Myers v. CENTRAL FLORIDA INVESTMENTS, INC.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 6, 2010
No. 08-16291 JOHN P. LEY
________________________ ACTING CLERK

D. C. Docket No. 04-01542-CV-ORL-28-DAB

DAWN GEORGETTE MYERS,

Plaintiff-Appellee-
Cross-Appellant,

versus

CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL, et al.,

Defendants-Appellants-
Cross-Appellees.

________________________

Appeals from the United States District Court
for the Middle District of Florida
_________________________

(January 6, 2010)

Before MARCUS, FAY and ANDERSON, Circuit Judges.

MARCUS, Circuit Judge:
Defendants Central Florida Investments, Inc., Westgate Resorts, Inc.,

Westgate Resorts, Ltd., CFI Sales and Marketing, Ltd., and David Siegel appeal

and plaintiff Dawn Georgette Myers cross-appeals the judgment of the district

court, after a jury trial, in favor of Myers in the amount of $610,469.84. Myers

recovered $103,622.09 in compensatory damages and $506,847.75 in punitive

damages arising from her claim of state law battery, but took nothing on her claims

of sexual harassment under state and federal civil rights acts. Defendants

challenge the awards under state and federal law, asserting that the evidence can

support neither the compensatory award nor the punitive award. Myers, in turn,

asserts that the district court improperly limited punitive damages, barred evidence

of harassment, denied her fees, and dismissed her state law claims. Because the

district court correctly answered the many questions raised in these appeals, we

affirm its judgment in all respects.

I. Background

A. Facts

The essential facts adduced at trial are these: Central Florida Investments,

Inc. (“CFI”), is the parent company for a number of associated entities -- Westgate

Resorts, Inc., Westgate Resorts, Ltd., Westgate Lakes, Inc., Westgate Lakes, Ltd.,

and CFI Sales and Marketing, Ltd. -- which collectively comprise a real estate

2
company whose primary business is the development and sale of time-share resorts

throughout the United States. Siegel is the chairman of the board, president, chief

executive officer, and sole stockholder of CFI. CFI, which is the largest privately

held time-share company in the world, is valued at approximately $471,000,000,

while Siegel himself has a net worth of some $324,000,000.

Dawn Myers testified that she first came to work at CFI as a salesperson in

1986. She had a real estate license, and her job required her to sell time-shares.

Myers was also an award-winning cosmetologist who was licensed to do hair,

nails, spa treatments, and skin care. Cosmetology was her professional passion,

and she hoped one day to develop a spa at one of CFI’s resorts.

In 1994, Myers called the CFI corporate office in order to request an

appointment with Siegel so that she could make her pitch. Siegel, on hearing her

thoughts, encouraged her to pursue the project, and, as Myers developed the

concept, the two went on to communicate about it every week for about a year.

Finally, Siegel authorized the creation of the spa.

During the ensuing period, Myers claims that she split her time at CFI,

working in the morning in sales and working in the afternoon on the spa. She

began to draw a regular salary, rather than work on straight commission. She also

spent a lot of time dealing with Siegel, and the two developed a friendship. Myers

3
would later testify, “what he told me that we had in common was the fact that

we’re both ambitious, we both are hard workers, [and] we both, if we believe in

something, you know, we go for it.”

Siegel was interested in Myers romantically, and their friendship began to

change as Siegel made that increasingly clear. According to Myers, it was at the

CFI Christmas dance in 1995 where Siegel made his first unwanted advance.

Siegel had asked Myers to dance, and as they danced he kissed her. Myers was

shocked. Siegel’s overtures towards Myers continued. He twice offered, at CFI

functions and in Myers’ presence, $1,000,000 to Myers’ boyfriend for one night

with Myers. Myers considered the offers to be disrespectful and inappropriate. On

several occasions, Siegel made marriage proposals to Myers, some more serious

than others, some on company property, and at least one in the presence of other

CFI employees. He offered to buy Myers lavish gifts, including a Porsche, if she

agreed to date him. And once, unsolicited, he even gave her a $10,000 check.

Myers was devastated: “I started crying and I said, you know, how could you do

this? . . . I said I don’t need your help. Our friendship does not have a price tag on

it. How many times do I have to tell you? I don’t want your money. I don’t need

your help.”

Siegel’s pursuit of Myers also began to color their interactions in the

4
workplace. Myers testified that he transferred her to a new office, and informed

her that he had done it so that she would be closer to him. He began to visit her in

the office nearly every day at 11 a.m., even asking for her if he could not find her

himself. When he did find her, she testified at trial, he would give her a hug and

sometimes let his hands slip down to her behind, in full view of her coworkers.

Sometimes he slapped her behind at work in front of her staff. During lunches at

CFI, Siegel would fondle Myers’ legs for everyone to see; he touched her legs at

the company restaurant at least twenty times, and probably many more. Siegel also

made inappropriate comments to Myers at work. He talked about her weight, and

at the company gym, he told her that “your ass is getting fat,” but that it was “okay,

because [your] boobs are big.” And, at a company awards dinner one night, Siegel

told the CFI crowd that he had asked Myers to come as his date, but that she had

refused him. She testified that the incident made her terribly embarrassed.

Myers and Siegel frequently traveled together, and these trips generally

fueled the tension between them. Thus, for example, Siegel and Myers traveled

together for business to the Bahamas, where, she testified, he propositioned her.

Similarly, in 1997, Myers agreed to travel to New York with Siegel on business.

Myers, who was first told that they would have separate hotel rooms, and who was

later told that they would have separate bedrooms in the same suite, said that she

5
grew “absolutely furious” upon discovering that their hotel room had only

bedroom. She went to the bathroom and cried, but resolved nevertheless to go

about her business in New York as planned. Myers also agreed to accompany

Siegel -- as his friend -- to attend the bar mitzvah of the son of a CFI executive in

Miami. She became “very angry,” however, when Siegel invited her on a romantic

walk on the beach.

On multiple occasions, Myers asked Siegel to stop his inappropriate

behavior. Myers testified that, “every time I went to him and sincerely asked him,

please, David, stop,” he told her that he would not do it again. “He seemed

extremely sincere that he would stop, with the exception of the times that he would

make a joke and say I want people to think that, you know, we’re together or

you’re my girlfriend.” Myers testified that Siegel in fact wanted people to think

that they were together.

Yet Myers and Siegel continued to work closely together, and continued to

be friends. Myers testified, “it never crossed my mind at that time to sever my

friendship with him,” because “he was my friend and he was important to me and

he . . . had given me this opportunity and I was extremely grateful, extremely

grateful.” Myers saw Siegel as a mentor: “how many people get an opportunity to

have someone like Mr. Siegel who’s brilliant in business in so many ways to, you

6
know, be their friend, to coach them, to anytime if I need to talk to him and I

picked up the phone, he would take my call. I mean it meant everything to me.”

Myers considered taking a harder line with Siegel, but she said that she

feared losing her job: “number one, he’s my boss.” She thought that, because she

did not have a college degree, she might flounder professionally outside of CFI.

She also testified that she could not simply quit: “I have a home. . . . I had bills to

pay. I was taking care of my mom. I can’t just quit my job. I’m the only one that

pays my bills. I couldn’t do it. And I really thought that some day it would stop.”

Work on the spa continued. Construction began in 1997 or 1998, Myers was

named the executive director of the spa, and she stopped working in sales in order

to devote her full attention to development of the spa. She was given control over

management of the facility, including design and staffing, subject to approval from

the front office.

According to Myers, once the spa opened in November of 1999, it became a

frequent site of Siegel’s unwelcome advances. On eight to ten occasions, Siegel

came to the spa looking for treatments from Myers. Towards the end of these

sessions, Siegel would, Myers testified, “let his hands wander and wander up the

back of my legs and on to my butt.” She asked him to stop, and pushed his hands

away, but he persisted. Furthermore, on several occasions, towards the end of the

7
treatments, Siegel would expose himself unnecessarily to Myers; he would do so

with “a big old smile on his face . . . , so I would think he knew he was doing it.”

Several times Jackie Siegel, who was Siegel’s third wife, joined Siegel and

Myers in the spa. One time, while Jackie was present, Siegel told Myers that “I

wanted to have the two of you together and, you know, well, at least I have the two

of you together now.”

Myers’ said that her most public humiliation occurred at a CFI charity event

in 2000. There were hundreds of employees at the event, some of whom had

dressed as celebrities. At one point Myers, who was dressed as Marilyn Monroe,

was summoned to the stage by Siegel, the master of ceremonies, to sing Happy

Birthday. Though Myers did not want to serenade him, Siegel played to a crowd

that was increasingly egging her on, and she felt that she had no choice.

Myers took the stage, where Siegel beckoned her to sit on his lap. Though

nervous, and completely shocked, Myers tried “to be a good sport.” She placed a

napkin on his lap, intending to sit on it. She testified, “as soon as I put it on his

lap, he took his hand underneath the napkin and you know, like made it go up like

that.” He was feigning an erection. But she sat down, sang the song -- at the end

of which he kissed her -- and rushed off the stage: “I just knew I needed to get out

of there. I just needed to get out of there.” Her face had turned red, she felt the

8
onset of a migraine headache, and as soon as she left the stage, she began to cry;

she felt humiliated. Myers said she was “dying and mortified.”

Rumors inevitably began to spread throughout CFI about Siegel and Myers.

Myers claimed that rumors of a relationship between her and Siegel were ruining

her reputation. “[T]here were rumors flying all around the resort that I was having

this wild affair with Mr. Siegel and no one would believe me that we were

friends.” Indeed, she said, there were hundreds of rumors about Siegel and Myers,

and it was well-known that Siegel was in love with Myers. Myers testified that the

gossip was “horrible” and “vicious,” and caused her to lose friendships. She added

that, during the celebrity waiter event, she could hear the crowd snickering: “the

people . . . would always gossip and say such hateful, . . . mean things.” This

atmosphere made it difficult for Myers to go to work: “the whole company was

gossiping about me. Executives were gossiping about me. Things were getting

back to me that executive’s wives were saying, people that didn’t even know me. I

didn’t want to go to work.” Myers testified that, ultimately, some CFI employees

just thought of her as “a dumb blonde bimbo with big boobs.”

When Myers began dating a new man in May of 2000, her already rocky

relationship with Siegel took a turn for the worse. She testified: “His attitude just

completely changed. He was angry, he was just, when you were around him he

9
tried to just talk down to you and degrading and humiliating.” He began to behave

differently towards Myers: “it was very, just aggressive and mean and just

demeaning and not like how it was before . . . . It was a completely different tone.”

This new attitude manifested itself on several ugly occasions. Once, Siegel

pinned Myers against the wall right in front of the reception desk at the spa, and in

front of the three staff members who were working the desk. Myers testified,

“Georgette, he said, your breasts look great in that sweater you’re wearing.” He

had his hand on her shoulder and was leaning into her. Myers attempted to

maintain her composure, signaling to Siegel with her hands to back off, and looked

to be relieved once it was over. Another time, after Siegel and Jackie each had

treatments, and again in the presence of spa staff, Siegel approached Myers and

pinned her against a wall, suggesting that Myers “come home and lay around with”

him and Jackie. He was reaching out and touching Myers. Myers told him to stop

and tried to push him away. After Myers extricated herself from the situation, and

while she was walking back towards her office, Siegel further commented that he

wished Myers “would crawl all over” him.

In 2000, Myers brought her concerns to a number of company executives,

but she said that they were of little help. She spoke with Mark Waltrip, CFI’s chief

operating officer, who told her that for her to date another man was “like waving a

10
red flag in front of a bull. You know how he feels about you.” She also spoke

with Paul Bosch, director of resort operations at CFI, who told her that she “should

think about leaving the company.” Finally, she complained to Sandy Jones, CFI’s

director of human resources, who once told Myers, “what are you going to do, he’s

the president of the company,” and another time explained, “that’s David.” Jones

was not the only one who believed that the rules did not apply to the president;

Siegel himself testified that, even if there were corporate rules binding him, he

could change them at his will.

Some CFI employees, including executives, either played an active role in

Siegel’s pursuit of Myers or were asked to. Jim Gissy, executive vice president of

sales and marketing, called Myers into his office to tell her that he thought she and

Siegel would be great together. Michael Marder, CFI’s general counsel, told

Myers at his son’s bar mitzvah that he was “really glad to see that you’re here with

David.” Siegel approached Roger Behrmann, a manager at CFI, on numerous

occasions, Gail Miller, a manager in sales, and Mary Fetzner, a server at the CFI

restaurant, to ask them to put in a good word for Siegel to Myers; they all

complied.

Ultimately, the environment at CFI took its toll on Myers. She testified that

she was “torn.” On one hand, she had been “given this amazing opportunity,” but

11
on the other hand, she felt “deflated” and “didn’t want to go to work.” She

testified that she felt as if she were “on an emotional roller coaster all the time.”

And Siegel’s change in behavior only made matters worse: “I was hurt. I was sad.

I didn’t understand.”

Myers was suspended in December of 2000, and her employment with CFI

was terminated later that month. In that final year at CFI, she earned $102,223.14.

On September 14, 2001, Myers filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”).

B. Procedural History

On April 5, 2004, CFI sued Myers in the County Court of the Ninth Judicial

Circuit in Orange County, Florida, seeking to recover $6,230 on the theories of a

promissory note, money lent, and unjust enrichment. On May 19, 2004, Myers

answered the suit and counterclaimed against CFI and Siegel, alleging disparate

treatment and hostile work environment, in violation of both the Florida Civil

Rights Act (“FCRA”), Fla. Stat. § 760, and Title VII of the federal Civil Rights

Act, 42 U.S.C. § 2000e, et seq., abuse of process, battery, assault, conspiracy, and

contractual attorney’s fees.

The case was then removed to the United States District Court for the

Middle District of Florida, remanded to county court, and transferred to the Circuit

12
Court for the Ninth Judicial Circuit. The circuit court dismissed CFI’s claim for

the $6,230, without prejudice, and ordered Myers to submit a new complaint. On

October 1, 2004, Myers filed a new complaint. This one included the same

allegations contained in the May 19 counterclaim, but added counts for slander and

malicious prosecution. On October 20, 2004, the defendants removed the action to

federal court in the Middle District of Florida.

On April 20, 2005, the district court dismissed some of the claims, including

several of the state law claims -- abuse of process, slander, malicious prosecution,

conspiracy and attorney’s fees -- over which the court had declined to exercise

supplemental jurisdiction. Myers amended her complaint again. The Second

Amended Complaint contained nine counts. Against Siegel and CFI, Myers

alleged false imprisonment and battery, common law claims in Florida, and

inducement to prostitution, in violation of Florida Statute § 796.09. Against CFI

alone, she alleged sex discrimination under Title VII and the FCRA, retaliation

under Title VII, the FCRA, and the Florida Private Whistleblower Act

(“Whistleblower Act”), Fla. Stat. § 448.101-105, and negligent retention and

supervision, a common law claim. Thereafter, the district court dismissed the

Whistleblower Act claim, as well as the inducement to prostitution and negligent

retention and supervision claims. The two sexual harassment claims, the two

13
retaliation claims, the battery claim, and the false imprisonment claim remained.

On April 24, 2006, the district court granted summary judgment to CFI on

the sexual harassment and retaliation claims, and remanded the two remaining state

law claims to state court. But, thereafter, a per curiam panel of this Court reversed

in part the grant of summary judgment, finding that Myers had presented sufficient

evidence to support her Title VII and FCRA hostile work environment claims. The

state law claims that had been remanded were reinstated. See Myers v. Cent. Fla.

Invs., Inc., 237 F. Appx. 452 (11th Cir. 2007).

After six days of trial,1 the jury found that Siegel had “subjected the Plaintiff

to a hostile or abusive work environment because of her sex or gender,” but that

none of the acts of sexual harassment took place on or after September 15, 2000,

the point at which the statute of limitations barred recovery.2 The jury also found

that Siegel had committed battery against Myers, and that it had occurred on or

1
The jury heard evidence on only battery and sexual harassment, as Myers had by that
time withdrawn her claim for false imprisonment.
2
A litigant under the FCRA must file a complaint with the state of Florida or the EEOC
within 365 days of the purported violation. Fla. Stat. § 760.11(a). Because Myers had filed a
complaint with the EEOC on September 14, 2001, the defendants could only be held liable under
the FCRA for sexual harassment occurring on or after September 15, 2000. Moreover, under
Title VII, the EEOC complaint must be filed within 300 days of any violation, 42 U.S.C. 2000e-
5(e); see also City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002), meaning that
defendants could only be liable under Title VII for conduct occurring on or after November 19,
2000.

14
after May 21, 2000, the relevant date under the statute of limitations.3

Because recovery was barred by the statute of limitations under Title VII and

the FCRA, the jury did not reach the issue of damages on the sexual harassment

claims. As for the battery claim, however, the jury awarded Myers $102,223.14 in

compensatory damages and $5,276,640.00 in punitive damages. These damages

were leveled against both Siegel and CFI. Final judgment was entered for Myers

in the amount of $5,378,863.14 on the battery claim.

Thereafter, the district court denied several post-trial motions; it did,

however, grant the defense motion that the judgment reflect that CFI had prevailed

on the sexual harassment claim. The district court also determined that the jury

had not made the findings required under state law to support a punitive award

greater than $500,000. Accordingly, the Amended Judgment noted that Myers

“shall take nothing” on the Title VII and FCRA claims, and reflected that the

district court had reduced the punitive damage award by $4,776,640. Adjusted for

interest, the compensatory damages were listed as $103,622.09 and the punitive

damages as $506,847.75 for a total award of $610,469.84. There was no award of

attorneys’ fees.

This timely appeal and cross-appeal followed.

3
The statute of limitations for battery is four years in Florida. See Fla. Stat. §
95.11(3)(o). Myers first asserted battery in her counterclaim filed May 19, 2004.

15
II. Standard of Review

First, the defendants argue that Florida law cannot support a compensatory

award of this size on this record. They also challenge the punitive award under

state law, asserting first that punitive damages are not permitted, and, in the

alternative, that the punitive damages were too great. They also maintain that the

punitive damage award violates the federal Constitution.

Myers claims, in turn, first that the district court improperly applied

Florida’s statutory cap on punitive damages, thereby wrongfully reducing the

punitive award to $500,000 when the evidence could support greater damages.

Second, she says that the defendants had the burden of showing that their unlawful

behavior occurred before September 15, 2000, the relevant date under the statute of

limitations. Third, she states that the district court, during rebuttal, improperly

prevented her from putting on evidence that the defendants sexually harassed her

on or after September 15, 2000; this evidence, she claims, would prove that her suit

was timely. Fourth, she asserts that she should be considered a prevailing party

under Title VII, and is therefore entitled to attorney’s fees under the statute. Fifth,

and finally, she argues that it was reversible error for the district court to dismiss,

rather than remand a number of state law claims over which the court had declined

to exercise supplemental jurisdiction.

16
A number of standards govern review of the questions raised in this case.

We review for abuse of discretion the propriety of the compensatory award under

Florida law, see Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003) (citation

omitted), the district court’s application of state statutory law to a jury award,

Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 280

(1989); Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320, 1334 n.28 (11th Cir.

1999); see also Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla. 2006), the

district court’s limitation of rebuttal, Conroy v. Abraham Chevrolet-Tampa, Inc.,

375 F.3d 1228, 1232 (11th Cir. 2004), and the district court’s refusal to exercise

supplemental jurisdiction over state law claims. Raney v. Allstate Ins. Co., 370

F.3d 1086, 1088-89 (11th Cir. 2004) (citation omitted).

We review for clear error, however, the district court’s findings of fact,

Johansen, 170 F.3d at 1334; Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995),

and the district court’s determination that parties have met the pleading

requirements concerning the fulfillment of conditions precedent under Rule 9 of

the Federal Rules of Civil Procedure. Fitz-Patrick v. Commonwealth Oil Co., 285

F.2d 726, 730 (5th Cir. 1960).4

4
Cases decided by the Fifth Circuit prior to the close of business on September 30, 1981,
are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.
1981).

17
Finally, we review de novo the propriety of punitive damages, Goldsmith v.

Bagby, 513 F.3d 1262, 1275 (11th Cir. 2008) (citation omitted), the

constitutionality of a punitive award, Johansen, 170 F.3d at 1334; see also id. at

1331 (“[A] court has a mandatory duty to correct an unconstitutionally excessive

verdict so that it conforms to the requirements of the due process clause.”) (citation

omitted), and whether a party has prevailed under federal law. Head v. Medford,

62 F.3d 351, 354 (11th Cir. 1995).

III. Compensatory Damages

The jury awarded $102,223.14 in compensatory damages to Myers on her

battery count, and the district court accordingly entered judgment for Myers in that

amount. CFI and Siegel challenge this award under Florida law, asserting both that

the size of the award is too great for what they claim is an ordinary battery, and

that the specific amount, which is equal to Myers’ earnings during the year of her

discharge, demonstrates that the jury inappropriately considered her termination

during deliberations. We are unpersuaded.

A federal court reviewing a compensatory award on a state law claim must

evaluate the propriety of the award under state law. See Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 435 (1996) (citation omitted); Johansen, 170 F.3d

at 1331. Under Florida law, jury awards are evaluated under a five-factor test:

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In determining whether an award is excessive or inadequate in light of
the facts and circumstances presented to the trier of fact and in
determining the amount, if any, that such award exceeds a reasonable
range of damages or is inadequate, the court shall consider the
following criteria:

(a) Whether the amount awarded is indicative of prejudice, passion, or
corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the evidence in
reaching a verdict or misconceived the merits of the case relating to
the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of damages into
account or arrived at the amount of damages by speculation and
conjecture;

(d) Whether the amount awarded bears a reasonable relation to the
amount of damages proved and the injury suffered; and

(e) Whether the amount awarded is supported by the evidence and is
such that it could be adduced in a logical manner by reasonable
persons.

Fla. Stat. § 768.74(5). Taking each factor in turn, we hold that the district court did

not abuse its discretion in upholding the jury’s award of compensatory damages.

The first factor asks whether the award evinces passion or prejudice. The

district court cited Goldsmith v. Bagby, 513 F.3d 1262, 1275 (11th Cir. 2008), to

show the validity of an emotional damages award equal to a claimant’s salary. See

Myers v. Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-28DAB, 2008 WL 4710898,

at *15 n.13 (M.D. Fla. Oct. 23, 2008). But the validity of the compensatory award

19
was not at issue in Goldsmith, see 513 F.3d at 1267-68, 1276-77, and, as the

defendants argue, its relevance to our inquiry is therefore limited. Cf. Bravo v.

United States, 532 F.3d 1154, 1166-67 (11th Cir. 2008) (holding that damages are

to be compared only against awards tested for size in reported appellate decisions),

reh’g denied, 583 F.3d 1294 (2009).

Defendants are also correct to note that the jury was prohibited from

awarding Myers money for her termination. See Myers, 237 F. Appx. at 457

(“Myers cannot sustain a viable retaliation claim.”). Indeed, the district court

expressly gave the jury instructions to this effect. Nevertheless, CFI and Siegel

have failed to convince us that the compensatory award for emotional damages

equal to a claimant’s annual income evinces prejudice, passion or corruption on the

part of the jury.

A jury instructed to consider compensatory damages for emotional harm is

asked to place a dollar amount on one person’s suffering. The inquiry is inherently

subjective, see Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999), as

jurors bring their own experiences to bear on another person’s humiliation,

discomfort, and shame. The objective -- to make a plaintiff whole, see Sheely v.

MRI Radiation Network, P.A., 505 F.3d 1173, 1199-1200 (11th Cir. 2007) --

plainly is a difficult one, cf. Williams v. Trans World Airlines, Inc., 660 F.2d 1267,

20
1273 (6th Cir. 1981) (“[I]t is admittedly difficult to place a value upon the resulting

emotional injury from the deprivation of a constitutional right.”), and the means

employed are far from perfect. Cf. Consorti v. Armstrong World Indus., Inc., 72

F.3d 1003, 1009 (2d Cir. 1995) (“[C]ompensation for suffering can be

accomplished only in a symbolic and arbitrary fashion.”). But we will not prohibit

jurors from considering a legitimate measure as they go about their task.

A plaintiff’s income is relevant insofar as it affords some indication,

however imprecise, of the costs imposed on an employee whose time in the

workplace is inundated and spoiled by a defendant’s behavior. Many of the

touchings described by Myers, particularly the two incidents during which Siegel

pinned her against the wall in the spa, occurred in 2000, the year in which Myers

earned $102,223.14 from CFI. She testified that Siegel’s behavior during this

period humiliated her in front of her coworkers and drained her of her desire to go

to work. In attempting to set a dollar amount that would properly compensate her

for emotional suffering, the jury was permitted to consider, among other things, her

salary for the time in which she was subjected to the unlawful behavior. Her salary

at the very least gives some indication to the jury as to how Myers valued her time

at work, from which they may properly infer the amount of emotional suffering

that flowed from those workplace batteries. To hold otherwise, and deprive juries

21
of resort to income, would make the jury’s difficult task that much more

improbable.

The second statutory factor asks whether the jury ignored evidence or

misconceived the merits of the case. As we have noted, the jury was permitted to

conclude that several instances of battery occurred on or after May 21, 2000, the

statutory cutoff. There is no reason to believe that a jury which has discounted the

testimony of defense witnesses and the explanations of defense counsel has

misapprehended a case. Cf. Bogle, 332 F.3d at 1359 (“The standard of review for

awards of compensatory damages for intangible, emotional harm is deferential to

the fact finder because the harm is subjective and evaluating it depends

considerably on the demeanor of the witnesses.”) (quotation marks and citations

omitted).

Florida’s third statutory factor asks whether improper elements were

considered, or if the verdict was based on conjecture. Defendants argue that

emotional damages were never proven by medical testimony. But emotional

damages need not be supported by medical testimony in Florida. See Hagan v.

Coca-Cola Bottling Co., 804 So.2d 1234 (Fla. 2001). Defendants also say that no

reasonable jury could award $100,000 for a single battery, and that the award,

therefore, took into account incidents unrelated to the battery, including time-

22
barred material. Even if we were to assume that the jury did consider material

external to the battery itself, we conclude that the award may still stand. Under

Florida law, a tortfeasor is liable for the “entire unapportionable injuries” sustained

by a plaintiff, even if those injuries were heightened by prior incidents for which

the defendant cannot be held liable. Cf. Gross v. Lyons, 763 So.2d 276, 279 (Fla.

2000) (noting that “subsequent tortfeasors have been liable for entire

unapportionable injuries”); C.F. Hamblen, Inc. v. Owens, 172 So. 694, 696 (Fla.

1937) (“It is settled law that where injuries aggravate an existing ailment or

develop a latent one the person whose negligence caused the injury is required to

respond in damages for the results of the disease as well as the original injury.”).

The jury was permitted to consider the role the sexual harassment and prior

batteries played in heightening the damages flowing from this battery, even if that

behavior was itself time-barred. Cf. Stockett v. Tolin, 791 F. Supp. 1536, 1556-57

(S.D. Fla. 1992) (stating that a plaintiff’s “pre-existing” vulnerability, or “greater

sensitivity, . . . does not warrant any reduction in her recovery. The Defendants

must take the plaintiff as they find her”) (citations omitted).

The fourth statutory factor asks whether the award is reasonably related to

the damages suffered. This compensatory award of a little over $100,000 is not so

great as to bear no reasonable relation to the damages she suffered. See Baldwin v.

23
McConnell, 643 S.E.2d 703, 705-06 (Va. 2007) (approving a $100,000

compensatory award for assault and battery); Nash v. Sue Har Equities, LLC, 846

N.Y.S.2d 215, 216 (N.Y. App. Div. 2007) (awarding $100,000 for assault).

Furthermore, since this battery involved a boss plainly taking advantage of his

employee over an extended time frame, we can tolerate damages which may be

higher than normal. Cf. Stockett v. Tolin, 791 F. Supp. 1536, 1555 n.4 (S.D. Fla.

1992) (“[C]ases in which a supervisor has conducted a continued course of sexual

advances and harassment, followed by refusals by the employee, and retaliation by

the supervisor in the form of denying promotions or making the atmosphere of the

work place oppressive, involved conduct that is . . . outrageous.”) (quoting Fawcett

v. IDS Financial Svcs., Inc., No. 85-853, 1986 WL 9877, at *5 (W.D. Pa. Jan. 7,

1986)); Hughston v. New Home Media, 552 F. Supp.2d 559, 567 (E.D. Va. 2008)

(“There can be few more insulting injuries than being subjected to unwelcome

sexual touchings by a supervisor, accompanied by lewd solicitations for sex, in the

workplace.”).

The fifth and final statutory factor asks whether the award is supported by

evidence and can be logically adduced by reasonable people. For all the reasons

outlined above -- the existence of the battery, the existence of prior harassment and

touchings that might have heightened damage flowing from the battery, and the

24
superior-subordinate relationship of Siegel and Myers -- this award is supported by

the evidence and appears to be the result of a logical process conducted by

reasonable people.

Since the compensatory award falls within a range of damages reasonable

under Florida law, it does not constitute a clear abuse of discretion for the district

court to let it stand. Cf. Fla. Stat. § 768.74(6) (“The Legislature recognizes that the

reasonable actions of a jury are a fundamental precept of American jurisprudence

and that such actions should be disturbed or modified with caution and

discretion.”). Defendants are correct that a smaller award would have been

reasonable, too, but this award is entitled to a presumption of validity, see Bogle,

332 F.3d at 1359, and they have failed to overcome that presumption.

IV. Punitive Damages

The jury awarded $5,276,640 to Myers in punitive damages flowing from

the battery count, but the district court, relying on the Florida statutory cap on

punitive damages, reduced the award to $500,000. This capped award was then

adjusted for interest, resulting in the $506,847.75 award.

A. Florida Law

The defendants challenge the punitive award under Florida law, arguing that

punitive damages should not have been allowed at all, and, in the alternative, that

25
the award was excessive. Myers contends that the district court was not

empowered to reduce the award absent a proper motion from defendants, which

she contends was not made.

Florida law provides that:

A defendant may be held liable for punitive damages only if the trier
of fact, based on clear and convincing evidence, finds that the
defendant was personally guilty of intentional misconduct or gross
negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual
knowledge of the wrongfulness of the conduct and the high
probability that injury or damage to the claimant would result and,
despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.

Fla. Stat. § 768.72(2). Decades of Florida case law have made it clear that a

finding of battery is sufficient to trigger punitive damages. See, e.g., Canseco v.

Cheeks, 939 So.2d 1122, 1123 (Fla. Dist. Ct. App. 2006) (“[I]ntentional battery

supplies the requisite proof of malice, justifying a punitive damages award.”)

(citations omitted); see also Joab, Inc. v. Thrall, 245 So.2d 291, 293 (Fla. Dist. Ct.

App. 1971) (“In Florida it is clear that an act of intentional assault and battery

committed without legal justification supplies proof of malice.”).5 Inasmuch as the

Florida courts have on this issue been unequivocal, the district court did not err by

5
While the Supreme Court of Florida has never stated this rule, we may rely on the
interpretation of a state’s intermediate courts absent some indication from the state’s highest
court to the contrary. See Galindo v. ARI Mut. Ins. Co., 203 F.3d 771, 775 (11th Cir. 2000).

26
allowing punitive damages here.

The district court was empowered, however, to remit the award if it

determined that it was unreasonable. See id. § 768.73(1)(d). The factors the trial

court is obliged to consider when assessing the excessiveness of a punitive award

are the same factors it must consider when assessing the amount of a compensatory

award. See id. § 768.74(5). In Florida, the courts must conduct this review in

order “to make certain that the manifest weight of the evidence does not render the

amount of punitive damages assessed out of all reasonable proportion to the

malice, outrage, or wantonness of the tortious conduct.” Engle v. Liggett Group,

Inc., 945 So. 2d 1246, 1263 (Fla. 2006).

“Under Florida law, the purpose of punitive damages is not to further

compensate the plaintiff, but to punish the defendant for its wrongful conduct and

to deter similar misconduct by it and other actors in the future.” Owens-Corning

Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The Supreme Court of

Florida, therefore, has determined that the wealth of the defendant is a factor for

consideration in determining the reasonableness of a punitive award: “an award

must be reviewed to ensure that it bears some relationship to the defendant’s ability

to pay and does not result in economic castigation or bankruptcy of the defendant.”

Engle, 945 So. 2d at 1263; see also Rinaldi v. Aaron, 314 So. 2d 762, 764 (Fla.

27
1975); St. John v. Coisman, 799 So. 2d 1110, 1115 (Fla. Dist. Ct. App. 2001).

While it is not “an accurate rule of law that the greater a defendant’s wealth, the

greater must be punitive damages,” Bankers Multiple Line Ins. Co. v. Farish, 464

So. 2d 530, 533 (Fla. 1985), a “jury may properly punish each wrongdoer by

exacting from his pocketbook a sum of money which, according to his financial

ability, will hurt, but not bankrupt.” Bould v. Touchette, 349 So. 2d 1181, 1186-87

(Fla. 1977).

This punitive award of $500,000 does not offend Florida Statute §

768.74(5). Given the many years during which Siegel touched and harassed Myers

in the workplace, his repeated and public humiliations of her, and his refusal to

desist despite her repeated requests, the award can hardly be said to evince passion,

prejudice, or corruption. The award does not reveal that the court ignored evidence

or considered improper elements, nor is the award otherwise illogical. Simply

stated, the trial court could find that the $500,000 punitive award bore a reasonable

relation to the damage that would flow from a battery preceded by so much sexual

misconduct in the workplace.

Furthermore, the punitive damage award would not result in the economic

castigation or bankruptcy of the defendants. The district court heard testimony that

CFI’s net worth exceeded $471,000,000 and Siegel’s $324,000,000. Since

28
defendants’ ability to pay the original $5,378,863.14 judgment is, by their own

post-trial admission, plain, the amended $500,000 punitive award cannot be said to

bear an unreasonable relationship to their ability to pay.

Under Florida law, punitive damages also are subject to a statutory cap, and

Myers asserts that it was improperly applied here. Section 768.73(1)(a) of the

Florida Statutes provides that “an award of punitive damages may not exceed the

greater of: 1. Three times the amount of compensatory damages awarded to each

claimant entitled thereto, consistent with the remaining provisions of this section;

or 2. The sum of $500,000.” But there are statutory exceptions to this general rule,

one of which provides that, “[w]here the fact finder determines that at the time of

injury the defendant had a specific intent to harm the claimant and determines that

the defendant’s conduct did in fact harm the claimant, there shall be no cap on

punitive damages.” Id. § 768.73(1)(c). In other words, in order for a punitive

award greater than $500,000 to stand, a Florida jury must have found both specific

intent to harm and actual harm.

There is no question that the jury did not make any such overt findings. The

jury answered eight questions on the verdict form,6 none of which addressed

6
The interrogatories answered by the jury were these:

Claim One
Do you find from a preponderance of the evidence:

29
specific intent to harm or actual harm. However, the inquiry does not end there.

The jury verdict is considered alongside the jury instructions, and if the two can be

read together to show that the jury made the required findings, then a heightened

award may still stand. Cf. McNely v. Ocala Star-Banner Corp., 99 F.3d 1068,

1072 (11th Cir. 1996) (stating that the sufficiency of jury instructions should be

evaluated in light of the jury verdict).

The district court’s instructions to the jury regarding battery read this way:

1. That Plaintiff Georgette Myers was an independent contractor? No . . .
2. That Plaintiff Georgette Myers was an employee of any of the following
business entities? . . .
Central Florida Investments, Inc. Yes
CFI Sales and Marketing, Ltd. Yes
Westgate Resorts, Inc. Yes
Westgate Resorts, Ltd. Yes
3. That David Siegel subjected the Plaintiff to a hostile or abusive work
environment because of her sex or gender? Yes . . .
4. That at least one of the acts of sexual harassment took place on or after
September 15, 2000? No . . .

Claim Two
7. Do you find from a preponderance of the evidence that Defendant David Siegel
committed battery against Plaintiff? Yes . . .
8. Do you find from a preponderance of the evidence that conduct constituting
battery occurred on or after May 21, 2000? Yes . . .
9. Do you find from a preponderance of the evidence that Plaintiff should be
awarded compensatory damages on the battery claim? Yes. If Yes, in what
amount? $102,223.14 . . .
10. Do you find by clear and convincing evidence that punitive damages should
be awarded on the battery claim? Yes. If Yes, in what amount, based on a
preponderance of the evidence? $5,276,640.00 . . .

The jury did not reach questions five and six, which concerned damages for sexual harassment,
because it answered question four in the negative.

30
A battery is an intentional infliction of harmful or offensive contact
upon the person of another. To prevail on her battery claim, the
Plaintiff must prove each of the following facts by a preponderance of
the evidence:

First: That David Siegel intended to touch the Plaintiff’s
person;

Second: That David Siegel actually touched the Plaintiff
against her will; and

Third: That the contact was harmful or offensive to the
Plaintiff.

There is no natural reading of the verdict alongside the instructions that yields the

conclusion that the jury made the requisite findings. As the instructions make

clear, a civil battery might be supported where a defendant had specific intent to

offend, not harm, and where the defendant effected an offensive, but not harmful,

contact. See Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist. Ct. App. 1997).

Therefore, it can hardly be said that the findings of specific intent to harm and

actual harm inhere in a jury verdict of civil battery.

The district court did make passing reference to the twin requirements when

issuing instructions on punitive damages, encouraging the jury to “consider . . .

whether, at the time of the injury or damage, David Siegel had a specific intent to

harm the Plaintiff and the conduct of David Siegel did in fact harm the Plaintiff.”

Yet the court never instructed the jury that it must find specific intent to harm or

31
actual harm.

Furthermore, the district court was entitled to apply the statutory cap of its

own volition: “where a portion of a verdict is for an identifiable amount that is not

permitted by law, the court may simply modify the jury’s verdict to that extent and

enter judgment for the correct amount.” Johansen, 170 F.3d at 1330 (citing New

York, L. E. & W. R. Co. v. Estill, 147 U.S. 591 (1893)); see also Browning-Ferris

Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989). Because the

Florida statute does not require a motion by the aggrieved party, see Fla. Stat. §

768.73(1)(a), we need not consider whether the defendants properly moved for

application of the statutory cap.

B. Constitutional Law

The defendants also challenge the constitutionality of the $500,000 punitive

award, asserting that they did not have fair notice that they might be liable to pay a

punitive award so much greater than the compensatory award.

The foundation of the due process inquiry is found in B.M.W. of North

America, Inc. v. Gore, 517 U.S. 559 (1996). “Elementary notions of fairness

enshrined in our constitutional jurisprudence dictate that a person receive fair

notice not only of the conduct that will subject him to punishment, but also of the

severity of the penalty that a State may impose.” Id. at 574. While “[p]unitive

32
damages may properly be imposed to further a State’s legitimate interests in

punishing unlawful conduct and deterring its repetition,” id. at 568 (citations

omitted), and states “have considerable flexibility in determining the level of

punitive damages that they will allow,” id., an award runs afoul of the due process

clause when it “can fairly be categorized as ‘grossly excessive’ in relation to these

interests,” id. (quoting TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.

443, 454 (1993)). To help determine when an award is grossly excessive, the

Supreme Court has adopted three guideposts for a court’s consideration: “the

degree of reprehensibility” of the defendant’s actions; “the disparity between the

harm or potential harm suffered by [the plaintiff] and his punitive damages award;

and the difference between this remedy and the civil penalties authorized or

imposed in comparable cases.” Id. at 574-75.

Proper due process analysis of a punitive award in the Eleventh Circuit

“requires first that we identify the state’s interest in deterring the relevant conduct

and the strength of that interest. Next, we review the district court’s findings

regarding the three BMW guideposts.” Johansen, 170 F.3d at 1335. While we are

“mindful of the difficulty of our task,” id. at 1333 n.22 (citing Gore, 517 U.S. at

606 (Scalia, J., dissenting)), we are guided by the understanding that the

constitutional question ultimately hinges on whether a defendant “had adequate

33
notice that its conduct might subject it to this punitive damage award.” Id. at 1335;

see also Action Marine, Inc. v. Cont’l Carbon, Inc., 481 F.3d 1302, 1318 (11th Cir.

2007) (“We do not view these guideposts as an analytical straitjacket, and we

maintain as our overarching aim eliminating the risk that a defendant is punished

arbitrarily or without fair notice of the possible consequences of its actions.”)

(quotation marks and citations omitted).

The state’s interest in deterring defendants’ conduct is strong. As the

Supreme Court of Florida has stated:

There can be no doubt at this point in time that both the state of
Florida and the federal government have committed themselves
strongly to outlawing and eliminating sexual discrimination in the
workplace, including the related evil of sexual harassment. The
statutes, case law, and administrative regulations uniformly and
without exception condemn sexual harassment in the strongest
possible terms.

Byrd v. Richardson-Greenshields Secs., Inc., 552 So. 2d 1099, 1102 (Fla. 1989).

Furthermore, the state’s interest in protecting workers from sexual discrimination

extends to both statutory and common law claims: “Public policy now requires that

employers be held accountable in tort for the sexually harassing environments they

permit to exist, whether the tort claim is premised on a remedial statute or on the

common law.” Id. at 1104.

There is no question that Florida has a considerable interest in protecting

34
workers from the kind of sexual misconduct to which Myers was subjected for so

many years. The jury found a battery by a superior on an employee in the

workplace. This battery followed a long period during which Siegel and CFI

subjected Myers to sexual harassment, but for which recovery was barred by the

statute of limitations. Furthermore, Myers’ repeated complaints, both to Siegel and

other CFI executives, were ignored and rebuffed. This unchecked pattern of

“antisocial behavior” from Siegel and CFI underscores the need for punitive

damages as a means “to correct evil-doing in areas not covered by the criminal

law.” See Campbell v. Gov’t Employees Ins. Co., 306 So. 2d 525, 531 (Fla. 1974).

With awareness of the powerful state interests in play, we turn next to the

Gore guideposts. The first is the degree of reprehensibility, and it is “the most

important indicium.” State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,

419 (2003); see also Goldsmith, 513 F.3d at 1283 (calling the first prong the

“dominant consideration”). The Supreme Court, in State Farm, identified five

specific factors for consideration:

We have instructed courts to determine the reprehensibility of a
defendant by considering whether: the harm caused was physical as
opposed to economic; the tortious conduct evinced an indifference to
or a reckless disregard of the health or safety of others; the target of
the conduct had financial vulnerability; the conduct involved repeated
actions or was an isolated incident; and the harm was the result of
intentional malice, trickery, or deceit, or mere accident.

35
538 U.S. at 419; see also Goldsmith, 513 F.3d at 1283 (citing EEOC v. W&O, Inc.,

213 F.3d 600, 614-15 (11th Cir. 2000)). While there is no requirement that a

certain number of the five State Farm factors be present in order to support a

finding of reprehensibility, reprehensibility grows more likely as more factors are

present. See State Farm, 538 U.S. at 419.

The district court took each State Farm factor in turn. On the first factor, the

court noted that “the harm here was emotional rather than economic.” Myers,

2008 WL 4710898 at *17. As the jury heard evidence that Myers felt upset,

embarrassed, humiliated, and degraded by Siegel’s actions at CFI, this finding of

fact does not constitute clear error.

On the second factor, the district court noted that “there is some disregard of

health at play insofar as Plaintiff’s emotional health was involved.” Id. Since

there was plenty of evidence here, concerning both the battery and the sexual

harassment, suggesting an indifference or reckless disregard towards Myers’

health, whether physical or emotional, it was not clear error for the district court to

so find.

On the third factor, the district court found that the employment relationship

mattered: “financial vulnerability is implicated somewhat because, although this

battery claim did not involve financial consequences for Plaintiff per se, the events

36
did occur in the workplace and Plaintiff’s boss -- who controlled Plaintiff’s

earnings -- was the one who committed the acts.” Id. Myers presented evidence

that she feared making too big a deal of the touchings and harassment because

Siegel was her boss and she did not want to lose her job. She testified that she

stayed at CFI in part because she needed the money, and because she knew that her

chosen industry would not be as kind to a person without a college degree as had

been CFI. The district court’s determination, therefore, that the superior-

subordinate relationship between Siegel and Myers injected a sense of financial

vulnerability into their interactions cannot constitute clear error. Cf. Stockett v.

Tolin, 791 F. Supp. 1536, 1555 n.4 (S.D. Fla. 1992); Hughston v. New Home

Media, 552 F. Supp.2d 559, 567 (E.D. Va. 2008).

On the fourth factor, the district court wrote, “there is some evidence of

repeated actions, though only a six-month time period is at issue.” Myers, 2008

WL 4710898 at *17. We note, however, that a jury may consider material external

to the charge in determining the reprehensibility of the charge itself. See Gore, 517

U.S. at 576-77 (“Certainly, evidence that a defendant has repeatedly engaged in

prohibited conduct while knowing or suspecting that it was unlawful would

provide relevant support for an argument that strong medicine is required to cure

the defendant’s disrespect for the law.”) (citing TXO, 509 U.S. at 462 n.28); State

37
Farm, 538 U.S. at 423 (noting the relevance to the reprehensibility inquiry of

similar “prior transgressions”) (citing TXO, 509 U.S. at 462 n.28); Johansen, 170

F.3d at 1333 (similar). Moreover, “evidence of other acts need not be identical to

have relevance in the calculation of punitive damages.” State Farm, 538 U.S. at

423-24.

In this case, there was voluminous evidence of repetition presented to the

jury. Myers described a pattern of sexual touching from Siegel beginning in 1995

and ending in 2000. He touched her in the office, in the restaurant, in the spa, in

the treatment room, and on the dance floor. He touched her legs, her behind, and

her shoulders. He touched her when they were alone and when other CFI

employees were around. While these touchings were not all identical, it did not

constitute clear error for the district court to determine that the battery for which

defendants were held liable “replicate[d] the prior transgressions.” Cf. id. at 423

(citing TXO, 509 U.S. at 462 n.28). The district court’s only error was the

suggestion that the similar prior transgressions that are time-barred are in no way

relevant to the reprehensibility inquiry; such a conclusion does not flow from our

precedents. See Gore, 517 U.S. at 576-77; State Farm, 538 U.S. at 423 (citing

TXO, 509 U.S. at 462 n.28); Johansen, 170 F.3d at 1333.

On the fifth and final factor, the district court noted that “battery is an

38
intentional tort, although malice is not required for its commission.” Myers, 2008

WL 4710898 at *17. Inasmuch as battery in Florida can be sustained by an intent

to do mere offense, see Paul v. Holbrook, 696 So. 2d 1311, 1312 (Fla. Dist. Ct.

App. 1997), the district court’s determination that intentional malice was not

present is not clearly erroneous.

After the analysis of the State Farm factors, the district court turned to Gore

and concluded that “Mr. Siegel’s conduct is at the low to middle range of the

reprehensibility scale.” Id. This is a factual finding, see Johansen, 170 F.3d at

1334, for which the district court is allowed in its discretion to weigh the severity

of each factor, see State Farm, 538 U.S. at 419. In light of the ample evidence that

Myers suffered emotional distress, that she decided to stomach the objectionable

conduct for fear of losing her job and her income, that the behavior persisted for

years and over her frequent objections, and that no one at CFI seemed to care, we

cannot say that the district court’s conclusion regarding reprehensibility is clearly

erroneous.

The second Gore guidepost is the ratio of punitive damages to actual harm

inflicted on the plaintiff. The “proper inquiry is whether there is a reasonable

relationship between the punitive damages award and the harm likely to result from

the defendant’s conduct as well as the harm that actually has occurred.” Gore, 517

39
U.S. at 581 (citing TXO, 509 U.S. at 460) (emphasis in original) (quotation marks

omitted). On this issue, “comparison between the compensatory award and the

punitive award is significant.” Id. at 581 (citing TXO, 509 U.S. at 459; Pacific

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991)). In particular, the ratio of

punitive to compensatory damages is instructive. See State Farm, 538 U.S. at 425.

Nevertheless, the Supreme Court has “consistently rejected the notion that the

constitutional line is marked by a simple mathematical formula, even one that

compares actual and potential damages to the punitive award.” Gore, 517 U.S. at

582 (citing TXO, 509 U.S. at 458); see also State Farm, 538 U.S. at 425;

Goldsmith, 513 F.3d at 1283.

In this case, the amended judgment set punitive damages at $506,847.78 and

compensatory damages at $103,622.09. Since this yields a ratio of punitive to

compensatory damages of approximately 4.89:1, the district court’s finding that the

ratio was “less than 5 to 1,” Myers, 2008 WL 4710898 at *17, is not clearly

erroneous. Cf. Johansen, 170 F.3d at 1334 (“[T]he ratio of the actual to the

punitive damages is an historical fact. We accept that finding unless it is clearly

erroneous.”). The district court then concluded that “[t]his ratio does not suggest

an excessive award.” Myers, 2008 WL 4710898 at *17.

Notably, this Court has approved of a number of punitive awards where the

40
ratio of punitive to compensatory damages exceeded 4.89:1. See Johansen, 170

F.3d at 1327, 1339 (ratio of 100:1); Goldsmith, 513 F.3d at 1283, 1285 (ratio of

9.2:1); U.S. EEOC v. W&O, Inc., 213 F.3d 600, 616-17 (11th Cir. 2000) (ratio of

8.3:1); Action Marine, Inc. v. Cont’l Carbon, Inc., 481 F.3d 1302, 1321, 1323

(11th Cir. 2007) (ratio of 5.5:1); see also Bogle v. McClure, 332 F.3d 1347, 1362

(11th Cir. 2003) (ratio of 3.8:1). Furthermore, on the one occasion where this

Court has struck down a punitive award for constitutional excess, it reduced an

award with a ratio of 8,692:1 to an award with a ratio of 2,173:1. See Kemp v.

Am. Tel. & Tel. Co., 393 F.3d 1354, 1365 (11th Cir. 2004) (reducing the punitive

award from $1,000,000 to $250,000 when compensatory damages amounted to

$115.05). Those cases, like this one, implicated powerful state interests, from

protection of the environment, see Johansen, 170 F.3d at 1339; Action Marine, 481

F.3d at 1319, to the elimination of workplace discrimination, see Goldsmith, 513

F.3d at 1267; EEOC v. W&O, 213 F.3d at 607; Bogle, 332 F.3d at 1350, to the

protection of consumers, see Kemp, 393 F.3d at 1357.

Again, the state interest in protecting employees from repeated offensive

sexual touchings by the boss in the workplace is strong. Furthermore, the

$506,847.75 punitive award bears a reasonable relationship both to the harm Myers

has suffered and to the harm likely to result should CFI not be penalized now. The

41
district court, therefore, did not err in determining that the punitive ratio of 4.89:1

does not offend constitutional due process.

Defendants urge, nevertheless, that under Exxon Shipping Co. v. Baker, 128

S. Ct. 2605 (2008), any ratio greater than 1:1 is constitutionally suspect. Their

reliance on Exxon is misplaced. In Exxon, the Supreme Court was quite explicit

that it was dealing with maritime law, and not due process of law. See, e.g., id. at

2626 (“Today’s enquiry differs from due process review because the case arises

under federal maritime jurisdiction, and we are reviewing a jury award for

conformity with maritime law, rather than the outer limit allowed by due process . .

. .”); id. at 2626-27 (“Our review of punitive damages today, then, considers not

their intersection with the Constitution, but the desirability of regulating them as a

common law remedy for which responsibility lies with this Court as a source of

judge-made law in the absence of statute.”). Defendants’ suggestion that the

punitive award violates the Constitution of the United States can therefore find no

support in Exxon.

The third and final Gore guidepost is a comparison between “the punitive

damages award and the civil or criminal penalties that could be imposed for

comparable misconduct.” 517 U.S. at 583. When considering criminal penalties, a

reviewing court considers both fines and imprisonment. See Pacific Mut. Life Ins.

42
Co. v. Haslip, 499 U.S. 1, 23 (1991); see also Gore, 517 U.S. at 583 (citing Haslip,

499 U.S. at 23). These peripheral sanctions are significant because they can serve

to give fair notice to potential tortfeasors of the magnitude of sanctions they might

face for their actions. See Gore, 517 U.S. at 584; Johansen, 170 F.3d at 1337.

The third guidepost presents a mixed question of law and fact:

[T]he selection of the most appropriate point of comparison -- actual
fine imposed, the maximum possible penalty or penalties in similar
cases -- is an issue of law. We, therefore, review the district court’s
determination of the appropriate comparison de novo. However, the
district court’s finding regarding this comparison, i.e., the disparity
between the amount of the punitive damages award and the amount of
the other civil or criminal sanctions, is an historical fact which we
review for clear error.

Johansen, 170 F.3d at 1334.

The district court determined that Florida’s statutory cap on punitive

damages was the most appropriate comparison point. See Myers, 2008 WL

4710898 at *18. This was error. The fact that some torts can be punished up to

$500,000 does not put people on notice that battery might be punished up to

$500,000. Rather, the district court should have compared the punitive award to

the sanctions available for a criminal battery.7

However, even after determining that the district court applied the wrong

7
Under Florida law, the criminal “offense of battery occurs when a person: 1. Actually
and intentionally touches or strikes another person against the will of the other; or 2.
Intentionally causes bodily harm to another person.” Fla. Stat. § 784.03(1)(a).

43
comparison point, we still ultimately affirm its conclusion. We do so because the

proper comparison point did provide unambiguous notice to the defendants of the

seriousness of their tort. Battery is a crime in Florida punishable by up to a year in

prison, see Fla. Stat. §§ 784.03(1), 775.082(4)(a), 775.083(1)(d), which is a serious

criminal sanction.8 The due process clause is violated when defendants do not

have fair notice of the magnitude of the punitive sanctions they might face.

Because battery can carry a prison term of a year, residents of Florida have fair

notice that battery is an offense with formidable consequences. A $500,000

punitive award fits comfortably within this array of potential sanctions.

As a final matter, under controlling case law, the courts of this Circuit are

empowered to consider the financial resources of the defendant when determining

the constitutionality of an award. See Johansen, 170 F.3d at 1338; W&O, 213 F.3d

at 616-17 (similar); Kemp, 393 F.3d at 1364. Undeniably, the $500,000 punitive

award is a serious sanction and may not be taken lightly. It will not, however,

bankrupt or cripple these wealthy defendants. Moreover, the trial judge could

readily find that a lesser award would not provide the same level of deterrence.

We can discern nothing to suggest that the punitive award in this case is in

any way violative of the Constitution. Siegel engaged in a pattern of offensive

8
As Myers argues, Siegel, with a net worth of $324,000,000, would likely pay $500,000
to avoid a year in prison.

44
sexual touchings in the workplace, heaping upon Myers, his subordinate,

indignities both private and public. CFI, alerted to Siegel’s abhorrent behavior on

numerous occasions by Myers, did nothing to stop it, and even in some instances

encouraged it. It can hardly be said that the defendants did not have fair notice that

years of such behavior -- culminating in the battery for which they were found

liable -- might expose them to a substantial punitive damages award. The jury and

the district court, after hearing extended testimony, plainly meant for the

defendants to understand that their conduct towards Myers was wholly

unacceptable and that it would be punished in a substantial manner. Ultimately,

the Constitution permits the district court to fashion a punitive remedy that will

effectively deliver this message.

V. Statute of Limitations

Because Myers filed her complaint with the EEOC on September 14, 2001,

the defendants could only be held liable for sexual harassment that had occurred on

or after September 15, 2000, under the FCRA, see Fla. Stat. § 760.11(a), and on or

after November 19, 2000, under Title VII. See 42 U.S.C. 2000e-5(e); City of

Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir. 2002). Nevertheless, Myers

presented little testimony during her case-in-chief concerning when the

complained-of behavior occurred. While her witnesses described much harassing

45
conduct, they did not state clearly when it had occurred, or if any had occurred

after September 15, 2000. Nor did the defendants put on evidence regarding when

the events described by Myers’ witnesses purportedly occurred. When, during

rebuttal, Myers attempted to develop testimony that would show that some

harassment had indeed occurred after September 15, 2000, the district court did not

allow it. Myers argues, nevertheless, that her failure to put on evidence of

timeliness should not preclude her from recovery under Title VII and the FCRA,

because it was the defendants who bore the burden of proving that their conduct

occurred before the relevant dates, and because they failed to discharge that

burden.

The filing of a complaint with the EEOC is a condition precedent to a sexual

harassment suit. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.

2001); see also 42 U.S.C. § 2000e-5(b). A harassment suit may go forward under

some circumstances, however, if the plaintiff has failed to do so, because “filing a

timely charge of discrimination with the EEOC is not a jurisdictional prerequisite

to suit in federal court, but a requirement that, like a statute of limitations, is

subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982); see also Weaver v. Casa Gallardo, Inc., 922 F.2d

1515, 1521 (11th Cir. 1991).

46
“In pleading conditions precedent, it suffices to allege generally that all

conditions precedent have occurred or been performed. But when denying that a

condition precedent has occurred or been performed, a party must do so with

particularity.” Fed. R. Civ. P. 9(c). Should a defendant make that denial, “[t]he

plaintiff then bears the burden of proving that the conditions precedent, which the

defendant has specifically joined in issue, have been satisfied.” Jackson v.

Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Should a

defendant “not deny the satisfaction of the conditions precedent specifically and

with particularity, however, the allegations are assumed admitted and cannot later

be attacked.” Id. at 1009.

In this case, the ninth paragraph of Myers’ Second Amended Complaint

addressed conditions precedent. It read: “Plaintiff received her Notice of Right to

Sue letter from the U.S. Equal Employment Opportunity Commission within 90

days before filing this action, and has otherwise fulfilled all conditions precedent to

institution of this action.” This general statement from Myers was sufficient to

discharge her duty under Rule 9 of the Federal Rules of Civil Procedure. See

EEOC v. Times-Picayune Publ’g Corp., 500 F.2d 392, 392 (5th Cir. 1974).9 We

9
Opinions of the Fifth Circuit rendered before the close of business on September 30,
1981, are binding on this Court. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th
Cir. 1981).

47
consider, then, the sufficiency of any denials interposed by the defendants.

Defendants’ first denial consisted of the following: “Defendants deny the

allegations contained in paragraph 9 of the Plaintiff’s Second Amended

Complaint.” Defendants’ Answer and Affirmative Defenses to Plaintiff’s Second

Amended Complaint at 2, Myers v. Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-

28DAB (M.D. Fla. Oct. 25, 3005). This is as general as a denial can be, and

therefore cannot meet the particularity requirements of Rule 9 of the Federal Rules.

See, e.g., Wilshin v. Allstate Ins. Co., 212 F.Supp.2d 1360, 1370 (M.D. Ga. 2002).

However, paragraph nine was not the only place in the Answer where

defendants addressed the fulfillment of conditions precedent. In a section

concerning affirmative defenses appeared the following:

338. Plaintiff failed to exhaust all administrative remedies and thus
cannot obtain relief pursuant to Title VII or the Florida Civil
Rights Act, Chapter 760.

339. Plaintiff did not exercise her right to sue or to file her EEOC
Complaint within the time prescribed by the statute.

Defendants’ Answer and Affirmative Defenses to Plaintiff’s Second Amended

Complaint at 32, Myers, No. 6:04-cv-1542-Orl-28DAB (M.D. Fla. Oct. 25, 3005).

These paragraphs state which particular condition precedent they claim Myers

failed to fulfill (the EEOC complaint), and the reason for the failure (untimeliness).

The denial is sufficiently particular.

48
While affirmative defenses are, of course, distinct from denials, see, e.g., In

re Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988), and while

Rule 9(c) calls for a denial, this Court has excused technical noncompliance with

pleading requirements where the substance of the pleading is sufficient. See id. at

1348-49 n.9; EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981).

Here, the Answer gave Myers ample notice that defendants believed that she had

failed to timely file a complaint with the EEOC. This notice served to discharge

defendants’ duty under Rule 9(c) and successfully shifted the burden of going

forward back to Myers to present evidence of timeliness. This she did not do.

Moreover, the district court did not abuse its considerable discretion in

preventing Myers from putting on evidence of timeliness during rebuttal. “The

trial judge has the authority, within limits, to control the scope of rebuttal

testimony.” United States v. Renfro, 620 F.2d 497, 502 (5th Cir. 1980) (citing

Geders v. United States, 425 U.S. 80, 86 (1976)). Here, Myers offered no evidence

of timeliness during her case-in-chief, and the defendants did not mount evidence

on the issue during their case. The evidence of timeliness that Myers attempted to

introduce on rebuttal, therefore, could not “explain, repel, counteract, [n]or

disprove” the testimony offered by defense witnesses, cf. United States v. Mock,

523 F.3d 1299, 1303 (11th Cir. 2008) (quoting United States v. Frazier, 387 F.3d

49
1244, 1269 (11th Cir. 2004) (en banc)); there was no evidence to rebut.

VI. Prevailing Party Status

While under Florida law, attorney’s fees were not available to Myers on the

state law battery count, see United Svcs. Auto. Ass’n v. Kiibler, 364 So. 2d 57, 58

(Fla. Dist. Ct. App. 1978), Title VII provides that “the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney’s fee . . . .” 42 U.S.C. § 2000e-

5(k); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 414 (1978).

Determining when a party prevails is a complex question:

If the plaintiff has succeeded on any significant issue in litigation
which achieve[d] some of the benefit the parties sought in bringing
suit, the plaintiff has crossed the threshold to a fee award of some kind
. . . The touchstone of the prevailing party inquiry must be the
material alteration of the legal relationship of the parties in a manner
which Congress sought to promote in the fee statute.

Walker v. Anderson Elec. Connectors, 944 F.2d 841, 846 (11th Cir. 1991) (quoting

Tex. Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-93 (1989))

(alterations in original) (quotation marks omitted). The “moral satisfaction” that

accompanies a judicial determination that one has been aggrieved is insufficient to

establish prevailing party status. See Walker, 944 F.2d at 847 (quoting Hewitt v.

Helms, 482 U.S. 755, 762 (1987)). Rather, the prevailing party must have settled

“some dispute which affects the behavior of the defendant towards the plaintiff,”

Farrar v. Hobby, 506 U.S. 103, 110 (1992) (quoting Hewitt, 482 U.S. at 761)

50
(quotation marks omitted), and the judgment must be “enforceable,” id. at 111.

Ultimately, “a plaintiff ‘prevails’ when actual relief on the merits of his claim

materially alters the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-12;

see also Taylor v. Sterrett, 640 F.2d 663, 669 (5th Cir. 1981) (“[T]he proper focus

is whether the plaintiff has been successful on the central issue as exhibited by the

fact that he has acquired the primary relief sought.”).

In Walker v. Anderson Electrical Connectors, 944 F.2d 841 (11th Cir. 1991),

the plaintiff alleged a violation of Title VII and two accompanying violations of

state tort law, namely invasion of privacy and outrage. See id. at 842. The jury

determined that the defendant had sexually harassed the plaintiff, and committed

the state torts, but awarded nothing in damages on either claim. See id. at 843.

The jury found that the harassment had not resulted in damages. See id. We

determined that Walker was not a prevailing party under Title VII, “hold[ing] that

to be a prevailing party for purposes of 42 U.S.C. § 2000e-5(k), requires the

attainment of something more tangible than a jury finding of sexual harassment.”

Id. at 847. Yet this broad holding does not reach this case, where Myers did attain

something more tangible than a jury finding of sexual harassment -- namely, a

$610,469.84 award on her battery claim.

51
The Second Circuit, however, has encountered a case that is squarely on

point. In Bonner v. Guccione, 178 F.3d 581 (2d Cir. 1999), the plaintiff asserted,

among other things, sexual harassment claims under Title VII and the New York

Human Rights Law. The jury found that the plaintiff had been sexually harassed,

that damage had occurred within the applicable state time-frame, but that none had

occurred during the applicable federal time-frame. Id. at 583. She therefore

recovered $90,000 on the state claim, but nothing on the federal claim. Id. The

court determined ultimately that the plaintiff was not a prevailing party under Title

VII, reasoning that there was simply nothing to enforce: “Plaintiff here failed to

obtain either an enforceable judgment or settlement agreement against the

defendants on her Title VII cause of action.” Id. at 594.

The analysis of the Second Circuit is persuasive. The jury’s determination

that CFI and Siegel subjected Myers to sexual harassment, but that recovery was

time-barred, does nothing to advance the legal rights asserted by Myers against the

defendants. Based on the judgment rendered, the defendants need not curtail their

behavior nor pay Myers money, cf. Farrar, 506 U.S. at 111-12, and the legal

relationship between the parties has not been altered. Cf. Walker, 944 F.2d at 846.

Moreover, on the Title VII count, judgment was even entered in favor of the

defendants. Cf. Bonner, 178 F.3d at 599 (“[T]he jury found that the Title VII

52
claim for damages (the only relief sought) was time-barred. If the jury had

returned a special verdict containing such an express finding, the defendants would

have been entitled to the entry of a judgment in their favor.”). In short, Myers is

not a prevailing party on the Title VII claim and is not entitled to attorney’s fees.10

VII. Reinstatement of Other State Law Claims

As a final matter, Myers asks us to instruct the district court to reinstate a

variety of state law claims that were dismissed in April of 2005. While we agree

that federal district courts in removal cases must remand, rather than dismiss, state

claims over which they decline to exercise supplemental jurisdiction, see Cook v.

Sheriff of Monroe County, 402 F.3d 1092, 1123 (11th Cir. 2005); Lewis v. City of

St. Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001), Myers neglected to raise this

issue when this case first came before this Court. Nearly five years have passed

since these claims were dismissed, and we decline now to upset the decision of a

lower court that should have been challenged before us more than two and a half

years ago. Cf. Nationalist Movement v. City of Cumming, Ga., 92 F.3d 1135,

1138-39 (11th Cir. 1996); Caban-Wheeler v. Elsea, 71 F.3d 837, 842 (11th Cir.

10
Victory on the battery charge played no causal role in the decision of the district court
not to award attorney’s fees on the Title VII charge. If, however, the trial court had declined to
award fees under Title VII on account of an award of fees on a related matter, our analysis would
be different. Cf. Bridges v. Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996); Hall v. W.
Prod. Co., 988 F.2d 1050 (10th Cir. 1993).

53
1996); Martin v. Atlantic Coast Line R.R. Co., 289 F.2d 414, 416 (5th Cir. 1961).

Accordingly, the judgment of the district court is AFFIRMED.

AFFIRMED.

Myers v. CENTRAL FLORIDA INVESTMENTS, INC.

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