Lichelle Smith v. Metropolitan Security Service

Filing

Opinion issued by court as to Appellant Lichelle Smith. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 09/18/2013

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12711
________________________
D.C. Docket No. 1:08-cv-01783-JOF

LICHELLE SMITH,
Plaintiff-Appellant,
versus

METROPOLITAN SECURITY SERVICES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 18, 2013)
Before COX and PRYOR, Circuit Judges, and WALTER ∗, District Judge.
∗

Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.

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PER CURIAM:
This appeal presents issues involving a Title VII retaliation claim and a
Georgia state law battery claim. We affirm.
I. BACKGROUND & PROCEDURAL HISTORY
Beginning on May 1, 2006, Metropolitan Security Services, Inc. employed
Lichelle Smith as a receptionist and security guard at the SunGuard Building in
Smyrna, Georgia. Smith had continuously worked as a receptionist and security
guard in the SunGuard Building since 1999, but worked for a variety of security
contractors throughout that time, the last of which was Metropolitan.
As part of the transition from the previous security contractor, Metropolitan
hired Smith and her supervisor, Felix Holliday, to remain in their positions at the
SunGuard Building as employees of Metropolitan.

On July 5, 2006, Dan

Millhouse, Metropolitan’s general manager, arrived at the SunGuard Building;
fired Smith’s supervisor, Holliday; and installed Michael Garrett as Smith’s new
supervisor.
At trial, Smith testified that later that day, Donald Porter, who was also an
employee of Metropolitan, approached and hugged her in the break room because
they were both ostensibly upset by Holliday’s termination. Smith testified that
while Porter was hugging her, he grabbed her butt, squeezed it, and then proceeded
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to grab her breasts and pinch her nipples as she was pushing him away. At trial,
Porter denied all of these claims.
Smith testified that she immediately told her new supervisor, Michael
Garrett, about the incident with Porter, and that he promised he would “take care of
it.” (Dkt. 95 at 103.) However, Garrett testified that Smith never reported the
incident with Porter.
Smith testified that two days after the incident with Porter and the
conversation with Garrett, Garrett called her into his office at the end of her shift
and informed her she had been fired.1 Garrett also contests this version of events,
and instead contends that he simply told Smith she was being reassigned and to
report to Metropolitan Human Resources at the beginning of her next shift to
receive her new assignment.

Garrett testified that he learned about Smith’s

pending reassignment from Metropolitan’s general manager, Dan Millhouse, on
the morning of his first day at the SunGuard Building, which was also the morning
of the alleged attack. Garrett further testified that he did not have the authority to
fire Smith, and that hiring and firing decisions were made by others above him at
Metropolitan.

1

Smith testified only that Garrett informed her that she had been fired-not that he made
the decision to fire her. (Dkt. 95 at 103-04.)
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Following these events, Smith filed a lawsuit against Metropolitan alleging
five claims: (1) a Title VII retaliation claim; (2) a Title VII sexual harassment
claim; (3) a Georgia state law battery claim; (4) a Georgia state law intentional
infliction of emotional distress claim; and (5) a Georgia state law negligent hiring
claim.
Before giving the case to the jury, the district court granted Metropolitan’s
Rule 50(a) motion to dismiss Smith’s Title VII sexual harassment claim and her
Georgia state law intentional infliction of emotional distress claim. The jury then
returned a verdict in Smith’s favor on the Title VII retaliation claim (awarding
$30,000 in lost wages and $16,000 in punitive damages), the Georgia state law
battery claim (awarding $10,000 in punitive damages), and the Georgia state law
negligent hiring claim (awarding $5,000 in nominal damages and $20,000 in
punitive damages).2 For the Georgia state law battery claim, the jury did not award
Smith compensatory damages, but awarded only punitive damages.
After the jury’s verdict, the district court granted Metropolitan’s Rule 50(b)
renewed motion for judgment as a matter of law on both Smith’s Title VII
retaliation claim and her Georgia state law battery claim. On her Title VII

2

Smith’s Georgia state law negligent hiring verdict and judgment are not at issue in this

appeal.
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retaliation claim, the district court held that the record contained insufficient
evidence to show a causal connection between Smith’s report to Garrett about
having been sexually harassed and her termination. On her Georgia state law
battery claim, the district court held that the verdict was “inconsistent” because
Georgia law bars an award of punitive damages without an accompanying award
of nominal or actual damages. The only two claims at issue in this appeal are the
Title VII retaliation claim and the Georgia state law battery claim.
II. ISSUES ON APPEAL
Smith contends that the district court erred by granting Metropolitan’s Rule
50(b) motion on these two claims. Specifically, Smith presents three issues on
appeal. First, she contends that the district court erred in granting Metropolitan’s
Rule 50(b) motion on her Title VII retaliation claim by wrongly applying the
standard for granting judgment as a matter of law under Rule 50(b). Second, she
contends that the district court wrongly granted Metropolitan’s Rule 50(b) motion
reversing the jury’s punitive damage award on her Georgia state law battery claim
because Metropolitan waived its right to challenge the inconsistent damages
verdict. Finally, she argues that the district court wrongly granted Metropolitan’s
Rule 50(b) motion reversing the jury’s punitive damage award on her Georgia state
law battery claim because the court’s jury instructions constituted plain error. We
address each of these issues in turn.
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III. STANDARDS OF REVIEW
We review de novo the district court’s grant of Metropolitan’s Rule 50(b)
motion for judgment as a matter of law, drawing all inferences in the light most
favorable to Smith, the nonmoving party. Rossbach v. City of Miami, 371 F.3d
1354, 1356 (11th Cir. 2004).
IV. DISCUSSION
A. TITLE VII RETALIATION CLAIM
In order to meet the initial burden of proof for a Title VII retaliation claim, a
plaintiff must establish (1) that she engaged in “statutorily protected activity,” (2)
that she suffered a “materially adverse action,” and (3) that “there was some causal
relation between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d
1261, 1277 (11th Cir. 2008).
The district court granted the Rule 50(b) motion because the court concluded
that the evidence was insufficient to provide a basis for the jury’s conclusion that
Smith’s report about the harassment (the protected activity) and her termination
(the adverse action) were causally linked. Our review of this issue is limited to the
question of whether Smith presented sufficient evidence to prove each element of
this claim. See Collado v. United Parcel Serv. Co., 419 F.3d 1143, 1149 (11th Cir.
2005).

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The causal-link element is construed broadly; “a plaintiff merely has to
prove that the protected activity and the negative employment action are not
completely unrelated.” Goldsmith, 513 F.3d at 1278 (quoting Olmsted v. Taco Bell
Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)). This showing generally requires the
plaintiff to establish “that the decision maker was aware of the protected conduct at
the time of the adverse employment action.” Id. (quoting Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).
Our decision in, Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197
(11th Cir. 1997), is instructive in this regard. In Raney, Deborah Raney worked for
Vinson Guard Service in one of their branch offices, where she eventually assumed
the title and duties of “branch manager.” Despite performing the same functions as
the male “branch managers” in Vinson’s other offices, Raney asserted that her pay
remained below theirs. After complaining about this discrepancy to her regional
supervisor, Gregory Carter, Raney began drafting a statement to the Equal
Employment Opportunity Commission (EEOC). Soon thereafter, Carter drove
from Vinson’s Birmingham office to search Raney’s Decatur office for missing
paperwork. After finding the paperwork, Carter asked Raney to turn in her office
keys. The next day, he telephoned her and told her that she was terminated.
Raney then filed a Title VII retaliation suit. The district court granted
Vinson’s motion for summary judgment because Raney failed to “establish the
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‘causal link’ prong of a prima facie case, specifically, Raney’s alleged inability to
show that Vinson knew about her threatened legal action before making the
decision to terminate her.” Raney, 120 F.3d at 1197. The court’s analysis of the
causal link prong in Raney is especially relevant to Smith’s case. In Raney, the
court said:
In order to satisfy the “causal link” prong of a prima facie
retaliation case, a plaintiff must, at a minimum, generally establish
that the defendant was actually aware of the protected expression at
the time the defendant took the adverse employment action.
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
Since corporate defendants act only through authorized agents, in a
case involving a corporate defendant the plaintiff must show that the
corporate agent who took the adverse action was aware of the
plaintiff’s protected expression and acted within the scope of his or
her agency when taking the action. See Goldsmith, 996 F.2d at 1162
(general agency principles govern the circumstances in which a
principal will be held liable for the acts of its agents under Title VII).
It is not altogether clear which corporate agent took the adverse
action against Raney in this case. Arguably, Vinson’s vice-president
provided the catalyst for Raney’s termination when he instructed
Carter to research the payroll and scheduling records in the Decatur
branch office. Carter actually told Raney she was terminated, so
perhaps he too could be viewed as the corporate agent who took the
adverse action. In either case, Raney failed to meet her burden to set
forth evidence sufficient for a jury to return a verdict for her after a
trial.
Raney, 120 F.3d at 1197. Most importantly, we found that if Vinson’s vice
president was the relevant corporate agent, Vinson was entitled to summary
judgment because Raney presented no evidence demonstrating that Vinson’s vice
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president knew of her protected expression. Specifically, we stated that “. . . while
we have held that awareness of protected expression may be established based on
circumstantial evidence, our cases have required plaintiffs to show a defendant’s
awareness with more evidence than mere curious timing coupled with speculative
theories.” Raney, 120 F.3d at 1197 (citing Goldsmith v. City of Atmore, 996 F.2d
1155, 1163 (11th Cir. 1993)). We also found that:
If, alternatively, Carter was the relevant corporate agent,
Vinson is entitled to summary judgment because Raney offered no
probative evidence regarding the scope of authority, if any, Vinson
delegated to Carter over Raney. In its answer to Raney’s complaint,
Vinson expressly denied Raney’s allegation that Carter, acting within
the line and scope of his authority as agent for Vinson, terminated
Raney in retaliation for protected expression. This denial put the
scope of Carter’s agency in question, and imposed on Raney the
burden of establishing that Carter’s authority extended to making
personnel decisions regarding Raney.
. . . While the fact that Carter personally informed Raney that
she was terminated for misconduct provides some speculative support
for a broader view of the scope of Carter’s agency, that isolated fact
alone is insufficiently probative in light of countervailing facts to
satisfy Raney’s burden at the summary judgment stage. . . .In this
case, Raney’s burden included the obligation to set forth significant
probative evidence regarding the identity, authority and knowledge of
the Vinson agent who allegedly terminated her for retaliatory
purposes.
Raney, 120 F.3d at 1198. Just as in Raney, the evidence Smith produced at trial
fails to prove two facts crucial to her case: (1) who it was that made the decision to
terminate her and (2) whether this decision maker knew of her complaint. Without
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these facts established, the jury had no basis for finding that the person who
decided to terminate Smith knew about her complaint. And without that finding, no
legally sufficient basis exists to conclude that Smith’s complaint and her
termination were related.
Smith contends that her testimony that Garrett fired her, coupled with the
jury’s refusal to credit Garrett’s testimony saying that he did not have the power to
terminate employees, provides a basis for finding that her complaint and her
termination were related. But, two problems undercut her argument.
First, her testimony was not that Garrett made the decision to fire her. She
only testified that Garrett informed her she was being fired. This testimony does
not say who the decision maker was—it only confirms that Garrett, who was the
manager on duty at the end of her last shift, reported the termination decision to
her.
Second, the jury’s disbelief of Garrett’s testimony that he could not
terminate employees does not suffice to supply the inference that Garrett was the
decision maker. Even if Garrett had the authority to make a termination decision,
Smith presented no evidence that Garrett actually made the termination decision in
this instance.

Smith argues that a jury, when it determines that a witness’s

testimony is false, can actually conclude the opposite of that witness’s testimony.
But that statement of law is true only if the record contains affirmative evidence of
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the opposite conclusion; discredited testimony alone cannot be the basis for a
conclusion. See Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485,
512, 104 S. Ct. 1949, 1966 (1984) (“When the testimony of a witness is not
believed, the trier of fact may simply disregard it.

Normally the discredited

testimony is not considered a sufficient basis for drawing a contrary conclusion.”);
see also Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 576, 71 S. Ct. 428,
429-30 (1951) (“[I]t is the jury’s function to credit or discredit all or part of [a
witness’s] testimony. But disbelief of the [witness’s] testimony would not supply a
want of proof.”)3
Here, the record contains no affirmative evidence that Garrett had hiring or
firing power. Smith never testified that Garrett had such power, and she produced
no evidence that Garrett had such power. The jury was free to disregard Garrett’s
testimony. Even so, the fact remains that Smith did not show who made the
decision to fire her. Even assuming that Garrett had the authority to fire Smith,
there is no evidence that Garrett actually made the firing decision in this instance.
In corporate settings, those who make termination decisions are often not the ones

3

This Court has established an extremely narrow exception to this rule, which is not
applicable here. Where a criminal defendant testifies at trial, and the jury disbelieves the
testimony, the jury is free to draw the opposite inference and consider the disbelieved testimony
as substantive evidence of guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).
We emphasize the narrowness of this exception.
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tasked with the unpleasant duty of delivering the termination decisions to
employees.
B. GEORGIA STATE LAW BATTERY CLAIM
The district court also set aside the punitive damages award for Smith under
her Georgia state law battery claim because under Georgia law punitive damages
may only accompany compensatory or nominal damages. See GA. CODE ANN.
§ 51-12-5.1; see also Nelson v. Glynn-Brunswick Hosp. Auth., 571 S.E.2d 557, 564
(2002). Smith contends that the district court erred in two ways when it set aside
the punitive damages award.
First, she argues that Metropolitan could not challenge the punitive damages
award in its Rule 50(b) motion because it did not object when the jury announced
the verdict and therefore “waived” its challenge. However, Smith has forfeited her
right to argue that Metropolitan waived its challenge to the punitive damages
award because she failed to raise that challenge before the district court. See
Howard v. Walgreen Co., 605 F.3d 1239, 1243 (11th Cir. 2010). In this instance,
not only did Smith fail to raise the issue in the district court, she went so far as to
agree with Metropolitan in her response to the Rule 50(b) motion. Specifically, she
stated:
Plaintiff’s counsel concedes that O.C.G.A. § 51-12-5.1 prohibits Mrs.
Smith’s receipt of any punitive damages for her battery claim where
the jury failed to award any compensatory or nominal damages.
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(Dkt. 91 at 12 n.4) If the court’s ruling was error, it was invited error. Invited
error precludes a court from “invoking the plain error rule and reversing.” United
States v. Davis, 443 F.2d 500, 564-65 (5th Cir. 1971).
Second, she contends that the district court plainly erred by instructing the
jury that nominal damages are awarded in an amount that “you . . . decide [is
appropriate] under all of the facts and circumstances of the case.” (Dkt. 96 at 312.)
Smith contends that Georgia law requires a jury to award, at a minimum, nominal
damages for an intentional tort. See, e.g., Norton v. Holcomb, 646 S.E.2d 94, 101
(Ga. Ct. App. 2007); see also Jeter v. Davis, 127 S.E. 898, 901 (Ga. Ct. App. 1925)
(recognizing that a plaintiff “would at least be entitled to” nominal damages by
proving the elements of an intentional tort). Under Georgia law, compensatory or
nominal damages must be awarded before punitive damages may be awarded. See
GA. CODE ANN. § 51-12-5.1; see also Nelson, 571 S.E.2d at 564. Smith contends
the district court’s error allowed it to set aside the jury’s punitive damage award
because it did not instruct the jury that it must award, at a minimum, nominal
damages before it could award punitive damages.
Smith correctly recognizes, however, that she waived this contention by
failing to object to the jury instruction before the district court. She accordingly
frames her contention under the plain error doctrine. See Fed. R. Civ. P. 51(c)(2);
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Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1414 (11th Cir. 1986). However,
we do not consider whether a court committed plain error if the party making that
contention invited the error. Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283,
1293-94 (11th Cir. 2002). We have held that a party invites error in the jury
instructions when it responds to a court’s proposed instructions by saying, “[T]he
instruction is acceptable to us.” United States v. Fulford, 267 F.3d 1241, 1247
(11th Cir. 2001). We have also held that a party invites error when “the instruction
eventually given to the jury reflect[s] changes that [the party itself] proposed and to
which they did not later object.” Ford, 289 F.3d at 1294.
In this instance, Smith invited error in the jury instructions. She failed to
propose any jury instruction saying that actual damages are required in the event of
a finding of liability before punitive damages may be awarded. Her proposed
charge, like the charge actually given to the jury, does not say that actual damages
are required. And Smith did not object to the instructions as given with regard to
damages for battery. Smith objected to portions of the jury instructions both
before and after the district court charged the jury, but did not object to the court’s
instructions on damages.

In fact, before charging the jury, the district court

reviewed its proposed instructions with both Smith’s counsel and Metropolitan’s
counsel.

After reviewing the proposed instructions on damages and hearing

feedback from both parties, the court specifically asked Smith’s counsel,
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“. . . [H]ave I adequately covered the subject of damages[?]” (Dkt. 96 at 262), and
Smith’s counsel replied, “Yes, your honor.” Id. After charging the jury, the district
court again asked both Smith’s counsel and Metropolitan’s counsel if they had any
objections to the instructions. Smith’s counsel again objected to another part of the
instructions unrelated to damages. The district court stated, “I note your exception.
Anything else?” (Dkt. 96 at 322.) Smith’s counsel replied, “That’s it.” Id. In
essence, Smith, through her counsel, clearly represented her assent to the jury
instruction throughout the process and in fact contributed to its formation. Only on
appeal does Smith raise the alleged error. Thus, we conclude that if there was
error, Smith invited the error, and we decline to review for plain error.
V. CONCLUSION
We find no error in the district court’s ruling on the Rule 50(b) motions. We
affirm the judgment in the district court.
AFFIRMED.

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