[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 6, 2010
No. 08-16291 JOHN P. LEY
________________________ ACTING CLERK
D. C. Docket No. 04-01542-CV-ORL-28-DAB
DAWN GEORGETTE MYERS,
Plaintiff-Appellee-
Cross-Appellant,
versus
CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL, et al.,
Defendants-Appellants-
Cross-Appellees.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(January 6, 2010)
Before MARCUS, FAY and ANDERSON, Circuit Judges.
MARCUS, Circuit Judge:
Defendants Central Florida Investments, Inc., Westgate Resorts, Inc.,
Westgate Resorts, Ltd., CFI Sales and Marketing, Ltd., and David Siegel appeal
and plaintiff Dawn Georgette Myers cross-appeals the judgment of the district
court, after a jury trial, in favor of Myers in the amount of $610,469.84. Myers
recovered $103,622.09 in compensatory damages and $506,847.75 in punitive
damages arising from her claim of state law battery, but took nothing on her claims
of sexual harassment under state and federal civil rights acts. Defendants
challenge the awards under state and federal law, asserting that the evidence can
support neither the compensatory award nor the punitive award. Myers, in turn,
asserts that the district court improperly limited punitive damages, barred evidence
of harassment, denied her fees, and dismissed her state law claims. Because the
district court correctly answered the many questions raised in these appeals, we
affirm its judgment in all respects.
I. Background
A. Facts
The essential facts adduced at trial are these: Central Florida Investments,
Inc. (“CFI”), is the parent company for a number of associated entities -- Westgate
Resorts, Inc., Westgate Resorts, Ltd., Westgate Lakes, Inc., Westgate Lakes, Ltd.,
and CFI Sales and Marketing, Ltd. -- which collectively comprise a real estate
2
company whose primary business is the development and sale of time-share resorts
throughout the United States. Siegel is the chairman of the board, president, chief
executive officer, and sole stockholder of CFI. CFI, which is the largest privately
held time-share company in the world, is valued at approximately $471,000,000,
while Siegel himself has a net worth of some $324,000,000.
Dawn Myers testified that she first came to work at CFI as a salesperson in
1986. She had a real estate license, and her job required her to sell time-shares.
Myers was also an award-winning cosmetologist who was licensed to do hair,
nails, spa treatments, and skin care. Cosmetology was her professional passion,
and she hoped one day to develop a spa at one of CFI’s resorts.
In 1994, Myers called the CFI corporate office in order to request an
appointment with Siegel so that she could make her pitch. Siegel, on hearing her
thoughts, encouraged her to pursue the project, and, as Myers developed the
concept, the two went on to communicate about it every week for about a year.
Finally, Siegel authorized the creation of the spa.
During the ensuing period, Myers claims that she split her time at CFI,
working in the morning in sales and working in the afternoon on the spa. She
began to draw a regular salary, rather than work on straight commission. She also
spent a lot of time dealing with Siegel, and the two developed a friendship. Myers
3
would later testify, “what he told me that we had in common was the fact that
we’re both ambitious, we both are hard workers, [and] we both, if we believe in
something, you know, we go for it.”
Siegel was interested in Myers romantically, and their friendship began to
change as Siegel made that increasingly clear. According to Myers, it was at the
CFI Christmas dance in 1995 where Siegel made his first unwanted advance.
Siegel had asked Myers to dance, and as they danced he kissed her. Myers was
shocked. Siegel’s overtures towards Myers continued. He twice offered, at CFI
functions and in Myers’ presence, $1,000,000 to Myers’ boyfriend for one night
with Myers. Myers considered the offers to be disrespectful and inappropriate. On
several occasions, Siegel made marriage proposals to Myers, some more serious
than others, some on company property, and at least one in the presence of other
CFI employees. He offered to buy Myers lavish gifts, including a Porsche, if she
agreed to date him. And once, unsolicited, he even gave her a $10,000 check.
Myers was devastated: “I started crying and I said, you know, how could you do
this? . . . I said I don’t need your help. Our friendship does not have a price tag on
it. How many times do I have to tell you? I don’t want your money. I don’t need
your help.”
Siegel’s pursuit of Myers also began to color their interactions in the
4
workplace. Myers testified that he transferred her to a new office, and informed
her that he had done it so that she would be closer to him. He began to visit her in
the office nearly every day at 11 a.m., even asking for her if he could not find her
himself. When he did find her, she testified at trial, he would give her a hug and
sometimes let his hands slip down to her behind, in full view of her coworkers.
Sometimes he slapped her behind at work in front of her staff. During lunches at
CFI, Siegel would fondle Myers’ legs for everyone to see; he touched her legs at
the company restaurant at least twenty times, and probably many more. Siegel also
made inappropriate comments to Myers at work. He talked about her weight, and
at the company gym, he told her that “your ass is getting fat,” but that it was “okay,
because [your] boobs are big.” And, at a company awards dinner one night, Siegel
told the CFI crowd that he had asked Myers to come as his date, but that she had
refused him. She testified that the incident made her terribly embarrassed.
Myers and Siegel frequently traveled together, and these trips generally
fueled the tension between them. Thus, for example, Siegel and Myers traveled
together for business to the Bahamas, where, she testified, he propositioned her.
Similarly, in 1997, Myers agreed to travel to New York with Siegel on business.
Myers, who was first told that they would have separate hotel rooms, and who was
later told that they would have separate bedrooms in the same suite, said that she
5
grew “absolutely furious” upon discovering that their hotel room had only
bedroom. She went to the bathroom and cried, but resolved nevertheless to go
about her business in New York as planned. Myers also agreed to accompany
Siegel -- as his friend -- to attend the bar mitzvah of the son of a CFI executive in
Miami. She became “very angry,” however, when Siegel invited her on a romantic
walk on the beach.
On multiple occasions, Myers asked Siegel to stop his inappropriate
behavior. Myers testified that, “every time I went to him and sincerely asked him,
please, David, stop,” he told her that he would not do it again. “He seemed
extremely sincere that he would stop, with the exception of the times that he would
make a joke and say I want people to think that, you know, we’re together or
you’re my girlfriend.” Myers testified that Siegel in fact wanted people to think
that they were together.
Yet Myers and Siegel continued to work closely together, and continued to
be friends. Myers testified, “it never crossed my mind at that time to sever my
friendship with him,” because “he was my friend and he was important to me and
he . . . had given me this opportunity and I was extremely grateful, extremely
grateful.” Myers saw Siegel as a mentor: “how many people get an opportunity to
have someone like Mr. Siegel who’s brilliant in business in so many ways to, you
6
know, be their friend, to coach them, to anytime if I need to talk to him and I
picked up the phone, he would take my call. I mean it meant everything to me.”
Myers considered taking a harder line with Siegel, but she said that she
feared losing her job: “number one, he’s my boss.” She thought that, because she
did not have a college degree, she might flounder professionally outside of CFI.
She also testified that she could not simply quit: “I have a home. . . . I had bills to
pay. I was taking care of my mom. I can’t just quit my job. I’m the only one that
pays my bills. I couldn’t do it. And I really thought that some day it would stop.”
Work on the spa continued. Construction began in 1997 or 1998, Myers was
named the executive director of the spa, and she stopped working in sales in order
to devote her full attention to development of the spa. She was given control over
management of the facility, including design and staffing, subject to approval from
the front office.
According to Myers, once the spa opened in November of 1999, it became a
frequent site of Siegel’s unwelcome advances. On eight to ten occasions, Siegel
came to the spa looking for treatments from Myers. Towards the end of these
sessions, Siegel would, Myers testified, “let his hands wander and wander up the
back of my legs and on to my butt.” She asked him to stop, and pushed his hands
away, but he persisted. Furthermore, on several occasions, towards the end of the
7
treatments, Siegel would expose himself unnecessarily to Myers; he would do so
with “a big old smile on his face . . . , so I would think he knew he was doing it.”
Several times Jackie Siegel, who was Siegel’s third wife, joined Siegel and
Myers in the spa. One time, while Jackie was present, Siegel told Myers that “I
wanted to have the two of you together and, you know, well, at least I have the two
of you together now.”
Myers’ said that her most public humiliation occurred at a CFI charity event
in 2000. There were hundreds of employees at the event, some of whom had
dressed as celebrities. At one point Myers, who was dressed as Marilyn Monroe,
was summoned to the stage by Siegel, the master of ceremonies, to sing Happy
Birthday. Though Myers did not want to serenade him, Siegel played to a crowd
that was increasingly egging her on, and she felt that she had no choice.
Myers took the stage, where Siegel beckoned her to sit on his lap. Though
nervous, and completely shocked, Myers tried “to be a good sport.” She placed a
napkin on his lap, intending to sit on it. She testified, “as soon as I put it on his
lap, he took his hand underneath the napkin and you know, like made it go up like
that.” He was feigning an erection. But she sat down, sang the song -- at the end
of which he kissed her -- and rushed off the stage: “I just knew I needed to get out
of there. I just needed to get out of there.” Her face had turned red, she felt the
8
onset of a migraine headache, and as soon as she left the stage, she began to cry;
she felt humiliated. Myers said she was “dying and mortified.”
Rumors inevitably began to spread throughout CFI about Siegel and Myers.
Myers claimed that rumors of a relationship between her and Siegel were ruining
her reputation. “[T]here were rumors flying all around the resort that I was having
this wild affair with Mr. Siegel and no one would believe me that we were
friends.” Indeed, she said, there were hundreds of rumors about Siegel and Myers,
and it was well-known that Siegel was in love with Myers. Myers testified that the
gossip was “horrible” and “vicious,” and caused her to lose friendships. She added
that, during the celebrity waiter event, she could hear the crowd snickering: “the
people . . . would always gossip and say such hateful, . . . mean things.” This
atmosphere made it difficult for Myers to go to work: “the whole company was
gossiping about me. Executives were gossiping about me. Things were getting
back to me that executive’s wives were saying, people that didn’t even know me. I
didn’t want to go to work.” Myers testified that, ultimately, some CFI employees
just thought of her as “a dumb blonde bimbo with big boobs.”
When Myers began dating a new man in May of 2000, her already rocky
relationship with Siegel took a turn for the worse. She testified: “His attitude just
completely changed. He was angry, he was just, when you were around him he
9
tried to just talk down to you and degrading and humiliating.” He began to behave
differently towards Myers: “it was very, just aggressive and mean and just
demeaning and not like how it was before . . . . It was a completely different tone.”
This new attitude manifested itself on several ugly occasions. Once, Siegel
pinned Myers against the wall right in front of the reception desk at the spa, and in
front of the three staff members who were working the desk. Myers testified,
“Georgette, he said, your breasts look great in that sweater you’re wearing.” He
had his hand on her shoulder and was leaning into her. Myers attempted to
maintain her composure, signaling to Siegel with her hands to back off, and looked
to be relieved once it was over. Another time, after Siegel and Jackie each had
treatments, and again in the presence of spa staff, Siegel approached Myers and
pinned her against a wall, suggesting that Myers “come home and lay around with”
him and Jackie. He was reaching out and touching Myers. Myers told him to stop
and tried to push him away. After Myers extricated herself from the situation, and
while she was walking back towards her office, Siegel further commented that he
wished Myers “would crawl all over” him.
In 2000, Myers brought her concerns to a number of company executives,
but she said that they were of little help. She spoke with Mark Waltrip, CFI’s chief
operating officer, who told her that for her to date another man was “like waving a
10
red flag in front of a bull. You know how he feels about you.” She also spoke
with Paul Bosch, director of resort operations at CFI, who told her that she “should
think about leaving the company.” Finally, she complained to Sandy Jones, CFI’s
director of human resources, who once told Myers, “what are you going to do, he’s
the president of the company,” and another time explained, “that’s David.” Jones
was not the only one who believed that the rules did not apply to the president;
Siegel himself testified that, even if there were corporate rules binding him, he
could change them at his will.
Some CFI employees, including executives, either played an active role in
Siegel’s pursuit of Myers or were asked to. Jim Gissy, executive vice president of
sales and marketing, called Myers into his office to tell her that he thought she and
Siegel would be great together. Michael Marder, CFI’s general counsel, told
Myers at his son’s bar mitzvah that he was “really glad to see that you’re here with
David.” Siegel approached Roger Behrmann, a manager at CFI, on numerous
occasions, Gail Miller, a manager in sales, and Mary Fetzner, a server at the CFI
restaurant, to ask them to put in a good word for Siegel to Myers; they all
complied.
Ultimately, the environment at CFI took its toll on Myers. She testified that
she was “torn.” On one hand, she had been “given this amazing opportunity,” but
11
on the other hand, she felt “deflated” and “didn’t want to go to work.” She
testified that she felt as if she were “on an emotional roller coaster all the time.”
And Siegel’s change in behavior only made matters worse: “I was hurt. I was sad.
I didn’t understand.”
Myers was suspended in December of 2000, and her employment with CFI
was terminated later that month. In that final year at CFI, she earned $102,223.14.
On September 14, 2001, Myers filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”).
B. Procedural History
On April 5, 2004, CFI sued Myers in the County Court of the Ninth Judicial
Circuit in Orange County, Florida, seeking to recover $6,230 on the theories of a
promissory note, money lent, and unjust enrichment. On May 19, 2004, Myers
answered the suit and counterclaimed against CFI and Siegel, alleging disparate
treatment and hostile work environment, in violation of both the Florida Civil
Rights Act (“FCRA”), Fla. Stat. § 760, and Title VII of the federal Civil Rights
Act, 42 U.S.C. § 2000e, et seq., abuse of process, battery, assault, conspiracy, and
contractual attorney’s fees.
The case was then removed to the United States District Court for the
Middle District of Florida, remanded to county court, and transferred to the Circuit
12
Court for the Ninth Judicial Circuit. The circuit court dismissed CFI’s claim for
the $6,230, without prejudice, and ordered Myers to submit a new complaint. On
October 1, 2004, Myers filed a new complaint. This one included the same
allegations contained in the May 19 counterclaim, but added counts for slander and
malicious prosecution. On October 20, 2004, the defendants removed the action to
federal court in the Middle District of Florida.
On April 20, 2005, the district court dismissed some of the claims, including
several of the state law claims -- abuse of process, slander, malicious prosecution,
conspiracy and attorney’s fees -- over which the court had declined to exercise
supplemental jurisdiction. Myers amended her complaint again. The Second
Amended Complaint contained nine counts. Against Siegel and CFI, Myers
alleged false imprisonment and battery, common law claims in Florida, and
inducement to prostitution, in violation of Florida Statute § 796.09. Against CFI
alone, she alleged sex discrimination under Title VII and the FCRA, retaliation
under Title VII, the FCRA, and the Florida Private Whistleblower Act
(“Whistleblower Act”), Fla. Stat. § 448.101-105, and negligent retention and
supervision, a common law claim. Thereafter, the district court dismissed the
Whistleblower Act claim, as well as the inducement to prostitution and negligent
retention and supervision claims. The two sexual harassment claims, the two
13
retaliation claims, the battery claim, and the false imprisonment claim remained.
On April 24, 2006, the district court granted summary judgment to CFI on
the sexual harassment and retaliation claims, and remanded the two remaining state
law claims to state court. But, thereafter, a per curiam panel of this Court reversed
in part the grant of summary judgment, finding that Myers had presented sufficient
evidence to support her Title VII and FCRA hostile work environment claims. The
state law claims that had been remanded were reinstated. See Myers v. Cent. Fla.
Invs., Inc., 237 F. Appx. 452 (11th Cir. 2007).
After six days of trial,1 the jury found that Siegel had “subjected the Plaintiff
to a hostile or abusive work environment because of her sex or gender,” but that
none of the acts of sexual harassment took place on or after September 15, 2000,
the point at which the statute of limitations barred recovery.2 The jury also found
that Siegel had committed battery against Myers, and that it had occurred on or
1
The jury heard evidence on only battery and sexual harassment, as Myers had by that
time withdrawn her claim for false imprisonment.
2
A litigant under the FCRA must file a complaint with the state of Florida or the EEOC
within 365 days of the purported violation. Fla. Stat. § 760.11(a). Because Myers had filed a
complaint with the EEOC on September 14, 2001, the defendants could only be held liable under
the FCRA for sexual harassment occurring on or after September 15, 2000. Moreover, under
Title VII, the EEOC complaint must be filed within 300 days of any violation, 42 U.S.C. 2000e-
5(e); see also City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002), meaning that
defendants could only be liable under Title VII for conduct occurring on or after November 19,
2000.
14
after May 21, 2000, the relevant date under the statute of limitations.3
Because recovery was barred by the statute of limitations under Title VII and
the FCRA, the jury did not reach the issue of damages on the sexual harassment
claims. As for the battery claim, however, the jury awarded Myers $102,223.14 in
compensatory damages and $5,276,640.00 in punitive damages. These damages
were leveled against both Siegel and CFI. Final judgment was entered for Myers
in the amount of $5,378,863.14 on the battery claim.
Thereafter, the district court denied several post-trial motions; it did,
however, grant the defense motion that the judgment reflect that CFI had prevailed
on the sexual harassment claim. The district court also determined that the jury
had not made the findings required under state law to support a punitive award
greater than $500,000. Accordingly, the Amended Judgment noted that Myers
“shall take nothing” on the Title VII and FCRA claims, and reflected that the
district court had reduced the punitive damage award by $4,776,640. Adjusted for
interest, the compensatory damages were listed as $103,622.09 and the punitive
damages as $506,847.75 for a total award of $610,469.84. There was no award of
attorneys’ fees.
This timely appeal and cross-appeal followed.
3
The statute of limitations for battery is four years in Florida. See Fla. Stat. §
95.11(3)(o). Myers first asserted battery in her counterclaim filed May 19, 2004.
15
II. Standard of Review
First, the defendants argue that Florida law cannot support a compensatory
award of this size on this record. They also challenge the punitive award under
state law, asserting first that punitive damages are not permitted, and, in the
alternative, that the punitive damages were too great. They also maintain that the
punitive damage award violates the federal Constitution.
Myers claims, in turn, first that the district court improperly applied
Florida’s statutory cap on punitive damages, thereby wrongfully reducing the
punitive award to $500,000 when the evidence could support greater damages.
Second, she says that the defendants had the burden of showing that their unlawful
behavior occurred before September 15, 2000, the relevant date under the statute of
limitations. Third, she states that the district court, during rebuttal, improperly
prevented her from putting on evidence that the defendants sexually harassed her
on or after September 15, 2000; this evidence, she claims, would prove that her suit
was timely. Fourth, she asserts that she should be considered a prevailing party
under Title VII, and is therefore entitled to attorney’s fees under the statute. Fifth,
and finally, she argues that it was reversible error for the district court to dismiss,
rather than remand a number of state law claims over which the court had declined
to exercise supplemental jurisdiction.
16
A number of standards govern review of the questions raised in this case.
We review for abuse of discretion the propriety of the compensatory award under
Florida law, see Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003) (citation
omitted), the district court’s application of state statutory law to a jury award,
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 280
(1989); Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1334 n.28 (11th Cir.
1999); see also Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla. 2006), the
district court’s limitation of rebuttal, Conroy v. Abraham Chevrolet-Tampa, Inc.,
375 F.3d 1228, 1232 (11th Cir. 2004), and the district court’s refusal to exercise
supplemental jurisdiction over state law claims. Raney v. Allstate Ins. Co., 370
F.3d 1086, 1088-89 (11th Cir. 2004) (citation omitted).
We review for clear error, however, the district court’s findings of fact,
Johansen, 170 F.3d at 1334; Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995),
and the district court’s determination that parties have met the pleading
requirements concerning the fulfillment of conditions precedent under Rule 9 of
the Federal Rules of Civil Procedure. Fitz-Patrick v. Commonwealth Oil Co., 285
F.2d 726, 730 (5th Cir. 1960).4
4
Cases decided by the Fifth Circuit prior to the close of business on September 30, 1981,
are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.
1981).
17
Finally, we review de novo the propriety of punitive damages, Goldsmith v.
Bagby, 513 F.3d 1262, 1275 (11th Cir. 2008) (citation omitted), the
constitutionality of a punitive award, Johansen, 170 F.3d at 1334; see also id. at
1331 (“[A] court has a mandatory duty to correct an unconstitutionally excessive
verdict so that it conforms to the requirements of the due process clause.”) (citation
omitted), and whether a party has prevailed under federal law. Head v. Medford,
62 F.3d 351, 354 (11th Cir. 1995).
III. Compensatory Damages
The jury awarded $102,223.14 in compensatory damages to Myers on her
battery count, and the district court accordingly entered judgment for Myers in that
amount. CFI and Siegel challenge this award under Florida law, asserting both that
the size of the award is too great for what they claim is an ordinary battery, and
that the specific amount, which is equal to Myers’ earnings during the year of her
discharge, demonstrates that the jury inappropriately considered her termination
during deliberations. We are unpersuaded.
A federal court reviewing a compensatory award on a state law claim must
evaluate the propriety of the award under state law. See Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 435 (1996) (citation omitted); Johansen, 170 F.3d
at 1331. Under Florida law, jury awards are evaluated under a five-factor test:
18
In determining whether an award is excessive or inadequate in light of
the facts and circumstances presented to the trier of fact and in
determining the amount, if any, that such award exceeds a reasonable
range of damages or is inadequate, the court shall consider the
following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or
corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in
reaching a verdict or misconceived the merits of the case relating to
the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into
account or arrived at the amount of damages by speculation and
conjecture;
(d) Whether the amount awarded bears a reasonable relation to the
amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is
such that it could be adduced in a logical manner by reasonable
persons.
Fla. Stat. § 768.74(5). Taking each factor in turn, we hold that the district court did
not abuse its discretion in upholding the jury’s award of compensatory damages.
The first factor asks whether the award evinces passion or prejudice. The
district court cited Goldsmith v. Bagby, 513 F.3d 1262, 1275 (11th Cir. 2008), to
show the validity of an emotional damages award equal to a claimant’s salary. See
Myers v. Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-28DAB, 2008 WL 4710898,
at *15 n.13 (M.D. Fla. Oct. 23, 2008). But the validity of the compensatory award
19
was not at issue in Goldsmith, see 513 F.3d at 1267-68, 1276-77, and, as the
defendants argue, its relevance to our inquiry is therefore limited. Cf. Bravo v.
United States, 532 F.3d 1154, 1166-67 (11th Cir. 2008) (holding that damages are
to be compared only against awards tested for size in reported appellate decisions),
reh’g denied, 583 F.3d 1294 (2009).
Defendants are also correct to note that the jury was prohibited from
awarding Myers money for her termination. See Myers, 237 F. Appx. at 457
(“Myers cannot sustain a viable retaliation claim.”). Indeed, the district court
expressly gave the jury instructions to this effect. Nevertheless, CFI and Siegel
have failed to convince us that the compensatory award for emotional damages
equal to a claimant’s annual income evinces prejudice, passion or corruption on the
part of the jury.
A jury instructed to consider compensatory damages for emotional harm is
asked to place a dollar amount on one person’s suffering. The inquiry is inherently
subjective, see Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999), as
jurors bring their own experiences to bear on another person’s humiliation,
discomfort, and shame. The objective -- to make a plaintiff whole, see Sheely v.
MRI Radiation Network, P.A., 505 F.3d 1173, 1199-1200 (11th Cir. 2007) --
plainly is a difficult one, cf. Williams v. Trans World Airlines, Inc., 660 F.2d 1267,
20
1273 (6th Cir. 1981) (“[I]t is admittedly difficult to place a value upon the resulting
emotional injury from the deprivation of a constitutional right.”), and the means
employed are far from perfect. Cf. Consorti v. Armstrong World Indus., Inc., 72
F.3d 1003, 1009 (2d Cir. 1995) (“[C]ompensation for suffering can be
accomplished only in a symbolic and arbitrary fashion.”). But we will not prohibit
jurors from considering a legitimate measure as they go about their task.
A plaintiff’s income is relevant insofar as it affords some indication,
however imprecise, of the costs imposed on an employee whose time in the
workplace is inundated and spoiled by a defendant’s behavior. Many of the
touchings described by Myers, particularly the two incidents during which Siegel
pinned her against the wall in the spa, occurred in 2000, the year in which Myers
earned $102,223.14 from CFI. She testified that Siegel’s behavior during this
period humiliated her in front of her coworkers and drained her of her desire to go
to work. In attempting to set a dollar amount that would properly compensate her
for emotional suffering, the jury was permitted to consider, among other things, her
salary for the time in which she was subjected to the unlawful behavior. Her salary
at the very least gives some indication to the jury as to how Myers valued her time
at work, from which they may properly infer the amount of emotional suffering
that flowed from those workplace batteries. To hold otherwise, and deprive juries
21
of resort to income, would make the jury’s difficult task that much more
improbable.
The second statutory factor asks whether the jury ignored evidence or
misconceived the merits of the case. As we have noted, the jury was permitted to
conclude that several instances of battery occurred on or after May 21, 2000, the
statutory cutoff. There is no reason to believe that a jury which has discounted the
testimony of defense witnesses and the explanations of defense counsel has
misapprehended a case. Cf. Bogle, 332 F.3d at 1359 (“The standard of review for
awards of compensatory damages for intangible, emotional harm is deferential to
the fact finder because the harm is subjective and evaluating it depends
considerably on the demeanor of the witnesses.”) (quotation marks and citations
omitted).
Florida’s third statutory factor asks whether improper elements were
considered, or if the verdict was based on conjecture. Defendants argue that
emotional damages were never proven by medical testimony. But emotional
damages need not be supported by medical testimony in Florida. See Hagan v.
Coca-Cola Bottling Co., 804 So.2d 1234 (Fla. 2001). Defendants also say that no
reasonable jury could award $100,000 for a single battery, and that the award,
therefore, took into account incidents unrelated to the battery, including time-
22
barred material. Even if we were to assume that the jury did consider material
external to the battery itself, we conclude that the award may still stand. Under
Florida law, a tortfeasor is liable for the “entire unapportionable injuries” sustained
by a plaintiff, even if those injuries were heightened by prior incidents for which
the defendant cannot be held liable. Cf. Gross v. Lyons, 763 So.2d 276, 279 (Fla.
2000) (noting that “subsequent tortfeasors have been liable for entire
unapportionable injuries”); C.F. Hamblen, Inc. v. Owens, 172 So. 694, 696 (Fla.
1937) (“It is settled law that where injuries aggravate an existing ailment or
develop a latent one the person whose negligence caused the injury is required to
respond in damages for the results of the disease as well as the original injury.”).
The jury was permitted to consider the role the sexual harassment and prior
batteries played in heightening the damages flowing from this battery, even if that
behavior was itself time-barred. Cf. Stockett v. Tolin, 791 F. Supp. 1536, 1556-57
(S.D. Fla. 1992) (stating that a plaintiff’s “pre-existing” vulnerability, or “greater
sensitivity, . . . does not warrant any reduction in her recovery. The Defendants
must take the plaintiff as they find her”) (citations omitted).
The fourth statutory factor asks whether the award is reasonably related to
the damages suffered. This compensatory award of a little over $100,000 is not so
great as to bear no reasonable relation to the damages she suffered. See Baldwin v.
23
McConnell, 643 S.E.2d 703, 705-06 (Va. 2007) (approving a $100,000
compensatory award for assault and battery); Nash v. Sue Har Equities, LLC, 846
N.Y.S.2d 215, 216 (N.Y. App. Div. 2007) (awarding $100,000 for assault).
Furthermore, since this battery involved a boss plainly taking advantage of his
employee over an extended time frame, we can tolerate damages which may be
higher than normal. Cf. Stockett v. Tolin, 791 F. Supp. 1536, 1555 n.4 (S.D. Fla.
1992) (“[C]ases in which a supervisor has conducted a continued course of sexual
advances and harassment, followed by refusals by the employee, and retaliation by
the supervisor in the form of denying promotions or making the atmosphere of the
work place oppressive, involved conduct that is . . . outrageous.”) (quoting Fawcett
v. IDS Financial Svcs., Inc., No. 85-853, 1986 WL 9877, at *5 (W.D. Pa. Jan. 7,
1986)); Hughston v. New Home Media, 552 F. Supp.2d 559, 567 (E.D. Va. 2008)
(“There can be few more insulting injuries than being subjected to unwelcome
sexual touchings by a supervisor, accompanied by lewd solicitations for sex, in the
workplace.”).
The fifth and final statutory factor asks whether the award is supported by
evidence and can be logically adduced by reasonable people. For all the reasons
outlined above -- the existence of the battery, the existence of prior harassment and
touchings that might have heightened damage flowing from the battery, and the
24
superior-subordinate relationship of Siegel and Myers -- this award is supported by
the evidence and appears to be the result of a logical process conducted by
reasonable people.
Since the compensatory award falls within a range of damages reasonable
under Florida law, it does not constitute a clear abuse of discretion for the district
court to let it stand. Cf. Fla. Stat. § 768.74(6) (“The Legislature recognizes that the
reasonable actions of a jury are a fundamental precept of American jurisprudence
and that such actions should be disturbed or modified with caution and
discretion.”). Defendants are correct that a smaller award would have been
reasonable, too, but this award is entitled to a presumption of validity, see Bogle,
332 F.3d at 1359, and they have failed to overcome that presumption.
IV. Punitive Damages
The jury awarded $5,276,640 to Myers in punitive damages flowing from
the battery count, but the district court, relying on the Florida statutory cap on
punitive damages, reduced the award to $500,000. This capped award was then
adjusted for interest, resulting in the $506,847.75 award.
A. Florida Law
The defendants challenge the punitive award under Florida law, arguing that
punitive damages should not have been allowed at all, and, in the alternative, that
25
the award was excessive. Myers contends that the district court was not
empowered to reduce the award absent a proper motion from defendants, which
she contends was not made.
Florida law provides that:
A defendant may be held liable for punitive damages only if the trier
of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual
knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.
Fla. Stat. § 768.72(2). Decades of Florida case law have made it clear that a
finding of battery is sufficient to trigger punitive damages. See, e.g., Canseco v.
Cheeks, 939 So.2d 1122, 1123 (Fla. Dist. Ct. App. 2006) (“[I]ntentional battery
supplies the requisite proof of malice, justifying a punitive damages award.”)
(citations omitted); see also Joab, Inc. v. Thrall, 245 So.2d 291, 293 (Fla. Dist. Ct.
App. 1971) (“In Florida it is clear that an act of intentional assault and battery
committed without legal justification supplies proof of malice.”).5 Inasmuch as the
Florida courts have on this issue been unequivocal, the district court did not err by
5
While the Supreme Court of Florida has never stated this rule, we may rely on the
interpretation of a state’s intermediate courts absent some indication from the state’s highest
court to the contrary. See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000).
26
allowing punitive damages here.
The district court was empowered, however, to remit the award if it
determined that it was unreasonable. See id. § 768.73(1)(d). The factors the trial
court is obliged to consider when assessing the excessiveness of a punitive award
are the same factors it must consider when assessing the amount of a compensatory
award. See id. § 768.74(5). In Florida, the courts must conduct this review in
order “to make certain that the manifest weight of the evidence does not render the
amount of punitive damages assessed out of all reasonable proportion to the
malice, outrage, or wantonness of the tortious conduct.” Engle v. Liggett Group,
Inc., 945 So. 2d 1246, 1263 (Fla. 2006).
“Under Florida law, the purpose of punitive damages is not to further
compensate the plaintiff, but to punish the defendant for its wrongful conduct and
to deter similar misconduct by it and other actors in the future.” Owens-Corning
Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The Supreme Court of
Florida, therefore, has determined that the wealth of the defendant is a factor for
consideration in determining the reasonableness of a punitive award: “an award
must be reviewed to ensure that it bears some relationship to the defendant’s ability
to pay and does not result in economic castigation or bankruptcy of the defendant.”
Engle, 945 So. 2d at 1263; see also Rinaldi v. Aaron, 314 So. 2d 762, 764 (Fla.
27
1975); St. John v. Coisman, 799 So. 2d 1110, 1115 (Fla. Dist. Ct. App. 2001).
While it is not “an accurate rule of law that the greater a defendant’s wealth, the
greater must be punitive damages,” Bankers Multiple Line Ins. Co. v. Farish, 464
So. 2d 530, 533 (Fla. 1985), a “jury may properly punish each wrongdoer by
exacting from his pocketbook a sum of money which, according to his financial
ability, will hurt, but not bankrupt.” Bould v. Touchette, 349 So. 2d 1181, 1186-87
(Fla. 1977).
This punitive award of $500,000 does not offend Florida Statute §
768.74(5). Given the many years during which Siegel touched and harassed Myers
in the workplace, his repeated and public humiliations of her, and his refusal to
desist despite her repeated requests, the award can hardly be said to evince passion,
prejudice, or corruption. The award does not reveal that the court ignored evidence
or considered improper elements, nor is the award otherwise illogical. Simply
stated, the trial court could find that the $500,000 punitive award bore a reasonable
relation to the damage that would flow from a battery preceded by so much sexual
misconduct in the workplace.
Furthermore, the punitive damage award would not result in the economic
castigation or bankruptcy of the defendants. The district court heard testimony that
CFI’s net worth exceeded $471,000,000 and Siegel’s $324,000,000. Since
28
defendants’ ability to pay the original $5,378,863.14 judgment is, by their own
post-trial admission, plain, the amended $500,000 punitive award cannot be said to
bear an unreasonable relationship to their ability to pay.
Under Florida law, punitive damages also are subject to a statutory cap, and
Myers asserts that it was improperly applied here. Section 768.73(1)(a) of the
Florida Statutes provides that “an award of punitive damages may not exceed the
greater of: 1. Three times the amount of compensatory damages awarded to each
claimant entitled thereto, consistent with the remaining provisions of this section;
or 2. The sum of $500,000.” But there are statutory exceptions to this general rule,
one of which provides that, “[w]here the fact finder determines that at the time of
injury the defendant had a specific intent to harm the claimant and determines that
the defendant’s conduct did in fact harm the claimant, there shall be no cap on
punitive damages.” Id. § 768.73(1)(c). In other words, in order for a punitive
award greater than $500,000 to stand, a Florida jury must have found both specific
intent to harm and actual harm.
There is no question that the jury did not make any such overt findings. The
jury answered eight questions on the verdict form,6 none of which addressed
6
The interrogatories answered by the jury were these:
Claim One
Do you find from a preponderance of the evidence:
29
specific intent to harm or actual harm. However, the inquiry does not end there.
The jury verdict is considered alongside the jury instructions, and if the two can be
read together to show that the jury made the required findings, then a heightened
award may still stand. Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068,
1072 (11th Cir. 1996) (stating that the sufficiency of jury instructions should be
evaluated in light of the jury verdict).
The district court’s instructions to the jury regarding battery read this way:
1. That Plaintiff Georgette Myers was an independent contractor? No . . .
2. That Plaintiff Georgette Myers was an employee of any of the following
business entities? . . .
Central Florida Investments, Inc. Yes
CFI Sales and Marketing, Ltd. Yes
Westgate Resorts, Inc. Yes
Westgate Resorts, Ltd. Yes
3. That David Siegel subjected the Plaintiff to a hostile or abusive work
environment because of her sex or gender? Yes . . .
4. That at least one of the acts of sexual harassment took place on or after
September 15, 2000? No . . .
Claim Two
7. Do you find from a preponderance of the evidence that Defendant David Siegel
committed battery against Plaintiff? Yes . . .
8. Do you find from a preponderance of the evidence that conduct constituting
battery occurred on or after May 21, 2000? Yes . . .
9. Do you find from a preponderance of the evidence that Plaintiff should be
awarded compensatory damages on the battery claim? Yes. If Yes, in what
amount? $102,223.14 . . .
10. Do you find by clear and convincing evidence that punitive damages should
be awarded on the battery claim? Yes. If Yes, in what amount, based on a
preponderance of the evidence? $5,276,640.00 . . .
The jury did not reach questions five and six, which concerned damages for sexual harassment,
because it answered question four in the negative.
30
A battery is an intentional infliction of harmful or offensive contact
upon the person of another. To prevail on her battery claim, the
Plaintiff must prove each of the following facts by a preponderance of
the evidence:
First: That David Siegel intended to touch the Plaintiff’s
person;
Second: That David Siegel actually touched the Plaintiff
against her will; and
Third: That the contact was harmful or offensive to the
Plaintiff.
There is no natural reading of the verdict alongside the instructions that yields the
conclusion that the jury made the requisite findings. As the instructions make
clear, a civil battery might be supported where a defendant had specific intent to
offend, not harm, and where the defendant effected an offensive, but not harmful,
contact. See Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist. Ct. App. 1997).
Therefore, it can hardly be said that the findings of specific intent to harm and
actual harm inhere in a jury verdict of civil battery.
The district court did make passing reference to the twin requirements when
issuing instructions on punitive damages, encouraging the jury to “consider . . .
whether, at the time of the injury or damage, David Siegel had a specific intent to
harm the Plaintiff and the conduct of David Siegel did in fact harm the Plaintiff.”
Yet the court never instructed the jury that it must find specific intent to harm or
31
actual harm.
Furthermore, the district court was entitled to apply the statutory cap of its
own volition: “where a portion of a verdict is for an identifiable amount that is not
permitted by law, the court may simply modify the jury’s verdict to that extent and
enter judgment for the correct amount.” Johansen, 170 F.3d at 1330 (citing New
York, L. E. & W. R. Co. v. Estill, 147 U.S. 591 (1893)); see also Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989). Because the
Florida statute does not require a motion by the aggrieved party, see Fla. Stat. §
768.73(1)(a), we need not consider whether the defendants properly moved for
application of the statutory cap.
B. Constitutional Law
The defendants also challenge the constitutionality of the $500,000 punitive
award, asserting that they did not have fair notice that they might be liable to pay a
punitive award so much greater than the compensatory award.
The foundation of the due process inquiry is found in B.M.W. of North
America, Inc. v. Gore, 517 U.S. 559 (1996). “Elementary notions of fairness
enshrined in our constitutional jurisprudence dictate that a person receive fair
notice not only of the conduct that will subject him to punishment, but also of the
severity of the penalty that a State may impose.” Id. at 574. While “[p]unitive
32
damages may properly be imposed to further a State’s legitimate interests in
punishing unlawful conduct and deterring its repetition,” id. at 568 (citations
omitted), and states “have considerable flexibility in determining the level of
punitive damages that they will allow,” id., an award runs afoul of the due process
clause when it “can fairly be categorized as ‘grossly excessive’ in relation to these
interests,” id. (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.
443, 454 (1993)). To help determine when an award is grossly excessive, the
Supreme Court has adopted three guideposts for a court’s consideration: “the
degree of reprehensibility” of the defendant’s actions; “the disparity between the
harm or potential harm suffered by [the plaintiff] and his punitive damages award;
and the difference between this remedy and the civil penalties authorized or
imposed in comparable cases.” Id. at 574-75.
Proper due process analysis of a punitive award in the Eleventh Circuit
“requires first that we identify the state’s interest in deterring the relevant conduct
and the strength of that interest. Next, we review the district court’s findings
regarding the three BMW guideposts.” Johansen, 170 F.3d at 1335. While we are
“mindful of the difficulty of our task,” id. at 1333 n.22 (citing Gore, 517 U.S. at
606 (Scalia, J., dissenting)), we are guided by the understanding that the
constitutional question ultimately hinges on whether a defendant “had adequate
33
notice that its conduct might subject it to this punitive damage award.” Id. at 1335;
see also Action Marine, Inc. v. Cont’l Carbon, Inc., 481 F.3d 1302, 1318 (11th Cir.
2007) (“We do not view these guideposts as an analytical straitjacket, and we
maintain as our overarching aim eliminating the risk that a defendant is punished
arbitrarily or without fair notice of the possible consequences of its actions.”)
(quotation marks and citations omitted).
The state’s interest in deterring defendants’ conduct is strong. As the
Supreme Court of Florida has stated:
There can be no doubt at this point in time that both the state of
Florida and the federal government have committed themselves
strongly to outlawing and eliminating sexual discrimination in the
workplace, including the related evil of sexual harassment. The
statutes, case law, and administrative regulations uniformly and
without exception condemn sexual harassment in the strongest
possible terms.
Byrd v. Richardson-Greenshields Secs., Inc., 552 So. 2d 1099, 1102 (Fla. 1989).
Furthermore, the state’s interest in protecting workers from sexual discrimination
extends to both statutory and common law claims: “Public policy now requires that
employers be held accountable in tort for the sexually harassing environments they
permit to exist, whether the tort claim is premised on a remedial statute or on the
common law.” Id. at 1104.
There is no question that Florida has a considerable interest in protecting
34
workers from the kind of sexual misconduct to which Myers was subjected for so
many years. The jury found a battery by a superior on an employee in the
workplace. This battery followed a long period during which Siegel and CFI
subjected Myers to sexual harassment, but for which recovery was barred by the
statute of limitations. Furthermore, Myers’ repeated complaints, both to Siegel and
other CFI executives, were ignored and rebuffed. This unchecked pattern of
“antisocial behavior” from Siegel and CFI underscores the need for punitive
damages as a means “to correct evil-doing in areas not covered by the criminal
law.” See Campbell v. Gov’t Employees Ins. Co., 306 So. 2d 525, 531 (Fla. 1974).
With awareness of the powerful state interests in play, we turn next to the
Gore guideposts. The first is the degree of reprehensibility, and it is “the most
important indicium.” State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,
419 (2003); see also Goldsmith, 513 F.3d at 1283 (calling the first prong the
“dominant consideration”). The Supreme Court, in State Farm, identified five
specific factors for consideration:
We have instructed courts to determine the reprehensibility of a
defendant by considering whether: the harm caused was physical as
opposed to economic; the tortious conduct evinced an indifference to
or a reckless disregard of the health or safety of others; the target of
the conduct had financial vulnerability; the conduct involved repeated
actions or was an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere accident.
35
538 U.S. at 419; see also Goldsmith, 513 F.3d at 1283 (citing EEOC v. W&O, Inc.,
213 F.3d 600, 614-15 (11th Cir. 2000)). While there is no requirement that a
certain number of the five State Farm factors be present in order to support a
finding of reprehensibility, reprehensibility grows more likely as more factors are
present. See State Farm, 538 U.S. at 419.
The district court took each State Farm factor in turn. On the first factor, the
court noted that “the harm here was emotional rather than economic.” Myers,
2008 WL 4710898 at *17. As the jury heard evidence that Myers felt upset,
embarrassed, humiliated, and degraded by Siegel’s actions at CFI, this finding of
fact does not constitute clear error.
On the second factor, the district court noted that “there is some disregard of
health at play insofar as Plaintiff’s emotional health was involved.” Id. Since
there was plenty of evidence here, concerning both the battery and the sexual
harassment, suggesting an indifference or reckless disregard towards Myers’
health, whether physical or emotional, it was not clear error for the district court to
so find.
On the third factor, the district court found that the employment relationship
mattered: “financial vulnerability is implicated somewhat because, although this
battery claim did not involve financial consequences for Plaintiff per se, the events
36
did occur in the workplace and Plaintiff’s boss -- who controlled Plaintiff’s
earnings -- was the one who committed the acts.” Id. Myers presented evidence
that she feared making too big a deal of the touchings and harassment because
Siegel was her boss and she did not want to lose her job. She testified that she
stayed at CFI in part because she needed the money, and because she knew that her
chosen industry would not be as kind to a person without a college degree as had
been CFI. The district court’s determination, therefore, that the superior-
subordinate relationship between Siegel and Myers injected a sense of financial
vulnerability into their interactions cannot constitute clear error. Cf. Stockett v.
Tolin, 791 F. Supp. 1536, 1555 n.4 (S.D. Fla. 1992); Hughston v. New Home
Media, 552 F. Supp.2d 559, 567 (E.D. Va. 2008).
On the fourth factor, the district court wrote, “there is some evidence of
repeated actions, though only a six-month time period is at issue.” Myers, 2008
WL 4710898 at *17. We note, however, that a jury may consider material external
to the charge in determining the reprehensibility of the charge itself. See Gore, 517
U.S. at 576-77 (“Certainly, evidence that a defendant has repeatedly engaged in
prohibited conduct while knowing or suspecting that it was unlawful would
provide relevant support for an argument that strong medicine is required to cure
the defendant’s disrespect for the law.”) (citing TXO, 509 U.S. at 462 n.28); State
37
Farm, 538 U.S. at 423 (noting the relevance to the reprehensibility inquiry of
similar “prior transgressions”) (citing TXO, 509 U.S. at 462 n.28); Johansen, 170
F.3d at 1333 (similar). Moreover, “evidence of other acts need not be identical to
have relevance in the calculation of punitive damages.” State Farm, 538 U.S. at
423-24.
In this case, there was voluminous evidence of repetition presented to the
jury. Myers described a pattern of sexual touching from Siegel beginning in 1995
and ending in 2000. He touched her in the office, in the restaurant, in the spa, in
the treatment room, and on the dance floor. He touched her legs, her behind, and
her shoulders. He touched her when they were alone and when other CFI
employees were around. While these touchings were not all identical, it did not
constitute clear error for the district court to determine that the battery for which
defendants were held liable “replicate[d] the prior transgressions.” Cf. id. at 423
(citing TXO, 509 U.S. at 462 n.28). The district court’s only error was the
suggestion that the similar prior transgressions that are time-barred are in no way
relevant to the reprehensibility inquiry; such a conclusion does not flow from our
precedents. See Gore, 517 U.S. at 576-77; State Farm, 538 U.S. at 423 (citing
TXO, 509 U.S. at 462 n.28); Johansen, 170 F.3d at 1333.
On the fifth and final factor, the district court noted that “battery is an
38
intentional tort, although malice is not required for its commission.” Myers, 2008
WL 4710898 at *17. Inasmuch as battery in Florida can be sustained by an intent
to do mere offense, see Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist. Ct.
App. 1997), the district court’s determination that intentional malice was not
present is not clearly erroneous.
After the analysis of the State Farm factors, the district court turned to Gore
and concluded that “Mr. Siegel’s conduct is at the low to middle range of the
reprehensibility scale.” Id. This is a factual finding, see Johansen, 170 F.3d at
1334, for which the district court is allowed in its discretion to weigh the severity
of each factor, see State Farm, 538 U.S. at 419. In light of the ample evidence that
Myers suffered emotional distress, that she decided to stomach the objectionable
conduct for fear of losing her job and her income, that the behavior persisted for
years and over her frequent objections, and that no one at CFI seemed to care, we
cannot say that the district court’s conclusion regarding reprehensibility is clearly
erroneous.
The second Gore guidepost is the ratio of punitive damages to actual harm
inflicted on the plaintiff. The “proper inquiry is whether there is a reasonable
relationship between the punitive damages award and the harm likely to result from
the defendant’s conduct as well as the harm that actually has occurred.” Gore, 517
39
U.S. at 581 (citing TXO, 509 U.S. at 460) (emphasis in original) (quotation marks
omitted). On this issue, “comparison between the compensatory award and the
punitive award is significant.” Id. at 581 (citing TXO, 509 U.S. at 459; Pacific
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991)). In particular, the ratio of
punitive to compensatory damages is instructive. See State Farm, 538 U.S. at 425.
Nevertheless, the Supreme Court has “consistently rejected the notion that the
constitutional line is marked by a simple mathematical formula, even one that
compares actual and potential damages to the punitive award.” Gore, 517 U.S. at
582 (citing TXO, 509 U.S. at 458); see also State Farm, 538 U.S. at 425;
Goldsmith, 513 F.3d at 1283.
In this case, the amended judgment set punitive damages at $506,847.78 and
compensatory damages at $103,622.09. Since this yields a ratio of punitive to
compensatory damages of approximately 4.89:1, the district court’s finding that the
ratio was “less than 5 to 1,” Myers, 2008 WL 4710898 at *17, is not clearly
erroneous. Cf. Johansen, 170 F.3d at 1334 (“[T]he ratio of the actual to the
punitive damages is an historical fact. We accept that finding unless it is clearly
erroneous.”). The district court then concluded that “[t]his ratio does not suggest
an excessive award.” Myers, 2008 WL 4710898 at *17.
Notably, this Court has approved of a number of punitive awards where the
40
ratio of punitive to compensatory damages exceeded 4.89:1. See Johansen, 170
F.3d at 1327, 1339 (ratio of 100:1); Goldsmith, 513 F.3d at 1283, 1285 (ratio of
9.2:1); U.S. EEOC v. W&O, Inc., 213 F.3d 600, 616-17 (11th Cir. 2000) (ratio of
8.3:1); Action Marine, Inc. v. Cont’l Carbon, Inc., 481 F.3d 1302, 1321, 1323
(11th Cir. 2007) (ratio of 5.5:1); see also Bogle v. McClure, 332 F.3d 1347, 1362
(11th Cir. 2003) (ratio of 3.8:1). Furthermore, on the one occasion where this
Court has struck down a punitive award for constitutional excess, it reduced an
award with a ratio of 8,692:1 to an award with a ratio of 2,173:1. See Kemp v.
Am. Tel. & Tel. Co., 393 F.3d 1354, 1365 (11th Cir. 2004) (reducing the punitive
award from $1,000,000 to $250,000 when compensatory damages amounted to
$115.05). Those cases, like this one, implicated powerful state interests, from
protection of the environment, see Johansen, 170 F.3d at 1339; Action Marine, 481
F.3d at 1319, to the elimination of workplace discrimination, see Goldsmith, 513
F.3d at 1267; EEOC v. W&O, 213 F.3d at 607; Bogle, 332 F.3d at 1350, to the
protection of consumers, see Kemp, 393 F.3d at 1357.
Again, the state interest in protecting employees from repeated offensive
sexual touchings by the boss in the workplace is strong. Furthermore, the
$506,847.75 punitive award bears a reasonable relationship both to the harm Myers
has suffered and to the harm likely to result should CFI not be penalized now. The
41
district court, therefore, did not err in determining that the punitive ratio of 4.89:1
does not offend constitutional due process.
Defendants urge, nevertheless, that under Exxon Shipping Co. v. Baker, 128
S. Ct. 2605 (2008), any ratio greater than 1:1 is constitutionally suspect. Their
reliance on Exxon is misplaced. In Exxon, the Supreme Court was quite explicit
that it was dealing with maritime law, and not due process of law. See, e.g., id. at
2626 (“Today’s enquiry differs from due process review because the case arises
under federal maritime jurisdiction, and we are reviewing a jury award for
conformity with maritime law, rather than the outer limit allowed by due process . .
. .”); id. at 2626-27 (“Our review of punitive damages today, then, considers not
their intersection with the Constitution, but the desirability of regulating them as a
common law remedy for which responsibility lies with this Court as a source of
judge-made law in the absence of statute.”). Defendants’ suggestion that the
punitive award violates the Constitution of the United States can therefore find no
support in Exxon.
The third and final Gore guidepost is a comparison between “the punitive
damages award and the civil or criminal penalties that could be imposed for
comparable misconduct.” 517 U.S. at 583. When considering criminal penalties, a
reviewing court considers both fines and imprisonment. See Pacific Mut. Life Ins.
42
Co. v. Haslip, 499 U.S. 1, 23 (1991); see also Gore, 517 U.S. at 583 (citing Haslip,
499 U.S. at 23). These peripheral sanctions are significant because they can serve
to give fair notice to potential tortfeasors of the magnitude of sanctions they might
face for their actions. See Gore, 517 U.S. at 584; Johansen, 170 F.3d at 1337.
The third guidepost presents a mixed question of law and fact:
[T]he selection of the most appropriate point of comparison -- actual
fine imposed, the maximum possible penalty or penalties in similar
cases -- is an issue of law. We, therefore, review the district court’s
determination of the appropriate comparison de novo. However, the
district court’s finding regarding this comparison, i.e., the disparity
between the amount of the punitive damages award and the amount of
the other civil or criminal sanctions, is an historical fact which we
review for clear error.
Johansen, 170 F.3d at 1334.
The district court determined that Florida’s statutory cap on punitive
damages was the most appropriate comparison point. See Myers, 2008 WL
4710898 at *18. This was error. The fact that some torts can be punished up to
$500,000 does not put people on notice that battery might be punished up to
$500,000. Rather, the district court should have compared the punitive award to
the sanctions available for a criminal battery.7
However, even after determining that the district court applied the wrong
7
Under Florida law, the criminal “offense of battery occurs when a person: 1. Actually
and intentionally touches or strikes another person against the will of the other; or 2.
Intentionally causes bodily harm to another person.” Fla. Stat. § 784.03(1)(a).
43
comparison point, we still ultimately affirm its conclusion. We do so because the
proper comparison point did provide unambiguous notice to the defendants of the
seriousness of their tort. Battery is a crime in Florida punishable by up to a year in
prison, see Fla. Stat. §§ 784.03(1), 775.082(4)(a), 775.083(1)(d), which is a serious
criminal sanction.8 The due process clause is violated when defendants do not
have fair notice of the magnitude of the punitive sanctions they might face.
Because battery can carry a prison term of a year, residents of Florida have fair
notice that battery is an offense with formidable consequences. A $500,000
punitive award fits comfortably within this array of potential sanctions.
As a final matter, under controlling case law, the courts of this Circuit are
empowered to consider the financial resources of the defendant when determining
the constitutionality of an award. See Johansen, 170 F.3d at 1338; W&O, 213 F.3d
at 616-17 (similar); Kemp, 393 F.3d at 1364. Undeniably, the $500,000 punitive
award is a serious sanction and may not be taken lightly. It will not, however,
bankrupt or cripple these wealthy defendants. Moreover, the trial judge could
readily find that a lesser award would not provide the same level of deterrence.
We can discern nothing to suggest that the punitive award in this case is in
any way violative of the Constitution. Siegel engaged in a pattern of offensive
8
As Myers argues, Siegel, with a net worth of $324,000,000, would likely pay $500,000
to avoid a year in prison.
44
sexual touchings in the workplace, heaping upon Myers, his subordinate,
indignities both private and public. CFI, alerted to Siegel’s abhorrent behavior on
numerous occasions by Myers, did nothing to stop it, and even in some instances
encouraged it. It can hardly be said that the defendants did not have fair notice that
years of such behavior -- culminating in the battery for which they were found
liable -- might expose them to a substantial punitive damages award. The jury and
the district court, after hearing extended testimony, plainly meant for the
defendants to understand that their conduct towards Myers was wholly
unacceptable and that it would be punished in a substantial manner. Ultimately,
the Constitution permits the district court to fashion a punitive remedy that will
effectively deliver this message.
V. Statute of Limitations
Because Myers filed her complaint with the EEOC on September 14, 2001,
the defendants could only be held liable for sexual harassment that had occurred on
or after September 15, 2000, under the FCRA, see Fla. Stat. § 760.11(a), and on or
after November 19, 2000, under Title VII. See 42 U.S.C. 2000e-5(e); City of
Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002). Nevertheless, Myers
presented little testimony during her case-in-chief concerning when the
complained-of behavior occurred. While her witnesses described much harassing
45
conduct, they did not state clearly when it had occurred, or if any had occurred
after September 15, 2000. Nor did the defendants put on evidence regarding when
the events described by Myers’ witnesses purportedly occurred. When, during
rebuttal, Myers attempted to develop testimony that would show that some
harassment had indeed occurred after September 15, 2000, the district court did not
allow it. Myers argues, nevertheless, that her failure to put on evidence of
timeliness should not preclude her from recovery under Title VII and the FCRA,
because it was the defendants who bore the burden of proving that their conduct
occurred before the relevant dates, and because they failed to discharge that
burden.
The filing of a complaint with the EEOC is a condition precedent to a sexual
harassment suit. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.
2001); see also 42 U.S.C. § 2000e-5(b). A harassment suit may go forward under
some circumstances, however, if the plaintiff has failed to do so, because “filing a
timely charge of discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982); see also Weaver v. Casa Gallardo, Inc., 922 F.2d
1515, 1521 (11th Cir. 1991).
46
“In pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed. But when denying that a
condition precedent has occurred or been performed, a party must do so with
particularity.” Fed. R. Civ. P. 9(c). Should a defendant make that denial, “[t]he
plaintiff then bears the burden of proving that the conditions precedent, which the
defendant has specifically joined in issue, have been satisfied.” Jackson v.
Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Should a
defendant “not deny the satisfaction of the conditions precedent specifically and
with particularity, however, the allegations are assumed admitted and cannot later
be attacked.” Id. at 1009.
In this case, the ninth paragraph of Myers’ Second Amended Complaint
addressed conditions precedent. It read: “Plaintiff received her Notice of Right to
Sue letter from the U.S. Equal Employment Opportunity Commission within 90
days before filing this action, and has otherwise fulfilled all conditions precedent to
institution of this action.” This general statement from Myers was sufficient to
discharge her duty under Rule 9 of the Federal Rules of Civil Procedure. See
EEOC v. Times-Picayune Publ’g Corp., 500 F.2d 392, 392 (5th Cir. 1974).9 We
9
Opinions of the Fifth Circuit rendered before the close of business on September 30,
1981, are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th
Cir. 1981).
47
consider, then, the sufficiency of any denials interposed by the defendants.
Defendants’ first denial consisted of the following: “Defendants deny the
allegations contained in paragraph 9 of the Plaintiff’s Second Amended
Complaint.” Defendants’ Answer and Affirmative Defenses to Plaintiff’s Second
Amended Complaint at 2, Myers v. Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-
28DAB (M.D. Fla. Oct. 25, 3005). This is as general as a denial can be, and
therefore cannot meet the particularity requirements of Rule 9 of the Federal Rules.
See, e.g., Wilshin v. Allstate Ins. Co., 212 F.Supp.2d 1360, 1370 (M.D. Ga. 2002).
However, paragraph nine was not the only place in the Answer where
defendants addressed the fulfillment of conditions precedent. In a section
concerning affirmative defenses appeared the following:
338. Plaintiff failed to exhaust all administrative remedies and thus
cannot obtain relief pursuant to Title VII or the Florida Civil
Rights Act, Chapter 760.
339. Plaintiff did not exercise her right to sue or to file her EEOC
Complaint within the time prescribed by the statute.
Defendants’ Answer and Affirmative Defenses to Plaintiff’s Second Amended
Complaint at 32, Myers, No. 6:04-cv-1542-Orl-28DAB (M.D. Fla. Oct. 25, 3005).
These paragraphs state which particular condition precedent they claim Myers
failed to fulfill (the EEOC complaint), and the reason for the failure (untimeliness).
The denial is sufficiently particular.
48
While affirmative defenses are, of course, distinct from denials, see, e.g., In
re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988), and while
Rule 9(c) calls for a denial, this Court has excused technical noncompliance with
pleading requirements where the substance of the pleading is sufficient. See id. at
1348-49 n.9; EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981).
Here, the Answer gave Myers ample notice that defendants believed that she had
failed to timely file a complaint with the EEOC. This notice served to discharge
defendants’ duty under Rule 9(c) and successfully shifted the burden of going
forward back to Myers to present evidence of timeliness. This she did not do.
Moreover, the district court did not abuse its considerable discretion in
preventing Myers from putting on evidence of timeliness during rebuttal. “The
trial judge has the authority, within limits, to control the scope of rebuttal
testimony.” United States v. Renfro, 620 F.2d 497, 502 (5th Cir. 1980) (citing
Geders v. United States, 425 U.S. 80, 86 (1976)). Here, Myers offered no evidence
of timeliness during her case-in-chief, and the defendants did not mount evidence
on the issue during their case. The evidence of timeliness that Myers attempted to
introduce on rebuttal, therefore, could not “explain, repel, counteract, [n]or
disprove” the testimony offered by defense witnesses, cf. United States v. Mock,
523 F.3d 1299, 1303 (11th Cir. 2008) (quoting United States v. Frazier, 387 F.3d
49
1244, 1269 (11th Cir. 2004) (en banc)); there was no evidence to rebut.
VI. Prevailing Party Status
While under Florida law, attorney’s fees were not available to Myers on the
state law battery count, see United Svcs. Auto. Ass’n v. Kiibler, 364 So. 2d 57, 58
(Fla. Dist. Ct. App. 1978), Title VII provides that “the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee . . . .” 42 U.S.C. § 2000e-
5(k); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 414 (1978).
Determining when a party prevails is a complex question:
If the plaintiff has succeeded on any significant issue in litigation
which achieve[d] some of the benefit the parties sought in bringing
suit, the plaintiff has crossed the threshold to a fee award of some kind
. . . The touchstone of the prevailing party inquiry must be the
material alteration of the legal relationship of the parties in a manner
which Congress sought to promote in the fee statute.
Walker v. Anderson Elec. Connectors, 944 F.2d 841, 846 (11th Cir. 1991) (quoting
Tex. Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93 (1989))
(alterations in original) (quotation marks omitted). The “moral satisfaction” that
accompanies a judicial determination that one has been aggrieved is insufficient to
establish prevailing party status. See Walker, 944 F.2d at 847 (quoting Hewitt v.
Helms, 482 U.S. 755, 762 (1987)). Rather, the prevailing party must have settled
“some dispute which affects the behavior of the defendant towards the plaintiff,”
Farrar v. Hobby, 506 U.S. 103, 110 (1992) (quoting Hewitt, 482 U.S. at 761)
50
(quotation marks omitted), and the judgment must be “enforceable,” id. at 111.
Ultimately, “a plaintiff ‘prevails’ when actual relief on the merits of his claim
materially alters the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-12;
see also Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981) (“[T]he proper focus
is whether the plaintiff has been successful on the central issue as exhibited by the
fact that he has acquired the primary relief sought.”).
In Walker v. Anderson Electrical Connectors, 944 F.2d 841 (11th Cir. 1991),
the plaintiff alleged a violation of Title VII and two accompanying violations of
state tort law, namely invasion of privacy and outrage. See id. at 842. The jury
determined that the defendant had sexually harassed the plaintiff, and committed
the state torts, but awarded nothing in damages on either claim. See id. at 843.
The jury found that the harassment had not resulted in damages. See id. We
determined that Walker was not a prevailing party under Title VII, “hold[ing] that
to be a prevailing party for purposes of 42 U.S.C. § 2000e-5(k), requires the
attainment of something more tangible than a jury finding of sexual harassment.”
Id. at 847. Yet this broad holding does not reach this case, where Myers did attain
something more tangible than a jury finding of sexual harassment -- namely, a
$610,469.84 award on her battery claim.
51
The Second Circuit, however, has encountered a case that is squarely on
point. In Bonner v. Guccione, 178 F.3d 581 (2d Cir. 1999), the plaintiff asserted,
among other things, sexual harassment claims under Title VII and the New York
Human Rights Law. The jury found that the plaintiff had been sexually harassed,
that damage had occurred within the applicable state time-frame, but that none had
occurred during the applicable federal time-frame. Id. at 583. She therefore
recovered $90,000 on the state claim, but nothing on the federal claim. Id. The
court determined ultimately that the plaintiff was not a prevailing party under Title
VII, reasoning that there was simply nothing to enforce: “Plaintiff here failed to
obtain either an enforceable judgment or settlement agreement against the
defendants on her Title VII cause of action.” Id. at 594.
The analysis of the Second Circuit is persuasive. The jury’s determination
that CFI and Siegel subjected Myers to sexual harassment, but that recovery was
time-barred, does nothing to advance the legal rights asserted by Myers against the
defendants. Based on the judgment rendered, the defendants need not curtail their
behavior nor pay Myers money, cf. Farrar, 506 U.S. at 111-12, and the legal
relationship between the parties has not been altered. Cf. Walker, 944 F.2d at 846.
Moreover, on the Title VII count, judgment was even entered in favor of the
defendants. Cf. Bonner, 178 F.3d at 599 (“[T]he jury found that the Title VII
52
claim for damages (the only relief sought) was time-barred. If the jury had
returned a special verdict containing such an express finding, the defendants would
have been entitled to the entry of a judgment in their favor.”). In short, Myers is
not a prevailing party on the Title VII claim and is not entitled to attorney’s fees.10
VII. Reinstatement of Other State Law Claims
As a final matter, Myers asks us to instruct the district court to reinstate a
variety of state law claims that were dismissed in April of 2005. While we agree
that federal district courts in removal cases must remand, rather than dismiss, state
claims over which they decline to exercise supplemental jurisdiction, see Cook v.
Sheriff of Monroe County, 402 F.3d 1092, 1123 (11th Cir. 2005); Lewis v. City of
St. Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001), Myers neglected to raise this
issue when this case first came before this Court. Nearly five years have passed
since these claims were dismissed, and we decline now to upset the decision of a
lower court that should have been challenged before us more than two and a half
years ago. Cf. Nationalist Movement v. City of Cumming, Ga., 92 F.3d 1135,
1138-39 (11th Cir. 1996); Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir.
10
Victory on the battery charge played no causal role in the decision of the district court
not to award attorney’s fees on the Title VII charge. If, however, the trial court had declined to
award fees under Title VII on account of an award of fees on a related matter, our analysis would
be different. Cf. Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996); Hall v. W.
Prod. Co., 988 F.2d 1050 (10th Cir. 1993).
53
1996); Martin v. Atlantic Coast Line R.R. Co., 289 F.2d 414, 416 (5th Cir. 1961).
Accordingly, the judgment of the district court is AFFIRMED.
AFFIRMED.
54