Lipphardt v. Durango Steakhouse of Brandon, Inc.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT. 28, 2001
_______________
THOMAS K. KAHN
CLERK
No. 00-11922
_______________

D. C. Docket No. 97-01692-CV-T-17C

MARY HOPE LIPPHARDT,
an individual,

Plaintiff-Appellant,

versus

DURANGO STEAKHOUSE OF BRANDON, INC.,
a Florida Corporation,

Defendant-Appellee.

______________________________

Appeal from the United States District Court
for the Middle District of Florida
______________________________
(September 28, 2001)

Before BIRCH, WILSON and FARRIS*, Circuit Judges.
_____________
* Honorable Jerome Farris, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BIRCH, Circuit Judge:

In this case we determine whether a plaintiff who was formerly involved in

an intimate relationship with a co-worker is precluded from bringing a claim

against the employer for retaliatory discharge when the plaintiff was fired after

reporting her ex-boyfriend’s harassing conduct to their employer. The district

court granted defendant’s renewed motion for judgment as a matter of law after a

jury found for the plaintiff.1 We REVERSE.

I. BACKGROUND2

Plaintiff-Appellant, Mary Hope Lipphardt, and Donald Knuth were

employees of Defendant-Appellee Durango Steakhouse (“Durango”). Lipphardt

began dating Knuth, one of her supervisors, while they were both working at

Durango. During this time, their relationship at work was positive and Lipphardt

was being considered for an assistant manager position. After they had lived

together for approximately one month, Lipphardt ended their personal relationship

and moved out of Knuth’s apartment.

1
The jury found for Durango on Lipphardt’s claim of hostile work environment sexual
harassment, and Lipphardt does not appeal that decision.
2
The facts in this case are contested. However, on review of a motion for judgment as a
matter of law, we view the evidence in the light most favorable to the non-moving party. Gupta
v. Fl. Bd. of Regents, 212 F.3d 571, 582 (11th Cir. 2000), cert. denied, __ U.S. __, 121 S. Ct.
772 (2001). Therefore, we present the facts in the light most favorable to Lipphardt, which is
also consistent with the jury verdict.

2
 Lipphardt contends that, after their personal relationship ended, she began

having difficulties with Knuth at work. Generally, Knuth was consistently

attempting to convince Lipphardt to resume their intimate relationship. He

frequently paged her, called her at work, and left her messages at home while

intoxicated. He refused to work with her while at Durango but, on several

occasions, brushed up against her in a way that Lipphardt testified was sexual and

made her uncomfortable. At one point, Lipphardt claims that Knuth threatened to

hurt her or her child.

On 12 December 1996, Lipphardt and Knuth had a confrontation in the

restaurant office. Knuth, who had been drinking at the bar for a few hours,

followed Lipphardt into the back office and propositioned her. Eventually, Knuth

blocked Lipphardt’s exit from the office and closed the door. After a heated

argument, Lipphardt was able to leave the office 15 minutes later. She told a co-

worker that she was afraid of what Knuth would do to her, and another co-worker

agreed to stay with Lipphardt until she was able to go home. When Lipphardt left

the restaurant that night, Knuth followed her to her car and blocked her from

closing her car door, all the while asking her to resume their relationship.

On 13 December 1996, Knuth asked Lipphardt if she was going to report his

conduct. Later that evening, after Knuth had a meeting with the general manager

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of Durango, Lipphardt met with that same manager and a second manager and

described Knuth’s actions and their affect on her. She also reported the incidents

to a regional manager and requested a transfer. While Lipphardt was on a

previously-scheduled vacation, the general manager told Knuth that his supervisor

was considering firing both Lipphardt and Knuth. According to Knuth, the general

manager asked Knuth if he knew anything that could get Lipphardt fired, as the

restaurant would rather keep Knuth and “get rid of the bitch.” R11-252. Knuth

told the general manager that Lipphardt had given free food to employees at a

nearby tanning salon in exchange for tanning services.3 It was established at trial

that a different employee was trading food for tanning services, and that Knuth had

never actually seen Lipphardt engage in this practice when he made the allegation.

Regardless, the general manager recommended that the regional manager fire

Lipphardt, and she was fired upon return from vacation. No one followed up with

Knuth regarding his allegations before firing Lipphardt.

Lipphardt filed a four-count complaint, alleging hostile work environment

sexual harassment, quid pro quo sexual harassment, retaliation, and negligent

retention. The district court granted Durango’s motion for summary judgment on

3
Durango presented evidence that a different employee informed the general manager
that Lipphardt was trading food for tanning services. However, we view the facts in the light
most favorable to the nonmoving party and in support of the jury’s verdict. Regardless, the
timing of the argument, Lipphardt’s complaint, and her termination is the same.

4
the quid pro quo sexual harassment charge and, at the close of evidence, its motion

for judgment as a matter of law on the claim of negligent retention. The two

remaining issues were submitted to the jury, which returned a verdict for Durango

on hostile work environment sexual harassment and for Lipphardt on retaliation.

Following the trial, the district court granted Durango’s motion for judgment as a

matter of law on the retaliation claim, and, in the alternative, conditionally granted

Durango’s motion for a new trial. Lipphardt appeals.

II. DISCUSSION

A. Standard of Review

We review the district court’s decision to enter a judgment as a matter of law

de novo. Gupta v. Fl. Bd. of Regents, 212 F.3d 571, 582 (11th Cir.), cert. denied,

__ U.S. __, 121 S. Ct. 772 (2000). In this analysis, “[w]e will not second-guess the

jury or substitute our judgment for its judgment if its verdict is supported by

sufficient evidence.” Id.

We have a well-established standard governing motions for judgment as a

matter of law:

If the facts and inferences point so strongly and overwhelmingly in favor
of one party that the Court believes that reasonable men could not arrive
at a contrary verdict, granting of the motions is proper. On the other
hand, if there is substantial evidence opposed to the motions, that is,
evidence of such quality and weight that reasonable and fair-minded men
in the exercise of impartial judgment might reach different conclusions,

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 the motions should be denied, and the case submitted to the jury. . . . [I]t
is the function of the jury as the traditional finder of the facts, and not the
Court, to weigh conflicting evidence and inferences, and determine the
credibility of witnesses.

Watts v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 309-10 (11th Cir. 1988) (per

curiam) (citation omitted). A party’s motion for judgment as a matter of law can

be granted at the close of evidence or, if timely renewed, after the jury has returned

its verdict, as long as “there is no legally sufficient evidentiary basis for a

reasonable jury to find” that the discharge was retaliatory. FED. R. CIV. PROC. 50

(a)(1),(2) and (b).4

We review the district court’s grant of a new trial for abuse of discretion.

Lambert v. Fulton County, Ga., 253 F.3d 588, 595 (11th Cir. 2001). The district

court should grant a motion for a new trial when “the verdict is against the clear

weight of the evidence or will result in a miscarriage of justice, even though there

may be substantial evidence which would prevent the direction of a verdict.”

Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984) (internal

quotations and punctuation omitted). Because it is critical that a judge does not

merely substitute his judgment for that of the jury, “new trials should not be

4
Here, Durango’s motion at the close of evidence was denied; however, upon a proper
renewal of the motion after the jury returned its verdict for Lipphardt, the district judge granted
the motion.

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granted on evidentiary grounds unless, at a minimum, the verdict is against the

great--not merely the greater--weight of the evidence.” Id.

B. Judgment as a Matter of Law

In order to prevail on her retaliation claim, Lipphardt was required to

“establish a prima facie case by showing (1) statutorily protected expression, (2)

adverse employment action, and (3) a causal link between the protected expression

and the adverse action.” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th

Cir. 1993). One example of “statutorily protected expression” is “oppos[ing] any

practice made an unlawful employment practice” by Title VII, such as sexual

harassment. 42 U.S.C. § 2000e-3(a). The jury found that Lipphardt had

established a prima facie case of retaliation because she was fired after she reported

to management that Knuth’s behavior constituted sexual harassment.

Lipphardt was not required to prove that Knuth’s behavior legally

constituted harassment in order to recover for retaliation.5 Sullivan v. Nat’l R.R.

Passenger Corp., 170 F.3d 1056, 1058 (11th Cir.), cert. denied 528 U.S. 966, 120

S. Ct. 402 (1999) (“[t]he fact that the jury concluded that Sullivan’s claims did not

meet all the elements for a successful sexual harassment action does not mean that

5
Therefore, it is irrelevant that the jury found for Durango on Lipphardt’s hostile work
environment sexual harassment claim.

7
it could not have found that the incident did take place and that Sullivan could have

reasonably believed himself the victim of sexual harassment.”). Instead, Lipphardt

was required to show that a “good faith, reasonable belief” that she was the victim

of hostile work environment sexual harassment led her to report Knuth’s conduct

to Durango’s management. Little v. United Techs., Carrier Transicold Div., 103

F.3d 956, 960 (11th Cir. 1997). We have noted that:

[i]t is critical to emphasize that a plaintiff's burden under this standard
has both a subjective and an objective component. A plaintiff must not
only show that [s]he subjectively (that is, in good faith) believed that
[her] employer was engaged in unlawful employment practices, but also
that [her] belief was objectively reasonable in light of the facts and
record presented.

Id. The belief must also be measured against substantive law at the time of the

offense. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)

(conduct must be “close enough to support an objectively reasonable belief that it

is” sexual harassment). In order to prove hostile work environment sexual

harassment, Lipphardt was required to prove, “among other things, that the

harassment occurred because of her sex, and that the harassment was sufficiently

severe or pervasive to alter the conditions of her employment and create an abusive

working environment.” Id. (internal quotations omitted).

After Lipphardt established this prima facie case, Durango proffered the fact

that Lipphardt was trading food for tanning services as the legitimate reason for her

8
discharge. The burden then shifted back to Lipphardt to prove “by a

preponderance of the evidence that the reasons offered by the defendant are

pretextual.” Goldsmith, 996 F.2d at 1163. Lipphardt offered evidence that

Durango had no proof of this allegation and that it was actually a different waitress

who traded food for tanning services. Knuth testified that the general manager had

asked him for information he could use to fire Lipphardt and that he told the

general manager she was trading food for tanning services, even though he had no

evidence that this was true. The jury accepted Lipphardt’s explanation over

Durango’s, and found for Lipphardt on her claim of retaliation.

After trial, the district court granted Durango’s motion for judgment as a

matter of law because Lipphardt had “not demonstrated an objectively reasonable

belief that the conduct complained of constituted harassment based on gender, or

that the conduct [she] opposed was ‘close enough’ to support an objectively

reasonable belief that it was sexual harassment.” R4-167-7. The deciding factor

for the district court was that “[t]he evidence at trial, when taken in the light most

favorable to plaintiff, showed that the harassment was based squarely on plaintiff’s

status as Knuth’s former lover and not on her status as a female.” Id. Because the

harassment was not based on gender, the district court found that Lipphardt’s belief

that she was the victim of unlawful discrimination was not objectively reasonable

9
when weighed against substantive law. Therefore, according to the district court,

she failed to establish the prima facie case of retaliation, and the jury’s verdict was

due to be reversed as a matter of law.

We disagree. Lipphardt’s personal relationship with Knuth was definitely a

factor to be considered by the jury in its analysis of whether the discrimination was

based on sex, as required by Title VII. However, the district court specifically

charged the jury to consider this factor. The jury was charged that, “[p]ersonal

animosity is not the same as sexual discrimination. Existence of a former personal

relationship between the plaintiff and the alleged harasser is a factor you may

consider in determining whether or not any alleged harassment was solely based on

the plaintiff’s gender.” R12-205.6 Therefore, because the jury was charged on this

specific question, and subsequently returned a verdict for Lipphardt, it follows that

the jury found that, despite the prior relationship, Lipphardt objectively believed

that Knuth was harassing her based on her gender.

This is consistent with the law of our circuit. A review of our case law

makes clear that, while a prior intimate relationship is an important factor to

consider, it is not determinative of a sexual harassment claim. On appeal, Durango

relies on Succar v. Dade County Sch. Bd., 229 F.3d 1343 (11th Cir. 2000) (per

6
Neither party objected to the jury instructions.

10
curiam), where we found that the ex-lover’s harassment of the plaintiff was based

solely on a prior intimate relationship, and not on the plaintiff’s gender. In Succar,

plaintiff’s ex-girlfriend verbally and physically harassed Succar in their workplace

after their relationship ended. We found that Succar did not have a valid Title VII

claim because the “harassment of Succar was motivated not by his male gender,

but rather by Lorenz’s contempt for Succar following their failed relationship;

Succar’s gender was merely coincidental.” Id. at 1345.

In Succar, however, we were affirming the district court’s grant of summary

judgment on a hostile work environment sexual harassment claim. On a claim for

retaliation, the standard is not whether there is a valid hostile work environment

claim, but rather, whether Lipphardt had a good-faith reasonable belief that she

was the victim of such harassment. Reasonable minds could disagree on this issue,

which makes it an inappropriate candidate for judgment as a matter of law. The

fact that Knuth and Lipphardt had a prior intimate relationship does not give Knuth

a free pass to harass Lipphardt at work. And while we recognize that “[p]ersonal

animosity is not the equivalent of sex discrimination and is not proscribed by Title

VII,” McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir. 1986), there is a point

where inappropriate behavior crosses the line into Title VII harassment. Here, the

jury decided that Lipphardt could reasonably believe that Knuth had crossed that

11
line, and it is not within the purview of the courts to take that decision away from

the jury.

It is also important that Knuth’s conduct towards Lipphardt was sexual in

nature, while the harassment that Succar suffered was not. “When a person

‘sexually harasses’ another, i.e., makes comments or advances of an erotic or

sexual nature, we infer that the harasser is making advances towards the victim

because the victim is a member of the gender the harasser prefers.” Llampallas v.

Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246 (11th Cir. 1998) (internal citations

and punctuation omitted). Lipphardt introduced evidence that Knuth was soliciting

her to reinstate their intimate relationship while she was at work, and that on

several occasions he brushed up against her in an inappropriate way while at work.

This is sufficient to raise a factual question of whether Lipphardt had an objective

belief that she was the victim of harassment, because, “[u]nless there is evidence to

the contrary, . . ., we also infer that the harasser treats members of the ‘non-

preferred’ gender differently–and thus that the harasser harbors an impermissible

discriminatory animus towards persons of the preferred gender.” Id.

When “there is . . . evidence of such quality and weight that reasonable and

fair-minded men in the exercise of impartial judgment might reach different

conclusions, the motions [for judgment as a matter of law] should be denied.”

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Watts, 842 F.2d at 309. Therefore, the district judge improperly granted judgment

as a matter of law for Durango after the jury returned its verdict for Lipphardt on

retaliation.

C. New Trial

In accordance with Rule 50(c)(1), the district court simultaneously ruled on

Durango’s motion for a new trial. The district court order refers back to the

reasons that it granted judgment as a matter of law to support the decision that the

jury verdict was against the great weight of the evidence and, therefore, that a new

trial should be granted in the event that we reinstated the jury verdict. R4-167-8-9.

We reverse this decision as well, as the jury’s verdict did not result in a miscarriage

of justice and was not against the great weight of the evidence. There was ample

evidence presented that Durango’s proffered reason for firing Lipphardt was

pretextual, and that she was fired in response to her complaints about the way that

Knuth was treating her at work. This is the evidence that the jury found credible,

and it is consistent with our case law. Therefore, the district court’s order

conditionally granting a new trial constituted an abuse of its discretion.

III. CONCLUSION

Following the clear instructions it was given, the jury returned a verdict

recognizing Lipphardt’s belief that she was the victim of harassment as objective.

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This decision was not improper as a matter of law, as a prior intimate relationship,

while important, is not a determinative factor in a sexual harassment analysis.

Therefore, we REVERSE the district court’s order granting Durango judgment as a

matter of law on Lipphardt’s claim of retaliation. We also REVERSE the district

court’s decision to grant Durango a new trial. We REMAND for the district court

to enter judgment for Lipphardt and award damages as decided by the jury.

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