FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 23, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________

No. 06-11419

___________________________

D.C. Docket Nos. 00-03610-CV-RRA-NE

02-03146-CV-RRA

BEVERLY CHAMBLESS,

Plaintiff-Appellant,

versus

LOUISIANA-PACIFIC CORPORATION,

Defendant-Appellee,

_____________________________

 Appeal from the United States District Court 

for the Northern District of Alabama

_____________________________

(March 23, 2007)

Before CARNES, PRYOR and FARRIS,* Circuit Judges.

FARRIS, Circuit Judge:

_____________________________

*Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by

designation.
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 Beverly Chambless, a 48-year-old Caucasian female, alleged that her former

employer Louisiana-Pacific denied her promotions due to her age and gender,

subjected her to a sexually hostile work environment, and retaliated against her for

bringing discrimination complaints, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. Chambless also asserted state law

claims for negligent training, supervision, and retention. 

Two years later, Chambless filed an additional lawsuit alleging that

Louisiana-Pacific terminated her in retaliation for her Equal Opportunity

Employment Commission charge and prior lawsuit. The two cases were

consolidated by a magistrate judge, who dismissed Chambless’s sexual harassment

and state law claims and denied her various motions on the remaining claims. We

affirm.

Chambless argued that although she was told that she was disqualified from

consideration for a promotion due to her failure to properly complete Family

Medical Leave Act paperwork during sick leave, Louisiana-Pacific created the

requirement for the purpose of denying her the promotion based on her gender and

age. She further alleged that numerous instances of sexual harassment occurred

during her employment with Louisiana-Pacific, creating a hostile work
3

environment. Among other things, Chambless alleged that she suffered from:

sexual touching, jokes, and propositions by male employees; a male coworker

raising her dress and placing his head between her legs; ridicule because of her

pregnancy; social isolation; and disparate job conditions such as requiring her to

arrive fifteen minutes earlier than her male coworkers and not allowing her to take

breaks during her shift as a crane operator. Chambless also alleged that

Louisiana-Pacific retaliated against her for filing the complaints by failing to

promote her, eventually firing her using her violation of the company’s smoking

policy as a pretext. 

Chambless’s hostile work environment claim was dismissed as untimely. 

The state law claims predicated on the hostile work environment claim were also

dismissed. The magistrate judge bifurcated trial of the remaining claims (failure to

promote and retaliatory discharge) into liability and damages phases. The jury

returned a verdict for Louisiana-Pacific, finding that although retaliation was a

motivating factor in Chambless’s termination, “the defendant would have fired the

plaintiff for a nondiscriminatory motive anyway.” The jury also found for

Louisiana-Pacific on the failure to promote claim. 

On appeal Chambless makes numerous arguments. We discuss three,

adopting the magistrate judge’s conclusions for the remainder. Chambless argues
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that Louisiana-Pacific failed to articulate a “legitimate” reason for not promoting

her, entitling her to judgment as a matter of law. She argues for a new trial or an

amended judgment based on challenges to the mixed-motive jury instruction,

dismissal of her federal and state claims, and bifurcation of the trial. Finally, she

argues that she consented to the magistrate judge’s jurisdiction over her first, but

not her second, lawsuit. 

I. Motion for Judgment as a Matter of Law

Chambless challenges the magistrate judge’s denial of her Federal Rule of

Civil Procedure 50 motion for judgment as a matter of law. Under Rule 50, a

court may render judgment as a matter of law when there is no legally sufficient

evidentiary basis to find for a party who has been fully heard on an issue. FED. R.

CIV. P. 50. We review Rule 50 motions de novo, viewing the evidence in the light

most favorable to the nonmoving party. Campbell v. Rainbow City, Ala., 434 F.3d

1306, 1312 (11th Cir. 2006). 

Chambless argues that she plead a prima facie case of sex- and age-based

discriminatory failure to promote and that in response Louisiana-Pacific failed to

meet its burden of articulating “some legitimate, nondiscriminatory reason for

[her] rejection.” See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). She asserts that Louisiana-Pacific's proffered reason – that she improperly
5

filled out sick leave paperwork – was a violation of the FMLA and cannot be

“legitimate.” She contends that the presumption of discrimination raised by her

prima facie case therefore stands unrebutted, entitling her to judgment as a matter

of law. See Turnes v. AmSouth Bank, 36 F.3d 1057, 1061 (11th Cir. 1994). 

Chambless's argument was addressed and dismissed by the Supreme Court

in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Hazen Paper, the Court

held that “a disparate treatment claim cannot succeed unless the employee's

protected trait actually played a role in that process and had a determinative

influence on the outcome.” Id. at 610. Thus, proof that Louisiana-Pacific violated

the FMLA is irrelevant to the inquiry into whether Louisiana-Pacific discriminated

against her based on her protected traits. 

Chambless failed to demonstrate that gender and age, her protected traits,

determinatively influenced Louisiana-Pacific’s failure to promote her. The

magistrate judge correctly denied Chambless’s contention that there was no legally

sufficient evidentiary basis to find for Louisiana-Pacific. 

II. Motion for a New Trial or Amended Judgment 

A. Waiver of “Mixed-Motive” Defense

Chambless argues that Louisiana-Pacific waived the affirmative “mixedmotive” defense – which concedes that an improper motive played a role in the
6

employer’s action while asserting that another, valid reason would have resulted in

the same decision – by not properly pleading it. Therefore, she contends, the

magistrate judge erred in instructing the jury on the defense. See FED. R. CIV. P.

8(c) (listing affirmative defenses parties must plead). “We apply ‘a deferential

standard of review’” to a magistrate judge’s jury instructions if they accurately

reflect the law. See Wright v. CSX Transp., Inc., 375 F.3d 1252, 1256 (11th Cir.

2004) (citation omitted). 

We need not decide the extent to which the mixed-motive defense is

governed by Rule 8(c)'s pleading requirements where the defense is included in

the pretrial order and thus gives the plaintiffs and the court sufficient notice. See

Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1185 (11th Cir. 1999). In

Pulliam the mixed-motive defense was included in the pretrial order, though the

defendant did not mention the defense by name, simply alleging that any adverse

employment actions suffered by the plaintiff “were either a result of his own

request or of his unsatisfactory performance in his position.” Id. Here, LouisianaPacific asserted in its answer that its actions against Chambless “were taken,

made, and done in good faith for legitimate non-discriminatory, job-related

business reasons and/or were based on factors other than her reporting alleged

sexual discrimination.” (emphasis added).
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Louisiana-Pacific’s language was less specific than the Pulliam plaintiffs’, 

but it put Chambless on notice that one or more reasons other than retaliation

would be at issue. Given her knowledge that Louisiana-Pacific had purportedly

fired her for smoking in her crane cab, Chambless had warning of what would be

litigated at trial. The magistrate judge did not err in allowing Louisiana-Pacific to

proceed with the mixed-motive defense. 

B. Timeliness of Sexual Harassment Claim 

The magistrate judge granted Louisiana-Pacific summary judgment on

Chambless’s sexual harassment claim, dismissing them as untimely. We review a

grant of summary judgment de novo, viewing evidence in the light most favorable

to the nonmoving party. See Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311

(11th Cir. 2002). Summary judgment is appropriate only if there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(c). 

Discrete acts of harassment actionable as unlawful employment practices,

such as Louisiana-Pacific’s failure to promote and retaliation, fell within the

limitations period. However, the non-discrete acts making up her hostile work

environment claim – which are not individually actionable – fell outside the
A hostile work environment claim depends on “a series of separate acts that collectively 1

constitute one ‘unlawful employment practice.’” Morgan, 536 U.S. at 117 (citation omitted).

8

limitations period. The magistrate judge determined that timely discrete acts of

1

discrimination could not save untimely non-discrete acts, relying on Porter v.

California Department of Corrections, 419 F.3d 885, 892-93 (9th Cir. 2005). 

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the

Supreme Court set forth general principles to determine whether timely acts can

save non-timely acts. It held that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges.” 

Morgan, 536 U.S. at 113. The limitations period begins running the day the

discrete act occurs. Id. In contrast, hostile work environment claims continue to

occur over time. Id. at 117. Thus, the entire time period of the hostile

environment may be considered by a court for the purposes of determining

liability if an act relating to the claim occurred within the filing period. Id. at 120. 

Where the discrete act is sufficiently related to a hostile work environment

claim so that it may be fairly considered part of the same claim, it can form the

basis for consideration of untimely, non-discrete acts that are part of the same

claim. The pivotal question is whether the timely discrete acts are sufficiently

related to the hostile work environment claim. Here, the discrete acts do not meet
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that test. The circumstances surrounding Louisiana-Pacific’s failure to promote

and retaliation against Chambless do not suggest that those discrete acts were the

same type of “discriminatory intimidation, ridicule, and insult” that characterized

the untimely allegations. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The

timely discrete acts are thus not part of the sexual harassment hostile work

environment claim and therefore cannot save the earlier, untimely acts that

comprise that claim. 

Once the magistrate judge dismissed the federal sexual harassment charge,

Chambless was required to establish some other underlying tort in order to prevail

in her state law claims for negligent training, supervision, and retention. See Univ.

Fed. Credit Union v. Grayson, 878 So. 2d 280, 291 (Ala. 2003) (noting “that a

party alleging negligent supervision and hiring must prove the underlying

wrongful conduct”). Chambless argues that certain discriminatory acts that she

alleged constituted assault and battery and invasion of privacy. The statute of

limitations for those torts is two years. ALA. CODE § 6-2-38(l), (n) (1975). The

alleged acts that Chambless argues constituted assault and battery and invasion of

privacy occurred more than two years prior to the date she filed her complaint,

rendering them untimely. Chambless thus failed to prove an underlying state or

federal tort. The magistrate judge properly dismissed the state law claims.
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III. Magistrate Judge’s Jurisdiction over Retaliation Claim 

Chambless argues that she did not expressly consent to the magistrate

judge’s jurisdiction over her retaliation claim, as she did for her earlier action, and

that consolidation of her complaints did not cure that defect. She concludes that

the magistrate judge lacked jurisdiction to adjudicate the second complaint and it

should be remanded for trial before an Article III judge. 

Although we have required that consent to a magistrate judge’s jurisdiction

be “express and on the record,” Rembert v. Apfel, 213 F.3d 1331, 1334 (11th Cir.

2000), the Supreme Court held in Roell v. Withrow, 538 U.S. 580 (2003), that

consent to a magistrate judge’s jurisdiction can be inferred from a party’s conduct

during litigation. Id. at 582. The Court refused to adopt a bright-line rule

requiring express consent, instead accepting implied consent “where . . . the

litigant or counsel was made aware of the need for consent and the right to refuse

it, and still voluntarily appeared to try the case before the Magistrate Judge.” Id. at

589-90. 

Chambless consented to the magistrate judge’s jurisdiction over her original

case and thus knew of the need for consent and the right to refuse it. She made no

objection to the magistrate judge’s jurisdiction over her retaliation claim for eight

months, waiting instead until six days prior to trial. Eight months of continual
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participation in pretrial proceedings justifies the inference of consent from a

litigant aware of the need to consent.

AFFIRMED.