FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 8, 2002

THOMAS K. KAHN

CLERK

*

 Honorable Ralph K. Winter, U.S. Circuit Judge for the Second Circuit,

sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-13468

D. C. Docket No. 99-01025-CV-PCH

ALISA L. HOLMES,

Plaintiff-Appellant,

versus

WEST PALM BEACH

HOUSING AUTHORITY, a public

corporation,

Defendant-Appellee,

AMEFIKA GEUKA, an individual, KENNETH

HAWTHORNE, an individual, SCOTT BADESCH,

an individual,

Defendants.

Appeal from the United States District Court

for the Southern District of Florida

(October 8, 2002)

Before MARCUS, FAY and WINTER*

, Circuit Judges.
2

WINTER, Circuit Judge:

Alisa L. Holmes appeals from a judgment reducing the damages awarded her

by a jury after a trial before Judge Huck. Appellant brought the present action

against her former employer, appellee West Palm Beach Housing Authority

("WPBHA"), for, inter alia, gender-based denial of a promotion (the

“discrimination claim”), retaliatory termination in response to her complaints of

gender bias (the “retaliation claim”), both under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and for common law defamation (the

“defamation claim”). 

On appeal, appellant claims error in the district court's granting of WPBHA's

post-trial motion for remittitur, which reduced the total lost back-pay/benefits

awarded to appellant from $161,000 to $3,300. Although a special verdict jury

interrogatory contained a misstatement, we conclude that it did not affect the issue

on appeal. Because the evidence and liability findings would not, as a matter of

law, support a back-pay/benefits award of more than $3,300, we affirm.

I.

Appellant was employed as WPBHA's Deputy Director of

Finance/Administration beginning in July 1995. She reported to WPBHA's

Executive Director, Samuel Simmons. Simmons later left that position, and, in
3

March of 1998, WPBHA sought applicants for the Executive Director position. 

According to appellant, she was qualified for the Executive Director position,

applied for the position, placed near the top in a ranking of forty applicants, and yet

was not offered the position after the applicants (all male) ranked ahead of her

declined employment offers. Appellant's complaint alleged that on August 27,

1998 she complained to several members of the board of WPBHA that she had not

been offered the position of Executive Director because of her gender.

Over the same time period, appellant initiated a process whereby certain

employees of WPBHA, including appellant, were reimbursed in cash for unused

compensatory time accrued by working overtime. According to WPBHA, such

reimbursements were contrary to WPBHA policy and past practice. On or about

July 31, 1998, a total of approximately $20,000 was paid to employees in lieu of

compensatory time, approximately $10,000 of which was paid to appellant. The

WPBHA board directed an internal review of the payments, and, at a special

meeting convened on October 1, 1998 to discipline appellant, the board voted to

terminate appellant's employment. In September 1998, various allegedly

defamatory statements by WPBHA board members concerning appellant's role and

conduct in connection with the payments were published in local newspapers. 

At trial, appellant pursued the three claims mentioned above. The
4

discrimination claim asserted that WPBHA refused to offer her the position of

Executive Director because of her gender, in violation of Title VII. The retaliation

claim asserted that the reason for the termination of her employment by WPBHA

was to retaliate against her for claiming gender discrimination, also in violation of

Title VII. The defamation claim asserted that the statements made by WPBHA

board members to local newspapers constituted actionable defamation. A four-day

trial was conducted before a jury.

According to the district court's April 17, 2001 Omnibus Order on Post-Trial

Motions (the “Omnibus Order”), the parties agreed in open court during trial that,

in the event appellant prevailed on the discrimination claim but failed on the

retaliation claim, lost back-pay/benefits would be limited to the difference in salary

and benefits between the two positions from the denial of promotion to appellant's

termination on October 1, 1998. This agreement, the existence of which is denied

by appellant, was not reduced to writing and is not reflected in the transcript. 

However, in neither the district court nor in this court did appellant point to any

evidence that the lost back-pay/benefits over the period would be more than

$3,300.

With regard to liability on the discrimination claim, no party claims error in

either the instructions or the special verdict form. The verdict form contained two
1

For the reasons stated in the district court's Omnibus Order, we reject

appellant's claim that WPBHA failed to plead the "same decision" affirmative

defense. See Omnibus Order, Joint App. at 8:2-3.

5

questions relating to liability: the first asked whether gender was a substantial or

motivating factor in appellee's decision not to promote appellant; the second,

reflecting appellee's "same decision" defense,1

 asked whether she would have been

denied the position "for other reasons even without considering gender." The jury

answered "Yes" to the first question, i.e., gender was a factor in the denial of

promotion, and "No" to the second, i.e., she would not have been denied

promotion for other legitimate reasons. The jury therefore found WPBHA liable

on the discrimination claim.

The problem on appeal arises from the jury's response to the verdict form

questions regarding the retaliation claim. We begin with a discussion of the jury

instructions. No claim is made that the jury was misled as to the elements of a

valid retaliation claim. With regard to one of WPBHA's defenses to that claim, the

jury was also told:

On [the retaliation claim], you should consider the

[same decision] defense of the Defendant. An employer

may fire an employee for a good reason, a bad reason, a

reason based on erroneous facts, or for no reason at all,

so long as its action is not a retaliation for a statutorily

protected right.
6

An employer articulates a legitimate

nondiscriminatory reason for termination where the

employer had an honest, good faith belief in the reason

for termination, even if it turns out that the employer

was mistaken in that belief.

Appellant does not claim error in the instruction on the same decision

defense. The special verdict form asked two questions regarding the retaliation

claim, followed by an instruction regarding consideration of damages relating to

that claim. We quote the pertinent portion of that form:

 [ Retaliation Claim]

3. Do you find from a preponderance of the evidence

that the Plaintiff's complaints of and reporting alleged

gender discrimination was a substantial or motivating

factor that caused Defendant to suspend or terminate her

employment?

___________YES ___________NO

4. Do you find from a preponderance of the evidence

that the Plaintiff would have been terminated for other

legitimate, non-discriminatory reasons even without

considering gender?

___________YES ___________NO

If your answer to #4 is YES and/or NO to #3 you have

found for the Defendant and should not consider this

claim in any damage award to the Plaintiff under
7

question #5.

No objection was made by either party to the instructions or jury form with regard

to the retaliation claim.

As noted, the jury answered "Yes" and "No" to the corresponding questions

relating to gender discrimination, thereby finding WPBHA liable on that claim. As

to the retaliation claim, however, the jury answered "Yes" and "Yes" to the

questions quoted immediately above, seemingly accepting WPBHA's "same

decision" defense and rendering a verdict for WPBHA on that claim.

With regard to question 5 relating to damages, the jury initially requested

that the court determine damages, indicating "court decision" on the verdict form. 

The district court then instructed the jury to continue deliberations over a damages

award, whereupon the jury awarded $161,000 for lost back-pay/benefits and

$16,000 for emotional pain and suffering. In answering questions 6–8, the jury

found WPBHA liable for defamation, and awarded appellant $40,000 in damages

for emotional pain and suffering.

Claiming that a back-pay/benefits award of $161,000 was disproportionate

to the evidence of damages attributable to the discrimination claim alone -- the

retaliation claim having been rejected -- and in excess of the claimed stipulation
8

regarding damages under the discrimination claim, WPBHA moved for remittitur. 

The district court granted the motion in its Omnibus Order, reducing the $161,000

figure to $3,300, without offering appellant the option of a new trial. The district

court explained its decision as follows:

[T]he Court finds the jury's award of $161,000.00 is

grossly disproportionate and bears no rational

relationship to the evidence at trial. Under these

circumstances, the court may impose a remittitur to

correct the error. Although the trial court may not

generally unconditionally reduce an excessive award

without affording the prevailing party the option of a new

trial, it may do so when "it is apparent as a matter of law

that certain identifiable sums included in the verdict

should not have been there."

Omnibus Order, Joint App. at 8:8 (citations omitted). The remittitur was reflected

in the final judgment entered by the district court. This appeal followed.

 II.

Appellant's brief does not dispute that, if she was lawfully terminated on

October 1, 1998, her lost back-pay/benefits on the discrimination claim could not

exceed $3,300 -- the difference in salary and benefits between her position and that

of Executive Director from the time of denial of the promotion to her termination

on October 1, 1998.

Central to her argument that the district court erred in reducing the jury's
9

award of $161,000 is the fact that question 4 was improperly worded with regard to

the "same decision" defense offered by WPBHA to the retaliation claim. Question

4 did not precisely ask the jury whether WPBHA would have made the same

decision to terminate appellant for legitimate, non-discriminatory reasons even if

retaliation was a factor. Rather, it asked whether WPBHA "would have"

terminated appellant for "other legitimate" reasons "even without considering

gender." (Emphasis added). Because the quoted final phrase of question 4 is a

misstatement, appellant argues as follows:

Interrogatory No. 4 poses a legally irrelevant question,

namely whether Ms. Holmes would have been terminated

without regard to her gender. In other words, No. 4 did

not require the jury to deliberate about whether legitimate

reasons existed to fire Ms. Holmes even without the

improper retaliatory motivation, and, even more

importantly, No. 4 also did not ask the jury to consider

whether the Authority would have made the same

decision on the same day if it had not improperly

retaliated. Instead, No. 4, when construed as it is written,

simply asked the jury to decide whether Ms. Holmes

would have been terminated at some point for nondiscriminatory reasons.

The argument mounted by appellant, therefore, is that, because the final

phrase of question 4 mistakenly referred to gender instead of retaliation, the jury

understood it to relate solely to the damages period for the discrimination claim,

i.e., whether, if appellant had been promoted to Executive Director, she would
10

eventually (after October 1, 1998) have been legitimately terminated anyway. In

her view, the answer "Yes" justifies the $161,000 award as a finding of lost backpay/benefits over such an extended period of time as a result of the denied

promotion. The question's misstatement is thus relied upon not as error to be

corrected on appeal -- appellant never registered an objection to it -- but rather as a

justification for the lost back-pay/benefits award on the discrimination claim based

on continued employment long after October 1998. This argument is profoundly

flawed, however.

To be sure, question 4 erroneously repeated a portion of the language used in

question 2. A properly worded question 4 would have asked whether the jury

found that appellant would have been "terminated for other legitimate, nondiscriminatory reasons other than retaliation" rather than "gender." See Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1191 (11th Cir. 1997). Nevertheless, the

misstatement, when viewed in context, neither justifies the jury's award nor is error

prejudicial to appellant.

First, appellant's argument makes sense only if one ignores the facts that she

was terminated on October 1, 1998, and her claim for damages after that date was

based solely on the allegation of unlawful retaliation. In effect, she is arguing that

the misstatement in question 4 caused the jury to believe that the fact of her
11

October 1, 1998 termination and her resultant retaliation claim somehow dropped

entirely out of the case. That scenario, however, is wholly implausible.

Appellant's theory at trial was that she was unlawfully denied promotion

because of gender discrimination and should be awarded damages for that denial

up to October 1, 1998. On that date, she argued, she was unlawfully discharged for

retaliatory purposes and should be awarded damages for that unlawful termination

for a period of time after October 1, 1998. We find it inconceivable that the

misstatement in question 4 radically transformed the case from one involving

discrimination in promotion followed by a retaliatory termination to one involving

only discrimination in promotion.

Appellant points to nothing suggesting that, at the time of question 4's

submission to the jury, the parties or the court viewed it as an inquiry regarding

anything but WPBHA's "same decision" defense to the retaliation claim. Question

2 inquired about a similar defense with regard to her discrimination claim, and

question 4 was clearly a counterpart regarding the retaliation claim. Moreover, a

question of the sort hypothesized by appellant, which related to damages solely on

the discrimination claim, would have been entirely out of place in the section of the

verdict form that was exclusively related to the retaliation claim. Indeed, the

instructions following question 4 made it clear to the jury beyond any doubt that a
12

"Yes" answer to question 4 was not to be a speculative judgment regarding what

might have happened had appellant not been terminated on October 1, 1998, but

rather would constitute a verdict for WPBHA on the retaliation claim. We see no

reason, therefore, why a jury would have viewed question 4 as prompting an

inquiry into an issue that was not otherwise pursued in the case and was unrelated

to the retaliation claim. A misstatement occurred, but without consequences

justifying the damages award for lost back-pay/benefits on the discrimination

claim. 

Second, we also conclude that the misstatement in question 4 was harmless

error. As quoted above, the jury had been told in the district court's instructions

that it must consider the "same decision" defense to the retaliation claim, and

question 4's explicit reference to "terminated for other legitimate, nondiscriminatory reasons" made it clear that question 4 related to that defense, 

notwithstanding the final phrase. Even more significantly, the jury had been told

that retaliation was not a legitimate reason for appellant's termination. Therefore, a

"Yes" answer to question 4 still required the jury to find a "legitimate" reason for

termination, a fact that renders the erroneous final phrase meaningless surplusage
2

As noted in the text, appellant does not really claim the error in question 4

to be reversible error. If she did, however, she would have to meet the

requirements of reversal for plain error as a result of the failure to object at trial. 

Those requirements are: (i) an error occurred; (ii) the error was plain; (iii) the error

affected substantial rights; and (iv) not correcting the error would seriously affect

the fairness of the judicial proceeding. Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1329 (11th Cir. 1999) (citing United States v. Olano, 507 U.S. 725, 732

(1993)). There was error, but, even if it was plain, it neither affected substantial

rights nor affected the fairness of the proceeding.

3

In this regard, we do not rely on the disputed stipulation. See S.D. Fla.

Local Rule 11.1(D)(6) (“No agreement between parties or their attorneys, the

existence of which is not conceded, in relation to the proceedings or evidence in an

action, will be considered by the Court unless the same is made before the Court

and noted in the record or is reduced to writing and subscribed by the party or

attorney against whom it is asserted.”). However, appellant's brief does not argue

that, if lost back-pay/benefits are recoverable only to October 1, 1998, they exceed

$3,300.

13

rather than prejudicial error.2

We therefore agree with the district court that the $161,000 for the lost backpay/benefits on the discrimination claim was excessive as a matter of law. We also

believe the district court did not abuse its discretion in declining to offer appellant

the option of a new trial in lieu of accepting remittitur. Given that the lost backpay/benefits from the denial of promotion to October 1, 1998 are quantifiable, it is

"apparent as a matter of law that certain identifiable sums included in the verdict

should not have been there."3

 Carter v. District of Columbia, 795 F.2d 116, 134

(D.C. Cir. 1986). It was therefore not an abuse of discretion, see Bonura v. Sea
14

Land Serv., Inc., 505 F.2d 665, 669 (5th Cir. 1974), to reduce unconditionally the

damage award returned by the jury .

We therefore AFFIRM. Appellee's motion for damages, attorney's fees and

costs pursuant to Federal Rule of Appellate Procedure 38 is denied.