USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 1 of 25
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 17-14783 and 18-14082 ________________________
D.C. Docket No. 2:12-cv-00598-AKK
DANA ANDERSON, Plaintiff-Appellant-Cross Appellee,
BELINDA BEVERLY, KARI WALKER, KATHY LACKEY, Plaintiff-Appellants
versus
SURGERY CENTER OF CULLMAN, INC., SURGICAL CARE AFFILIATES, LLC, et al.,
Defendant-Appellees,
KEVIN JOHNSON, Defendant-Appellee-Cross Appellant. ________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________ (December 22, 2020) USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 2 of 25
Before JORDAN, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
These two consolidated appeals present a number of issues related to sexual
harassment. We assume the reader’s familiarity with the underlying facts and
write solely for the parties. We discuss the facts below as necessary to explain our
rulings.
I. INTRODUCTION
Plaintiffs Dana Anderson, Belinda Beverly, Kari Walker, and Kathy Lackey
brought Title VII claims against their employer, Surgical Care Affiliates, LLC
(“SCA”), and numerous state-law claims, including negligent/wanton
hiring/training/supervision/retention, invasion of privacy, assault and battery, and
intentional infliction of emotional distress (or “outrage”), against SCA, its
corporate affiliates, and Dr. Kevin Johnson.
We briefly set out the facts relevant to this appeal, construing the evidence
and all reasonable inferences arising from it in the light most favorable to
plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). SCA,
plaintiffs’ former employer, operates Surgery Center of Cullman, an outpatient
surgery center in Alabama, through its wholly owned subsidiary Surgery Center of
Cullman, Inc. (“SCC”). Johnson is an anesthesiologist who contracted with SCC
to provide anesthesia services to the Center. Through another services agreement, 2 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 3 of 25
Johnson served as the Center’s Medical Director. This role meant that Johnson
was usually at the top of the Center’s chain-of-command on any given day.
SCA contracted with SCC to provide SCA employees to staff the Center,
and SCA manages the Center’s daily operations under the contract. The plaintiffs
were four of these employees. Anderson was a registered nurse who worked at the
Center from 2006 to March 7, 2012. Lackey was a registered nurse from June
2010 to March 2011. Both nurses worked with Johnson daily.
Anderson testified that, since her employment began, Johnson intimidated
and harassed her. He choked her, kicked her, pulled her hair, and kissed her. He
wrote a “sex word of the week” on her calendar, threatened her, and passed around
a picture of Anderson on her hands and knees while making inappropriate
comments. Anderson anonymously complained of this behavior in February 2010.
After the complaint, Johnson ceased some but not all of this behavior. He referred
to Anderson and Lackey as lesbians and told them to “get a room,” forcefully
hugged Anderson, made lewd remarks about Anderson to Lackey while inserting a
catheter, talked about young female patients’ “pubic scrapes,” discussed
employees’ looks in public, and called another employee “the biggest slut in
Joppa.”
In October 2010, at a Halloween party, Lackey testified that Johnson pulled
on the tail of her costume, a tiger mascot, and made a sexual reference. She
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testified that Johnson called her “baby” and referred to women as “bitches.” He
hugged her and tapped her shoulders. She also testified that she saw Johnson
require Anderson to “beg” for routine assistance, inappropriately touch or eat her
food and drink, and call her names.
The plaintiffs complained of Johnson’s harassing conduct on January 19,
2011. Center Administrator Lori Bates reported the complaints to SCA Regional
Vice President Tom Gill and SCC Board Member Dr. Greg Windham; all three
met with plaintiffs on January 21, 2011. SCC’s Medical Executive Committee met
on March 2, 2011; there, the Committee terminated the Medical Director services
agreement with Johnson and requested that he self-report to the Alabama Physician
Health Program and take an eight-week leave of absence. Plaintiffs testified that
Johnson did not engage in any more sexually harassing behavior after the 2011
investigation.
Lackey resigned in March 2011. Johnson returned from his leave in May
2011 to resume providing anesthesia services to the Center. Anderson testified that
after she complained, she was given extra job duties as the Center’s new safety
officer. She decided at the end of 2011 that she could no longer work with
Johnson, feeling that he was a threat to her life and nursing license. She resigned
her employment in March 2012.
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Lackey’s claims for Title VII hostile work environment (against SCA), Title
VII constructive discharge (against SCA), and the tort of outrage (against Johnson)
were rejected by the district court on summary judgment.
Beverly and Walker accepted offers of judgment from the defendants.
Some of Anderson’s claims were dismissed on summary judgment, including, as
relevant here, her Title VII constructive discharge claim against SCA. The rest of
her claims proceeded to trial. The jury found for Anderson on her hostile work
environment claim against SCA, awarding her $250,000 in compensatory damages
and $250,000 in punitive damages. The jury found Johnson liable for both assault
and battery and the tort of outrage, awarding $200,000 in compensatory damages
and $50,000 in punitive damages for each tort. Because of Title VII’s statutory
cap on damages, see 42 U.S.C. § 1981a(b)(3)(D), the jury’s $1,000,000 verdict was
reduced to $800,000.
Post-trial, Johnson filed a motion for a new trial or remittitur of damages,
which the district court denied. Johnson also filed a renewed motion for judgment
as a matter of law as to Anderson’s outrage claim. The district court granted this
motion, concluding that Anderson had not demonstrated the requisite severe
emotional distress, and vacated the jury’s $250,000 award on the outrage claim.
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The plaintiffs filed a petition for attorneys’ fees and costs. The district court
awarded fees of $1,320,081.81. The basis for this fee award is discussed more
thoroughly below.
II. DISCUSSION
The parties appeal various aspects of the district court’s decisions below.
Anderson appeals the denial of her constructive discharge claim at summary
judgment and the grant of Johnson’s post-trial motion for judgment as a matter of
law on her outrage claim. Anderson, Beverly, and Walker collectively appeal the
district court’s fee award. Lackey appeals the district court’s grant of summary
judgment to SCA denying her hostile work environment, constructive discharge,
and outrage claims. And Johnson appeals the denial of his motion for remittitur or
a new trial on Anderson’s assault and battery claim. We will address each issue in
turn.
A. Anderson’s Constructive Discharge Claim
Anderson appeals the district court’s grant of summary judgment against her
on her constructive discharge claim. Reviewing de novo, we will affirm. Battle v.
Bd. of Regents for Ga., 468 F.3d 755, 759 (11th Cir. 2006).
Constructive discharge claims are appropriate when “an employer
discriminates against an employee to the point such that his working conditions
become so intolerable that a reasonable person in the employee’s position would
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have felt compelled to resign.” Green v. Brennan, __ U.S.__, 136 S. Ct. 1769,
1776 (2016) (citing Pa. State Police v. Suders, 542 U.S. 129, 141 (2004)); Fitz v.
Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003). The
intolerableness inquiry is objective and requires more than the minimum necessary
to prove a Title VII hostile work environment claim. Walton v. Johnson &
Johnson Servs., Inc., 347 F.3d 1272, 1282 (11th Cir. 2003).
Anderson has not identified any reversible error in the district court’s grant
of summary judgment on her constructive discharge claim. It is apparent from
reviewing the record and Anderson’s factual contentions that she did not, after
complaining, suffer any further sexual harassment. She herself so testified.
Moreover, while her brief and oral argument intimated that she was required by her
new job as Safety Officer to spend time alone and after hours with Johnson, there
is in fact no record evidence that the two were ever alone again. Indeed,
Anderson’s deposition testimony and affidavit indicate that SCA management
accommodated her request not to work alone with Johnson. Anderson was asked
in her deposition: “After the complaint in 2011, were you ever alone with Dr.
Johnson.” Answer: “No, ma’am.” Anderson deposition, Doc. 140-31, at 150. In
her affidavit, Anderson affirmatively stated: “After the 2011 investigation, I
refused to close the facility at night alone with Johnson. Hammock, Gill, Crook
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and Bates assured me that I would not be put in the position to be alone with
Johnson.” Anderson affidavit, Doc. 178-3, at 280.
Anderson identifies little other evidence of a work environment that exceeds
the standard necessary to find a hostile work environment. The sole instance of
offensive sexual conduct (after her 2011 complaint) to which she points is the
inappropriate labels on desserts at the Center’s 2011 Halloween party. While
distasteful at the very least, this isolated incident is simply not enough to form the
basis for a constructive discharge claim. Anderson also argues that she was given
additional job duties upon complaining, and that Johnson stated that if the Center
gave her more and more duties, she would quit. But she cites no case law
supporting the proposition that the imposition of new duties, standing alone, can
contribute to an “intolerable” work environment worse than a hostile work
environment.
Moreover, Anderson raised this imposition of new duties as a major part of
her retaliation claim in the district court. The district court rejected this claim at
summary judgment, and Anderson did not appeal. Now on appeal, Anderson uses
it in support of her constructive discharge claim. The new job duties could
theoretically show retaliation by her employer—although the district court
concluded that the facts did not bear this out—but the facts here do not rise to the
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level of a sufficiently intolerable work environment to constitute constructive
discharge.
We therefore affirm.
B. Anderson’s Outrage Claim Against Dr. Johnson
Anderson argues that the district court was wrong to grant Johnson’s
renewed motion for judgment as a matter of law on her outrage claim. 1 We review
the court’s decision de novo. Thosteson v. United States, 331 F.3d 1294, 1298
(11th Cir. 2003).
Alabama’s tort of outrage has three elements: the defendant’s conduct must
(1) be intentional/reckless, (2) be extreme and outrageous, and (3) cause emotional
distress so severe that no reasonable person could be expected to endure it. Wilson
v. Univ. of Ala. Health Serv. Found., P.C., 266 So.3d 674, 676 (Ala. 2017). The
district court concluded that a reasonable jury could not find that Anderson
suffered “emotional distress so severe that no reasonable person could be expected
to endure it.” The court noted that there was no outward signifier or manifestation
of the severity of her distress. Anderson did not seek medical attention or take
1 A party is entitled to judgment as a matter of law only when there is no legally sufficient evidentiary basis for a reasonable jury to find for the other party on that issue. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148-51 (2000). 9 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 10 of 25
medication, didn’t experience sleep deprivation or weight fluctuations, and in fact
sought to work additional hours.
The district court held that Alabama courts “generally require more evidence
of distress than the plaintiff’s testimony that they were upset, uncomfortable, or
afraid,” and usually involve “some outward signifier or manifestation of the
severity of distress to satisfy the injury component of an outrage claim.” For
example, Cates v. Taylor, 428 So.2d 637, 639-40 (Ala. 1983), found severe
emotional distress when the plaintiff “suffered from sleeplessness and from weight
loss” in addition to crying, nervousness, embarrassment, and humiliation. And
Harrelson v. R.J., 882 So.2d 317, 322 (Ala. 2003), noted that the plaintiff had
sought mental health treatment, suffered nightmares and suicidal thoughts, and
occasionally became “hysterical.” 2 Even the cases cited by Anderson, including
Travelers Indemnity Co. of Illinois v. Griner, 809 So.2d 808 (Ala. 2001), involved
some clear physical manifestation of emotional distress, such as “increased pain,
2 See also Holmes v. Oxford Chems., Inc., 672 F.2d 854, 856-57 (11th Cir. 1982) (noting the “ample evidence by psychiatric and other medical witnesses as well as lay persons that after the arbitrary reduction of his monthly payment from $500 to $49 Holmes suffered severe depression, emotional stress and physical weakness”); K.M. v. Ala. Dept. of Youth Servs., 360 F. Supp. 2d 1253, 1261 (M.D. Ala. 2005) (finding severe emotional distress when the plaintiff was so affected by sexual and physical assault that she cut herself, bit her wrists, and made “suicide gestures” to hospital staff); Zeigler v. Elmore Cnty. Health Care Auth., 56 F. Supp. 2d 1324, 1327-28 (M.D. Ala. 1999) (finding no evidence of severe emotional distress because one plaintiff “has [n]ever sought counseling or taken medication for this distress” or “had any trouble sleeping since the incident”); U.S.A. Oil, Inc. v. Smith, 415 So.2d 1098, 1100-01 (Ala. 1982) (holding that plaintiff who testified that she could not sleep, was upset, and frequently cried could not show severe emotional distress); Am. Rd. Serv. Co. v. Inmon, 394 So.2d 361 (Ala. 1980) (holding that weight loss and insomnia did not constitute sufficient distress). 10 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 11 of 25
sleep deprivation, and clinical depression for five years.” Id. at 812. While
Anderson was subjected to repugnant conduct, she is not able to demonstrate
unendurable and severe emotional distress due to that conduct.
Although we do not read the district court ruling in this regard as a holding
that some outward signifier of extreme emotional distress is an absolute necessity
in every outrage case—nor do we—it is clear that the Alabama cases almost
always involve some such sign in order to get to the jury. When asked at oral
argument whether there were any Alabama cases that allowed an outrage claim to
go to the jury without some such outward signifier, counsel for plaintiff could
name only cases concerning the defiling of cemetery plots or dead bodies.
However, those cases involve situations of emotional distress so severe that the
Alabama courts appear to presume that no reasonable person could be expected to
endure it. See Whitt v. Hulsey, 519 So.2d 901, 903 (Ala. 1987); Martin v. Hodges
Chapel, LLC, 89 So.3d 756, 760 (Civ. App. Ala. 2011).
We cannot conclude that the district court erred in holding that there simply
was not sufficient evidence in this record that a jury could find that the outrage
standard has been met—i.e., that Anderson has suffered “emotional distress so
severe that no reasonable person could be expected to endure it.” We cannot
conclude that there was no reasonable nurse who could be expected to endure
association with the post-leave-of-absence Johnson in the employment. We
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acknowledge that Anderson had been subjected to crude and offensive conduct, but
most of that conduct attributable to Johnson was sexual harassment which had
ceased as the result of plaintiffs’ complaints, as Anderson herself testified.
According to Anderson’s counsel at oral argument, the culminating trigger causing
Anderson’s resignation was the failure of SCA to seriously consider her plea not to
be required to close up with Johnson. However, counsel’s assertion is not
supported in the record. Anderson testified that, after Johnson’s return from his
forced leave of absence, Johnson engaged in no further sexual harassment, and she
was not required to be alone again with Johnson. Moreover, Johnson is the only
defendant in Anderson’s outrage claim, and Johnson would not be fully
responsible for such actions of SCA management in any event.
Given the limited nature of the Alabama court of outrage, Ex parte Crawford
and Co., 693 So.2d 458, 459 (Ala. 1997), we cannot conclude that the district court
erred in granting Johnson’s post-trial judgment as a matter of law on Anderson’s
claim of outrage under Alabama law.
C. Lackey’s Hostile Work Environment Claim
Lackey appeals the district court’s grant of summary judgment with respect
to SCA’s liability for the hostile work environment created by Johnson’s sexual
harassment. We will affirm.
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Because SCA’s Faragher/Ellerth defense3 is clear, we assume arguendo –
but expressly do not decide – that plaintiff Lackey’s hostile environment claim
satisfies the severe or pervasive standard.4 Accordingly, we turn our discussion to
the Faragher defense.
We conclude that Lackey’s hostile environment claim fails because Lackey
has failed to show that SCA is liable for the alleged conduct. The parties dispute
the proper standard for holding SCA liable for Johnson’s conduct. Lackey argues
that Johnson was her supervisor, and therefore SCA must satisfy the
Faragher/Ellerth defense to avoid liability. SCA, on the other hand, argues that
Johnson was neither Lackey’s supervisor nor an SCA employee, and therefore
Lackey must show that SCA knew or should have known of the harassment but
failed to take prompt remedial action. Beckford v. Dep’t of Corr., 605 F.3d 951,
957-58, 960-61 (11th Cir. 2010) (negligence standard, rather than Faragher/Ellerth,
applies when harassment conducted by someone other than supervisor, including
coworkers and third parties). We will assume arguendo that Johnson was Lackey’s
3 See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). 4 We acknowledge some doubts about some of Lackey’s belated assertions of sexual harassment, and it is obvious that Lackey’s claim of sexual harassment is weaker than is Anderson’s. But because SCA’s Faragher/Ellerth is so clear, we need not decide whether Lackey has satisfied the severe or pervasive threshold.
13 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 14 of 25
supervisor and that SCA must satisfy the Faragher/Ellerth defense to avoid
liability.
We conclude that SCA has satisfied its burden under the Faragher/Ellerth
defense. The defense has two elements: (1) that “the employer exercised
reasonable care to prevent and correct promptly any sexually harassing behavior;”
and (2) that the victimized employee “unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). This
standard protects responsible employers who have effective sexual harassment
policies and grievance processes. The employer bears the burden of proof on both
elements. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir.
2001).
SCA satisfied the first element: demonstrating reasonable care in preventing
and promptly correcting sexually harassing behavior. SCA has a detailed anti-
harassment policy of which Lackey was aware. Upon receiving reports of
Johnson’s behavior, SCA administrators immediately asked for written statements
and promptly limited Johnson’s contact with the nurses. SCA participated in
terminating Johnson’s status as medical director at the facility; Johnson was
required to take a remedial course and an eight-week leave of absence. Whether or
not the nurses’ complaints were discouraged, as Lackey contends, or immediately
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taken seriously, as SCA argues, it is clear from the record that SCA and the other
corporate defendants moved promptly, terminating the facility’s medical director
services agreement with Johnson and requesting that he take an eight-week leave
and report to the Alabama Physician Health Program.
Most importantly, and dispositive of this issue, Lackey admits that there was
no sexual harassment after she and the other nurses filed their complaints; this
demonstrates that SCA’s remedial actions were adequate. This is sufficient to
satisfy the first prong of the defense. See Baldwin v. Blue Cross/Blue Shield of
Ala., 480 F.3d 1287, 1305 (11th Cir. 2007) (“We have held that even if the process
in which an employer arrives at a remedy in the case of alleged sexual harassment
is somehow defective, the defense is still available if the remedial result is
adequate. In other words, a reasonable result cures an unreasonable process.”
(citation omitted)); Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1288
(11th Cir. 2003) (“[W]here the substantive measures taken by the employer are
sufficient to address the harassing behavior, complaints about the process under
which those measures are adopted ring hollow.”).
SCA also satisfied the second element: demonstrating that Lackey
unreasonably failed to take advantage of preventive or corrective opportunities.
Lackey reported Johnson’s harassment in January 2011. The parties disagree on
when she first experienced harassment, but one significant incident involving
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physical manipulation of Lackey’s Halloween costume coupled with a suggestive
comment occurred in October 2010. The record suggests that harassment may
have occurred even earlier, perhaps as early as June 2010, when she witnessed
Johnson’s harassment of Anderson. Lackey waited at least three months (from
October 2010 to January 2011) to report Johnson, a length of time that this court
has previously concluded constitutes unreasonable delay. Under our precedent,
this three-month wait is too long to satisfy the “prompt reporting duty under the
prophylactic rules the Supreme Court built into Title VII in the Faragher and
Ellerth decisions.” 480 F.3d at 1306. Baldwin held that a 3.5 month delay from
the first incident of harassment was not prompt; this court has held that a 2.5
month delay was also too long. Walton, 347 F.3d at 1289. And if the harassment
began even earlier, she waited even longer than that.
Lackey’s contention that she delayed complaining because she feared SCA
would ignore her complaints and retaliate against her is unavailing because the fact
that prior complaints failed to stop harassment does not mean that the employer
was ineffective, or that future complaints would be futile. Moreover, because there
was no evidence that SCA or Johnson had either discharged employees or engaged
in other adverse employment actions, Lackey’s fear of retaliation was
unreasonable. Again under Baldwin, a plaintiff in an “extreme case may have
reasons for not reporting harassment earlier that are good enough to excuse the
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delay,” 480 F.3d at 1307, but mine-run, generalized fears of retaliation are not
enough to justify a typical reporting delay. This cannot be considered an extreme
case, especially since Lackey’s briefing does not cite any instances of prior
complaints leading to concrete retaliation by SCA.
D. Claims of Plaintiffs Anderson, Beverly, and Walker with Respect to Attorneys’ Fees Awarded by the District Court to these Three Prevailing Parties
Anderson, Beverly, and Walker appeal the district court’s attorneys’ fee
award on two grounds: that it erroneously reduced its lodestar calculation by 10%
for purported block billing by two plaintiffs’ attorneys, and that it erroneously
reduced the resulting fee award by 20% for limited success.
While summary judgment was pending, two plaintiffs, Beverly and Walker,
accepted offers of judgment of $187, 500 and $450,000 respectively. The offers
resolved all claims and included “reasonable attorney’s fees and costs.”
Anderson prevailed at trial on her Title VII hostile environment claim and
two state law torts. The jury awarded her $500,000 for the Title VII claim and
$250,000 apiece for the state torts. The district court reduced her Title VII award
to the $300,00 maximum permitted under 42 U.S.C. § 1981a and granted
Johnson’s motion for judgment as a matter of law on the Anderson’s outrage
claim, leaving a total award of $550,000.
All three plaintiffs submitted a petition for attorneys’ fees. The district court
established a reasonable hourly rate for attorneys and paralegals and turned to the 17 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 18 of 25
number of compensable hours. He concluded that the time spent on the state law
claims against Johnson should be included in the calculation because they shared a
common core with the compensable Title VII claims. And he struck 270.85 hours
of paralegal time as non-compensable administrative tasks.
The district court identified instances of “block billing” by two attorneys,
and determined that the remaining hours were unreasonably high because of block
billing. The district court reduced all claimed hours (by all attorneys and
paralegals) by 10%, establishing a lodestar of $1,650,102.26.
The district court then reduced that sum by 20%. Applying Hensley v.
Eckerhart, 461 U.S. 424 (1983), the court concluded that Anderson’s “partial
success” and success on “only some of [her] claims for relief” justified a
downward departure in fees. This led to a final fee of $1,320,081.81.
Fee awards are reviewed for abuse of discretion; reversal requires a clear
error of judgment, a failure to follow the proper legal standard or process, or a
reliance on clearly erroneous findings of fact. Gray ex rel. Alexander v. Bostic,
613 F.3d 1035, 1039 (11th Cir. 2010). “This standard necessarily implies a range
of choices, and we will affirm even if we would have decided the other way if it
had been our choice.” Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d 1159,
1163 (11th Cir. 2017) (cleaned up).
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First, we address the plaintiffs’ challenge to the district court’s 10% across-
the-board reduction of the lodestar because of block billing. Plaintiffs do not
challenge a 10% reduction of the hours billed by Ms. Pearson, implicitly
acknowledging that she engaged in the improper practice frequently. However,
plaintiffs do challenge the 10% reduction of Ms. Haynes’s hours, arguing that the
district court cited only two examples of such billing by her. And plaintiffs also
challenge the district court’s application of the 10% reduction to the hours billed
by the other attorneys and paralegals with respect to whom the district court
identified no examples of block billing. However, the district court’s reference to
the two examples of Ms. Haynes’ improper billing were explicitly cited as mere
examples. We believe that the district court perceived the practice as a frequent
problem with counsel for plaintiffs. See Dist. Ct. Opinion, Doc. 402, at 37
(referring to the “general block billing practice.”). Incidentally, we note that the
billing of Ms. Pearson and Ms. Haynes constituted the overwhelming majority of
the hours and dollars billed. We cannot conclude that the district court abused its
broad discretion in this regard.
Next, we address plaintiffs’ challenge to the district court’s imposition of a
20% across-the-board reduction of the lodestar because of their limited success.
The district court properly applied the Hensley standard applicable when claims
involve a common core of operative facts. In such situations, Hensley held:
19 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 20 of 25
[T]he district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Hensley, 461 U.S. at 435. Considering that overall relief, the district court
concluded that the verdict was still “limited in comparison to the scope of the
litigation as a whole.” Dist. Ct. Op., Doc. 402, at 37 (quoting Norman v. Housing
Auth. of the City of Montgomery, 836 F.3d 1292, 1302 (11th Cir. 1988)). We
cannot conclude that the district court abused its discretion. There were
significant claims on which plaintiffs did not prevail. Plaintiff Anderson was
unsuccessful on her retaliation and constructive discharge claims against SCA, as
well as all of her state law claims against SCA. She was also unsuccessful in her
Alabama outrage claim against Johnson. Plaintiffs Beverly and Walker settled all
of their claims. The district court was in a better position to assess which of their
claims might have been successful and which unsuccessful. See Hensley, 461 U.S.
at 437 (noting that the abuse of discretion standard “is appropriate in view of the
district court’s superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are factual matters.”). Of
course, plaintiff Lackey was unsuccessful with respect to all of her claims.
Although plaintiffs’ counsel argued that they had already removed time spent on
behalf of plaintiff Lackey, as well as the unsuccessful state law claims against
SCA, the district court expressly rejected that assertion, and expressly held that its
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20% reduction in part accounted for the difficulty in disaggregating time spent on
compensable and non-compensable claims.
In light of the district court’s broad discretion, and in light of the
significance of the claims on which plaintiffs were not successful, we cannot
conclude that the district court abused its discretion.
E. Lackey’s Outrage Claim Against Dr. Johnson
Lackey appeals the district court’s grant of summary judgment on her
outrage claim against Johnson. Again, to prove the tort of outrage a plaintiff must
show that the defendant’s conduct (1) was intentional or reckless; (2) was extreme
and outrageous; and (3) caused emotional distress so severe that no reasonable
person could be expected to endure it. Thomas v. BSE Indus. Contractors Inc., 624
So.2d 1041, 1043 (Ala. 1993). Outrage is a “very limited cause of action that is
available only in the most egregious circumstances.” Id. at 1044 (noting that the
Alabama Supreme Court “has held in a large majority of the outrage cases
reviewed that no jury question was presented”).
The parties dispute whether the district court properly considered Lackey’s
affidavit, filed with her response to the defendants’ motions for summary
judgment. We can pretermit this issue, as it does not impact our ultimate
conclusion. We readily conclude that Lackey cannot show that she suffered
emotional distress so severe that no reasonable person could be expected to endure
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it. Alabama cases hold that “some distress,” “generalized apprehensions and
fears,” “irritation,” “aggravation” and “inconvenience, discontentment, and
annoyance” are insufficient to satisfy the third element of the tort of outrage. See
Ex parte Crawford & Co., 693 So.2d 458, 459 (Ala. 1997); Turner v. Hayes, 719
So.2d 1184, 1187 (Ala. Civ. App. 1997).
Accordingly, we affirm the district court’s grant of summary judgment
against Lackey on her outrage claim against Dr. Johnson.
F. Lackey’s Constructive Discharge Claim
Lackey appeals the district court’s grant of summary judgment on her Title
VII constructive discharge claim. We will affirm.
Constructive discharge occurs when “an employer discriminates against an
employee to the point such that his working conditions become so intolerable that a
reasonable person in the employee’s position would have felt compelled to resign.”
Green v. Brennan, __U.S.__, 136 S. Ct. 1769, 1776 (2016). It requires more than
is necessary to prove a hostile work environment, see Walton, 347 F.3d at 1282,
and is an objective inquiry, Pa. State Police v. Suders, 542 U.S. 129, 143 (2004).
Lackey argues that she was constructively discharged by SCA because she
was required to continue working with the sexually harassing Johnson. She notes
one incident in which she was ordered by Johnson to administer pain medication
through a shot instead of an IV, and felt that Johnson required her to use this more
22 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 23 of 25
painful method as retribution against her for her filing of a complaint. Once she
learned that Johnson would be returning to SCA after his leave of absence, she
concluded that she could not work with Johnson in the future and resigned.
We conclude that this factual background is insufficient to demonstrate
constructive discharge. Lackey testified that she was not subject to any harassing
conduct after complaining about Johnson. In addition, Lackey has not introduced
evidence that SCA intended to or acted to force her resignation. And Lackey cites
no case law supporting her contention that Johnson’s purported maladministration
of pain medication can form the basis, in whole or in part, for a constructive
discharge claim. Moreover, the fact that Lackey resigned before Johnson returned
indicates that she did not give the remedial action taken by SCA against Johnson a
chance to work.
In sum, because Lackey testified that the sexual harassment ceased, and
because there is insufficient evidence of other intolerable conditions, Lackey
cannot demonstrate constructive discharge.
G. Johnson’s Argument for Remittitur or New Trial
Johnson argues that the district court was wrong to deny his motion for
remittitur or a new trial on Anderson’s assault and battery claim. The jury awarded
Anderson $200,000 in compensatory damages and $50,000 in punitive damages.
Johnson filed a motion under Rule 59 for remittitur of these excessive damages,
23 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 24 of 25
arguing that the damages award exceeds the amount established by the evidence.
The district court concluded that the majority of the compensatory damages must
have been for Anderson’s mental anguish. Reviewing the verdict for the jury’s
abuse of discretion, the court held that Anderson’s testimony regarding her mental
suffering was sufficient to support the verdict, particularly given the fact that
compensatory damages do not need to be proven with a high degree of specificity
and may be inferred from the circumstances. See Ferrill v. Parker Grp., Inc., 168
F.3d 468, 476 (11th Cir. 1999). And humiliation and insult are recognized and
recoverable harms that can be supported by a plaintiff’s own testimony. Id.
Johnson now argues that Anderson introduced insufficient evidence of mental
anguish and the $200,000 in compensatory damages are not supported by the
record.5 We will affirm.
Determining compensatory damages for physical pain and mental suffering
is “left to the sound discretion of the jury, subject only to correction by the court
for clear abuse or passionate exercise of that discretion.” Ala. Power Co. v.
Mosley, 318 So.2d 260, 266 (Ala. 1975). Anderson offered sufficient evidence of
mental anguish, both through her own testimony and the testimony of others. We
5 Denials of motions for remittitur or new trial are reviewed for abuse of discretion. Moore v. Appliance Direct, Inc., 708 F.3d 1233, 1237 (11th Cir. 2013). 24 USCA11 Case: 17-14783 Date Filed: 12/22/2020 Page: 25 of 25
cannot say that the district court’s denial of Johnson’s motion was an abuse of
discretion.
III. CONCLUSION
For the foregoing reasons, we affirm in all respects.
AFFIRMED.