concurring in part and dissenting in part:
Part I
I reluctantly concur with the majority that the existing case law compels both retroactive application of Patterson1 and prospective application of the Civil Rights Act of 1991, thus eliminating Vance’s § 1981 claim. The law of this circuit was settled on these two issues in Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992) (per curiam).2 Nevertheless, I cannot help but feel that the application of the rules articulated in Baynes lead, in Mary Ann Vance’s case, to a manifest injustice. Two all-white juries, on two separate occasions, have heard all of the evidence and concluded that Southern Bell discriminated against Mrs. Vance and awarded her multi-million dollar verdicts on her claim. We reversed her first verdict as excessive three months before the decision in Patterson was announced. Now, her second verdict is ground to dust between the upper millstone of the decision not to apply the Civil Rights Act of 1991 to her case, and the lower millstone of Patterson, a decision on which no one in this case could be said to have relied.3 Much of *1579what I could say on the fairness question has already been said by others, so I will not belabor the point here. See, e.g., Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 940 (7th Cir.1992) (Cudahy, J. dissenting).4 I would add only that, for me, this application of Patterson also raises troubling questions of separation of powers.
In Patterson the Supreme Court was engaging in statutory interpretation, not constitutional interpretation, when it interpreted § 1981 to preclude the cause of action upon which Vance has relied. Theoretically, the Court’s role in statutory interpretation is to uphold legislative intent, not to make new law. Nevertheless, new interpretations of statutes often have that practical effect, as Patterson did when it sub silentio overruled prior court of appeals opinions (such as our own)5 interpreting § 1981 more expansively. Judicial “law making” is an inevitable byproduct of our system,6 albeit one that, at times, seems to be barely tolerated — like a relative you’d rather not acknowledge — because it is difficult to square with the theory of the courts’ role. But whatever theoretical difficulties judicial law making poses in the ordinary course of things, the practice is more troubling still when Congress rejects the Supreme Court’s interpretation of a statute. It is difficult to argue then that the court is merely effectuating the Congress’ intent. In that case, I would think our constitutional role is to limit the operation of that erroneous interpretation, not expand it.
To keep Patterson on “life support” by applying it to cases beyond those tried in reliance upon it, like Baynes, or for which it provided the governing standard at the times the acts occurred, makes the Court’s reassurance in Patterson, that “Congress remains free to alter what we have done,” ring hollow, Patterson, 491 U.S. at 173,109 S.Ct. at 2370. Whatever Congress’ intent on retroactivity,7 it is clear Congress intended to alter what the Court had done. Disregarding that aspect of the legislative intent and focusing exclusively on the intent with regard to retroactivity might well be viewed as a refusal to implement Congressional will or as not reflecting the appropriate respect for our co-equal branch.
*1580Finally, while I share the majority’s concerns for equity and stare decisis, it is far too late in the day to ensure that everyone similarly situated will be treated equally with respect to § 1981.8 Moreover, consistency is only one of many values with which we must be concerned. As we have said elsewhere, “ 'justice is better than consistency.’ ” Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir.1984) (citations omitted).9 Nevertheless, while I believe that upholding Vance’s verdict in this case would be just, I cannot say that the majority has misread the precedent or has clearly erred, therefore I concur in its ruling.
Part II
I cannot join the majority in its assessment of Vance’s state law claim. See majority opinion supra at n. 7. The District Court decided that the tort of intentional infliction of emotional distress “is incident specific,” 10 and that as the judge found “no incident subsequent to July of ’85,” the statute of limitations barred Vance’s claim. That ruling is erroneous. Under the Federal Rules of Civil Procedure Vance’s amended complaint relates back to her original filing because there is no question that the basis for her claim of intentional infliction of emotional distress arises out of the same “conduct, transaction, or occurrence” as her § 1981 claim. Fed.R.Civ.Pro. 15(c).11 See also Forzley v. Avco Corp., 826 F.2d 974, 981 (11th Cir.1987). Southern Bell’s argument to the contrary is simply spurious.12
The only thing that is changed by Vance’s amended complaint is some of the legal inferences to be drawn from the same conduct. Vance’s amendment does not so vary from her original complaint that Southern Bell did not have notice as to the facts alleged or the evidence which would be relevant. Southern Bell cannot reasonably assert that it was prejudiced by her amendment. Indeed, because of the change in the law, if anyone is prejudiced it is Vance. Therefore, she ought to be allowed the opportunity to amend her complaint to assert a claim that she understandably did not assert before, as long as Southern Bell was given “fair notice of the *1581general fact situation out of which” her claim arose. Forzley, 826 F.2d at 981 (citation omitted).
As the United States Supreme Court noted in Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) in a related context:
Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleading or develop the record more fully-
Id. at 482, 110 S.Ct. at 1256 (emphasis added) (citations omitted). This quote reflects the liberal amendment policy that has been the practice of the federal courts. See also Comments to 1991 amendments of Rule 15(c) (“Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one provided in this rule, it should be available to save the claim.”) (indicating that, notwithstanding the supremacy of federal procedural rules in federal court, the courts are to use whichever rule allows more liberal relation back).
The District Court also ruled as a matter of law that Vance’s claims did not rise to the level of “outrageousness” necessary to support her claim. The Florida Supreme Court has stated the necessary standard as follows:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
Eastern Airlines, Inc. v. King, 557 So.2d 574, 576 (Fla.1990) (quoting Restatement (Second) of Torts, § 46 (1965), comment d). If the conduct which two juries found that Southern Bell engaged in does not meet this standard, I can scarcely conceive of the case which would.
The question of whether a complaint will support a cause of action sufficient to go to the jury on the issue of intentional infliction of emotional distress is initially one for the judge. But the district court judge in this case did not appear to correctly apply the standard employed by the Florida courts.
Whether the conduct is outrageous enough to rise to the level required by the tort may be decided as a question of law when the facts of a case can under no conceivable interpretation support the tort, but where significant facts are disputed, or where differing inferences could reasonably be derived from undisputed facts, the question of outrageousness is for the jury to decide.
Williams v. Minneola, 575 So.2d 683, 692 (Fla.Dist.Ct.App.1991) (citations omitted). See also Mundy v. Southern Bell Tel. & Tel. Co., 676 F.2d 503, 505 n. 4 (11th Cir.1982) (per curiam) (degree of outrageousness is a mixed question of law and fact). Cf. McAlpin v. Sokolay, 596 So.2d 1266, 1269-70 (Fla.Dist.Ct.App.1992) (holding that question is one for the court, but nevertheless reversing trial court’s dismissal of claim, suggesting that standard for the judge is whether any reasonable juror could find the conduct sufficiently outrageous); with Baker v. Florida National Bank, 559 So.2d 284, 287 (Fla.Dist.Ct.App.1990) (question is one for the court, no elaboration on standards to guide judge). There is no question that there were disputed facts in this case,13 quite apart from *1582the issue of whether the facts could under “no conceivable interpretation support the tort” 14 as would seem necessary to support the district judge’s directed verdict.
Although the transcript does not reveal the authority on which the district court relied, the majority opinion cites only two15 cases to support this ruling; Lay v. Roux Laboratories, Inc., 379 So.2d 451, 452 (Fla.Dist.Ct.App.1980) (per curiam), and Mundy, 676 F.2d at 505-506. I fail to see how either of these cases support this position. Not only are both cases over 10 years old,16 (a point to which I will return later), neither can be said to stand for much beyond its own facts.
In Lay a Florida court of appeals merely determined that the facts in that case would not sustain a claim of intentional infliction of emotional distress.17 The plaintiff claimed that her supervisor threatened her with the loss of her job and “ ‘began using humiliating language, vicious verbal attacks, racial epithets and called [her] a “nigger” ’ when an argument arose concerning a parking space.” Id. at 452. There is no indication in the recitation of the facts that any more than this single altercation was at issue there, or that any pattern of harassment was alleged. This is a far cry from the pattern of conduct in which Vance alleged that Southern Bell' engaged. Lay cannot reasonably be read to hold that racially hostile misconduct can never support a claim of intentional infliction of emotional distress, and if it can not be so read I fail to see how it supports the district court’s ruling.
Mundy is of even less value to the majority. Mundy is precedent from this circuit.18 At that time it was not even clear “whether Florida recognize[d] an independent cause of action for intentional infliction of emotional distress,” Mundy, 676 F.2d at 505, let alone what sort of conduct would meet the standard. The majority suggests that the relevance of Mundy is that Florida rejects this cause of action in the employment context based on this court’s survey of Florida precedent. In an aside the panel in Mundy observed that, “although there are numerous Florida cases in which plaintiffs have made claims of intentional infliction of emotional distress against their former employers ... we find none, in which the plaintiff has prevailed.” Id. at 506. This is not only far short of a pronouncement that employees could never recover on this theory, it is also no longer true.
*1583Since Mundy was decided the law has undergone rather significant expansion by the Florida Supreme Court. First, in Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985) the supreme court clarified that intentional infliction of emotional distress was indeed a separate cause of action. Later, in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099, 1103-04 (Fla.1989) the court held workers could sue their employers for sexual harassment under a theory of intentional infliction of emotional distress.19 Id. at 1104. Thus, in McCarson and Byrd, the Florida Supreme Court clarified the question in Mundy and provided an example from the state’s highest court that an employee could sue under this theory.20
Justice Barkett, writing for the majority in Byrd found that “[pjublic 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. She based this conclusion on the extensive state and federal civil rights legislation, as well as Supreme Court precedent, which addressed sexual harassment or had been interpreted to encompass it. Id. at 1102-04.
Given that the recognition of sexual harassment as an injury to civil rights is of relatively recent vintage, (compared to racial harassment), I find it unlikely that under current Florida law Vance’s claims would be deemed too insubstantial to support her claim. Every factor cited by Justice Barkett which supported the finding in Byrd applies with equal, if not more, vigor to racial harassment, if only because the public policy condemning racism is of even longer standing.21
Mary Ann Vance testified to a continuous and oppressive pattern of intimidation and harassment on the part of her fellow workers and supervisors at Southern Bell. That Southern Bell would allow such an atmosphere to develop, or having been apprised of it, fail to take the firmest possible steps to eradicate it, is by itself outrageous. But of all of the incidents, two stand out as particularly horrific — the nooses twice left at Vance’s work station. The noose in this context is a symbol not just of racial discrimination or of disapproval, but of terror. Those of us for whom a particular symbol is just that — a symbol — may have difficulty appreciating the very real, very significant fear that such symbols inspire in those to whom they are targeted. No less than the swastika or the Klansman’s hood, the noose in this context is intended to arouse fear.22 If a jury would not cry “Outrageous!” upon hearing these facts (and I think these juries did through their verdicts), I cannot think of a set of facts for which it would.
For all of the foregoing reasons I believe we should remand this case for retrial on the state law claim, and therefore I respectfully DISSENT. Subject to my reservations expressed in Part I, I CONCUR in the majority’s resolution of Vance’s § 1981 claim.
.In advocating purely retroactive application of case law, (as opposed to statutes) Justice Blackmun, in James B. Beam Distilling Co. v. Georgia, - U.S. -, -, 111 S.Ct. 2439, 2450, 115 L.Ed.2d 481 (1991) (Blackmun, J. concurring), said this policy "derives from the integrity of judicial review, which does not justify applying principles determined to be wrong to litigants who are in or may still come to court.” Id. at -, 111 S.Ct. at 2450 (emphasis added). But of course when we apply Patterson retroactively, without viewing it from the perspective of its repudiation by Congress, that is exactly what we do. We are not only applying a principle determined to be wrong, but we do so in a context where this principle was not relied upon by anybody in the case as the relevant law. It is true, as Justice Blackmun points out, that courts with the option to apply new rules prospectively only "dodge the stare decisis bullet,” and perhaps are thereby encouraged to disrupt "settled expectations” more often. Id. at-, 111 S.Ct. at 2450. However, it hardly advances his concern for settled expectations to apply a law retroactively that was not only contrary to those settled expectations, but is also now repudiated. Such a circumstance should be an exception to the general rule.
. In my view, the majority perhaps too hastily dismisses, in footnote 11 of its opinion, the circumstances of this case which distinguish it from Baynes. I would be inclined, for all of the reasons noted in this opinion, to find the distinction noted by the majority as dispositive, entitling Vance to affirmance of her verdict. Nor do I believe that this result would offend the principles in Bradley. However, Bradley is not the only applicable precedent, and Bowen would compel the opposite result. Although this Circuit has in general cleaved to the Bradley rule, see, e.g., Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815, 818 n. 4 (11th Cir.1991) (per curiam), we are not free to disregard Bowen. See Litman v. Massachusetts Mutual Life Ins. Co., 825 F.2d 1506, 1509 (11th Cir.1987) (en banc). In the absence of more guidance from the Supreme Court as to the choice between Bradley and Bowen, it is impossible to say that the majority’s conclusion is clearly wrong, even if I disagree with its interpretation of what Bradley requires in this case.
. There is no dispute that the discrimination and harassment of which Southern Bell was accused, was, is and always has been illegal, irrespective of any retroactivity given to either the Civil Rights Act of 1991 or Patterson. The only thing altered by these two changes in the law was. the nature of the remedy — that is, the availability of damages beyond the relatively limited equitable remedies provided by Title VII. (In other circumstances we have held that changes in the law affecting only the remedy are applied retroactively. See, e.g., Birnholz v. 44 Wall Street Fund, Inc., 880 F.2d 335, 339 (11th Cir.1989) (per curiam)). Thus, it cannot be said that anyone in this case relied on Patter*1579son, either for knowledge of what the law prohibited or for estimating liability in the event the law was broken. As Justice Scalia noted in his concurrence in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 840, 110 S.Ct. 1570, 1579, 108 L.Ed.2d 842 (1990) (Scalia, J. concurring): "The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal." Id. at 855, 110 S.Ct. at 1586.
. What Judge Cudahy wrote there is equally true of this case. "Patterson was the effective law of the land at no time that is relevant to the disposition of this case. No one relied upon it when liability was incurred in this case, nor can we rely on it now that it has been overruled by Congress." Mozee, 963 F.2d at 941 (Cudahy, J. dissenting).
Other objections which could be raised to the majority’s reasoning have been discussed in great detail by Judge Fletcher of the Ninth Circuit in her majority opinion in Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992) and by Judge Wald of the D.C. Circuit in her dissent in Gersman v. Group Health Assoc., 975 F.2d 886, 900 (D.C.Cir.1992) (Wald, J. dissenting). However, these interpretations have not been adopted by this circuit.
. See, e.g., Vance I, 863 F.2d at 1509 n. 3 (citing cases holding that the legal elements of disparate impact cases are identical under Title VII and § 1981).
. See James B. Beam Distilling Co. v. Georgia, - U.S. -, -, 111 S.Ct. 2439, 2449, 115 L.Ed.2d 481 (1991) (White, J. concurring) (criticizing what he took to be Justice Scalia’s suggestion that although judges do "make” the law in a real sense they ought to pretend that they do not). But see id., at -, 111 S.Ct. at 2451 (Scalia, J. concurring in the judgment) (defending the traditional stance that courts "find” the law not "make” it as one of the checks on judicial decision-making that forms an integral part of the constitutional separation of powers). Notably, although the majority relies on Beam for its retroactive application of Patterson, in Beam the Court was dealing with the retroactive application of its interpretation of constitutional law — an area given over almost exclusively to the courts. In contrast, Patterson was a judicial interpretation of a statute.
. The majority in Gersman aptly noted that looking at the legislative history of the Civil Rights Act of 1991 provides no guidance on the issue of Congress’s intent regarding retroactivity. 975 F.2d 886, 890-92 (D.C.Cir.1992).
. Cf. Baynes (.Patterson bars 1981 claim) with McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1497 (11th Cir.1990) (en banc) (Patterson does not bar 1981 claim because not timely raised by defendant, even though Patterson had not been decided at time of trial), and Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1519 (11th Cir.1991) (remanded in light of Patterson, even though defendant did not argue that case at trial, because plaintiff did not argue that defendant had waived his right to argue Patterson on appeal by failing to raise it below).
. Even where the law has not undergone such rapid and dramatic shifts, as has the interpretation of § 1981, our system of adjudication tolerates a great deal of disparity of outcome, most notably via the jury system itself, but also through the operation of the doctrines of res judicata, collateral estoppel and the law of the case.
. Because the District Judge ruled orally on Southern Bell’s motion for a directed verdict at the close of the plaintiffs case it is not clear what precedent he was relying on for this ruling. However, whatever that precedent it would seem to be discredited by the Florida Supreme Court’s ruling in Byrd v. Richardson-Greenshields Securities, Inc., 552 So.2d 1099 (Fla.1989). Although the Florida Supreme Court did not address this question directly, its discussion obviously reflects an understanding that such claims need not be “incident specific" in. the sense that each incident, taken alone must meet the outrageousness standard. This understanding is also consistent with our own previous statement in Vance I. "A hostile environment claim is a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits.” 863 F.2d at 1511.
. The version of Rule 15(c) effective at the time Mary Ann Vance amended her pleading read as follows:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
. Southern Bell's argument that the claims are factually distinct is confined to the following statement in its brief. "[Tjhe distinctions between these claims are too numerous to list in an appellate brief. Suffice it to say they concern totally distinct subject matter, and are not even similar in genesis, as one is statutory and the other arises at common law.” Appellant/Cross-appellee’s Brief at 49. Suffice it to say, the appellant’s conclusions do not strike me with the crystal clarity appellant believes they possess.
. Even at this late stage in the litigation Southern Bell continues to dispute the facts and attempts to relitigate them.
. This would be the case were Florida to have an employment, or other, "exception” to the intentional infliction of emotional distress cause of action. In every such case you would have a failure to state a cause of action on the face of the complaint because "no conceivable interpretation” of the facts could support the tort because of the exception. Even though no such "exception” is articulated, a de facto exception appeared to exist prior to 1989, in that employees seldom won such cases. This is the proposition for which the majority cites Mundy. However, that is clearly no longer the state of the law in Florida.
. It further cites Studstill v. Borg Warner Leasing, 806 F.2d 1005, 1007 (11th Cir.1986) for the proposition that "this court is bound by decisions of Florida’s intermediate courts of appeal absent ‘some persuasive indication that the state’s highest court would decide the issue otherwise.' ” See majority opinion supra n. 7. In this case, I believe there is such a "persuasive indication.”
. The majority's reliance on these precedents is not dubious merely because the precedents are old, some of our most venerable principles are articulated in cases hundreds of years old. Rather, the cases on which it relies are of diminished value in light of the changes in the law. This reliance is even more surprising because there is no dearth of more current case law.
. While it is always possible to argue that a case is limited to its facts, in some cases it is a fairer reading than others. In Lay, the court gave no hint that its ruling was to extend beyond the very limited facts of the case. Because, factually, the two cases do not appear similar, Lay is of little value to anticipating how a Florida court would view Vance’s claim.
. The federal courts’ interpretation of Florida law in the face of ambiguity, must necessarily give way once the state’s highest court removes that ambiguity. Of course, determining when an ambiguity exists is no easy task. Thus, "[flederal courts looking to Florida law have arrived at various conclusions about where this state stands on the issue [of intentional infliction of emotional distress]. Often citing to the same cases, it has been said that Florida recognizes the cause of action, does not, or has not made up its mind.” Dominguez v. Equitable Life *1583Assur. Soc., 438 So.2d 58, 59 n. 2 (Fla.Dist.Ct.App.1983) (citations omitted).
. The principal holding of the case was that the workers’ compensation exclusivity rule did not preclude the maintenance of a separate cause of action for job-related sexual harassment.
. Byrd also rendered Studstill obsolete because the substantive holding in Studstill was that sexual harassment suits were barred under Florida law by the workers’ compensation exclusivity rule. Id. 806 F.2d at 1007-08.
. This fact is relevant to the extent that the standard is supposed to be gauged by the standards of the average member of the community. Presumably, the longer the particular behavior has been societally condemned, the more likely that behavior is to provoke the outraged response. Sadly, this assumption may be more of a projection of what we think the average member of the community "ought" to think rather than what he or she does think. “[Ojutrageousness is not only highly subjective, but also an extremely mutable trait_ Most of the examples contained in the Restatement comments do not overwhelm the reader with their ‘atrociousness’ and ‘utter intolerability’_” Williams v. Minneola, 575 So.2d 683, 692 (Fla.5th DCA 1991).
.It cannot be said, even today, that Black Americans are free to disregard threats of racial violence as idle ones.