Filed: Sep. 03, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-13414 Date Filed: 09/03/2013 Page: 1 of 22 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13414 _ D. C. Docket No. 2:10-cv-00192-WHA-TFM JACQUELINE WEATHERLY, CYNTHIA WILLIAMS, and LYDIA BURKHALTER, Plaintiffs-Appellees, versus ALABAMA STATE UNIVERSITY, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (September 3, 2013) Before TJOFLAT and DUBINA, Circuit Judges, and EVANS, * District Judge. DUBIN
Summary: Case: 12-13414 Date Filed: 09/03/2013 Page: 1 of 22 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-13414 _ D. C. Docket No. 2:10-cv-00192-WHA-TFM JACQUELINE WEATHERLY, CYNTHIA WILLIAMS, and LYDIA BURKHALTER, Plaintiffs-Appellees, versus ALABAMA STATE UNIVERSITY, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (September 3, 2013) Before TJOFLAT and DUBINA, Circuit Judges, and EVANS, * District Judge. DUBINA..
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Case: 12-13414 Date Filed: 09/03/2013 Page: 1 of 22
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________
No. 12-13414
_____________
D. C. Docket No. 2:10-cv-00192-WHA-TFM
JACQUELINE WEATHERLY,
CYNTHIA WILLIAMS,
and LYDIA BURKHALTER,
Plaintiffs-Appellees,
versus
ALABAMA STATE UNIVERSITY,
Defendant-Appellant.
______________
Appeal from the United States District Court
for the Middle District of Alabama
______________
(September 3, 2013)
Before TJOFLAT and DUBINA, Circuit Judges, and EVANS, * District Judge.
DUBINA, Circuit Judge:
*
Honorable Orinda D. Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
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The facts of this case should greatly concern every taxpaying citizen of the
State of Alabama, especially because it involves a public institution largely funded
with tax dollars paid by the people of Alabama. This appeal stems from
complaints of three former employees of Appellant-Defendant Alabama State
University (“ASU”), who allege they were subjected to a hostile work environment
and retaliation during their employment. Following a jury verdict in favor of
Appellees-Plaintiffs Jacqueline Weatherly (“Weatherly”), Lydia Burkhalter
(“Burkhalter”), and Cynthia Williams (“Williams”) (collectively “Appellees”),
ASU appeals the district court’s denial of its motion to sever Appellees’ claims
from each other, the district court’s order awarding equitable relief, and the final
judgment entered in Appellees’ favor. After reviewing the record, reading the
parties’ briefs, and having the benefit of oral argument, we affirm the orders of the
district court and the judgment entered on the jury’s verdict in favor of Appellees.
I.
A. Factual Background 1
Appellees’ claims center on allegations that they were subjected to
discrimination and retaliation at the hands of two ASU employees who served as
1
We apologize for the offensive and demeaning language contained in this opinion, but
such language comes directly from the trial record.
2
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their superiors: Dr. John Knight (“Knight”) and LaVonette Bartley (“Bartley”). 2
Knight held various high-level administrative positions at ASU during the seven-
year period in which Appellees collectively submit they were subjected to a hostile
work environment and retaliation. Specifically, Knight served as special assistant
to the president, acting president, and then as chief operating officer. In addition,
Knight was, and continues to be, a member of the Alabama State Legislature.
Bartley served under Knight as ASU’s associate executive director in the Office of
the Special Assistant to the President. For clarity’s sake, we divide the remainder
of the factual background to recount the facts as they relate to each Appellee
individually.
1. Jacqueline Weatherly
Weatherly began working for Bartley at ASU in January 2002. Weatherly
testified at trial that Bartley’s use of the term “nigger” in the workplace was
commonplace. [R. 226 at 228–30.] Indeed, Bartley routinely made comments in
Weatherly’s presence like, “I’m tired of nigger shit” and would mockingly refer to
ASU’s mass transportation as the “nigger bus line.” [Id. at 229.] Weatherly
endured these racial slurs from 2002 “all the way through” 2008 [R. 227 at 62–63],
2
Weatherly and Williams are African-American, and Burkhalter is biracial (part African-
American, part Caucasian). Bartley and Knight are also African-American.
3
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save a brief period during 2003 when Weatherly worked in a different office [R.
226 at 232–34].
In March 2008, Bartley, apparently enraged at Weatherly’s inability to
multitask, told Weatherly that she was “sick and tired of this nigger shit” and stated
“bitch, you need to do what I asked you to do.” [Id. at 244–45.] Weatherly
verbally reported the incident to ASU Human Resources (“HR”) and requested a
transfer. An HR official responded that nothing could be done. Thereafter, on
March 20, 2008, Weatherly submitted a written complaint against Bartley to HR.
[Id. at 251–52.] Again, Bartley’s behavior did not improve and no one at ASU
addressed the situation. Due to stress and anxiety Weatherly incurred as a result of
her employment at ASU, her doctor “took [her] off work.” [Id. at 271]. On June
2, 2008, Weatherly was transferred to a different department. She testified that she
had been “humiliated,” “stunned,” “degraded,” “hurt[],” and “embarrass[ed]” by
Bartley’s conduct. [Id. at 246; R. 227 at 82.]
2. Lydia Burkhalter
Burkhalter worked as a senior administrative secretary for Knight from 2007
to 2009. She also reported to Bartley and Appellee Williams. At trial, Burkhalter
offered testimony that she was subjected to sexual and racial harassment at the
hands of Knight and Bartley.
4
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As to Bartley, Burkhalter testified that, starting in August 2008, she heard
Bartley “use the word ‘nigger,’ ‘nigga,’ ‘nigga shit,’ ‘bitch,’ ‘stupid bitches,’ ‘fat
bitch,’ and ‘white bitch’” in the office; Burkhalter also testified that Bartley said
things like, “I’m sick of this nigga shit. These stupid bitches can’t do anything
right. And, they ain’t nothing but some niggas.” [R. 227 at 261.] At times,
Bartley’s racial barrage was directed at Burkhalter, and other times, it was cast
elsewhere. Burkhalter contends that Bartley asked her what race she was, and
when Burkhalter said that she was biracial and did not have to choose black or
white, Bartley “looked [her] up and down . . . and curled her nose and walked
away.” [Id. at 265.] Bartley’s abusive conduct was also aimed at Burkhalter’s
family, as she called Burkhalter’s seven-year-old son “a nigger,” upsetting him so
much that he crawled under his mother’s desk and curled up in the fetal position.
[Id. at 241, 280–81.]
Bartley’s verbal assault was not limited to racial comments but included
sexual remarks as well. Bartley described Burkhalter’s breasts as “melons” and
her derrière as “hams,” and Bartley commented on Burkhalter’s thong underwear
and its accompanying panty lines in the presence of another employee. [Id. at
269–70.] Bartley also expressed an inappropriate intrigue with Burkhalter’s
tattoos, telling Appellee Williams that “she should make [Burkhalter] strip to see
5
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how many other tattoos [she] had and where.” [Id. at 281.] Bartley’s inappropriate
behavior was also physical, as she sometimes positioned herself in the office so
that she could touch Burkhalter. For example, when Burkhalter was in the small
printing/faxing area, Bartley would “come up behind [Burkhalter] and rub her
body up against [Burkhalter’s] body.” [Id. at 273.] Likewise, while Burkhalter
was sitting at her desk, Bartley “would lean on [Burkhalter’s] shoulders and put
her breasts” on Burkhalter. [Id. at 274–75.]
Burkhalter testified that she was also sexually harassed by Knight. Knight
commented on Burkhalter’s appearance, remarking how pretty she was and telling
her “he liked his coffee sweet like [her] and the color of [her] complexion.” [Id. at
295–96.] Knight also made awkward and inappropriate requests, asking
Burkhalter to dance for him the way she had danced at a party. [Id. at 305.] On
Burkhalter’s birthday, Knight called her after work and asked what the “wildest
thing” she could do for her birthday would be and told her to think of a “special
thing” she wanted for her birthday and tell him. [Id. at 306.]
Burkhalter’s attempts to put an end to her superiors’ inappropriate conduct
were unsuccessful. Although Bartley initially apologized after Burkhalter
complained about her behavior, Bartley then “reverted right back to the way she
was, with her comments, with her slurs . . . [and i]f anything, . . . it became more
6
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frequent.” [Id. at 282–83.] For his part, Knight instructed Burkhalter that she
“was not allowed to document anything that happened to [her] in his office; that if
anything was going on, [she] was to notify him verbally and only him.” [Id. at
297.] On May 5, 2009, Burkhalter submitted a written complaint to HR,
describing an incident when Bartley ran at Burkhalter as if to attack her.
Burkhalter’s various complaints all went unanswered.
Burkhalter testified that, in May 2009, she began to suffer from migraines,
anxiety, loss of sleep and appetite, and high blood pressure. She filed an EEOC
charge on May 15, 2009, a Friday. She was out sick the next Monday, May 19,
and let ASU know she was going to the doctor. She thereafter faxed a note to HR.
Burkhalter remained out of work the rest of the week and returned the following
week. Upon Burkhalter’s return, she learned that she had been terminated because
she had “abandon[ed]” her job. [R. 229 at 19.] Knight testified that he made the
decision to terminate Burkhalter. Burkhalter testified that when she was
terminated, she felt “humiliated,” “degraded,” “scared,” “worthless,” and like
“[t]hey had stripped [her] from [her] life.” [Id. at 26.] Burkhalter explained that
she continues to suffer the effects of her experience at ASU, including anxiety and
trouble sleeping.
3. Cynthia Williams
7
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Williams became a permanent employee at ASU in January 2008. Like
Burkhalter and Weatherly, she reported to Bartley. Williams testified that in late
July or early August 2008, she began to experience a hostile work environment at
the hands of Bartley. During this timeframe, Bartley “consistently” referred to
Williams as a “nigger[]” and “bitch[].” [R. 225 at 168]. Bartley also made
comments such as, “talk to the nigger side of the hand because the white side does
not want to hear it” and “we got to dress professional; we don’t dress like niggers.”
[Id. at 183, 191.]
Knight made it clear to Williams that he was not interested in hearing about
complaints against him or Bartley, telling her “that he was not going to walk on
eggshells around his office and nobody can tell him how to run his office.” [R.
227 at 284.] Knight also threatened retribution for ASU employees who
cooperated with the EEOC in their investigation of Weatherly’s claims, warning
that “no one was to speak with EEOC and that if they did, they would be dealt
with. Terminated.” [R. 225 at 200.]
In August 2008, Williams complained to HR, but the director of HR refused
to let her file a written complaint, telling Williams that HR was not taking any
more complaints against Bartley because there had already been an internal
hearing. [Id. at 167–68]. Williams tried at least two more times to complain about
8
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Bartley to HR but was not allowed to make a complaint. [Id. at 180–81, 201]. On
November 18, 2008, Williams wrote a letter to Knight, copying HR and the EEOC,
complaining of the hostile work environment. [Id. at 202, 208.] ASU finally
responded to Williams’ complaints by terminating her. Williams felt humiliated
and hurt by Bartley’s behavior and threatened by Knight. After she was
terminated, Williams was unable to find employment for over one year.
B. Procedural History
Based on the above facts, Appellees filed suit against ASU on March 4,
2010, alleging they had been subjected to racial and sexual harassment, a hostile
work environment, and various forms of retaliation for protesting the
discrimination. Shortly thereafter, on March 29, 2010, ASU filed a motion seeking
to sever the claims of each Appellee. The district court denied that motion without
prejudice, explicitly providing ASU the option to renew its motion after discovery
had been completed. [R. 21 at 4–5.] On July 13, 2011, Appellees filed an
amended complaint.
Trial began on February 8, 2012. Because ASU never filed another motion
to sever Appellees’ claims, the district court conducted all three Appellees’ trials
together. ASU moved for judgment as a matter of law as to each claim after the
close of Appellees’ case-in-chief and again at the close of all the evidence. None
9
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of ASU’s motions was granted. Thereafter, the jury took the case under
submission and found that all three women had experienced a hostile work
environment based on their race and that Burkhalter had also been subjected to a
hostile work environment based on her sex. In addition, the jury found in favor of
Appellees on some of their retaliation claims. On May 1, 2012, Williams and
Burkhalter filed a motion for equitable relief in the form of front pay. The district
court granted Williams one year of front pay and Burkhalter two years of front pay.
Final judgment was entered on May 25, 2012, awarding Williams $392,648.23,
Weatherly $309,453.06, and Burkhalter $376,509.65. [R. 173 at 7.]
The district court entered final judgment on the jury’s verdict on May 25,
2012. At 12:00:46 a.m. on June 23, 2012, ASU filed a renewed motion for
judgment as a matter of law under Rule 50(b) and for a new trial and/or for
remittitur under Rule 59(b). On June 25, 2012, while that motion was still
pending, ASU filed a notice of appeal. On July 23, 2012, the district court issued
an order stating that ASU’s motion, having been filed 29 days after final judgment
was entered, was untimely as a Rule 50(b) or Rule 59(b) motion, but that it would
be construed as a Rule 60(b) motion, which the court denied. ASU did not amend
its notice of appeal or file a new notice of appeal after the court’s denial of its
motion.
10
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II.
We review a district court’s decision on a motion to sever for abuse of
discretion. Beckford v. Dep’t of Corr., 605 F.3d 951, 957 (11th Cir. 2010). “We
review de novo questions concerning jurisdiction.” Williams v. Chatman,
510 F.3d
1290, 1293 (11th Cir. 2007). We are “obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.” Bochese v. Town of Ponce
Inlet,
405 F.3d 964, 975 (11th Cir. 2005) (internal quotation marks omitted). “We
review the district court’s decision to grant or deny equitable relief for abuse of
discretion, underlying questions of law de novo, and findings of fact upon which
the decision to grant equitable relief was made under the clearly erroneous
standard.” Preferred Sites, LLC v. Troup Cnty.,
296 F.3d 1210, 1220 (11th Cir.
2002).
III.
ASU assigns three errors to the district court on appeal. First, ASU argues
the district court abused its discretion in denying its motion to sever Appellees’
claims. Second, ASU argues the district court should have found ASU’s untimely
renewed motion for judgment as a matter of law timely, or in the alternative,
granted relief under Federal Rule of Civil Procedure 60(b). Finally, ASU argues
the district court erred in awarding Appellees Williams and Burkhalter front pay.
11
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Unfortunately for ASU, its failure to adhere to the Federal Rules of Civil
Procedure and the Federal Rules of Appellate Procedure and its failure to perfect
the record before the district court greatly limits our ability to review these alleged
errors.
A. The District Court did not err in Denying ASU’s Motion to Sever.
We have appellate jurisdiction to review the district court’s order denying
severance following the entry of judgment. See Hofman v. De Marchena Kaluche
& Asociados, 642 F.3d 995, 998 (11th Cir. 2011) (holding that a Rule 21 severance
order is appealable following a final judgment). Our scope is limited, however, as
we review only for an abuse of discretion. See
Beckford, 605 F.3d at 957. “When
employing an abuse of discretion standard, we must affirm unless we . . .
determine that the district court has made a clear error of judgment, or has applied
an incorrect legal standard.” Moorer v. Demopolis Waterworks & Sewer Bd.,
374
F.3d 994, 996–97 (11th Cir. 2004) (internal quotation marks omitted).
Less than a month after the original complaint was filed and before the
discovery period, ASU moved the district court to sever the three Appellees’
claims from each other. 3 The district court concluded that it would not sever the
cases at that point but noted that facts could arise during discovery that would
3
Appellees later amended their complaint, rendering the initial complaint moot. [R. 42.]
Any conceivable error on the part of the district court for denying severance would therefore be
based on its review of a now-inoperative complaint.
12
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justify severance. 4 Faced with the potential of duplicative suits and duplicative
discovery, the court found judicial economy militated in favor of keeping the
Appellees’ claims together in order to avoid wasting resources. [R. 21 at 5.] The
district court therefore denied ASU’s motion to sever without prejudice and
explicitly stated that “ASU w[ould] be allowed to re-raise this issue at an
appropriate time prior to trial.” [Id.] Despite the district court’s invitation to
reassert the severance issue after the close of discovery, ASU never did so.
ASU argues the district court abused its discretion by denying its motion to
sever, because Appellees’ claims were not based on the same transactions or facts
and should not have been tried together. [Appellant’s Br. at 13–14 (citing R.
227).] In support of this argument, ASU relies on testimony adduced at trial. The
problem with ASU’s argument is that it relies on evidence uncovered during the
discovery period, after the district court had denied its motion to sever. Thus, such
evidence was not available to the district court when it ruled on ASU’s motion.
4
Specifically, the district court found that:
[I]t appear[ed] that there are at least some overlapping factual and legal issues in
the harassment claims and retaliation claims as alleged, and that the claims arise
out of the same occurrences . . . [but i]t may be, upon development of the
evidence in this case, that it ultimately appears that the claims of the three
plaintiffs should be severed for trial.
[R. 21 at 4.]
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Moreover, after the close of discovery but before trial, ASU had the opportunity to
present evidence to the district court in support of a motion to sever Appellees’
claims for trial purposes, yet it failed to do so. The district court was not
responsible for re-raising the issue sua sponte.
A trial judge can only abuse discretion he was given the opportunity to
exercise. Because ASU failed to move for severance of Appellees’ claims after the
close of discovery, the only severance decision available for us to review is the
district court’s denial to sever the cases for purposes of discovery. “We accord
district courts broad discretion over the management of pre-trial activities,
including discovery and scheduling.” Johnson v. Bd. of Regents of Univ. of Ga.,
263 F.3d 1234, 1269 (11th Cir. 2001). Here, the district court’s concern for
judicial economy easily falls within this “broad discretion.” We therefore find no
reversible error.
B. We do not have jurisdiction to hear ASU’s appeal of the district court’s
denial of its Rule 50(b) and Rule 59(b) motion.
ASU argues the district court erroneously construed its untimely Rule 50(b)
and Rule 59(b) motion as a Rule 60(b) motion. In declining to treat ASU’s motion
as timely, the district court stated it was troubled by ASU’s waiting until just three
or four minutes before expiration of the 28-day deadline for filing such a motion to
begin the electronic filing process. The district court also noted that ASU’s
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untimely motion largely incorporated previous motions by reference and surmised
the motion itself did not take much time to prepare. While ASU acknowledges that
Federal Rules of Civil Procedure 50(b) and 59(b) require the motion to be filed
within 28 days after the entry of final judgment, ASU argues that its lateness was
not its fault. Specifically, ASU contends the court’s electronic filing system was
on the fritz, which caused the motion to be filed 46 seconds late. Thus, ASU
argues the motion should be treated as a timely-filed Rule 50(b) and Rule 59(b)
motion. Alternatively, ASU argues that, even if the motion was properly treated as
a Rule 60(b) motion, the district court abused its discretion by denying it.
As a threshold matter,
an appellate court has jurisdiction to review only those judgments,
orders or portions thereof which are specified in an appellant’s notice
of appeal. Although we generally construe a notice of appeal
liberally, we will not expand it to include judgments and orders not
specified unless the overriding intent to appeal these orders is readily
apparent on the face of the notice.
Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987)
(citations omitted). Based on the record before this court, we conclude we do not
have jurisdiction to decide these issues because ASU has not perfected its appeal.
Generally, in a civil case, a party must file a notice of appeal “with the
district clerk within 30 days after entry of the judgment or order appealed from.”
FED. R. APP. P. 4(a). The notice of appeal must “designate the judgment, order, or
15
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part thereof being appealed.” FED. R. APP. P. 3(c)(1)(B). Here, ASU filed its
notice of appeal while the motion at issue was still pending before the district
court; thus, the notice of appeal did not designate the district court’s denial of its
post-trial motion as subject to appeal. More importantly, though, ASU never filed
a subsequent or amended notice appealing the district court’s disposition of its
post-trial motion for relief.
To be sure, parties who file timely post-trial motions for relief under Federal
Rules of Civil Procedure 50(b) and 59(b) are not required to wait until the district
court provides a ruling on that motion before they appeal the final judgment. 5 In
order to seek appellate review of the district court’s order on said motion, however,
the appealing party is required to file a separate notice of appeal or amend its
original notice to designate the motion as subject to appeal. See FED. R. APP. P.
4(a)(4)(B)(ii) (“A party intending to challenge an order disposing of any motion
listed in Rule 4(a)(4)(A) . . . must file a notice of appeal, or an amended notice of
appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule
measured from the entry of the order disposing of the last such remaining
motion.”). In this context, “the time to file an appeal runs for all parties from the
5
The same rule applies to parties seeking Rule 60(b) relief who file within 28 days of the
final judgment. See FED. R. APP. P. 4(a)(4)(A), (B)(ii).
16
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entry of the order disposing of the last such remaining motion.” FED. R. APP. P.
4(a)(4)(A).
Regardless of whether ASU’s motion is treated as a timely-filed Rule 50(b)
and Rule 59(b) motion or a Rule 60(b) motion, we lack jurisdiction to decide the
issue. In short, ASU missed all applicable deadlines for filing a notice of appeal.
On one hand, if ASU’s motion is treated as a timely-filed Rule 50(b) or Rule 59(b)
motion, ASU’s failure to file a separate notice of appeal or amend the previously
filed notice of appeal—as required by the tolling provisions of Federal Rules of
Appellate Procedure 4(a)(4)(A) and 4(a)(4)(B)(ii)—defeats this court’s appellate
jurisdiction. On the other hand, if ASU’s motion is treated as a Rule 60 motion—
not covered by the tolling provisions of Rule 4(a)(4)(B)(ii) because it was not filed
within 28 days after entry of final judgment—ASU’s failure to follow the general
requirements for filing an appeal provided by Federal Rule of Appellate Procedure
3 also defeats this court’s appellate jurisdiction. See FED. R. APP. P. 3(a)(1) (“An
appeal permitted by law as of right from a district court to a court of appeals may
be taken only by filing a notice of appeal with the district clerk[.]” (emphasis
added)).
In sum, because ASU has not filed a notice of appeal with the district court
clerk designating as subject to appeal either the district court’s denial of its Rule
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50(b) and Rule 59(b) motion or the district court’s treatment of that motion as a
Rule 60 motion, it has not perfected its appeal. Accordingly, we do not have
jurisdiction to decide these issues.
C. The District Court did not Abuse its Discretion in Awarding Front
Pay.
After the jury returned its verdict against ASU, Williams and Burkhalter
requested equitable relief in the form of front pay. ASU opposed the motion, and
the district court held an evidentiary hearing. The court awarded Williams one
year of front pay and Burkhalter two years of front pay. [R. 172.] ASU offers
three arguments as to why the district court’s award of front pay amounted to an
abuse of discretion: (1) Williams and Burkhalter did not mitigate their damages;
(2) they had unclean hands; and (3) ASU had a legitimate reason for firing them.
ASU’s first argument is unavailing, and it has waived its other two arguments.
“In addition to back pay, prevailing Title VII plaintiffs are presumptively
entitled to either reinstatement or front pay.” EEOC v. W&O, Inc., 213 F.3d 600,
619 (11th Cir 2000) (internal quotation marks omitted). “In deciding whether to
award front pay, rather than reinstatement, courts look to whether discord and
antagonism between the parties would render reinstatement ineffective as a make-
whole remedy.”
Id. (internal quotation marks omitted). ASU, Williams, and
Burkhalter each agreed that reinstatement was not a proper remedy because of the
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level of discord between the parties. Consequently, ASU does not claim the
district court should have awarded reinstatement instead of front pay. Rather, ASU
argues neither was appropriate.
A prevailing Title VII plaintiff is “required to mitigate damages by being
reasonably diligent in seeking employment substantially equivalent to the position
she was denied.” Smith v. Am. Serv. Co. of Atlanta, 796 F.2d 1430, 1431 (11th Cir.
1986). ASU contends that Williams failed to mitigate her damages because “she
willingly accepted a lower-paying job.” [Appellant’s Br. at 27.] As to Burkhalter,
ASU claims that she failed to mitigate damages because she enrolled in nursing
school. [Id. at 28.] We disagree.
Both Williams and Burkhalter presented evidence that they attempted to
mitigate their damages. Williams testified that she looked for work from January
2009 until early 2011. 6 [R. 215 at 29–30]. Burkhalter presented evidence that she
looked for a job before enrolling in nursing school and continued to work full-time
while going to school part-time. [Id. at 9]. Based on this testimony, the court did
6
ASU also argues that even if Williams was entitled to some front pay, she was not
entitled to as much as the district court awarded her. ASU has waived that argument because it
did not challenge the district court’s calculation of front pay. See Juris v. Inamed Corp., 685
F.3d 1294, 1325 (11th Cir. 2012) (“[I]f a party hopes to preserve a claim, argument, theory, or
defense on appeal, [it] must first clearly present it to the district court, that is, in such a way as to
afford the district court an opportunity to recognize and rule on it.”).
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not err in finding that Williams and Burkhalter 7 fulfilled their obligation to
mitigate.
ASU’s second argument—that Williams and Burkhalter are barred from
recovering front pay due to their own unclean hands—has been waived. Despite
ASU’s representations to the contrary, it failed to argue to the district court that
Williams and Burkhalter had unclean hands. Although ASU argued before the
district court that the women had tried to hurt ASU by doing things like
“contact[ing] media outlets to disparage the name and character of ASU as well as
[Knight], [Bartley], and counsel for ASU” [R. 163 at 5], ASU highlighted that
conduct before the district court only in arguing that reinstatement was not a
possible remedy. It only now argues that same conduct shows the women had
unclean hands and are estopped from recovering front pay.
In attempting to save yet another procedurally defective argument, ASU
seeks to convince us that the district court “misconstrued” its argument on this
point. [Appellant’s Br. at 28.] This contention is devoid of merit. It was ASU’s
responsibility to clearly present its arguments to the district court “in such a way as
to afford the district court an opportunity to recognize and rule on it.” Juris, 685
F.3d at 1325 (internal quotation marks omitted). Nowhere in its opposition to the
7
See Smith, 796 F.2d at 1432 (holding that a plaintiff who had enrolled full-time in
cosmetology school had not failed to mitigate because she had enrolled only after looking for a
job, and she continued to work part-time while in school).
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motions for front pay did ASU argue unclean hands or that Williams or Burkhalter
were estopped from recovering equitable relief. Those arguments were presented
for the first time on appeal and have therefore been waived. Id.
ASU’s final argument as to this issue is that Williams and Burkhalter were
not entitled to front pay, because ASU had a legitimate non-discriminatory reason
to terminate them. ASU does not, however, make any arguments on this point, but
rather, incorporates by reference the arguments it made before the district court.
[Appellant’s Br. at 26 n.7.] Incorporating by reference to earlier filings is not a
permissible way to present arguments to this court. See Four Seasons Hotels &
Resorts v. Consorcio Barr S.A.,
377 F.3d 1164, 1167 n.4 (11th Cir. 2004) (“By
attempting to ‘incorporate’ all of the arguments it made below, and thus exhorting
this panel to conduct a complete review of its district court brief, [the party] . . .
makes a mockery of our rules governing page limitations and length[.]”). ASU has
therefore waived this argument as well. See
id.
IV.
We are left to speculate who is in charge at ASU. Regardless, however, we
are unnerved by the apparent acquiescence to, if not outright condoning of, the
abusive work environment created by its high-level employees. Such conduct
simply has no place in a work environment, especially at a publicly funded
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university. Additionally, we are troubled by ASU’s attorneys’ inability to adhere
to court procedures and deadlines. Timeliness is imperative in the practice of law,
and attorneys should not expect sympathy from this court due to their own
carelessness.
For the foregoing reasons, we affirm the district court’s order awarding of
equitable relief, its order denying the motion to sever, and the final judgment
entered in favor of Appellees. We also decline to decide Appellant’s appeal of the
district court’s denial of its renewed motion for judgment as a matter of law due to
lack of appellate jurisdiction.
AFFIRMED in part and DISMISSED in part.
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