Case Information
*2 Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Marcus Anderson, proceeding pro se and in forma pauperis , appeals following the district court’s denial of his post-trial motions for judgment as a matter of law, under Federal Rule of Civil Procedure 50(b), and new trial, under Federal Rule of Civil Procedure 59(a), after the jury returned a verdict in favor of Brown Industries (Brown) on Anderson’s hostile work environment claims, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and 42 U.S.C. § 1981. Anderson raises several issues on appeal, which we address in turn. After review, we affirm the district court.
I. DISCUSSION
A. Motion to amend complaint
Anderson first appeals the district court’s denial of his untimely motion to
amend his complaint to add a retaliatory hostile work environment claim. In
Gowski v. Peake
, this Court recognized for the first time a cause of action for
retaliatory hostile work environment.
A party seeking to amend his complaint, after having previously amended
it as of right, may do so only with the opposing party’s written consent or leave of
court. Fed. R. Civ. P. 15(a)(2). Rule 15 instructs that such leave should be freely
given when justice so requires.
Id.
Where the motion for leave to amend is filed
after the scheduling order’s deadline for such motions, however, the party must
show good cause why leave to amend should be granted. Fed. R. Civ. P. 16(b)(4);
Smith v. Sch. Bd. of Orange Cnty.
,
The district court did not abuse its discretion in denying Anderson’s
untimely motion for leave to amend the complaint to add a retaliatory hostile work
environment claim.
See Smith
,
B. Judicial Estoppel
Anderson appeals the denial of his post-trial motions for judgment as a
matter of law and new trial for several reasons. First, Anderson contends the
district court improperly applied the doctrine of judicial estoppel to bar him from
asserting that Josh Cox, his alleged harasser, was not his supervisor, and that the
Faragher-Ellerth
[1]
affirmative defense was therefore inapplicable. Anderson
asserts his change in position regarding Cox’s supervisory status resulted from an
intervening change in controlling law, namely, the Supreme Court’s decision in
Vance v. Ball State University
,
The purpose of judicial estoppel is to protect the integrity of the judicial
process by preventing parties from taking inconsistent positions according to the
exigencies of the moment.
Robinson v. Tyson Foods, Inc.
,
We employ a two-factor inquiry, requiring a showing that (1) the allegedly
inconsistent positions were made under oath in a prior proceeding, and (2) the
inconsistencies were calculated to make a mockery of the judicial system.
Robinson
,
As an initial matter, we have not addressed the question of whether judicial estoppel is appropriate when the party alleges that its change in position is based on an intervening change in controlling law. However, we need not decide that issue here because Vance does not constitute an intervening change in controlling law for purposes of this case. Vance was decided on June 24, 2013, nine months prior to the commencement of trial in this case on March 24, 2014. Thus, both (1) Anderson’s representations that Cox was his supervisor in his trial testimony and proposed jury instructions and (2) his current position that Cox was not his supervisor, post-dated the Supreme Court’s decision in Vance . Accordingly, Anderson’s change in position did not result from an intervening change in the law, and his argument that judicial estoppel was inappropriate on that basis lacks merit.
Moreover, Anderson does not prevail on his alternative argument that the
necessary elements of judicial estoppel were not met. Under the Supreme Court’s
three-factor approach, judicial estoppel was appropriate because Anderson’s
position at trial was clearly inconsistent with his position in his post-trial motions,
Anderson convinced the court to accept his earlier position, and Anderson would
derive an unfair benefit from being allowed to contest the jury’s verdict on a
ground that was available to him at trial, but that he merely failed to raise.
Likewise, under our two-factor inquiry, judicial estoppel was appropriate because
Anderson’s prior inconsistent position was made under oath, and it can be inferred
from the record that Anderson’s assertion of contradictory positions was
intentional, rather than inadvertent. Anderson failed to raise the
Vance
issue until
after the jury returned a verdict in Brown’s favor, despite the fact that
Vance
was
issued long before trial commenced and Anderson had raised other challenges to
the applicability of the defense. Accordingly, the district court
did not abuse its discretion in applying judicial estoppel, and we affirm the denial
of Anderson’s post-trial motions on this ground.
See Burnes
,
C. Jury instructions
Anderson asserts that district court erred in concluding he waived any objection to the Faragher-Ellerth jury instruction because he objected to the instruction, albeit on different grounds, in his pre-deliberation motion for directed verdict. Anderson asserts this earlier objection was sufficient to preserve his post- verdict challenge to Cox’s supervisory status, and Brown was not entitled to the instruction as a matter of law because Cox was not a supervisor.
When a party fails to object to a jury instruction prior to jury deliberations,
that party waives its right to challenge the instruction on appeal, unless the party
made its position clear to the court previously and further objection would be
futile, or it is necessary to correct a fundamental error.
Parker v. Scrap Metal
Processors, Inc.
,
The district court correctly concluded that Anderson waived any challenge to the jury instruction regarding Cox’s supervisor status because Anderson repeatedly testified that Cox was his supervisor, included a jury instruction to that effect in his proposed jury instructions, and did not object to the district court’s instruction that he alleged that Cox was his supervisor. Accordingly, because Anderson waived any objection to the instruction regarding Cox’s supervisor status, and, as discussed above, is estopped from arguing that Cox was not his supervisor, he cannot challenge the instruction on that basis. D. Supervisor Status
Finally, Anderson contends that the district court erred in denying his post- trial motions because there was insufficient evidence to support a jury finding that Cox was his supervisor. Anderson asserts that no evidence at trial showed that Cox was empowered to take tangible employment actions against him, and that the court could not rely on his testimony to support its determination that there was sufficient evidence for the jury to conclude that Cox was his supervisor.
As discussed above, the district court correctly concluded that Anderson was
judicially estopped from asserting that Cox was not his supervisor and waived any
challenge to the jury instruction regarding Cox’s supervisory status. Further,
Anderson invited the jury to conclude that Cox was his supervisor through his
testimony and proposed jury instructions, and should not now be allowed to
complain that the jury may have accepted his invitation in rendering its verdict.
See Pensacola Motor Sales, Inc. v. Eastern Shore Toyota, LLC
,
II. CONCLUSION
The district court did not abuse its discretion in denying Anderson’s untimely motion to amend because he failed to show good cause. Additionally, the district court did not err in denying Anderson’s post-trial motions because Anderson was estopped from challenging Cox’s supervisory status. Accordingly, we affirm.
AFFIRMED.
Notes
[1] The affirmative defense is derived from the Supreme Court’s
decisions in
Faragher v. City of Boca Raton
,