondered whether she could help him with
that. He also told her that he did not like where she was sitting and wanted her to sit in front of him so that
he could see her.

According to Griffin, despite her rejecting all of his advances, Neal continually demanded hugs and
questioned her whether she had a man, reiterating that he was still looking for a girlfriend. He also told her

that she needed a "man [like Neal] with money." Griffin stated that on one occasion, Neal asked her in front

of the Vice Mayor whether she was going to a specific function that night. When she replied that she was,

Neal stated, "Good, so we can dance close together," at which point Neal and the Vice Mayor started

1
Several employees testified that they were aware that Neal had requested that the "big tit girl" work
for him and that it was commonly known that Neal was sexually interested in Griffin. As an official
explanation for moving Griffin to Neal's office, Griffin was given a memo indicating that she was to be
"cross-trained." The City's director of human resources could not identify any other such memo ever
having been written by the City.
laughing, and Neal sent Griffin back to her desk. Neal also repeatedly asked her to go out with him. Griffin

recalled an occasion when Neal commented that he and Winston Mottley, one of her supervisors, were going
to come over and wanted her to cook dinner for them. Both Motley and Neal laughed at this comment.

On multiple occasions, Neal called Griffin into his office and told her he would have to replace her

if she did not cook for him, tell him how good he looked, and take care of him. In addition, he commented

on how she should wear her hair and that she was gaining too much weight. Griffin started dieting for fear
she would lose her job. Neal also began regularly hugging her tightly to feel her breasts and look down her

shirt. In addition to the daily hugs, Griffin testified that while she was sitting with a couple of officials at a
City function, Neal sat behind her and rubbed his knee against her buttocks and whispered in her ear that "I'm

still looking for a girlfriend." At another function, Neal put his hand on her hip and told her that she had hurt

his feelings again because she would not sing at an event congratulating him for being City Manager.
Griffin also recalled Neal calling her at home on a day that the City offices were officially closed.
He asked her whether she was sleeping next to her boyfriend and summoned her to the office for no apparent

reason. Although Griffin was eventually supposed to go back and work for the water department, Neal would
summon her everyday to his office even though he gave her no work. When she asked Neal to return to her

old job, he told her that he was hurt and that he could not believe she wanted to leave him. Griffin testified
that she asked various other City officials to help her get her old job back because she was unhappy working
for the City Manager. Several employees testified that she looked miserable during the time she worked in

Neal's office in stark contrast to the cheerful and friendly demeanor she had before she started working for
Neal.

In October 1995, after City employees were given a cost of living increase, Neal told Griffin that he
personally had seen to it that she got a larger increase than other employees. He said, "You got a bigger raise

than anybody, now will you go to dinner with me?" Griffin testified that she felt like he was trying to buy

her to make her go out with him and that she had no choice but to start looking for another job. Shortly
thereafter, Griffin tendered her resignation to be effective two weeks later because she could no longer

tolerate Neal's sexual advances or her working environment. Griffin testified that Neal was shocked by her

resignation and tried to talk her out of it. He also told her he would have to figure a way to take her out

before she left. Griffin testified that she did not report Neal's conduct or complain to anyone because he was
her boss, she did not have the courage to do so, and she did not want to create conflict.

After she tendered her resignation but before her job with the City ended, Griffin attended a Rotary
Club function where she was scheduled to sing. The Rotary Club was very important in the workplace culture

of the City and was attended by the Mayor, Commissioners, Neal, and several City department heads.
Although Griffin arranged for a ride home with the City's police chief following the event, Neal told her and

the police chief that he would take her home instead. Upon arriving at her apartment, Neal grabbed Griffin's

music equipment and began carrying it upstairs, despite her telling him that she could take care of it herself.

He followed her into her apartment uninvited and asked her to get him a drink. While she was getting him
water or juice, Neal came up behind her in the kitchen and raped her.

Griffin testified that after the rape, she feared for her life and that she felt that calling the police might
make it worse since Neal had previously served as a police chief in the nearby town of Florida City, Florida.

She did not believe that anyone would take her side, and she tried to go on as if the rape had not occurred.

She went to work the next day and every day until the end of her employment a few days later. Several
months later, Griffin decided to come forward about the rape. She contacted an attorney and this lawsuit
ensued.

Griffin sought damages against the City for sexual harassment and sexual assault under Title VII
(Count I); the Florida Civil Rights Act (Count II); 42 U.S.C. § 1983 (Counts III and IX); and state tort law

(Count VIII). She also alleged assault and battery claims against Neal (Count IV); violations of the Violence
Against Women Act, 42 U.S.C. § 13981 (Count V); Intentional Infliction of Emotional Distress (Count VI);
and Invasion of Privacy (Count VII). After a two-week trial, the jury concluded by special interrogatory that

Neal sexually harassed Griffin, that the harassment was a custom or policy of the City, and that Neal raped
her under color of law. The jury also concluded that the City was deliberately indifferent in hiring Neal and

found against Neal on the tort claims. The jury awarded Griffin $500,000 for the harassment and $1.5 million
for the rape.

III. Discussion

A. Neal's Appeal
1. Bifurcation

Because we can dispose of Neal's arguments in fairly short order, we address his appeal first. He

raises three arguments. First, he argues that the district court's refusal to bifurcate the trial of the claims

against him from those against the City resulted in unfair prejudice because Griffin was permitted to introduce
evidence that Neal harassed other women and had a reputation as a harasser to prove that the City had a

custom or policy of being indifferent to women. Neal contends that although such evidence may have been
admissible as to Griffin's claims against the City, it was inadmissible character evidence as against Neal
intended to show that he was a "bad person" who acted in conformity with his prior bad acts.

Rule 42(b) of the Federal Rules of Civil Procedure affords a district court discretion to order separate

trials where such order would further convenience, avoid prejudice, or promote efficiency. In this case, we
cannot say that the district court abused its discretion in concluding that bifurcation would "not significantly

increase judicial efficiency" or in its conclusion that bifurcation would "result in the Court essentially trying

the same case twice." See Omnibus Order, March 8, 2000. There is clearly substantial overlap in the issues,

facts, evidence, and witnesses required for Griffin's claims against both Neal and the City.

Moreover, although Neal argues at length that his rights were prejudiced by the introduction of his
prior bad acts, he neither objected to the introduction of such evidence at trial; nor did he ask the district

court for a limiting instruction. We do not believe that the district court committed plain error in failing to

provide a limiting instruction sua sponte.2 United States v. Cross, 928 F.2d 1030, 1051, n. 69 (11th

Cir.1991)(reviewing for plain error district court's failure to sua sponte caution jury that testimony could not

be considered as evidence of defendant's bad character or disposition to commit the crime); United States

v. Waldrip, 981 F.2d 799 (5th Cir.1993)(court's failure to sua sponte provide a limiting instruction is plain

error only when the court's charge as a whole is so erroneous as to result in a likelihood of a grave miscarriage

of justice); United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir.1993)(when defendant fails to request

instruction, trial court's failure to instruct is a ground for reversal only when it constitutes an error that is
"egregious and obvious" and reversal is "necessary to redress a miscarriage of justice"); Fed.R.Evid. 105

(when evidence is admissible for one purpose but not another, "the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly").

In light of our determination that the district court's failure to sua sponte provide a limiting instruction

was not plain error, we need not decide whether the evidence of Neal's prior bad acts would have actually

been admissible in Griffin's case against Neal. Although Fed.R.Evid. 404(b) prohibits the introduction of prior
bad acts to prove a defendant's bad character or that he acted in conformity therewith, the Rule does not

preclude the introduction of such evidence to demonstrate a defendant's plan, motive, opportunity, intent,

2
It does appear that the district court offered some limiting instruction either sua sponte or at the
request of the City regarding testimony about prior acts of harassment by Neal. The court instructed the
jury in the final charge that evidence of other acts of harassment could not be considered in determining
whether Neal harassed Griffin.
pattern, etc. Evidence of Neal's harassment of other women who worked under him is arguably admissible

for one or more of these acceptable purposes.
2. Expert Testimony

Next, Neal argues that the district court erred in allowing an expert witness to testify that Griffin's

post-assault behavior conformed to that of other assault victims. Griffin offered the testimony of Professor
Louise Fitzgerald, an expert in sexual harassment, assault, and rape. Fitzgerald testified about common

responses by victims of rape or harassment, such as the failure to resist a perpetrator, bathing immediately

after the assault, and the failure to file or a delay in filing a formal report or charge. After reviewing the

testimony, we do not believe that Fitzgerald commented on Griffin's credibility, veracity, capacity for truthful
testimony, or whether the events described by Griffin, in fact, transpired. Accordingly, we do not believe that

the district court abused its discretion in permitting the testimony.

3. Emotional Outbursts
Finally, Neal argues that the district court abused its discretion in not granting him a new trial

because the jury was tainted by emotional outbursts from Griffin and another witness. The first incident

occurred before voir dire of the jury when Griffin became very emotional and upset and left the court room

crying out loud. She walked through the lobby where the jury panel was waiting and then into the bathroom.
Many prospective jurors witnessed the incident. Although Neal argues on appeal that the district court erred

in not granting him a new trial based on Griffin's emotional outburst, it appears that Neal neither requested
a mistrial at the time of the incident; nor did he move to strike the jury panel. In any event, we find no abuse
of discretion in the district court's decision not to strike the panel.3 The court questioned each of the

prospective jurors about what they had witnessed and what effect it might have on their partiality. Each juror

ultimately selected to serve on the jury stated that he or she could ignore the incident and decide the case

based on the evidence.
The second incident upon which Neal bases his appeal occurred during the testimony of Joanne

Jeffery, a Florida City employee, who testified that Neal had harassed her on daily basis while he was an
employee of Florida City. Jeffery's testimony was almost immediately interrupted when she broke down

crying on the witness stand. The court promptly ordered a recess, and both Neal and the City moved for a

mistrial. Although the court initially expressed serious concern about the emotional nature of the testimony,

3
The City did request that the district court strike the panel, and the district court refused.
it ultimately declined to grant a mistrial. The court then instructed the jury to disregard the witness' crying,

and each of the jurors indicated that they were able to do so. One week later, the court struck Jeffery's
testimony "in toto" and instructed the jury that it was to completely disregard it.

Although Neal contends that Jeffery's emotional outburst on the witness stand was so severe and

disruptive that he was denied his right to a fair and impartial jury, we have held that because the trial judge

is in the best position to assess the prejudicial effect of an emotional outburst, the decision whether to grant

a mistrial lies within his sound discretion. Messer, 760 F.2d at 1087(affirming trial judge's refusal to grant

mistrial after murder victim's father began screaming at and lunged toward the defendant during defendant's

testimony). The district court gave curative instructions and ultimately struck the testimony of the witness.

Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir.1985)(stating that we presume that juries follow the

court's instructions). As such, we find no abuse of discretion.
B. The City's Appeal

In its judgment against the City, the jury found that Neal sexually harassed Griffin, that the
harassment was a custom or policy of the City, that Neal raped her under color of law, and that the City was

deliberately indifferent in hiring Neal. The City claims several errors on appeal. First, the City argues that
the judgment in favor of Griffin must be reversed because as a matter of law: the City cannot be liable for

any sexual assault committed by Neal; the City cannot be liable for sexual harassment; and the City was not

deliberately indifferent in hiring Neal. Second, the City argues that it is entitled to a new trial because the
district court abused its discretion in allowing testimony by certain witnesses and permitting evidence of prior
bad acts for the purpose of showing bad character or propensity. Finally, in the alternative, the City argues

that it is entitled to a remittitur in the amount of damages or a new trial on damages. We address each

argument in turn.
1. City's Argument it is Entitled to Judgment as Matter of Law

a. Liability for Sexual Assault

i. Color of State Law
In order to prevail on a civil rights action under § 1983, a plaintiff must show that he or she was

deprived of a federal right by a person acting under color of state law. Almand v. DeKalb County, Georgia,

103 F.3d 1510, 1513 (11th Cir.), cert. denied, 522 U.S. 966, 118 S.Ct. 411, 139 L.Ed.2d 314 (1997). A

person acts under color of state law when he acts with authority possessed by virtue of his employment with
the state. Id. "The dispositive issue is whether the official was acting pursuant to the power he/ she possessed

by state authority or acting only as a private individual." Edwards v. Wallace Community College, 49 F.3d

1517, 1523 (11th Cir.1995). It is firmly established that a defendant in a § 1983 suit acts under color of law

when he abuses the position given to him by the State. United States v. Classic, 313 U.S. 299, 326, 61 S.Ct.

1031, 1043, 85 L.Ed. 1368 (1941).

The City maintains that as a matter of law, it cannot be liable for any sexual assault committed by
Neal against Griffin because Neal was not acting under color of state law at the time of the assault. This

Court has previously recognized that under certain circumstances, a rape of a person by a state actor or

official could violate the Constitution and serve as the basis for a suit under § 1983. Almand, 103 F.3d at

1513 (citing Parker v. Williams, 862 F.2d 1471 (11th Cir.1989)(involving rape by uniformed deputy of

woman in his custody); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 479-80 (9th Cir.1991) (upholding

jury determination that defendant acted under color of law when he raped women looking for employment

while meeting with them under pretext of providing services pursuant to his job)). Whether a government
employee is acting under color of law is not always an easy call, and the color of law analysis inevitably

requires that we engage in line drawing. Almand, 103 F.3d at 1515. It is only through a process of "sifting

facts and weighing circumstances" that we arrive at a correct determination. McDade v. West, 223 F.3d 1135,

1139 (9th Cir.2000).
Based on the totality of facts and circumstances of this case and construing all of the evidence in a

light most favorable to Griffin, we believe that there is evidence from which a reasonable jury could conclude
that Neal's actions in harassing and ultimately raping Griffin occurred while he was acting under color of law.
The rape occurred following a Rotary Club meeting attended by Neal, Griffin, the Mayor, City

Commissioners, and the City Department heads. That the Rotary Club meeting was not technically an official

City function does not trouble us insofar as the color of law analysis goes. There was testimony by Griffin

and others that City employees were expected to attend Rotary Club meetings. In fact, Neal testified that after
he failed to attend one Rotary Club meeting, the Mayor made him "sternly aware" of the Club's significance,

and he never again missed a meeting. Moreover, there was testimony that Griffin was at the event as a City

employee. Neal himself testified that he attended the function as City Manager, that he was there "preserving

his job" and "taking care of business," and that he stayed close to the Mayor or Commissioners in case they
needed anything. Neal specifically asked Griffin and other City employees to attend the meetings, the Mayor
of the City was the founder of the Rotary Club chapter, and the City paid for employees, including Griffin,
to join. In short, participation in the Rotary Club was a command performance for City employees.

After learning that Griffin had arranged for the City's police chief to take her home following the

Rotary event due to car troubles, the evidence supports the conclusion that Neal intervened4 and invoked his

authority as City Manager to create the opportunity to be alone with Griffin, to take her home, and then to
rape her. In front of various City officials, including the Mayor, several Commissioners, and the Assistant

City Manager, Neal told Griffin that he would take her home and that she should advise the police chief that

he, the City Manager, would take her.5 In addition, Neal himself also instructed the police chief that he would

take her home and that the situation was all taken care of.6

On the way to Griffin's home, Neal used his authority to permit Griffin to park her car inside the
City's police department and told her that he would have the City fix it. During the ride from the police

station to her apartment, Neal and Griffin discussed her work for the City, and Neal tried to dissuade her from
leaving her job. Upon their arrival at her apartment and after insisting on helping her with her equipment,

Neal came up behind Griffin while she was in the kitchen and said, "Angie, you know that I have been
waiting a long time for this." When she refused his sexual advances, Neal, as he had done numerous times
throughout the course of his harassment of her, reminded her of his authority by saying "I can't believe you

are telling me no after everything that I have done for you." Neal then proceeded to rape her.
It appears that Neal continued to invoke his authority over Griffin to harass her and humiliate her
even after the sexual assault. When Griffin reported to work the day after Neal assaulted her, Neal summoned

her to his office, where he asked her for a hug and told other workers about the great time he had the previous
night and that "I want to do it again like I did last night, I want to do it all over again." Neal also used his

authority to have the City repair Griffin's car. After the rape, he instructed a City employee to repair the car

4
In Neal's words, he offered his help, "as the manager would."
5
Griffin testified that she did not protest or refuse because Neal was still her boss and she did not want
to make a scene or be negative in front of all of the City officials because she needed to get good
references from them.
6
Neal also told another Rotary Club member who offered Griffin help that he should not be concerned
and that everything was "taken care of" and "arrangements had been made." The Rotarian testified that
Griffin looked upset.
and told him not to ask any questions or answer any questions about the car repair.7

Although we are persuaded that the foregoing facts demonstrate that Neal utilized his authority as

City Manager to facilitate the assault on Griffin and that he was therefore acting under color of law at the time
of the assault, we do not believe that under the facts of this case that we are required to view the sexual assault

in isolation or ignore Neal's persistent abuse of authority leading up to the assault in making our color of law

determination. Rather, we believe that the entire pattern of abuse and harassment against Griffin that
eventually culminated in her rape is relevant to our color of law analysis. In other words, Neal's official

interactions with Griffin as her boss during and after work hours, his continual sexual harassment of her

during those interactions, and the ultimate sexual assault constitute an indivisible, ongoing series of events.

Doe v. Taylor Independent School District, 15 F.3d 443, 461 (5th Cir.), cert. denied, 513 U.S. 815, 115 S.Ct.

70, 130 L.Ed.2d 25 (1994)(Higginbotham, J., concurring)(teacher's official interactions with student and his
sexual activity with her constituted an "indivisible, ongoing relationship" even though a significant amount
of the sexual misconduct occurred after hours and off school grounds).

The pattern of Neal's abuse of his authority began the first day of his employment with the City and
did not end until after he sexually assaulted Griffin and she left her job at the City for good. From day one,
he utilized his authority as City Manager to harass and intimidate her by repeatedly insisting she owed him

something for "all of the things" that he did for her, including giving her a pay raise for which she was
apparently not entitled, threatening her with her job if she did not do certain things for him like cook, lose
weight, and tell him how good he looked, demanding that she work in his office (although he apparently gave

her no work), touching her inappropriately, continually requesting hugs, dates, and favors despite her refusal
to go out with him, and asking her intimate questions. It is within this context of Neal's continual exploitation

of and leverage of his authority over Griffin that we find a sufficient nexus between his duties and obligations

as City Manager and Griffin's boss and the abuse of that authority to facilitate his harassment and ultimate

sexual assault of her.8

7
Upon learning that the car was Griffin's, the water department supervisor allegedly told another City
employee that "[Neal] must have gotten to her. We have Angie's car in the back."
8
That Griffin had already resigned from her position at the City at the time of the assault does not
change our conclusion that Neal used and abused his authority to perpetrate against Griffin sexual
harassment and assault. Neal was Griffin's boss before, during, and for a time after the sexual assault.
Doe, 15 F.3d at 462 (Higginbotham, J., concurring)(noting the significance in the color of law analysis
that defendant was victim's teacher before, during, and after the sexual misconduct).
 Although we are unaware of any cases directly on point, we believe our conclusion that Neal was

acting under color of law is supported by several cases where state employees were held to be acting under
color of law when they utilized their authority to create the opportunity for or to facilitate a sexual assault.

For example, in Doe v. Taylor, the Fifth Circuit found that there was a sufficient nexus between a teacher's

duties and his sexual relationship with a student for color of law purposes where the sexual misconduct began
on school grounds and where the defendant "took full advantage of his position as [plaintiff's] teacher" to

create opportunities for sexual contact, exempt her from doing schoolwork, to give her good grades, and to

intervene on her behalf to get her a better grade in another class. Doe, 15 F.3d at 452, n. 4. Like the teacher

in Doe, Neal's improper sexual conduct started while he and Griffin were on the job at the workplace, he used

his authority to sexually harass her during and after work hours, held her job and job benefits over her head,9
and he ultimately used his authority as City Manager and her boss to create the opportunity to be alone with
her and to rape her.10

In addition to Doe, several other cases have similarly held that a state employee acts under color or

law when he utilizes his authority to create the opportunity to facilitate a rape or sexual assault. Dang Vang,

944 F.2d at 479-80 (employee of state employment agency acted under color of law when he raped women
looking for employment while meeting with them under pretext of providing employment services or teaching

them to drive); Rogers v. City of Little Rock, Arkansas, 152 F.3d 790 (8th Cir.1998)(finding that police

officer acted under color of law where he followed plaintiff home after a traffic stop, told her she owed him
one for letting her off without a ticket, and then he raped her).
In contrast to the aforementioned cases where a state employee used his authority to create the

opportunity to assault a victim, the City relies on a series of cases where the performance of a state actor's
official duties merely facilitated the meeting of or development of a relationship between the state actor and

another person; and the state actor later, on his own time and wholly independent of his official duties,

commits an assault or other constitutional tort against that person. Under those circumstances, the law is clear

9
Specifically, he repeatedly threatened that she would lose her job, he required that she work in his
office although he gave her no work, and he gave her a raise to which she was not entitled.
10
Although the color of law analysis is different and considerably more restrictive than the
determination whether a supervisor has invoked his authority for purposes of imposing Title VII liability,
we cannot help but noting the similarities between the instant case and Huitt v. Market Street Hotel Corp.,
No. CIV. A. 91-1488-MLB (D.Kan. June 10, 1993)(employer could be liable for hostile environment
sexual harassment where a supervisor invoked his authority to make it more difficult for victim to get a
ride home, supervisor then drove her home himself, and raped her on the way).
that the state actor is not acting under color of law. Almand, 103 F.3d at 1514 (although victim became

acquainted with police officer through his official duties in investigating victim's daughter's disappearance,

defendant used sheer force, not his authority as a police officer, to bust through her front door and rape her);

Roe v. Humke, 128 F.3d 1213 (8th Cir.1997)(although police officer met the student through his role as

goodwill ambassador to school, no nexus existed between his official duties and molestation of student where

the defendant molested the student at his farm, while he was off-duty, in plain clothes, driving his personal

car, and did not pretend to be engaged in any official activity); Becerra v. Asher, 105 F.3d 1042, 1047 (5th

Cir.), cert. denied, 522 U.S. 824, 118 S.Ct. 82, 139 L.Ed.2d 40 (1997)(although teacher had "first befriended

and shown a special interest in" the victim at school, there was no nexus between official duties as teacher

and sexual assault where teacher molested student off campus five months after student withdrew from

school); D.T. v. Independent School District, 894 F.2d 1176, 1186-88 (10th Cir.1990)(teacher was not acting

under color of law when he molested students during summer vacation, while under no contractual obligation
to school district, molestation took place at his home following a fund-raising activity for a basketball camp
not affiliated with the school; and the events were the product of a private activity that the plaintiffs

voluntarily and freely participated in as private individuals); Mooneyhan v. Hawkins, 129 F.3d 1264 (6th

Cir.1997)(unpublished decision holding that defendant police officer took advantage of an obviously
intoxicated plaintiff and his ten-month friendship with her to facilitate the sexual assault).
Although it is clear that in each of these cases, the state actor became acquainted with or developed
a relationship with a victim pursuant to his official duties, the assault or constitutional injury caused by each

defendant was committed completely away from and outside the ambit of his official duties or obligations.

Roe, 128 F.3d at 1217-18 (rejecting argument that sexual abuse would not have occurred if teacher had not

won student's trust and affection through role as teacher; constitutional violations do not "extend to the

development of trust and affection"). In none of these cases was the court faced with the situation confronted

by this Court, where the defendant engaged in a pattern of unconstitutional behavior against a particular

victim while in the course of his official duties at the workplace, and such unconstitutional activity continued,
and in fact, escalated outside the workplace. Neal's official duties did not simply provide him the opportunity

to become acquainted with Griffin or to develop a relationship of trust with her that he later used to facilitate
assault outside the workplace.11 Rather, he used his authority as Griffin's boss on a daily basis to harass and

humiliate her during and after work hours both at the workplace and City-related functions. This pattern of
harassment and the assertion of control over Griffin both at the workplace and beyond is what differentiates

this case from those where a police officer or teacher befriends or meets a victim while acting in the course

of his official duties, but then later assaults them off-duty, off premises while acting in a private or personal

capacity.12
ii. Policy or Custom

The City next argues that even if Neal's assault upon Griffin was taken under color of state law, it
cannot be liable because Neal's actions were not taken pursuant to a municipal custom or policy. The law is

clear that a municipality cannot be held liable for the actions of its employees under § 1983 based on a theory

of respondeat superior. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 663, 98

S.Ct. 2018, 2022, 56 L.Ed.2d 611 (1978). Rather, only deprivations undertaken pursuant to governmental

"custom" or "policy" may lead to the imposition of governmental liability. Floyd v. Waiters, 133 F.3d 786,

793 (11th Cir.1998).

Clearly, the City did not have a formal policy condoning or endorsing sexual harassment or sexual
assault by City employees. Nevertheless, § 1983 liability may be imposed on a municipality based on
"governmental 'custom' even though such a custom has not received formal approval through the body's

official decisionmaking channels." Id. at 795. This Court set out the standard for imposing such liability in

Brown, stating that:

[t]o prove § 1983 liability against a municipality based on custom, a plaintiff must establish a
widespread practice that, "although not authorized by written law or express municipal policy, is so
permanent and well settled as to constitute a 'custom or usage' with the force of law."

Brown, 923 F.2d at 1481 (citations omitted). In addition, we have also held that a municipality's failure to

11
To the contrary, Neal and Griffin's personal relationship did not extend beyond that of supervisor to
supervised and harasser to harassed.
12
Our holding today that Neal was acting under color of law when he raped Griffin comports with the
well established rule of law that not every tort committed by a state actor rises to the level of a
constitutional violation. It is the egregious and escalating nature of the abuse of Neal's official authority
in this case to perpetrate both harassment and ultimately rape against Griffin that tips the color of law
analysis in favor of concluding he was acting under color of law. Although subtle, we again reiterate the
critical distinction in the color of law analysis between those cases where a state actor directly uses his
official authority to create the opportunity to sexually assault a victim and those cases where a state actor
merely uses his authority to develop or facilitate a relationship of trust with a victim, even though that
relationship in some attenuated sense serves as a but for cause of a later sexual assault.
correct the constitutionally offensive actions of its employees can rise to the level of a custom or policy "if

the municipality tacitly authorizes these actions or displays deliberate indifference" towards the misconduct.

Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir.1987).

After reviewing the record in full and taking all inferences in favor of Griffin, the evidence

establishes without any question that sexual harassment was the on-going, accepted practice at the City and
that the City Commission, Mayor, and other high ranking City officials knew of, ignored, and tolerated the

harassment. As such, we are persuaded that the jury's conclusion that sexual harassment was so persistent

and widespread as to amount to a unconstitutional policy or custom is amply supported by the evidence.

The workplace was permeated with vulgar, demeaning, and sexually suggestive conversations about
women, improper demands for sexual favors and dates, unwelcome sexual advances, as well as unfair

treatment for those women unwilling to reciprocate such conduct and who were not considered "team

players." Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1187-89 (7th Cir.1986)(finding policy or

custom of sexual harassment at municipal fire department where female employees subjected to unwelcome

touching, conversations at the workplace were filled with "lurid sexual descriptions," the department had no

sexual harassment policy, management personnel "knew the general picture if not the details" of the pattern
of sexual harassment, and complaints were addressed superficially or not at all). We detail much of the

testimony presented to the jury to make clear the egregious and commonplace nature of the harassment at the

City, as well as to demonstrate that the final policymakers, including the City Commissioners and the Mayor
were aware of the problem and were completely indifferent to it.

At trial, several witnesses testified about repeated instances during which Neal and other male

employees engaged in vulgar, sexually suggestive, and demeaning conversations describing their sexual
escapades and desires. Neal was often overheard discussing his sex life in front of various department heads

and other City employees, including women, detailing how great he was in bed and how many times he had

sex the night before. In addition, Neal and other male employees would frequently compare female staff

members' breasts, legs, and bodies and describe what they would do to the women sexually if they had them.13
For example, Neal would say "If I had [Jane Doe], I could really rock her world." On one occasion, Neal told

the City Attorney that he wanted to see a female employee from the finance department naked. On another

occasion during a business meeting at a local hotel with several City employees and representatives from a

13
According to Mayor Ingram, this is just how men talk among themselves.
firm looking to do business with the City, Neal told everyone how he had sex in all of the rooms with mirrors

at the hotel. Following a City Commission meeting, Neal talked about going out "poking all night," and
high-fived the male assistant city manager who was present. On another occasion, Neal described to a female

employee an incident in which he had sex in the back of a patrol car.

The City Attorney, Griffin, and numerous other female employees also testified that Neal frequently

asked them for dates or dinner despite their rejections. In addition, he asked them to cook for him, told them
that they owed him something, and questioned them about their sex lives. On at least two occasions, a group

of female City employees complained to the City Attorney that they were having problems with Neal making
inappropriate sexual comments to them, touching them, asking for sexual favors and punishing those who

refused, giving people raises when they did not deserve them, and showing favoritism. The City Attorney

also received complaints from a City Clerk to the effect that Neal was asking her out, questioning her about
who her lover was, and that he was giving her a hard time because she was not reciprocating his advances.
Several employees, including a Commissioner, testified that in reference to Griffin, they knew that

Neal had requested that the "big breasted" or "big tit girl" work in his office. Neal asked the City Attorney
to go to a nude bar with him and told her that he would like to see her drunk. Natacha Yacinthe, an

administrative assistant, testified that Neal asked her details about her sex life, inquired whether she had slept
with another City employee, and indicated to her that he wanted her to dress more provocatively. Ana Otero,
the acting director of human resources, testified that on one occasion, Neal came up so close behind her while

she was standing at a copy machine that she could feel his breath on her neck. Neal told Otero that he liked
short, Puerto Rican women like herself, and according to Otero, came up and kissed her once in the elevator

though she had done nothing to encourage it. Otero also described an incident where Neal summoned her
to his office and asked her for an "intimate kiss."

Griffin, Irby, Ellis, and others testified that Neal made threats regarding their job or salary when they

did not reciprocate his advances. Irby testified that Neal told her she'd be removed from her job because she
was not "committed to him" and did not ask him out for dinner. Those who did not at least tolerate his

advances were not considered team players. One woman who interviewed with Neal for a job at the City

testified that Neal commented how nice her legs were, called her at home, asked for dates, talked about kinky

sex, gave her a City credit card number and told her to get them a hotel room. She refused his advances and
did not get the job.

Moreover, there is no question that the Mayor and City Commissioners knew about Neal's sexual
harassment and misconduct. Commissioner Barrett testified that it was commonly known throughout the City

that Neal had problems with sexual harassment and dealing with women both before he became City Manager
and afterwards. First, at or around the time Neal was being considered for the permanent City Manager

position, various faxes, articles, and cartoons addressed to the Mayor and City Commission were circulated

throughout the City government warning that Neal had a problem with sexual harassment. Some of the
articles apparently pertained to an incident involving sexual harassment at Neal's previous job. Another fax

contained a list of sexual harassment charges against Neal. Other faxes included cartoons depicting a man

harassing or assaulting a woman with a warning that "You are going to get this if you hire this guy." A City

resident also tried to present these articles and faxes raising concerns about Neal's sexual harassment
problems at a City Commission meeting where Neal's hiring was discussed. The resident was ignored.

There was also testimony that Neal was known as a womanizer.14 Commissioner Barrett testified

about a tape recording of a City Commission meeting with Mayor Ingram, the City Commissioners, and the

City Attorney where the group erupted in laughter as Neal was repeatedly introduced as Earnie P. Neal.
Commissioner Barrett explained that everyone laughed at the emphasis placed on Neal's middle initial

because he was known as Earnie "Penis" Neal.15 At least two employees, including the City Attorney,
complained to Commissioner Barrett about Neal's sexual harassment. In addition to the complaints to

Commissioner Barrett, another female employee testified that she complained about Neal's behavior to two
other Commissioners, the City Attorney, and the Mayor. Although Commissioner Barrett testified that he

believed the City had a sexual harassment problem, no remedial action was ever taken. Barrett maintained
that he never pursued removing Neal because he believed that the other Commissioners and the Mayor
endorsed everything Neal did and would not vote to remove him no matter what.

The most egregious example, however, of the City's notice of sexual harassment and its complete

14
There was testimony that it was known around the City that Neal had a sexual interest in Griffin.
Griffin testified that on a least two occasions, Neal made reference to taking her out in the presence of
other City officials. She described one incident where Neal summoned her, and in the presence of the
Vice-Mayor, told her that he was glad she was going to a City function that night so that they could dance
"close together." She testified that both Neal and the Vice-Mayor laughed at the comment and sent her
back to her desk. In addition, when Neal told Griffin that he, not the police chief, would take her home
following the Rotary Club function, Neal commented in the presence of several Commissioners and the
Mayor that he "could take her out now." The City officials laughed at Neal's remark according to Griffin
even though there was testimony that Griffin looked upset.
15
The director of human resources testified that she had heard talk around the City about an orgy that
had allegedly taken place involving several City employees, including Neal.
indifference to the problem is evidenced by the testimony regarding the Mayor's response to complaints that

Neal was sexually harassing several female employees. Patricia Ellis, the City Attorney, testified that she
went to see Mayor Ingram specifically to advise him of the various sexual harassment and misconduct

complaints she had received from female employees in regard to Neal. After advising the Mayor of the

complaints, Ellis testified that the Mayor responded as follows:
Heck, if I believe the rumors that I hear about Earnie Neal and Timothy Holmes, then they have a
heck of a libido, and I want some of what they are taking.16

Other than his statement regarding his desire to take some of what Neal and Holmes were taking, the

Mayor had no other response to the harassment complaints and no remedial action was taken. The Mayor's
statement is important to our decision today for several reasons. First and foremost, it constitutes the most

egregious statement of gross indifference to sexual harassment of which this Court can conceive. For the

mayor of a city to express an interest in getting in on the action when confronted with complaints of sexual
misconduct by the city's chief executive officer is nothing short of reprehensible.
Second, the Mayor's statement suggests that he was aware of and had prior notice of sexual

harassment and/or sexual misconduct involving not only Neal, but the Vice-Mayor as well. The jury was
certainly entitled to infer from the Mayor's response that he had prior notice. This inference coupled with the
fact that he took absolutely no remedial action and expressed an interest in "taking some of what [Neal and

the other Commissioner] are taking" reasonably supports the conclusion that sexual harassment was tolerated
and condoned at the City, if not encouraged.
In contending that it had no notice of the harassment, the City makes much of the fact that no prior

lawsuits were filed against Neal for sexual harassment. Nevertheless, we do not believe that the absence of

prior lawsuits or EEOC complaints is determinative on the issue whether the City is on notice of blatantly

unconstitutional conduct by its high-ranking officials. Nor are we overly concerned with the lack of formal
complaints within the City government either. The City did not have a sexual harassment policy, nor was
there any specific person or entity designated to receive sexual harassment complaints.17 The lack of a sexual
harassment policy or formal mechanism for complaints was particularly problematic in the instant case

because Neal, the primary harasser, was the person in charge of personnel and the day-to-day functioning of

16
Timothy Holmes was the City's Vice-Mayor and a member of the City Commission.
17
Dr. Hattie Daniels, the director of human resources, knew that the City needed a sexual harassment
policy. She apparently presented a draft policy to Neal, but no action was ever taken to implement it.
the City. Neither the Mayor or Commissioners were at the City full-time, and apparently there was no one

at the City on a daily basis superior to Neal. Under these circumstances, it is not surprising that the City

received no formal complaints against Neal.
In sum, we believe that the Mayor and City Commissioners were on notice of Neal's unconstitutional

behavior and failed to take the first remedial measure or preventative step to correct the known or suspected

sexual harassment problem. Depew v. City of St. Marys, Georgia, 787 F.2d 1496 (11th Cir.1986)(city's

knowledge of prior complaints, its failure to take remedial action, and lack of inclination to remedy pattern

of known constitutional violations is precisely the type of informal policy or custom that is actionable under

§ 1983). The City never investigated the allegations of sexual harassment, no records were kept of
complaints, and no one in charge ever questioned, disciplined, or even discussed sexual harassment with

Neal.18 There was no sexual harassment training or evidence that the Mayor or Commission ever even
considered formulating a sexual harassment policy until after Griffin left her job with the City.19 We believe

it fair to say that the City's tolerance of gross sexual harassment, its failure to take remedial action despite

actual and constructive knowledge of the problem and its complete lack of any sexual harassment policy or
complaint procedure taken together clearly constitute a "moving force" behind the rampant sexual harassment

at the City. As such, we uphold the jury's conclusion that the City had a policy or custom of ignoring or
tolerating gross sexual harassment.
The more difficult question is whether when a City has such a policy it can be liable for a rape

following this type of harassment. Under the facts of this case, however, we do not believe that we are
required to answer this question. Upon review of the district court's instructions to the jury and the jury
verdict form itself, it appears that the jury did not make the requisite findings to support § 1983 liability for

the rape against the City.20 Specifically, in response to Question 6 of the verdict form, the jury concluded that

18
Two employees did apparently warn Neal about his behavior. Upon hearing Neal's request that the
"big tit girl" be sent to his office, Winston Mottley told Neal that "those tits are going to get you in
trouble." The City Attorney also warned Neal that his conduct could create problems for the City.
19
Furthermore, it appears that when the City finally implemented a sexual harassment policy in 1998,
it was the new City Manager, not the City Commission, that enacted the policy as part of an
administrative regulation.
20
Moreover, it appears from the verdict form that the jury found the City's maximum liability to be
$500,000 in response to Question 9 on the verdict form, which asked the jury to determine what damages
were caused by Neal or the City for acts other than the rape. In contrast, Question 8 on the verdict form,
which required the jury to determine what damages were caused by Neal's sexual assault of Griffin, made
the City had a policy or custom of allowing a sexually hostile or abusive work environment. The jury,

however, rendered no express finding as to whether the City had a similar custom or policy of ignoring or

tolerating rape or sexual assault. Nor did the jury verdict refer to the rape incident as part of the policy or
custom of sexual harassment such that § 1983 liability for the rape could be sustained based on the custom

of harassment. Because the record does not establish that the jury found that the City had a custom or policy

of allowing rape or that the rape incident was part of the custom or pattern of sexual harassment, we cannot
reasonably say that the jury found all essential aspects of the § 1983 case against the City.21 As such, the

verdict and judgment against the City for the rape cannot stand.
b. Liability for Sexual Harassment

Next, the City contends that it cannot be liable for sexual harassment because the evidence

affirmatively established that the atmosphere in which Griffin worked did not constitute a hostile working
environment under Title VII or § 1983. To prevail on a hostile environment claim, a plaintiff must
demonstrate that the sexual harassment was sufficiently severe or pervasive to alter the terms and conditions

of employment and create a discriminatory abusive working environment. Gupta v. Florida Board of

Regents, 212 F.3d 571, 582 (11th Cir.2000), cert. denied, --- U.S. ----, 121 S.Ct. 772, 148 L.Ed.2d 671

(2001).
Our discussion in previous sections of the opinion leaves little doubt as to our belief whether Neal's

sexual harassment of Griffin was sufficiently severe or pervasive to constitute a hostile working environment.
We clearly believe that it was, and the issue merits little discussion.

Construing the evidence in a light most favorable to Griffin, a reasonable jury could conclude that
the harassment was severe and pervasive where there was testimony that it was known around the workplace

that Neal had a sexual interest in Griffin; Griffin went to work with Neal in the first place because he

demanded that the "big tit girl" work in his office; he repeatedly asked her to go on dates with him; cook
for him, and to be his girlfriend; he made comments of a sexual nature and insulting remarks about her body,

weight, and appearance; constantly requested hugs so that he could feel her breasts and look down her shirt;

no reference to the City or its liability for the rape.
21
Griffin argues that the City is properly liable for the rape because the rape was the culmination of,
and therefore part of, the pattern of gross sexual harassment that existed at the City. By our decision
today, we do not preclude the possibility that under some facts, a rape or sexual assault could be part of a
pattern or custom of sexual harassment. Rather, we simply cannot say based on the record before us in
this case that the jury, in fact, made this finding. It appears to us that the jury was never asked to do so.
rubbed his knee against her buttocks and whispered that he was still looking for a girlfriend; and finally, after

her repeated rejections of his advances, he raped her. Skadegaard v. Farrell, 578 F.Supp. 1209, 1212-16

(D.N.J.1984)(plaintiff stated claim for sexual harassment under § 1983 where she alleged that her supervisor
subjected her to crude sexual advances and comments and that same supervisor sexually assaulted her in a

state-owned vehicle en route to a work-related meeting); Woerner v. Brzeczek, 519 F.Supp. 517, 520

(N.D.Ill.1981)(plaintiff stated § 1983 claim for sexual harassment where she alleged that her supervisor

subjected her to embarrassing and belittling remarks in front of fellow officers, repeated sexual advances, and

interception of her phone and email messages). Bohen, 799 F.2d at 1182-83 (§ 1983 plaintiff was victim of

sexual harassment where she subjected to obscene comments by male co-workers and supervisor and forced
to listen to "dirty talk" regarding the men's sexual fantasies and their preferences for sexual positions).

c. Deliberate Indifference
Next, we consider whether a reasonable jury could conclude that the City's alleged deliberate
indifference in hiring Neal by failing to investigate his background can support liability for sexual harassment

under § 1983. In cases where a plaintiff presents a § 1983 claim based on a hiring decision and inadequate
screening, the Supreme Court has stated that:

Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to
conclude that the plainly obvious consequence of the decision to hire the applicant would be the
deprivation of a third party's federally protected right can the official's failure to adequately scrutinize
the applicant's background constitute "deliberate indifference."

Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 411, 117 S.Ct. 1382,

1392, 137 L.Ed.2d 626 (1997).
To impose § 1983 liability based on a hiring decision, a plaintiff must demonstrate that the municipal

actor disregarded a known or obvious consequence of hiring the applicant. It is not sufficient under this
standard that a municipal actor's inadequate screening of an applicant's record reflects an "indifference" to

the applicant's background. Id. at 411, 117 S.Ct. at 1392. Rather, a plaintiff must demonstrate that the

municipal hiring decision reflects deliberate indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision. Id.

Construing all inferences in favor of Griffin, we believe the evidence was sufficient for a finding that
the City's inadequate screening of Neal's background was so likely to result in sexual harassment that the City

could reasonably be said to have been deliberately indifferent to Griffin's constitutional rights. Neal was

hired as City Manager according to some testimony without a resume, interview, background check, or any
discussion of his qualifications.22 As detailed in previous sections of the opinion, at the time when the City

was considering hiring Neal, it was inundated with articles, faxes, and mail, warning of Neal's problems with
sexual harassment and dealings with women. There was testimony that some of the faxes included a list of

prior sexual harassment charges against Neal. Other faxes included explicit warnings that the City was going

to have a sexual harassment and/or sexual assault problem if it hired Neal. Both a citizen who attempted to

raise these complaints at a City Commission meeting and a City Commissioner who, concerned about the
sexual harassment red flags, requested more information on Neal's background, were disregarded. Moreover,

there was testimony that Neal was a known womanizer, commonly known to the Mayor and Commissioners
as Earnie "Penis" Neal. Most importantly, however, there was testimony suggesting that the City officials

were aware that Neal was sexually harassing City employees during the period of time between his

appointment as acting City Manager and the time of his final confirmation as permanent City Manager.
Despite these red flags indicating that Neal would have problems with sexual harassment, the City hired Neal
for a permanent position.

Moreover, it appears that a cursory check into Neal's prior employment history would have further
alerted the City to prior complaints about Neal with regard to sexual harassment. The City apparently ignored

its own policy of telephoning prior employers to conduct a background search and did not obtain Neal's
employment files prior to hiring him as permanent City Manager. Neal's file indicated that during his
employment with Florida City, there were complaints of sexual harassment against him. Further, the Mayor

of Florida City testified that if he had been contacted by anyone at the City, he would have informed them
of the sexual harassment complaints against Neal. Because we believe that the evidence supports the

conclusion that the City ignored a known or obvious risk that Neal was highly likely to engage in sexual
harassment if hired as the City's permanent City Manager, we uphold the jury's conclusion that the City acted

with deliberate indifference in hiring Neal. The City is therefore properly liable for sexual harassment

committed by Neal.
2. New Trial

Like Neal, the City argues that it is entitled to a new trial because the district court abused its

discretion in allowing testimony of certain witnesses and by permitting evidence of Neal's prior bad acts for

22
Mayor Ingram said that no particular experience was necessary for the job and the only
qualifications needed were three votes [by the Commission].
the purpose of showing bad character or propensity. We reject the City's arguments that it is entitled to a new

trial based on the testimony of Joanne Jefferys and Dr. Fitzgerald for the same reasons we rejected Neal's
arguments, and the issue merits no further discussion. We do take a moment, however, to address the City's

argument that the district court abused its discretion in permitting evidence of Neal's prior bad acts to show

bad character or propensity. Griffin presented evidence that Neal had harassed other women both prior to

and during his employment with the City. The City contends that this amounted to little more than a smear
campaign against Neal and had no relevance regarding whether Neal harassed or assaulted Griffin. What the

City fails to recognize, however, is that the evidence of Neal's prior bad acts was directly relevant to Griffin's
claims that the City had a custom or policy of condoning sexual harassment and that the City was deliberately

indifferent in hiring Neal.

Neal's prior acts of sexual harassment at other jobs of which the City was aware or should have been
aware is critical to the determination whether a reasonable background investigation would have made it
plainly obvious that Neal would sexually harass female employees if hired by the City. In addition, the

evidence of other acts of harassment was also admissible to demonstrate the City's custom or policy of

tolerating sexual harassment. Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987)(evidence of prior police

brutality action, arrest quotas, and prior incidents of sexual harassment and discrimination were admitted not
to prove defendant's bad character, but rather to support "condoned custom" theory of liability against the
city). Although as the City contends, the instant case concerns whether Neal sexually harassed or assaulted

Griffin, in its Monell dimensions, Griffin's complaint raises the larger issue of the City's custom of condoning

or tolerating sexual harassment. Id. at 1401. As such, the issue of municipal liability allows for a broad

inquiry into other allegations of harassment at the City and the City's investigation, attitude, and response to
such incidents.

Finally, we do not believe that the prejudice of admitting such evidence outweighs its probative value

under Fed.R.Evid. 403. In fact, but for the introduction of evidence of other acts of sexual harassment, this

Court cannot see how Griffin would be expected to prove her allegation that the City had a custom or policy
of condoning harassment or that the City ignored a known risk that Neal would sexually harass women if he

was hired as the City Manager.

3. Remittitur

Finally, the City argues that the district court clearly abused its discretion in refusing to hold that the
damage awards of $500,000 for sexual harassment and $1,500,000 for the rape were excessive.23

Nevertheless, our review of a trial court's decision whether to remit a jury's award of compensatory damages

is highly deferential. We have held that "[o]nce a defendant is found liable for the plaintiff's injury, the

district court has a great deal of discretion in deciding the level of damages to be awarded." Ferrill v. Parker

Group, Inc., 168 F.3d 468, 476 (11th Cir.1999) (citing Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th

Cir.1985)); Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1447-48 (11th Cir.), cert. denied, 474

U.S. 1005, 106 S.Ct. 525, 88 L.Ed.2d 457 (1985)(reviewing trial court decision as to whether jury

compensatory damages award was excessive for "clear abuse of discretion"); Agro Air Associates., Inc. v.

Houston Casualty Co., 128 F.3d 1452, 1455 n. 5 (11th Cir.1997)(reviewing denial of motion for remittitur

or new trial on ground of excessive damages under abuse of discretion standard). We are particularly
deferential to the fact finder's determination of compensatory damage awards for intangible, emotional harms

because the harm is so "subjective and evaluating it depends considerably on the demeanor of the witnesses."

Ferrill, 168 F.3d at 476.

In the instant case, the jury reached its decision regarding the proper amount of damages after
testimony from Griffin and others regarding the devastating personal impact the sexual harassment and rape
had on her physical and mental state. Griffin suffered from a major depressive disorder, gained significant

weight, and continues to experience the emotional repercussions of the rape and harassment. The district court
instructed the jury that emotions and sympathy were not to play any role in their deliberations and that
compensatory damages were not allowed as punishment. Absent evidence to the contrary, we presume that

juries follow the law as instructed. Raulerson, 753 F.2d at 876. As such, we do not believe the district court

abused its discretion in refusing to grant a remittitur.

IV. Conclusion

We hope that this is a unique case. It is difficult to believe that mature responsible adults would

conduct themselves in this manner. It is even more troubling when the perpetrators of such intolerable
activity are municipal officials. Our decision today should serve as a clear message to all that this type of

behavior is contrary to our laws and will not be tolerated. For all of the foregoing reasons we affirm the

verdict and judgment against Defendant Neal in all respects. We reverse the $1.5 million verdict against the

23
In light of our determination that the City is not liable for Neal's sexual assault of Griffin, the $1.5
million in damages for the sexual assault is inapplicable as against the City.
City for Neal's sexual assault of Griffin under § 1983, but affirm the judgment against the City in all other

respects.
AFFIRMED in part and REVERSED in part.

ANDERSON, Chief Judge, concurring specially:

I concur in all of Judge Fay's opinion in this very disturbing case, except to the extent that the opinion
addresses the issue of whether Neal was acting under color of state law when he assaulted and raped Griffin.

This issue was raised only by the City.1 Because we hold that the jury did not find the City liable for the rape,

there is no need to address the City's challenge relating to whether or not Neal was acting under color of law
at that time. The jury found the City liable under § 1983 only for $500,000, and only for acts other than the

rape (i.e., the sexual harassment excluding the rape). With respect to that issue, Judge Fay's opinion clearly

establishes both that Neal acted under color of law and that he acted pursuant to a policy or custom of the
City.

1
The probable explanation for Neal's failure to raise the issue is because Neal was liable for the rape
under several theories, including the state law claim of assault and battery.