[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-13563

Non-Argument Calendar

________________________

D.C. Docket No. 4:13-cv-00031-RH-CAS

VALERIE DAVIS, 

 Plaintiff-Appellee,

 versus

FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(May 18, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM: 

The Florida Agency for Health Care Administration (“FAHCA”) appeals 

from the district court’s denial of its renewed motion for judgment as a matter of 

law, motion for new trial, and motion for remittitur, in a suit raised by Valerie 

Case: 14-13563 Date Filed: 05/18/2015 Page: 1 of 9 
2

Davis, an African-American, pursuant to Title VII of the Civil Rights Act (“Title 

VII”) and the Florida Civil Rights Act (“FCRA”). On appeal, it argues that: (1) the 

district court erred by denying its motion for judgment as a matter of law because 

Davis failed to present evidence that she suffered a materially adverse action or 

evidence that her discrimination grievance was the but-for cause of any adverse 

action taken against her; (2) the district court abused its discretion by denying its 

motion for a new trial because Davis presented a retaliatory hostile work 

environment theory during closing arguments but did not request a jury instruction 

for that claim; and (3) the court clearly abused its discretion by denying its motion 

for a new trial or remittitur because the jury’s award of compensatory damages for 

Davis’s mental and emotional anguish was not supported by the evidence. After 

thorough review, we affirm.

We review the denial of a motion for judgment as a matter of law de novo. 

Howard v. Walgreen Co., 605 F.3d 1239, 1242 (11th Cir. 2010). We consider the 

evidence in the light most favorable to the nonmoving party. Id. We do not make 

credibility determinations or weigh the evidence. Hubbard v. BankAtlantic

Bancorp, Inc., 688 F.3d 713, 724 (11th Cir. 2012). We consider evidence 

supporting the nonmovant’s case, as well as uncontradicted and unimpeached 

evidence supporting the movant that comes from disinterested witnesses. Id. We 

apply decisions construing Title VII when considering a claim under the FCRA, 

Case: 14-13563 Date Filed: 05/18/2015 Page: 2 of 9 
3

and thus, do not address Davis’s FCRA retaliation claim separately. Harper v. 

Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). 

We review the denial of a motion for a new trial for abuse of discretion. 

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1196 (11th Cir. 2004). 

We review a jury instruction deferentially, and will only grant a new trial for an 

erroneous instruction if the instructions did not accurately reflect the law and we 

are “left with a substantial and ineradicable doubt as to whether the jury was 

properly guided.” Id. (quotation omitted). However, an appellant waives its right 

to challenge an improper jury instruction on appeal if it did not timely object to the 

instruction before the district court, unless the error affected its substantial rights. 

Badger v. S. Farm Bureau Life Ins. Co., 612 F.3d 1334, 1342 (11th Cir. 2010).

We review an allegedly improper statement during closing argument for 

plain error when the appellant makes no objection to the argument before the 

district court. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir. 

2002). To show plain error, the defendant must show (1) an error, (2) that is plain, 

and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 

1276 (11th Cir. 2007). If the defendant satisfies the three conditions, we may 

exercise our discretion to recognize the error if it “seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” Id. “A finding of plain 

error is seldom justified in reviewing argument of counsel in a civil case.” Brough, 

Case: 14-13563 Date Filed: 05/18/2015 Page: 3 of 9 
4

297 F.3d at 1179 (quotation omitted). Finally, we review a district court’s decision 

to sustain a jury’s award of compensatory damages for clear abuse of discretion. 

Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003). We defer to the fact 

finder’s award of damages for intangible, emotional harm because the evaluation 

of these harms depends heavily on the consideration of witnesses’ demeanors. Id. 

A damage award is presumptively valid if a district court has reviewed and upheld 

the award. Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999). 

First, we are unpersuaded by FAHCA’s claim that the district court erred by 

denying its motion for judgment as a matter of law concerning Davis’s 

discrimination claim. A judgment as a matter of law is granted to a defendant 

when the plaintiff fails to present a sufficient evidentiary basis for a reasonable 

jury to find in her favor on a material element of her claim. Howard, 605 F.3d at 

1242. When a substantial conflict in the evidence exists, and reasonable people 

may reach different conclusions, the motion for judgment as a matter of law must 

be denied. Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).

To raise a successful retaliation claim under Title VII, a plaintiff must show 

that: (1) she engaged in statutorily protected activity; (2) she suffered a materially 

adverse action; and (3) a causal connection existed between the protected activity 

and the adverse action. Howard, 605 F.3d at 1244. After the plaintiff establishes 

these elements, the defendant must articulate a legitimate, nonretaliatory reason for 

Case: 14-13563 Date Filed: 05/18/2015 Page: 4 of 9 
5

the challenged action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 

(11th Cir. 2008). If the defendant provides a nonretaliatory reason, then the 

plaintiff must show that the defendant’s reason is a pretext for retaliation. Id. 

In retaliation cases, a materially adverse action is any action that may 

dissuade a reasonable worker from making or supporting a discrimination charge.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In 

Burlington, the Supreme Court noted that the significance of a retaliatory act 

depends on the context of the act, and a specific action may be materially adverse 

in some situations but immaterial in others. Id. at 69. We’ve said that “Burlington

also strongly suggests that it is for a jury to decide whether anything more than the 

most petty and trivial actions against an employee should be considered materially 

adverse to him.” Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008) 

(quotation omitted). We’ve held that an employee suffers a materially adverse 

action when she receives an unfavorable performance review that affects her 

eligibility for a pay raise. Id. at 974. We’ve also noted that a set of actions may 

constitute an adverse employment action when considered collectively, even if 

some actions do not rise to the level of an adverse employment action individually. 

Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002). 

To show a causal connection, the plaintiff must show that the decisionmaker 

was aware of her protected conduct, and that the protected activity and adverse 

Case: 14-13563 Date Filed: 05/18/2015 Page: 5 of 9 
6

action were not wholly unrelated. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 

(11th Cir. 2013). In the absence of other evidence demonstrating causation, a 

three-month interval between the protected activity and the adverse action is too 

long to show causation through temporal proximity. Brown v. Ala. Dep’t of 

Transp., 597 F.3d 1160, 1182 (11th Cir. 2010). A plaintiff in a Title VII retaliation 

case must also show that retaliatory animus was the but-for cause of the challenged 

adverse action. Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014). We 

have noted that a jury may infer that a defendant’s action was retaliatory if it is 

permitted to disbelieve the defendant’s explanation for the action. Id.

In this case, Davis presented sufficient evidence for a reasonable jury to 

conclude that she suffered retaliation. As the record reveals, Davis demonstrated 

first that she had engaged in statutorily protected activity with evidence of the 

grievance she filed with FAHCA’s human resources department. Second, she 

showed that she had suffered a materially adverse action with evidence of the 

unsatisfactory performance evaluation Suzanne Hurley gave her that constituted 

the first step to Davis being fired from FAHCA. As for establishing a causal 

connection, she demonstrated that the evaluation was not wholly unrelated to her 

grievance because Hurley raised complaints about Davis’s poor grammar, 

insubordination, and lack of communication in the evaluation that only began after

she learned about Davis’s grievance. She also presented enough evidence for a 

Case: 14-13563 Date Filed: 05/18/2015 Page: 6 of 9 
7

jury to reasonably conclude that her grievance was the but-for cause of the 

retaliatory action, since Davis testified that Hurley got along well with her until she 

was interviewed about the discrimination grievance. Furthermore, the jury could 

have reasonably inferred retaliatory animus because Davis presented sufficient 

evidence for the jury to disbelieve FAHCA’s explanations for Hurley’s actions 

towards Davis. Therefore, the district court did not err by denying FAHCA’s 

renewed motion for judgment as a matter of law for Davis’s retaliation claim.

We are also unconvinced by FAHCA’s argument that the district court 

abused its discretion by denying the motion for a new trial concerning Davis’s 

retaliatory hostile work environment claim. For starters, FAHCA waived its right 

to challenge the omission of a retaliatory hostile work environment instruction 

because it did not object to the court’s exclusion of that instruction. Badger, 612 

F.3d at 1342. Moreover, since Davis did not prevail on a retaliatory hostile work 

environment claim at trial, FAHCA has not shown that the exclusion of this theory 

of liability from the jury instructions affected its substantial rights. Nor did the 

court commit any error, plain or otherwise, by permitting Davis to state during her 

closing argument that a hostile environment was part of the retaliatory conduct. As 

the record shows, Davis did not argue a retaliatory hostile work environment 

theory during her closing argument; instead, she said only that this environment 

was part of the materially adverse action taken against her by FAHCA for purposes 

Case: 14-13563 Date Filed: 05/18/2015 Page: 7 of 9 
8

of her retaliation claim. She accurately informed the jury that they had to find a 

materially adverse action taken against her because of her grievance in order to 

conclude that she suffered from retaliation, and explained that a set of actions may 

constitute a materially adverse action when considered in the aggregate, even if 

individual actions do not rise to a materially adverse action. Shannon, 292 F.3d at 

716. As for FAHCA’s argument that it should have been granted judgment as a 

matter of law because Davis improperly argued for a retaliatory hostile work 

environment, it is meritless. As we’ve already held, the district court correctly 

concluded that the jury had sufficient evidence to reasonably conclude that 

FAHCA was liable for retaliation. Therefore, the district court did not abuse its 

discretion by denying FAHCA’s motion for a new trial.

Finally, we reject FAHCA’s claim that the court clearly abused its discretion 

by denying its motion for a new trial or remittitur because the jury’s award of 

compensatory damages for Davis’s mental and emotional anguish was not 

supported by the evidence. General compensatory damages do not have to be 

proven with a high degree of specificity, and they may be inferred from the 

circumstances or proven through testimony. Akouri v. Fla. Dep’t of Transp., 408 

F.3d 1338, 1345 (11th Cir. 2005). A plaintiff’s own testimony may support an 

award of compensatory damages for emotional distress, but the testimony must 

consist of more than conclusory statements that the plaintiff suffered from 

Case: 14-13563 Date Filed: 05/18/2015 Page: 8 of 9 
9

emotional distress. Id. Thus, we’ve previously affirmed a denial of remittitur for a 

damages award of $300,000 based on the plaintiff’s mental anguish when the 

plaintiff testified that he became physically ill due to the discrimination against 

him, he lost 40 pounds in five months, he lost self-esteem, he felt degraded when 

having to train someone for the position he wanted, and he heard jokes about the 

denial of his promotion. Ash v. Tyson Foods, Inc., 664 F.3d 883, 899-900 (11th 

Cir. 2011). In Ash, the plaintiff’s wife also testified that the plaintiff withdrew 

from relationships with his family following the denied promotion, his 

relationships deteriorated, and he lost a lot of weight. Id. at 900.

At trial, Davis presented sufficient evidence of mental and emotional 

anguish to support the jury’s award of compensatory damages. As in Ash, Davis 

testified that she suffered from weight fluctuations and stopped going to events 

with friends due to the stress caused by Hurley’s actions. She was embarrassed 

when Hurley wore a mask after she left Hurley’s office due to Hurley’s claim that 

she wore a noxious perfume, and this lowered her self-esteem. She added that she 

lost friends at work and that co-workers were afraid to talk to her. Since Davis 

presented detailed evidence of her emotional harm, and since the jury’s award is 

presumptively valid, the district court did not clearly abuse its discretion by 

denying FAHCA’s motion concerning the jury’s award of compensatory damages.

AFFIRMED.

Case: 14-13563 Date Filed: 05/18/2015 Page: 9 of 9