Dеfendants Central Florida Investments, Inc., Westgate Resorts, Inc., West-gate 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.
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 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 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
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 grew “absolutely furious” upon discovering that their hotel room had only one 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 аnd 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 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 hills 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
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 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. “[Tjhere 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 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,
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 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 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 Middlе
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 (“Whistle-blower 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 rеtention and supervision claims. The two sexual harassment claims, the two 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.,
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 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
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.
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.
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,
We review for clear error, however, the district court’s findings of fact,
Johansen,
Finally, we review
de novo
the propriety of punitive damages,
Goldsmith v. Bagby,
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.,
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 reаsonable 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,
Defendants are also correct to note that the jury was prohibited from awarding Myers money for her termination.
See Myers,
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.,
A plaintiffs 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 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 оn 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,
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. McConnell,
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 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 un
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 Laiv
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 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:
la) “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,
The district court was empowered, however, to remit the award if it determined that it was unreasonable.
See id.
§ 768.73(l)(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.,
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 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(l)(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(l)(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 specif
The district court’s instructions to the jury regarding battery read this way:
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 Plaintiffs 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,
The district court did make passing reference to the twin requirements when issuing instructions on punitive damаges, 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 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,
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,
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,
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 condemnsexual harassment in the strongest possible terms.
Byrd v. Richardson-Greenshields Secs., Inc.,
There is no question that Florida has a considerable interest in protecting 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 exeсutives, 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.,
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,
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.
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,
On the second factor, the district court noted that “there is some disregard of health at play insofar as Plaintiffs 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 did occur in the workplace and Plaintiff’s
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,
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 еmployees 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,
On the fifth and final factor, the district court noted that “battery is an intentional tort, although malice is not required for its commission.”
Myers,
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,
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,
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,
Notably, this Court has approved of a number of punitive awards where the ratio of punitive to compensatory damages exceeded 4.89:1.
See Johansen,
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 district
Defendants urge, nevertheless, that under
Exxon Shipping Co. v. Baker,
— U.S. -,
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.”
The third guidepost presents a mixed question of law and fact:
[T]he selection of the most appropriate point of comparison — actual fíne 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,
The district court determined that Florida’s statutory cap on punitive damages was the most appropriate comparison point.
See Myers,
However, even after determining that the district court applied the wrong 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(l)(d), which is a serious criminal sanction.
8
The due process clause is vio
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,
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 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
Flа. 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,
The filing of a complaint with the EEOC is a condition precedent to a sexual harassment suit.
See Wilkerson v. Grinnell Corp.,
“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.,
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.,
Defendants’ first denial consisted of the following: “Defendants deny the allegations contained in paragraph 9 of the Plaintiffs Second Amended Complaint.” Defendants’ Answer and Affirmative Defenses to Plaintiffs Second Amended Complaint at 2,
Myers v. Cent. Fla. Invs., Inc.,
No. 6:04-cv-1542-Orl-28DAB (M.D.Fla. Oct. 25, 2005). 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.,
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 Plaintiffs Second Amended Complaint at 32, Myers, No. 6:04-cv~1542-Orl-28DAB (M.D.Fla. Oct. 25, 2005). 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.
While affirmative defenses are, of course, distinct from denials,
see, e.g., In re
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,
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,
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 оf the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.
Walker v. Anderson Elec. Connectors,
In
Walker v. Anderson Electrical Connectors,
The Second Circuit, however, has encountered a case that is squarely on point. In
Bonner v. Guccione,
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,
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,
Accordingly, the judgment of the district court is AFFIRMED.
AFFIRMED.
Notes
. The jury heard evidence on only battery and sexual harassment, as Myers had by that time withdrawn her claim for false imprisonment.
. 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,
. 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.
. 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.,
. 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.,
. The interrogatories answered by the jury were these:
Claim One
Do you find from a preponderance of the evidence:
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 cоmmitted 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.
. 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(l)(a).
. As Myers argues, Siegel, with a net worth of $324,000,000, would likely pay $500,000 to
. 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.,
. 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.,