Candace terrell v. OTS, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13105 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 4, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-00626-RWS

CANDACE TERRELL,

llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,

versus

OTS, INC.,
d.b.a. Omnitech Solutions,
d.b.a. Omnitech Institute,
CHARLTON CARLOS LESTER,

llllllllllllllllllllllllllllllllllllllll Defendants - Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(May 4, 2012)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:

OTS, Inc., a for-profit education corporation, and its CEO and sole

shareholder, Charlton Carlos Lester, appeal the district court's denial of their

motion for judgment as a matter of law and for a new trial after a jury verdict in

favor of Candace Terrell on her claims for battery against Lester and negligent

retention and supervision against OTS.

Terrell began working for OTS as an office manager in March, 2007, and

Lester was her direct supervisor. Not long after Terrell started working at OTS,

Lester began making advances, including hugging her, rubbing her shoulders and

arms, attempting to kiss her, and making sexual comments to her. Terrell resisted,

and Lester became critical of her job performance. In May, 2007, Lester moved

Terrell to a different department of OTS, where she was supervised by Renee

Alston, another OTS employee. After the transfer, Terrrell was terminated.

Terrell then sued Lester for assault and battery under Georgia law, and sued

OTS for sexual harassment and retaliation under Title VII of the federal Civil

Rights Act, 42 U.S.C. §§ 2000e-2 and 2000e-3, and for negligently supervising

and retaining Lester. Terrell's case went to trial on her state-law claims only.1

1
The district court granted a directed verdict on Terrell’s Title VII claims on the ground
that OTS has fewer than 15 employees. See 42 U.S.C. § 2000e(b). Terrell does not appeal the
dismissal of her Title VII claims.

2
Five other OTS employees testified to being sexually harassed directly by Lester.

The jury ruled in Terrell's favor and awarded $100,000 against Lester on Terrell's

battery claim, and $200,000 against OTS for negligently supervising and retaining

Lester as its employee. The district court denied Lester’s motions for a new trial

and for judgment as a matter of law.

On appeal, OTS argues that it cannot be held liable for negligently

supervising and retaining Lester because, as OTS’s CEO and sole shareholder,

Lester could be supervised and retained only by himself. However, the district

court held that Lester, acting as CEO and sole shareholder of OTS, could have

shielded OTS from liability by replacing himself with an outside manager once he

had notice of unwanted advances against OTS’s female employees. The district

court reasoned that Lester’s failure to do so constituted a failure by OTS as a

corporate entity that was punishable as a separate tort from Lester’s underlying

tort of battering Terrell. We find no reversible error in the district court’s

determination.

OTS also claims that the evidence at trial was insufficient to prove that it

had notice of Lester’s propensity to batter OTS’s female employees. However, as

noted, five former OTS employees, in addition to Terrell, provided testimony of

3
physical and verbal harassment by Lester.2 Their testimony demonstrated Lester’s

awareness that this conduct could give rise to lawsuits against him. Indeed, a sixth

witness, who had been employed at OTS as a contact person for sexual harassment

allegations, testified that she specifically advised Lester not to allow himself to

remain in a room behind closed doors with a female employee in order to protect

OTS from liability. This testimony provided an ample evidentiary basis for the

jury’s conclusion regarding OTS.

OTS and Lester also contend that the jury verdicts against them must be

reversed because the district court erred in admitting testimony by several

witnesses that OTS and Lester claim was perjured testimony. In support of this

argument, OTS and Lester simply point to inconsistencies in the witnesses’

testimony. However, OTS and Lester extensively cross-examined each of these

witnesses at trial, and the jury was entitled to reach its own determination as to the

truth of the witnesses’ statements. We find no merit to this argument. See Crystal

Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320 (11th Cir. 2011)

(“[T]his court will not ordinarily review the factfinder’s determination of

2
OTS and Lester challenge the district court’s admission of testimony by other female
employees regarding instances of sexual harassment by Lester. However, this argument was not
raised in an initial brief; therefore, we do not address it. See Tallahassee Mem’l Reg’l Med. Ctr.
v. Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (“[A] party cannot argue an issue in its
reply brief that was not preserved in its initial brief.”).

4
credibility.”).

AFFIRMED