FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 29, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 00-13820

 

D.C. Docket No. 94-06918-CV-WPD

MELANIE WILLIAMS,

Plaintiff-Appellant,

Cross-Appellee,

versus

MOTOROLA, INC., a Florida corporation,

Defendant-Appellee,

Cross-Appellant,

LINDA DRAKE, as Director of Benefits

Administration for Motorola Employee

Health Benefit Plan, GLENN URBISH,

THOMAS SWIRBEL, ROBERT PENNISI,

Defendants-Appellees.

____________________

Appeals from the United States District Court

for the Southern District of Florida

_____________________

(August 29, 2002)

Before TJOFLAT, WILSON and COWEN*, Circuit Judges.

___________________________

*Honorable Robert E. Cowen , U.S. Circuit Judge for the Third Circuit, sitting by designation.
2

COWEN, Circuit Judge:

Melanie Williams brought this action against Defendants Motorola, Inc., and

several individuals. Her Amended Complaint contained thirteen counts and

alleged federal claims under the Consolidated Omnibus Budget Reconciliation Act

of 1985 (“COBRA”), codified at 29 U.S.C. §§ 1160 et seq., the Employment

Retirement Income Security Act of 1974 (“ERISA”), codified at 29 U.S.C. §§ 1001

et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended,

codified at 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act

(“ADA”), codified at 42 U.S.C. §§ 12101 et seq., as well as various state law

claims. Following a complicated procedural history which we detail within, the

District Court awarded nominal damages of one dollar to Williams against

Motorola after dismissing most of her claims on motions for judgment as a matter

of law. Both Williams and Motorola appeal different aspects of the District

Court’s orders. We will remand this matter to the District Court with the

instruction to vacate its Judgment of one dollar nominal damages and to dismiss

Williams’ case with prejudice.

I.

Williams filed this action after she was terminated in 1993 from her

engineering job at Motorola, where she had worked for almost four years. Before
3

trial, the District Court dismissed on summary judgment all but one of Williams’

COBRA claims (Counts I, II, VIII, and Count IV (as it applied to the individual

defendant Linda Drake) of the Amended Complaint) and her ERISA claims (Count

III). The record before us is not clear, but it appears the District Court eventually

granted Motorola’s Motion barring Williams’ breach of contract claims involving

patents (Count XII). Williams subsequently voluntarily dismissed the individual

defendants and Count XI (False Light Invasion of Privacy).

Seven counts (IV, V, VI,VII, IX, X, XIII) went to trial. At the close of

Williams’ case, she voluntarily dismissed Count X (defamation) and the District

Court granted motions for judgment as a matter of law in favor of Motorola on

Count VII (ADA claims) and Count XIII (intentional infliction of emotional

distress). Claims contained in Count IX (conversion) were settled during the trial

for $250. At the close of evidence the District Court granted motions for judgment

as a matter of law on Counts V and VI to the extent that they alleged sexual

harassment and sex discrimination related to employment termination.

Only Counts V and VI went to the jury only insofar as they alleged pretermination discrimination, and the District Court instructed the jury to consider

the two counts only insofar as they related to job assignments, performance

appraisals and pay promotion. The jury returned a verdict in favor of Williams in
1

The Final Judgment, entered by the District Court on February 28, 1998,

stated in relevant part:

A jury returned a verdict on February 18, 1998, finding that the

plaintiff was discriminated against by the defendant in employment

based on her sex, and that she suffered pain and suffering damages in

the amount of $300,000.

. . . 

Judgment is entered for the plaintiff in the amount of $300,000

on the claim for disparate treatment based on sex, and in the amount

of $250 on the claim for conversion, for a total of $325,000. 

Judgment is entered for the defendant on all other causes of action.

Record Excerpts (Williams) at tab 178.

2

The Omnibus Order stated in relevant part:

3. Defendant’s Motion to Remit Damages is GRANTED. The

jury awarded the plaintiff $300,000 for her claim of emotional distress

regarding pre-termination discrimination in performance evaluations

4

the amout of $300,000 for emotional distress regarding pre-termination

discrimination in job assignments and performance appraisals.1

 The parties tried

the remaining COBRA issue (contained in Count IV) to the District Court, which

rendered a final judgment in favor of Motorola.

The District Court remitted the jury award to $50,000. In its Omnibus

Order, the District Court explained that there was “evidence presented at trial

concerning emotional distress, the testimony concerned emotional distress suffered

as a result of the plaintiff’s termination and claims of sexual harassment, claims for

which a [motion for a judgment as a matter of law] was granted the defendant.” 

Record Excerpts (Williams) at tab 187.2

 The District Court stated that the award
and job assignments. While evidence was presented at trial

concerning emotional distress, the testimony concerning emotional

distress suffered as a result of the plaintiff’s termination and claims of

sexual harassment, claims for which a [motion for a judgment as a

matter of law] was granted the defendant.

The award based on mental or emotional distress regarding pretermination discrimination in performance evaluations and job

assignments is unsupported by expert testimony and is so grossly

excessive as to shock the conscience of the Court. Accordingly, the

award is remitted to $50,000.

Omnibus Order (entered on Sept. 15, 1998) at Tab 187 of Record Excerpts

(citation omitted).

5

based on mental or emotional distress in the amount of $300,000 concerning pretermination discrimination in performance evaluations and job assignments was

unsupported by testimony and was so excessive that it shocked the District Court’s

conscience. Id.

In a subsequent order the District Court clarified the Omnibus Order, giving

Williams the option of a new trial on the issue of damages in lieu of the remitted

judgment to $50,000. Williams chose the new trial option. The District Court

Judge thereafter recused himself and the case was reassigned. The reassigned

District Court Judge was unable to hear the matter, and a third District Court Judge

was assigned the case. 
6

After a series of motions and conferences, both parties appeared for a

calendar call in preparation for trial, whereupon counsel for Williams read an

electronic message he had received from Williams. The message directed her

counsel to dismiss the case. At the conclusion of the calendar call, the District

Court entered a Final Order denying certain motions as moot and awarding Final

Judgment to Williams for nominal damages in the amount of $1.00. Both

Williams and Motorola appeal.

II.

We have jurisdiction over these appeals under 28 U.S.C. § 1291 (“The

courts of appeals . . . shall have jurisdiction of appeals from all final decisions of

the district courts of the United States . . . .”). We apply the same standard used by

the District Court when we review a ruling on a motion for a judgment as a matter

of law. See Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1230 (11th Cir.

2001). 

We consider all the evidence, and the inferences drawn therefrom, in

the light most favorable to the nonmoving party. If the facts and inferences

point overwhelmingly in favor of one party, such that reasonable people

could not arrive at a contrary verdict, then the motion was properly granted. 

Conversely, if there is substantial evidence opposed to the motion such that

reasonable people, in the exercise of impartial judgment, might reach

differing conclusions, then such a motion was due to be denied and the case

was properly submitted to the jury.

It bears repeating that a mere scintilla of evidence does not create a

jury question. Motions for [judgment as a matter of law and for judgment
7

not withstanding the verdict need not be reserved for situations where there

is a complete absence of facts to support a jury verdict. Rather, there must

be a substantial conflict in evidence to support a jury question.

Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989) (footnotes omitted). 

We will affirm all of the orders of the District Court granting motions for

judgment as a matter of law, but conclude that the District Court erred in not also

granting a motion for judgment as a matter of law on Williams’ claims of sexual

harassment and sex discrimination arising out of her job assignments, performance

appraisals, and pay promotion. Accordingly, the District Court erred when it

entered a judgment awarding Williams one dollar nominal damages. 

A. Williams’ ADA Claims

Williams made two separate ADA claims: (1) that Motorola “perceived” her

to have a disability and discharged her based upon that perception, and (2)

irrespective of the issue of disability, Motorola wrongly “required” her to submit to

medical examinations in violation of 42 U.S.C. § 12112(d)(4)(A) (“A covered

entity shall not require a medical examination and shall not make inquiries of an

employee as to whether such employee is an individual with a disability or as to

the nature or severity of the disability, unless such examination or inquiry is shown

to be job-related and consistent with business necessity.”).
8

The District Court granted a motion for judgment as a matter of law on all of

Williams’ ADA claims. It explained that Williams did not sufficiently establish

her “perception” argument, given the evidence of Williams’ hostility, threats, and

insubordination for which she had already been discharged. 

Williams emphasizes that she does not need to actually have a disability to

raise her ADA claims. While the Eleventh Circuit has not addressed this issue,

other Circuits considering the question have held that a non-disabled plaintiff may

pursue a claim under the ADA of an employer’s alleged “perception” of an

employee’s disability. See, e.g., Roe v. Cheyenne Mountain Conf. Resort Inc., 124

F.3d 1221, 1229 (10th Cir. 1997). We agree and hold that a plaintiff may maintain

a claim under the ADA of being perceived as disabled without proof of actually

being disabled. However, with regard to Williams’ perception claim that Motorola

violated the ADA by suggesting a medical examination, the argument fails. 

Williams never made out a prima facie case of discrimination.

To make a prima facie case of discrimination under the ADA, Williams had

to show a disability (whether real or perceived), that she was otherwise qualified to

perform the essential functions of the job, and she was discriminated against based

upon the (real or perceived) disability. Gordon v. E.L. Hamm & Assoc., Inc., 100

F.3d 907, 910 (11th Cir. 1996). An employee’s ability to handle reasonably
9

necessary stress and work reasonably well with others are essential functions of

any position. Absence of such skills prevents the employee from being “otherwise

qualified.” See, e.g., Palmer v. Circuit Crt. Of Cook Cty., 117 F.3d 351 (7th Cir.

1997); Grenier v. Cyanimid Plastics, Inc., 70 F.3d 667, 674-75 (1st Cir. 1995);

Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 441-42 (6th Cir. 1991);

Weigert v. Georgetown Univ., 120 F.Supp.2d 1, 14 (D.D.C. 2000) (“[T]echnical

skills and experience are not the only essential requirements of a job and [] stability

and the ability to interact with co-workers constitutes an essential function.”). Our

review of the record reflects that there is overwhelming evidence of Williams’

inability to work with others, not to mention engaging in threats of violence, and

insubordination.

Williams’ ADA claims also fail because the record is clear that she was not

discharged for her failure to submit to a medical examination. Motorola terminated

Williams because of her inability to work with others, and for insubordination and

threats of violence. Williams acknowledged in testimony that the termination letter

related she was discharged for insubordination and inability to get along with coworkers (for example, calling Glenn Urbish, the Vice President and Manager of

Williams’ department, a “God damned liar” and charging at him with clenched

fists). See R17-64-65.
10

The termination letter as well as uncontradicted testimony of the Manager of

Human Resources reveal that the medical examination was offered as a suggestive

option to termination, along with the opportunity for Williams to voluntarily

resign. No evidence supports the allegation that Motorola terminated Williams for

refusal to submit to a medical examination. We also observe that, on the facts of

this case, Motorola could have properly required a medical examination given

Williams’ recent behavior and threats. See, e.g., Krocka v. City of Chicago, 203

F.3d 507, 515 (7th Cir. 2000) (“[W]here inquiries into the psychiatric health of an

employee are job related and reflect a ‘concern [] with the safety of . . .

employees,’ the employer may, depending on the circumstances of the particular

case, require specific medical information from the employee and may require that

the employee undergo a physical examination designed to determine his ability to

work.”) (citation omitted) (emphasis added). None of Williams’ claims under the

ADA can withstand a motion for judgment as a matter of law.

B. Williams’ Claims of Retaliation and Termination

Williams also argues that the District Court erred in dismissing her

retaliation claims related to both her disability, as well as sex discrimination and

sexual harassment allegations. A prima facie case of retaliation contains three

elements: “first, the plaintiff engaged in statutorily protected conduct; second, the
3

This exchange occurred between Mr. Cornell (Counsel for Williams), Mr.

Stucki (Counsel for Motorola) and the District Court toward the end of the trial:

Mr. Cornell: There is buried within this also a retaliation issue. 

It’s in the complaint. It was tried. On the issue of

retaliation because the complaining of sexual

harassment is the way that it was tried. It is in her

complaint. I submit that.

The Court: As a separate cause of action?

Mr. Cornell: No. It is all encompassed within Title VII.

Mr. Stucki: Lord knows what is encompassed in that cause of action. 

I had no idea it was anything other than a termination

11

plaintiff suffered an adverse employment action; and finally, the adverse action

was causally related to the protected expression.” Farley v. Nationwide Mutual

Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (elements of a retaliation claim are

the same under the ADA and Title VII).

Williams asserts that her refusal to take a medical exam constituted the first

prong (“statutorily protected conduct”) of her prima facie case of retaliation under

the ADA, and that her complaints of sex discrimination and harassment to her

superiors at Motorola likewise satisfy the first prong regarding retaliation claims

under Title VII. She claims that her termination from Motorola fulfills the second

prong (an “adverse employment action”) of these retaliation claims.

It is far from clear that Williams alleged retaliation in her Amended

Complaint. The record reflects that the retaliation claims (at least with regard to

Title VII) were not even tried to the District Court.3

 Even if the record did reflect
case. Now it’s a retaliation case as well?

The Court: I think you understand where we are heading with this.

Mr. Cornell: I think I do. I just want to make that note for the

record because I do think it’s there. I do think it’s

been tried.

The Court: Retaliation?

Mr. Cornell: Yes, for complaining about sexual harassment.

The Court: Retaliation being the termination?

Mr. Cornell: Yes.

Mr. Stucki: There is nothing in the pretrial order about that.

The Court: I think the termination is gone away.

Mr. Cornell: I am here as a lawyer.

The Court: You are making a record. I understand that.

Record Volume 22 at 200-01.

12

that these claims were included in Williams’ Amended Complaint and Williams

could meet the first two prongs of the test, Williams cannot meet the third prong. 

The record firmly reflects that Williams was fired solely for insubordination and

inability to get along with her co-workers and superiors. Since Williams did not

meet the third prong of the prima facie case on her retaliation claims, the District

Court properly granted motions for judgment as a matter of law.

C. Williams’ Claims of Sexual Harassment and Sex Discrimination

The District Court granted motions for judgment as a matter of law on

Williams’ claims of sexual harassment and sex discrimination to the extent that

they related to her termination from employment. The jury was only instructed on

pre-termination sexual harassment and sex discrimination insofar as they related to
13

job assignments, performance appraisals, and pay promotion. The jury returned a

verdict for Williams and awarded $300,000 for pain and suffering. The District

Court remitted the award to $50,000. Our thorough review of the record fails to

reveal any evidentiary support for any of Williams’ Title VII claims. Because no

“substantial conflict” existed to support a jury question, the District Court should

have granted a motion for judgement as a matter of law on all of the claims. See

Carter, 870 F.2d at 581.

With regard to Williams’ hostile environment claims under Title VII, to

establish a claim of hostile-environment based on harassment by a supervisor, an

employee must show:

(1) that he or she belongs to a protected group;

(2) that the employee has been subject to unwelcome sexual

harassment, such as sexual advances, requests for sexual favors,

and other conduct of a sexual nature;

(3) that the harassment must have been based on the sex of the

employee;

(4) that the harassment was sufficiently severe or pervasive to alter

the terms and conditions of employment and create a

discriminatorily abusive working environment; and

(5) a basis for holding the employer liable.

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999).

In her briefs Williams presents a host of incidents to support her claims. 

Almost all of these incidents are not supported by the record, and most of them are
14

not related to Williams’ sex. The conduct alleged by Williams falls well short of

the level of either severe or pervasive conduct sufficient to alter Williams’ terms or

conditions of employment so as to sustain her claims. See, e.g., Mendoza, 195

F.3d at 1246-47 (minimum level of severity or pervasiveness necessary for

harassing conduct to constitute discrimination in violation of Title VII).

With regard to Williams’ disparate treatment claims under Title VII for

improper termination, plaintiff must prove that the defendant acted with

discriminatory purpose. See Nix v. WLCY Radio/Rahall Communications, 738

F.2d 1181, 1184 (11th Cir. 1984). In the absence of direct evidence, a plaintiff

must create an inference of discrimination by establishing a prima facie case. Id. If

she does so, the defendant then must articulate some legitimate, nondiscriminatory

reason for the employee’s rejection. Id. This Court has “consistently held that a

plaintiff discharged for misconduct makes out a prima facie case of discriminatory

discharge if she shows that she is a member of a protected class, that she was

qualified for the job from which she was fired, and ‘that the misconduct for which

she was discharged was nearly identical to that engaged in by [an employee outside

the protected class] whom [the employer] retained.’” Nix, 738 F.2d at 1185

(citation omitted). Williams is a member of a protected class and was terminated,

but she has failed to present any evidence that she was performing satisfactorily or
15

treated any differently from males who were insubordinate and had difficulty

getting along with co-workers. Greenfield v. City of Miami Beach, 844 F.Supp.

1519, 1526 (S.D. Fla. 1992) (“Defendants have provided evidence that [plaintiff]

did poorly on a job evaluation, repeatedly disobeyed instructions from her

superiors, and made inappropriate phone calls. . . . More fundamentally, [plaintiff]

fails to demonstrate that other employees not in her protected class acted in a

similar manner as [plaintiff] but were retained by the employer.”). The same

conclusion is reached regarding Williams’ claims of disparate treatment regarding

job assignments, performance appraisals, and pay promotion. Id.; see also Jones v.

Gerwens, 874 F.2d 1534, 1542 (11th Cir. 1989). 

We conclude that none of Williams’ Title VII claims, both for wrongful

termination and pre-termination harassment, should have been submitted to the

jury. We will therefore AFFIRM the District Court’s orders granting the motions

for judgment as a matter of law on Williams’ Title VII claims.

Since none of Williams’ Title VII claims were properly submitted to the

jury, the District Court erred when it awarded nominal damages to Williams. We
4

Williams raises a number of issues involving events that occurred in

relation to the trial of her Title VII claims, including errors with the jury verdict

form, pretrial rulings, motions in limine, and that the District Court erroneously

dismissed her new trial following the remittur. Because we hold that none of

Williams’ Title VII claims should have been presented to the jury, it is unnecessary

for us to address these subsequent issues raised by Williams.

16

will VACATE the Order awarding nominal damages and REMAND the matter

with instructions to dismiss Williams’ case against Motorola with prejudice.4

III.

We AFFIRM all of the orders of the District Court granting motions for

judgment as a matter of law. The District Court erred sending to the jury

Williams’ pre-termination claims of sexual harassment and sex discrimination

since there was insufficient evidence for the jury to consider the matter. The

District Court also erred in awarding Williams nominal damages of one dollar. We

will VACATE the judgment awarding one dollar nominal damages and REMAND

the case with the instruction to enter an order dismissing this matter with prejudice. 

To the extent that we did not discuss other points of error raised by Williams or by

Motorola, we deem them without merit.