[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-13037

Non-Argument Calendar

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D.C. Docket No. 4:11-cv-00225-HLM

MARCUS ANDERSON,

 Plaintiff-

 Counter Defendant-

 Appellant,

versus

BROWN INDUSTRIES,

 DefendantCounter Claimant-

 Appellee,

MARTY WALKER, et al.,

Defendants-

 Counter Claimants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(June 8, 2015)

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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. 682 F.3d 1299, 1311-12 (11th Cir. 2012). 

We noted that every other circuit had previously recognized such a claim, and that 

it was consistent with Title VII’s text and remedial goal, congressional intent, and 

the Equal Employment Opportunity Commission’s own interpretation of Title VII. 

Id.

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 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., 487 F.3d 1361, 1366 (11th Cir. 2007). 

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, 487 F.3d at 1366 (reviewing the denial of a motion 

for leave to amend a complaint for abuse of discretion). Anderson filed his motion 

approximately eight months after the scheduling order’s deadline for motions to 

amend the pleadings, and did not provide any justification for his untimely request. 

As the district court noted, Gowski was decided nearly six months before Anderson 

filed his motion for leave to amend, during which time Anderson had ample 

opportunity to discover and raise that issue. See Oravec v. Sunny Isles Luxury 

Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008) (stating in order to satisfy 

Rule 16’s good cause standard, the party must show diligence in pursuing his 

claims). Accordingly, the district court did not abuse its discretion in denying 

Anderson’s motion.

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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-Ellerth1 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, 133 S. Ct. 2434, 2439 (2013), which held that, for 

purposes of the Faragher-Ellerth defense, a supervisor is someone with the 

authority to take tangible employment actions against the plaintiff. Additionally, 

Anderson asserts the necessary elements of judicial estoppel were not met.

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., 595 F.3d 1269, 1273 

(11th Cir. 2010) (citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001)). In 

New Hampshire v. Maine, the Supreme Court identified three factors that generally 

inform when judicial estoppel may be invoked: (1) whether the present position is 

 1 The Faragher-Ellerth affirmative defense is derived from the Supreme Court’s 

decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus. v. 

Ellerth, 524 U.S. 742 (1998).

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clearly inconsistent with the prior position; (2) whether the party persuaded the 

court to accept the earlier position, such that acceptance of the inconsistent position 

would create a perception that the court was misled; and (3) whether the party 

advancing the inconsistent position would derive an unfair advantage or impose an 

unfair detriment on the opposing party. 532 U.S. at 750-51.

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, 595 F.3d at 1273. We have held that our two-factor approach is 

consistent with the principles announced in New Hampshire v. Maine. Burnes v. 

Pemco Aeroplex, 291 F.3d 1282, 1285-86 (11th Cir. 2002). To show that a party 

intended to make a mockery of the judicial system, we require that the 

contradicting positions be intentional, not merely inadvertent. Robinson, 595 F.3d 

at 1275. 

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 

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(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 Faragher-Ellerth defense. Accordingly, the district court 

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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, 291 F.3d at 1287 

(reviewing the applicability of judicial estoppel, an equitable doctrine invoked at 

the court’s discretion, for abuse of discretion). 

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 postverdict challenge to Cox’s supervisory status, and Brown was not entitled to the 

Faragher-Ellerth 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., 386 F.3d 993, 1018 (11th Cir. 2004).

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 

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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 Faragher-Ellerth instruction on that basis. 

D. Supervisor Status

Finally, Anderson contends that the district court erred in denying his posttrial 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, 684 F.3d 1211, 

1231 (11th Cir. 2012) (“A party that invites an error cannot complain when its 

invitation is accepted.”). To permit such a challenge would essentially allow 

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Anderson to unfairly benefit from providing insufficient support for his own 

position at trial and punish Brown for failing to provide evidence in support of a 

position it never asserted. We therefore affirm the district court’s denial of 

Anderson’s post-trial motions. Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278, 

1287 (11th Cir. 2011) (reviewing for abuse of discretion the denial of a motion for 

new trial, and reviewing de novo the denial of a Rule 50(b) renewed motion for 

judgment as a matter of law, viewing the evidence in the light most favorable to 

the nonmoving party). 

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.

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