Diane Wilbur v. Correctional Services Corp.

                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           December 14, 2004
                               No. 03-16540              THOMAS K. KAHN
                                                               CLERK

                 D. C. Docket No. 02-00220 CV-OC-10-GRJ

DIANE WILBUR,

                                               Plaintiff-Appellant,

                                  versus

CORRECTIONAL SERVICES CORP.,
a foreign corporation,
d.b.a. Cypress Creek Correctional Facility,
YOUTH SERVICES INTERNATIONAL, INC.,
a foreign corporation and Subsidiary of
Correctional Services Corporation,
d.b.a. Cypress Creek Correctional Facility
in Lecanto, Florida,

                                               Defendants-Appellees.



                Appeal from the United States District Court
                    for the Middle District of Florida


                           (December 14, 2004)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

DUBINA, Circuit Judge:

       Appellant Diane Wilbur appeals from the district court’s order granting

judgment as a matter of law in favor of Appellees Correctional Services

Corporation et al. (“CSC”) on Wilbur’s hostile work environment, quid pro quo

sexual harassment, and retaliation claims, brought pursuant to Title VII of the

Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq.,

and the Florida Civil Rights Act, Fla. Stat. §§ 760.01-760.11 (2002).1 Exercising

its discretion under Rule 49(b), Fed. R. Civ. P., the district court granted judgment

as a matter of law, notwithstanding a general jury verdict awarding Wilbur

damages, on the ground that the general verdict was irreconcilable with the jury’s

answers to the nine special interrogatories that were also submitted to the jury.

For the reasons that follow, we hold that the district court did not abuse its

discretion by entering judgment as a matter of law in favor of CSC.

                                      I. BACKGROUND



       1
         The Florida Civil Rights Act was patterned after Title VII, and Florida courts have construed
the act in accordance with decisions of federal courts interpreting Title VII. See, e.g., Harper v.
Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). As such, the district court did not
independently analyze Wilbur’s Florida Civil Rights Act claims, and they will not be independently
analyzed in this opinion.


                                                  2
      CSC maintains a juvenile correctional facility in Citrus County, Florida

(“Cypress Creek”). In 1997, Wilbur began working for CSC at its Cypress Creek

facility. In September 2000, she was promoted to Case Manager Supervisor, a

position that required her to oversee the efforts of seven case managers who

prepared juvenile offenders for successful return to society.

      In November 2000, William Newkirk was promoted to Assistant Facility

Administrator at Cypress Creek and became Wilbur’s immediate supervisor.

Wilbur contends that, in December 2000, Newkirk and Eric Gallon, Newkirk’s

supervisor, devised a plan known between them as “the hook up,” in which Gallon

would pursue romantic relations with a female coworker and Newkirk would

pursue romantic relations with Wilbur. Wilbur maintains that, beginning in

December 2000, Newkirk repeatedly expressed his romantic intentions toward her,

and that she rejected all of his advances. According to Wilbur, Newkirk engaged

in a pattern of offensive behavior towards her, in addition to propositioning her,

which included, among other things, touching her leg during meetings, turning off

the light in her office and touching the sides of her body, and suggesting that she

and a female coworker wear dresses “up to [their] ass[es].”

      Wilbur contends that, as a result of rejecting Newkirk’s advances, she was

subjected to a hostile work environment, and that, when she complained to Gallon

                                          3
in February 2001, she was informed that her job would be easier if she would “get

hooked up” with Newkirk. Wilbur further contends that she informed Gallon at

this meeting that the “hook up” was not going to happen. Then, according to

Wilbur, after her meeting with Gallon, Newkirk attempted to terminate her

employment, but Gallon told her to return to work before she had left the building.

Later in February 2001, Wilbur asserts that she complained of sexual harassment

to CSC’s human resources department.

      Wilbur claims that Newkirk and Gallon subjected her to a series of

humiliating and demeaning acts of sexual harassment, including: (1) placing

“sign-in/sign-out” and dress requirements on Wilbur that were not imposed on

other similarly-situated employees; (2) openly and continually referring to women,

including Wilbur, as “bitches”; (3) discussing in the presence of Wilbur which

women in the facility Newkirk and Gallon would like to “do” sexually; (4)

touching Wilbur on the leg and waist; and (5) frequently addressing Wilbur in an

aggressive or humiliating manner. According to Wilbur, this harassment

ultimately culminated in her termination on May 25, 2001.

      CSC disputes Wilbur’s portrayal of the facts leading up to her termination.

According to CSC, Wilbur had a history of problems with her supervisors prior to

the fall of 2000, and that her termination directly resulted from her interference

                                          4
with an internal investigation of an allegation that a youth counselor at CSC had

engaged in inappropriate sexual conduct at Cypress Creek with one of the case

managers Wilbur supervised. As to Newkirk’s attempt to terminate her, CSC

claims that, as she was leaving the facility following her termination, she hugged

Newkirk and told him that her termination was not his fault.

      Moreover, CSC denies that Wilbur was sexually harassed, and also denies

that she complained about any sexual harassment until after her termination. CSC

concedes that Wilbur lodged a complaint with CSC’s human resources department

in February 2001, but asserts that her complaint addressed only Newkirk’s failed

attempt to terminate her employment and some concerns of the case managers she

supervised regarding the scope of their responsibilities, and that she did not

complain about sexual harassment. CSC also notes that Newkirk, who no longer

works for CSC, claims that he was not aware of Wilbur’s allegations of sexual

harassment against him until his deposition was taken a few months before trial.

      In July 2002, Wilbur initiated this action, seeking both compensatory and

punitive damages, on the grounds that CSC had created a sexually hostile work

environment, engaged in quid pro quo sexual harassment, and retaliated against




                                          5
her for her good faith complaints of sexual discrimination.2 CSC denied the

substance of Wilbur’s claims and also raised the affirmative defense that it could

not be held liable for creating a hostile work environment, because it exercised

reasonable care to prevent and correct any sexually harassing behavior and Wilbur

failed to exercise reasonable care to avoid harm.

       In July 2003, the district court entered an order granting in part and denying

in part CSC’s motion for summary judgment. While the court declined to dismiss

any of Wilbur’s Title VII claims, the court narrowed the scope of her quid pro quo

and retaliation claims by concluding that, among the wrongs Wilbur alleged she

was subjected to, only her actual termination could constitute a “tangible

employment action” for purposes of either claim. With respect to Wilbur’s hostile

work environment claim, the court concluded that there was a material issue of

fact as to whether CSC’s conduct towards Wilbur was sufficiently severe or

pervasive to alter the terms and conditions of her employment. Wilbur has not

appealed from the court’s summary judgment order.



       2
         In her amended complaint, Wilbur also complained of racial discrimination, intentional
infliction of emotional distress, and negligent training, supervision, and retention. In June 2003,
Wilbur voluntarily dismissed her racial discrimination claims, and the district court, in granting in
part CSC’s motion to dismiss the complaint, dismissed Wilbur’s intentional infliction of emotional
distress and negligent training, supervision, and retention claims. Wilbur has not alleged in this
appeal that the district court erred in dismissing any of these claims.

                                                 6
      The case was tried to a jury in August 2003. During the trial, the court

granted CSC’s oral motion for judgment as a matter of law as to Wilbur’s claim

for punitive damages. The court then submitted to the jury a ten-question special

interrogatory verdict form. On the form, Questions 1 through 5 addressed

Wilbur’s hostile work environment claim and CSC’s affirmative defense to that

claim, Questions 6 and 7 addressed Wilbur’s quid pro quo sexual harassment

claim, and Questions 8 and 9 addressed her retaliation claim. In Question 10, the

jury was asked to determine whether Wilbur was entitled to damages for emotional

distress and mental anguish, and, if so, how much she was entitled to receive. The

jury was instructed that, if they found for Wilbur on Question 10, Wilbur would

also be awarded $24,000 in compensatory damages for back pay and benefits.

      The court’s interrogatories and the jury’s responses were as follows:

         Did you find from a preponderance of the evidence:

         1. That the Plaintiff was subjected to a hostile or abusive work
         environment because of her sex or gender?
         Answer Yes or No          No

         2. That such hostile or abusive work environment was created or
         permitted by a supervisor with immediate or successively higher
         authority over the Plaintiff?
         Answer Yes or No          No




                                         7
3. That the Plaintiff suffered damages as a proximate or legal
result of such hostile or abusive work environment?
Answer Yes or No          No

4. That the Defendant exercised reasonable care to prevent and
correct promptly any sexually harassing behavior in the work
place?
Answer Yes or No          Yes

5. That the Plaintiff unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the Defendant
to avoid or correct the harm?
Answer Yes or No          Yes

6. That the Plaintiff was subjected by her supervisor or
supervisors to a quid pro quo sexual demand or threat (as those
terms are explained in the Court’s instructions)?
Answer Yes or No          Yes

7. That the Plaintiff’s employment was terminated because of her
rejection of the quid pro quo sexual demand or threat?
Answer Yes or No          No

8. That the Plaintiff in good faith asserted claims or complaints of
sex or gender discrimination?
Answer Yes or No          Yes

9. That the Plaintiff was then discharged from her employment
because of her assertion of such claims or complaints?
Answer Yes or No          No

10. That the Plaintiff should be awarded damages to compensate
for emotional pain and mental anguish?


                                8
         Answer Yes or No           Yes
         If your answer is Yes,
         in what amount?            $25,000

      The jury’s answers show that the jury flatly rejected Wilbur’s hostile work

environment claim against CSC, and, in any event, that the jury accepted CSC’s

affirmative defense with respect to this claim. With respect to Wilbur’s quid pro

quo sexual harassment and retaliation claims, the jury found in Questions 6 and 8

that Wilbur was subjected to a quid pro quo sexual demand or threat, and that she

asserted claims of sex discrimination in good faith; however, the jury found in

Questions 7 and 9 that neither the quid pro quo sexual demand nor her asserted

claims of sex discrimination caused her termination. Notwithstanding the jury’s

total rejection of Wilbur’s hostile work environment claim and its negative

responses to Questions 7 and 9, the jury nonetheless concluded in Question 10 that

CSC should pay Wilbur damages in the amount of $25,000 for her emotional pain

and mental anguish.

      After the jury delivered its verdict, and before the jury was discharged,

Wilbur’s counsel recognized this inconsistency and, at sidebar, alerted the court

that it was possible to conclude that the jury had not found the requisite facts

supporting the imposition of liability, but had nevertheless awarded damages.

Wilbur’s counsel asked the court to resubmit the matter to the jury for further

                                          9
consideration. Before CSC’s counsel responded, the court declined this request

and ruled that the motion would be resolved on motion for judgment as a matter of

law. The court then added $24,000 to the jury award, representing the stipulated

amount of back pay and benefits, and directed the clerk to enter judgment for

Wilbur in the amount of $49,000.

      In September 2003, CSC moved for judgment as a matter of law, or, in the

alternative, for a new trial. The court granted CSC’s motion and entered judgment

as a matter of law. In doing so, the court noted that substantial evidence supported

the jury’s responses to the liability issues presented in Questions 1 through 9, that

these responses were “entirely consistent” with each other, and that only the award

of damages, in response to Question 10, was inconsistent with the remainder of the

verdict. [R3 – 79 – 4]. The court recognized that the jury’s responses to

Questions 1 through 5 precluded any argument that the jury’s award could

reasonably relate to Wilbur’s hostile work environment claim. Addressing

Wilbur’s remaining claims, the court reiterated its holding from its summary

judgment order that “the only tangible employment action at issue in this case was

the Plaintiff’s ultimate termination,” and thus concluded that the jury’s negative

responses to Questions 7 and 9 precluded, as a matter of law, an affirmative




                                          10
response to Question 10. [R3 – 79 – 11]. The court construed Question 10 as a

general verdict and the remaining questions as special interrogatories.

      Applying Rule 49(b) of the Federal Rules of Civil Procedure, the court

concluded that, where the jury’s answers to special interrogatories are consistent

with each other but inconsistent with a general verdict, it had discretion to enter

judgment in accordance with the special interrogatories, notwithstanding the

general verdict.

      On appeal, Wilbur does not challenge the sufficiency of the evidence

supporting the jury’s verdict, but instead challenges the district court’s

interpretation of it. Specifically, Wilbur contends that the district court erred in

concluding that the jury’s negative responses to Questions 7 and 9 precluded its

finding of liability in Question 10, and that the court should either re-enter its

initial judgment in her favor for $49,000, or at least award her a new trial. In

addition, Wilbur contends that the district court erred in granting CSC’s oral

motion for judgment as a matter of law with respect to her punitive damages claim.

                                     II. ISSUES

1. Whether the district court erred in concluding that the jury returned a general

verdict inconsistent with its answers to special interrogatories.

2. Whether the district court abused its discretion by entering judgment as a

                                          11
matter of law in favor of CSC on the liability issues presented to the jury.

3. Whether the district court erred in granting judgment as a matter of law in favor

of CSC as to Wilbur’s claim for punitive damages.

                             III. STANDARD OF REVIEW

       As a general rule, we review de novo a district court’s grant of judgment as

a matter of law, applying the same legal standards used in the district court.

Bishop v. City of Birmingham Police Dep’t, 361 F.3d 607, 609 (11th Cir. 2004).

However, when a district court enters judgment as a matter of law on the ground

that a jury’s answers to special interrogatories are consistent with each other but

inconsistent with a general verdict, we review only for an abuse of discretion.

Phillips Chem. Co. v. Hulbert, 301 F.2d 747, 751 (5th Cir. 1962);3 accord Wilks v.

Reyes, 5 F.3d 412, 415 (9th Cir. 1993). Pursuant to Rule 49(b), a trial court, upon

discovering such an inconsistency, has the option of either (1) directing entry of

judgment on the special verdicts, notwithstanding the inconsistent general verdict;

(2) returning the jury for further deliberations; or (3) ordering a new trial. See,

e.g., Phillips Chem. Co., 301 F.2d at 751. The principal limitation on the court’s




       3
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all Fifth Circuit decisions handed down prior to October 1, 1981.

                                               12
discretion is that it “must be exercised in light of the circumstances under which

the inconsistency arises.” Id.

      While the district court’s application of Rule 49(b) is reviewed only for

abuse of discretion, its threshold determination that the jury returned a general

verdict inconsistent with its answers to special interrogatories is a mixed question

of law and fact, Wilks, 5 F.3d at 415, and, as such, it is subject to plenary review.

Bickerstaff Clay Prods. Co. v. Harris County, 89 F.3d 1481, 1486 (11th Cir. 1996)

(“Questions of law and mixed questions of law and fact are reviewed de novo.”);

accord Wilks, 5 F.3d at 415 (“We review de novo the trial court’s determination

that the jury returned a general verdict inconsistent with its answers to special

interrogatories.”).

                                 IV. DISCUSSION

A.           The district court did not err in concluding that the jury returned a
             general verdict that was inconsistent with its answers to special
             interrogatories

      A verdict contains an inconsistency if answers given by the jury “may [not]

fairly be said to represent a logical and probable decision on the relevant issues as

submitted.” Aquachem Co. v. Olin Co., 699 F.2d 516, 521 (11th Cir. 1983)

(quoting Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973)). In determining

whether an inconsistency exists, the court should “refer to the entire

                                          13
case–pleadings, evidence, argument, jury instructions–and not just to the jury’s

answers themselves.” Royal Cup, Inc. v. Jenkins Coffee Serv., Inc., 898 F.2d

1514, 1521 (11th Cir. 1990).

        When faced with a jury verdict containing an apparent inconsistency, the

court shall “make all reasonable efforts to reconcile [the inconsistency].” Boczar

v. Manatee Hosps. & Health Sys., Inc., 993 F.2d 1514, 1516 n.5 (11th Cir. 1993)

(quoting Burger King v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983)). “[I]f there

is a view of the case which makes the jury’s answers consistent, the court must

adopt that view and enter judgment accordingly.” Griffin, 471 F.2d at 915.

However, the district court has no authority to strain to reconcile an inconsistency

when it is not reasonable to do so, and the court “[is] not empowered to fill in facts

omitted from the answer to a special interrogatory.” Burger King, 710 F.2d at

1489.

        In challenging the district court’s conclusion that the jury’s affirmative

response to Question 10 is inconsistent with its preceding responses, Wilbur raises

several points of alleged error,4 none of which have any merit.

        4
         Wilbur also asserts that CSC waived any Rule 49(b) challenge to the verdict because CSC
failed to object before the jury had been discharged. We reject this argument. As a general rule, a
party must raise a Rule 49(b) challenge to the form of the verdict and the jury’s answers at the time
they are announced by the jury, and failure to do so constitutes waiver. Stancill v. McKenzie Tank
Lines, Inc., 497 F.2d 529, 534-35 (5th Cir. 1974). However, the circumstances of this case make
clear that any objection would have been futile. Cf. Farley v. Nationwide Mut. Ins. Co., 197 F.3d

                                                 14
        Wilbur first advances a “concurrency” theory, through which, Wilbur

contends, the jury could have answered Questions 7 and 9 in the negative and

nonetheless awarded relief if it concluded that both of the causes identified in

Questions 7 and 9, acting in concert, resulted in her termination. Under Wilbur’s

theory, because Question 7 asked the jury to consider whether she was terminated

because of her rejection of a quid pro quo sexual demand and Question 9 asked the

jury to consider whether she was terminated because she complained of sex

discrimination, the jury could have answered both questions in the negative and

still awarded relief if it concluded that each was a substantial factor, if not a “but-

for” cause of her termination.

        Wilbur’s concurrency theory is directly contradicted by the portion of the

court’s instructions to the jury that addressed the causation issue. This portion of



1322, 1329 (11th Cir. 1999) (recognizing futility exception to Fed. R. Civ. P. 51). As previously
discussed, after the jury delivered its verdict, Wilbur’s counsel recognized the inconsistency and
requested that the district court tender the case back to the jury for further deliberations. Before
counsel for CSC made any response, the district court denied this request, stating:

            It may well be that some intervention by the Court with respect to the verdict is
            necessary, but I don’t intend to attempt to reinstruct them or send them back for
            further deliberations. I’ll discharge the jury.

In light of this comment, in which the district court made clear that it was aware of the potential
inconsistency but that it had no intention of resubmitting the case to the jury, we reject the contention
that CSC waived its challenge to the verdict by failing to object. To find otherwise means that CSC
was required, solely for the sake of formality, to challenge the same matter that the district court had
expressly ruled on an instant before.

                                                   15
the instructions, which was both read to the jury and provided to the jury in written

form, read as follows:

                For an adverse employment action to be “causally
             related” to statutorily protected activities it must be
             shown that, but for the protected activity, the adverse
             employment action would not have occurred. Or, stated
             another way, it must be shown that the protected activity
             by the Plaintiff was a substantial, motivating cause that
             made a difference in the Defendant’s decision.

[R3 – 67 – 13]. (emphasis added); see Royal Cup, Inc., 898 F.2d at 1521 (holding

that the court must consider the entire case, including, among other things, jury

instructions, in considering whether an inconsistency exists). The jury was thus

instructed to consider in each question whether Wilbur’s protected activity was a

factor, rather than the exclusive factor, leading to Wilbur’s discharge.

      “We presume that a jury follows the instructions given to it by the district

court.” United States v. Bennett, 368 F.3d 1343, 1351 (11th Cir. 2004). And

Wilbur has offered nothing to rebut this presumption. Accordingly, the district

court properly concluded that the jury “necessarily considered and rejected a

finding that the Plaintiff’s protected activities taken together brought about her

termination.” [R3 – 79 – 9].

      Wilbur next posits that, in light of the district court’s instruction addressing

causation, Questions 7 and 9 were general verdicts, as opposed to special

                                          16
interrogatories, on the ground that both questions “conflated two distinct factual

issues,” i.e., whether either CSC’s quid pro quo sexual demand or Wilbur’s

complaint of sexual discrimination was (1) a but-for cause or (2) a substantial

motivating factor underlying CSC’s decision to terminate Wilbur’s employment.

In making this argument, however, Wilbur has misconstrued the district court’s

instruction, which merely provided the jury with two alternative methods of

considering the test for factual causation.

      Moreover, even assuming that the court’s instruction created two distinct

factual issues for the jury to resolve in Questions 7 and 9, the court did not create a

multiple general verdict scenario. It must be remembered that a general verdict “is

a ‘verdict by which the jury finds in favor of one party or the other, as opposed to

resolving specific fact questions.’” Mason v. Ford Motor Co., 307 F.3d 1271,

1274 (11th Cir. 2002) (quoting Black’s Law Dictionary 1555 (7th ed. 1999)). “[I]t

is a verdict by which ‘the jury pronounce[s] generally on all or any of the issues,

either in favor of the plaintiff or in favor of the defendant.’” Mason, 307 F.3d at

1274 (second alteration in original) (quoting 89 C.J.S. Trial § 819 (2001)). Thus,

an interrogatory containing multiple questions of fact cannot be characterized as a

general verdict, and Wilbur cannot challenge the district court’s grant of judgment

as a matter of law on this basis. See, e.g., Midwestern Wholesale Drug, Inc. v. Gas

                                          17
Serv. Co., 442 F.2d 663, 666 (10th Cir. 1971) (holding that district court did not

abuse its discretion by submitting compound interrogatories to the jury when they

were not confusing and were not inconsistent with its jury instructions).

       Finally, Wilbur claims that the district court erred in finding inconsistency

in the special verdict form because the jury’s answers to Questions 7 and 9 “did

not exhaust all of the theories of liability on which the jury was charged.”

Specifically, Wilbur contends that the jury instructions left open the possibility

that the jury could have found that, prior to her termination, CSC’s harassment of

her had become so severe as to alter the terms and conditions of her employment;

thus, such harassment was sufficient to ground these claims even if no “tangible

employment action” was taken.5


       5
          Wilbur also asserts that the jury could have found evidence of tangible employment actions
prior to her termination from which it could have grounded CSC’s liability, noting specifically (1)
Newkirk’s attempt to discharge her and subsequent threats to discharge her in February 2001; (2) a
proposed demotion later in February 2001; (3) Newkirk’s “usurpation of [her] supervisory
privileges”; (4) the “extreme level of hostility” directed towards her on and after the date of the
attempted discharge; and (5) Wilbur’s resulting physical and emotional distress. In its summary
judgment order, however, the district court unambiguously concluded that “[w]hile the Plaintiff’s
termination constitutes a ‘tangible employment action,’ the Plaintiff has not alleged any other acts
that may be properly considered ‘tangible employment actions.’” [R1 – 37 – 10]. Wilbur has
inexplicably failed to appeal from the court’s summary judgment order, and her appeal cannot even
be fairly construed as implicitly alleging error from it because Wilbur claims in her Reply that the
district court “obviously retreated from its summary judgment determination” in its jury instructions
and its failure to enter judgment as a matter of law prior to trial. Thus, this court will not consider
the merits of Wilbur’s arguments in this regard.

       Citing Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998), Wilbur next
contends that the jury could have considered the collective impact of CSC’s pre-termination conduct.

                                                  18
       In order to entertain this theory, we would first have to accept Wilbur’s

implicit argument that the district court submitted an incomplete verdict form to

the jury in that it addressed some, but not all, of the potential grounds for liability

on Wilbur’s quid pro quo and retaliation claims. If the court had done so, the

effect of its verdict form would have been to directly contravene the fundamental

purpose of special interrogatories, which is, generally, “to avoid confusion,

appellate uncertainty and the need for additional proceedings by identifying the

bases on which the jury rendered its verdict.” Steward & Stevenson Servs., Inc. v.

Pickard, 749 F.2d 635, 644 (11th Cir. 1984). It is far more likely that the district

court intended its interrogatories to exhaust all possible bases for which Wilbur

could be entitled to recover.

       Moreover, the district court’s summary judgment order strongly suggests

that the court considered CSC’s pre-termination conduct relevant only to Wilbur’s

hostile work environment claim. In its order, the district court cited Frederick v.

Sprint/United Mgmt. Co., 246 F.3d 1305 (11th Cir. 2001), for the proposition that

courts should categorize sexual harassment cases according to whether or not the

But, in making this argument, Wilbur is necessarily alleging that Title VII liability existed in the
absence of “tangible employment action,” and she cannot escape this court’s requirement that she
demonstrate “a serious and material change in the terms, conditions, or privileges of employment.”
Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in original). Wilbur’s
“collective impact” claim is thus subsumed by her hostile work environment claim, a claim that
survived summary judgment but was flatly rejected by the jury.

                                                19
alleged harassment culminated in a “tangible employment action.” Id. at 1311. In

Frederick, we further noted that “the terms ‘quid pro quo’ and ‘hostile

environment’ are still helpful for distinguishing between cases in which a

supervisor carries out his threat to sanction an employee if she does not submit to

his sexual demands (‘quid pro quo’) and circumstances in which the supervisor

does not carry through on his threats (‘hostile environment’).” Id. at 1311 n.1.

      Regardless, the district court’s summary judgment order precluded the jury

from considering any of CSC’s pre-termination actions as constituting “tangible

employment actions,” and, therefore, the jury could not have grounded liability in

any of this conduct without finding that it seriously and materially altered the

terms and conditions of her employment. See discussion infra note 6. In

considering, and rejecting, Wilbur’s hostile work environment claim, the jury had

the benefit of the district court’s instruction that “[o]nly extreme conduct

amounting to a material change in the terms and conditions of employment is

actionable.” [R3 – 67 – 8]. The jury, thus, could not have simultaneously

concluded that the terms and conditions of her employment had been altered in

resolving Questions 7, 9, and 10. Accordingly, Wilbur has failed to establish that

the jury’s answers to the special interrogatories can be reconciled with its damages

award.

                                          20
B.    The district court did not abuse its discretion by entering judgment as a
      matter of law in favor of CSC on the liability issues presented to the jury

      Pursuant to Rule 49(b), the district court, in its discretion, may direct the

jury to answer specific written interrogatories and to return a general verdict. See

discussion supra § III. The rule further provides that “[w]hen the answers [to

these special interrogatories] are consistent with each other but one or more is

inconsistent with the general verdict, judgment may be entered pursuant to Rule

58 in accordance with the answers, notwithstanding the general verdict.” Fed. R.

Civ. P. 49(b). Alternatively, Rule 49(b) permits the district court to either return

the jury for further consideration of its answers and verdict or to order a new trial.

In exercising its discretion in deciding among these alternatives, the district court

must consider the circumstances under which the inconsistency has arisen.

Phillips Chem. Co., 301 F.2d at 751.

          In its order granting judgment as a matter of law, the district court

concluded that its own preparation of the verdict form likely contributed to the

jury’s award of damages despite its finding of no liability:

             The Court must acknowledge that the verdict form was
             inartfully prepared in a way that contributed to the jury’s
             ultimate award despite the lack of liability. It would
             have been preferable, for example, to have informed the
             jury on the face of the verdict that a negative response to



                                          21
               Questions 7 and 9 would foreclose an affirmative
               response to Question 10.

[R3 – 79 – 5 n.1]. We agree. Furthermore, our analysis of the cause of the

inconsistency suggests that additional instructions and further deliberation may

have been the preferred method of resolving it. The inconsistency is readily

apparent on the face of the verdict form, and the district court recognized that a

problem may have existed with the verdict prior to discharging the jury. See

discussion supra note 5. Thus, given the nature of the inconsistency, the district

court could have easily prepared supplementary instructions.6 Cf. Burger King,

710 F.2d at 1489 n.5 (commenting on the benefits of resubmitting a case to the

jury where doing so would have remedied an inconsistent or ambiguous special

verdict).




        6
          Along these lines, Wilbur also argues that the district court should have granted a new trial
because its jury instructions “contained statements of law that were incorrect because the jury was
permitted to find the existence of two unlawful motives.” We review alleged errors in jury
instructions only for plain error where the aggrieved party failed to raise an objection prior to jury
deliberations. Farley, 197 F.3d at 1329. In order to satisfy this “extremely stringent form of
review,” the party must establish that (1) an error occurred; (2) the error was plain; (3) the error
affected substantial rights; and (4) not correcting the error would seriously affect the fairness of the
judicial proceeding. Id. Wilbur’s challenge to the district court’s jury instructions falls well short
of this standard. There is no error because this “multiple motive” challenge to the jury instructions
has no more merit than her “concurrent reason” challenge to the court’s order granting CSC
judgment as a matter of law–the instructions were sufficiently clear to permit the jury to answer
“yes” to either Question 7 or Question 9, or to both. Regardless, Wilbur has made no showing that
denying her relief on this alleged error would seriously affect the fairness of the judicial proceeding.

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        As such, armed with the benefit of hindsight, we believe that a better

alternative may have existed. However, Rule 49(b) does not require the district

court to subjectively select the best of the three alternatives, and thus we should

not play “Monday morning quarterback” and second guess the district court’s

judgment here absent abuse of discretion.7 See Cronin v. Washington Nat’l Ins.

Co., 980 F.2d 663, 669 (11th Cir. 1993) (declining to hold that a district court

abused its “broad discretion” in excluding testimony of an expert witness). The

district court reasonably concluded that substantial evidence supported the jury’s

answers to each of the special interrogatories, that the general verdict was the only

source of inconsistency, and that the only inconsistency resulted from the jury’s

failure to recognize that its negative responses to Questions 7 and 9 precluded its



        7
          Wilbur argues that the district court should have awarded a new trial because “[t]he law of
this circuit favors a new trial,” and Wilbur has compiled a collection of quotations from various
cases that appear to support her contention here. However, all but one of the cases Wilbur relies on
are inapposite in that they do not arise in the Rule 49(b) context, see, e.g., Edwards v. Board of
Regents of Univ. of Ga., 2 F.3d 382, 384 (“Because the second sentence of the jury's verdict in this
case is not a written interrogatory, Fed. R. Civ. P. 49(b) does not apply.”); Burger King, 710 F.2d
at 1486-88 (discussing district court’s authority to grant a partial new trial under Rule 59(a)); Griffin,
471 F.2d at 915 (discussing district court’s authority to grant a new trial in the event of inconsistent
special interrogatories under Rule 49(a)); and E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc.,
117 F.3d 1244 (11th Cir. 1997), the final case cited by Wilbur, is distinguishable as well because the
alleged inconsistency in that case was created by a district court’s post-verdict instruction. Id. at
1251. Moreover, the recited language from Massey Yardley Chrysler Plymouth is dicta because we
concluded that the appellant had not timely raised a Rule 49(b) challenge and thus waived the right
to raise this issue on appeal. Id. Accordingly, Phillips Chemical Company, which tracks the current
language of Rule 49(b) in all material respects, provides the relevant framework for consideration
of this question. Id. at 751.

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award of damages. Accordingly, we conclude that the district court clearly acted

within its discretion in entering judgment as a matter of law.

C.    The district court did not err in granting judgment as a matter of law in
      favor of CSC as to Wilbur’s claim for punitive damages, and, in any event,
      the issue is moot

      In order to recover punitive damages, a Title VII plaintiff must establish that

the defendant engaged in a discriminatory practice “with malice or with reckless

indifference” to the plaintiff’s federally protected rights. 42 U.S.C. § 1981a(b)(1).

However, the jury in this case specifically found, in its answer to Question 4, that

CSC had “exercised reasonable care to prevent and correct promptly any sexually

harassing behavior in the work place.” This answer, standing alone, should be

sufficient to moot any challenge to the district court’s pre-verdict dismissal of

Wilbur’s punitive damages claim because it appears to preclude a finding of

negligence, let alone malice or reckless indifference, with respect to Wilbur’s

federally protected rights. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1280 (11th Cir. 2002) (“Malice or reckless indifference is established by a

showing that the employer discriminated in the face of knowledge that its actions

would violate federal law.”). Furthermore, even assuming Question 4 was

irrelevant to the jury’s analysis of Wilbur’s quid pro quo harassment and

retaliation claims, the jury’s failure to find any legal basis for imposing civil

                                          24
liability on CSC necessarily precludes any award of punitive damages. See Atlas

Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 600 (4th Cir.

1996) (commenting that a finding of liability and compensatory damage is a

prerequisite to finding punitive damages). As such, Wilbur’s challenge to the

district court’s punitive damages ruling is moot.

      Regardless, even if Wilbur’s punitive damages claim is not moot, it was

properly rejected. Assuming Wilbur established that Gallon or Newkirk acted

with malice or reckless indifference with respect to her rights, she failed to

establish a sufficient basis for imputing their conduct to CSC. See Kolstad v. Am.

Dental Ass’n, 527 U.S. 526, 539, 119 S. Ct. 2118, 2127 (1999) (“The inquiry does

not end with a showing of the requisite ‘malice or . . . reckless indifference’ on the

part of certain individuals, however . . . . The plaintiff must impute liability for

punitive damages to respondent.”). And, in this Circuit, “punitive damages will

ordinarily not be assessed against employers with only constructive knowledge of

harassment.” Miller, 277 F.3d at 1280 (internal quotation marks and citation

omitted). In order to ground liability in an employer, the plaintiff must establish

that “the discriminating employee was high[] up the corporate hierarchy” or that

“higher management countenanced or approved his behavior.” Id. (alteration in

original). Even if, as Wilbur asserts, CSC’s corporate office had notice of the

                                          25
alleged sex discrimination as of February 2002, when she complained to CSC’s

human resources department, Wilbur has offered nothing to establish that CSC’s

higher management “countenanced or approved” the offending behavior of

Wilbur’s supervisors. Moreover, to hold otherwise seems irreconcilable with the

jury’s finding that CSC had “exercised reasonable care to prevent and correct

promptly any sexually harassing behavior in the work place.” [R3 – 68 – 2].

Therefore, even if the issue is not moot, we conclude that the district court did not

err in dismissing Wilbur’s punitive damages claim.

                                   V. CONCLUSION

      Based on our foregoing discussion, we conclude that the district court did

not err in finding that the jury returned a general verdict that was inconsistent with

its answers to special interrogatories.

      We also conclude that the district court did not abuse its discretion by

entering judgment as a matter of law in favor of CSC on the liability issues

presented to the jury.

      Finally, we conclude that the district court did not err in granting judgment

as a matter of law in favor of CSC as to Wilbur’s claim for punitive damages, and,

in any event, the issue is moot.

      AFFIRMED.

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