Diane T. Gowski, M.D. v. James Peake ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 09-16371, 10-11531, 10-12968
________________________
D. C. Docket No. 07-01524-CV-T-30TBM
DIANE T. GOWSKI, M.D.,
SALLY B. ZACHARIAH, M.D.,
Plaintiffs-Appellees-
Cross-Appellants,
versus
JAMES PEAKE, M.D., Secretary,
Department of Veterans Affairs, et al.,
Defendants,
ERIC K. SHINSEKI,
Defendant-Appellant-
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 4, 2012)
Before EDMONDSON, KRAVITCH and FARRIS,* Circuit Judges.
PER CURIAM:
This appeal and cross-appeal arise from a jury verdict and award of damages
and injunctive relief in favor of Doctors Diane Gowski and Sally Zachariah in their
discrimination, retaliation, and hostile work environment suit against the Secretary
of the Department of Veterans Affairs (VA).1 We must decide whether this circuit
recognizes a retaliatory hostile work environment claim and, if so, whether the
evidence in this case was sufficient to support the jury’s verdict and damages
award. We conclude that a retaliatory hostile work environment is a viable claim
and, after a thorough review of the record and with the benefit of oral argument,
we affirm in part and vacate and remand in part.
I. Background
This case involved a two-week jury trial, four plaintiffs, four hospital
administrators and department heads, numerous witnesses, and extensive
documentary evidence. We begin by identifying the plaintiffs, their claims, and
the relevant members of the VA’s administration. Doctors Gowski and Zachariah
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
The jury rejected Gowski’s religious discrimination claim and Zachariah’s gender
discrimination claims. Gowski and Zachariah do not appeal from the jury verdict on these
claims.
2
were employed at the Bay Pines VA hospital and medical center in Florida.
Gowski was a hospitalist who began working for the VA in 1997. In 2005, she
was assigned to the medical intensive care unit (MICU). Zachariah began working
for Bay Pines in 1989 as a neurologist and researcher and is an associate professor
of neurology at the University of South Florida.
At the relevant times, Dr. Sharachandra Patel was the chief hospitalist and
Gowski’s immediate supervisor. Dr. Lithium Lin was the chief of medicine
services. Dr. George Van Buskirk was Bay Pines’s chief of staff. Wallace
Hopkins was Bay Pines’s director. Bay Pines’s medical departments were divided
into services, such as medicine, surgery, geriatrics, and mental health. Services
were comprised of sections of specific fields, such as pulmonology, cardiology,
and hospitalists. At Bay Pines, neurology became its own service in 2002, but was
realigned as a section in medicine services in 2006. While neurology was a section
in medicine services, Lin was Zachariah’s supervisor.
In August 2007, Gowski and Zachariah, along with Dr. Claudia Cote and
administrative assistant Roxanne Lainhart Bronner, who are not parties to this
appeal, filed a complaint in district court against the Secretary, alleging retaliation
and a retaliatory hostile work environment.2 Gowski alleged that the hospital
2
Dr. Claudia Cote and Roxanne Lainhart Bronner were successful on their retaliation
and hostile work environment claims at trial. The Secretary does not appeal from those verdicts
3
administration retaliated against her after she filed an EEO complaint in October
2005 by changing her duty assignments, removing her from committee chair
positions and taking her off committees altogether, denying her privileges,
reprimanding her, counseling her and suspending her, refusing to investigate her
allegations against another doctor, soliciting complaints about her, lowering her
proficiency reports, accusing her of an altercation with another doctor, and
charging her $18,000 for an alleged debt incurred eight years earlier.
Zachariah alleged that, after she filed EEO complaints in June 2005 and
April 2006, Bay Pines’s administration retaliated against her by lowering her
proficiency reports, giving her smaller bonuses than those her colleagues received,
suspending her research activities, shortening the time for which her privileges
were approved, realigning neurology as a section under medicine
services,removing her from the rotation as section chief, identifying her as a
participant in a tort claim, removing her as leader of the stroke group, issuing a
reprimand for negligence, suspending her and recommending her termination, and
denying her access to the grievance and appeals process.
II. The Trial3
and thus we do not discuss these claims.
3
Because we are reviewing the denial of the Secretary’s motion for judgment as a matter
of law, we recite the evidence here in the light most favorable to the plaintiff doctors and
disregard evidence favorable to the Secretary that the jury was not required to believe. Reeves v.
4
A. The Retaliatory Scheme
At trial, Gowski and Zachariah alleged that Bay Pines’s management “made
a concerted effort to retaliate against employees who filed EEO claims against
them, or opposed their discriminatory or retaliatory actions.” The evidence
showed that Van Buskirk and Hopkins did not look highly on employees who filed
EEO complaints and carried out a plan to remove these employees from Bay
Pines’s staff. As part of the scheme, Lin, Patel, and Van Buskirk (a) targeted
employees who filed complaints, (b) spread rumors about the doctors,
(c) attempted to ruin the doctors’ reputations and careers, and (d) collected reports
against those who filed complaints in an effort to terminate them. For his part,
Hopkins warned staff members that the VA would not settle frivolous complaints
and lawyers would not run the hospital. To carry out his part in the scheme, Lin
enlisted Bronner to urge Gowski and Zachariah to resign, and he used Patel as a
“mole” to obtain Reports of Contact (ROC) from other staff and to disseminate
negative information about both Gowski and Zachariah.
Other doctors and staff members were aware of the scheme and, between
2006 and 2007, many of Bay Pines’s doctors left the hospital out of fear of being
targeted. Doctors and nurses were told to submit ROCs on their interactions with
Sanderson Plumbing Prod., 530 U.S. 133, 148-51 (2000).
5
Gowski and Zachariah with Patel sometimes dictating what the staff should write.
Several staff members testified that if they did not go along with Patel and Lin’s
scheme, they would be targeted as well.
B. Gowski’s Claims
Gowski testified that Bay Pines was a hostile work environment full of fear
and retaliation. She felt that Lin, Patel, and Van Buskirk engaged in character
assassination, solicited complaints from other staff, questioned her ethics, and
harmed her reputation.
Gowski had trained in critical-care medicine and worked in the MICU until
July 2005, when Patel informed her that she would rotate assignments in two-
month cycles; she would work on the general medical wards for two months and
then spend two months in the MICU.4 But by June 2006, after Gowski had filed
her EEO complaint, Lin and Patel refused to allow Gowski to rotate through the
MICU. And when Lin and Patel arranged to provide hospitalist coverage for
cardiology in January 2007, Gowski was not one of the hospitalists assigned.
Gowski was appointed to the Critical Care Committee in 2003 and she
became the committee chair in November 2004. Although the usual term for a
4
Gowski did not allege that her removal from MICU was retaliatory; she claimed it was
based on religious discrimination. But we mention it here because she raises these events as part
of her claim for injunctive relief and as an example of the inconsistent jury verdict.
6
committee chair was two years, Gowski was removed from the position in July
2005.5 By January 2006, she was not even a member of the Critical Care
Committee. Gowski was also a member of the Code Blue Committee, and
although she expressed an interest in being the committee chair, she was not
selected. When she learned another doctor had been appointed, she questioned the
appointment during a committee meeting. After the meeting, members of the
committee complained that Gowski’s behavior had been aggressive and
confrontational.
In April 2006, Gowski sought to renew her hospital privileges. Although
Patel and Lin initially signed off on all the privileges she requested, she later
learned that the Professional Standards Board (PSB) had not approved certain
privileges necessary to her work in the critical-care units. Because it was
advantageous to patient care to have a critical-care certified hospitalist, and
because the loss of privileges would make it difficult to retain her critical-care
certification, Gowski believed the decision to limit her privileges was part of the
retaliatory scheme. Lin presented her application to the PSB, and Van Buskirk was
the PSB chair.
5
Gowski later explained that her removal was religious discrimination and not
retaliation. Like the removal from the MICU, this incident is relevant to Gowski’s later claims
of error.
7
In July 2006, Gowski attended a hospitalist meeting at which Patel discussed
the pending move of the neurology department into the medicine service. Gowski
had many concerns about the procedures following the move, and, although she
emailed Lin and Patel about them prior to the meeting, she had not received a
response. After she reiterated her concerns at the meeting, she was reprimanded
for disruptive behavior and unprofessional conduct. A few weeks later, she was
reassigned to ward 5-A.
Shortly thereafter in December 2006, Gowski learned that her personnel file
showed that she had been involuntarily terminated in 1999. When she inquired
about correcting the error, she was told that if she made the changes to show she
had voluntarily resigned, she would owe $18,000 that she had received as
speciality pay. She applied for a waiver of liability so that she would not have to
repay, but Hopkins denied her request.
In April 2007, Lin issued a proposed a two-week suspension based on a
pattern of unprofessional conduct in connection with an incident with nurse Mary
Howell. Howell accused Gowski of being disrespectful when a patient in her care
needed to be moved to another unit. Lin did not interview Gowski before
recommending the suspension. Hopkins reviewed Lin’s recommendation and
issued the suspension for one week instead of two. The only evidence Hopkins
8
considered was Gowski’s prior reprimand, but Gowski had not been interviewed
before that reprimand either.
In August 2007, Gowski made a comment during a meeting about another
doctor’s plans to leave Bay Pines. Lin and Patel gave her a verbal counseling for
invading the privacy of another doctor and warned her that termination would be
next.
C. Zachariah’s Claims
Zachariah felt the hostility at Bay Pines daily. The environment was so
retaliatory, she would sometimes break down and cry. Zachariah was the chief of
the neurology service until 2006, when Van Buskirk realigned neurology as a
section under medicine services in retaliation for complaints she had filed. Once
neurology was moved into medicine services, the position of section chief was to
rotate among the neurologists, but Zachariah was not included in the rotation. She
also was not permitted to attend every grand rounds because attendance would
rotate among all the members of the neurology section. When she asked Van
Buskirk about the department move, he told her it was due to a backlog of EEGs
and the availability of out-patient clinics. But the decisions were purely retaliatory,
and Lin, who was chief of the medicine service, was not reprimanded for the
alleged backlog.
9
When Zachariah was removed as service chief, her salary decreased by
$20,000. Although the compensation committee was responsible for determining
salary, Van Buskirk, as chair of the committee, used it to make his decisions.
In 2005, Zachariah developed a research study to review how migraine
patients responded to the use of Botox as treatment. The study was a retrospective
review of patient charts to ascertain results. Zachariah approached a member of
the Institutional Review Board (IRB) and received approval for the study even
though a retrospective study would be exempt from IRB regulations.
The IRB committee was hand-picked by Lin and Van Buskirk. It later
determined that Zachariah conducted the study without approval, suspended her
from engaging in any research for one year, and placed her on lifetime probation.
The Research and Development Committee (R&D) increased the punishment to a
two-year suspension. Van Buskirk and Hopkins were present at the committee
meeting to address Zachariah’s research.6 No one ever told Zachariah that the
protocol she submitted for approval was incomplete, and no one else was punished
for the oversight. Lin also punished Zachariah for publishing her research results
without approval. When she tried to appeal the R&D’s punishment, she learned
6
Hugo Fernandez, the associate chief of staff for research at the time of Zachariah’s
discipline, testified that, in prior cases, the IRB would allow retroactive approval. But Van
Buskirk, who was present at the R&D meeting, likely influenced the committee to deny
approval.
10
that another of her studies was under investigation, although no wrongdoing was
found. After the investigation, Lin tried to suspend Zachariah, but the suspension
was overturned. Zachariah’s remaining studies were given to other doctors.
After the problems with her research, and around the time she filed her 2006
EEO complaint, Zachariah learned that she had to renew her hospital privileges.
Although privileges were usually approved for two-year terms, she was forced to
renew her privileges every few months due to a “cloud in her research.” Van
Buskirk used the privilege renewal as punishment.7
Zachariah was punished every few weeks after she filed her EEO
complaints. She was counseled because, she was told, she did not request
medication correctly. She was removed from the stroke committee despite all of
her work in getting Bay Pines stroke-certified. In fact, once Bay Pines received its
certification, Lin appointed another doctor, who was not a stroke specialist like
Zachariah, as director.
Then, in July 2007, Lin requested that Zachariah be suspended for numerous
issues, many of which related to the Botox study for which she had already been
punished. She was written up for conduct unbecoming a federal employee when
she made a notation about hospital policy in a patient’s chart. Bay Pines’s
7
According to PSB member Charles Hirt, at the meeting to review Zachariah’s
privileges, Van Buskirk portrayed Zachariah as a bad doctor.
11
administration then listed her name as one of the doctors involved in a tort claim,
but it was later determined that she was not involved in the claimant patient’s care.
Lin later requested that Zachariah be terminated in connection with his
investigation into some of her patient files. To show that such files were routinely
kept, Zachariah brought a disposable camera to work and photographed files
without capturing any patient information. Sylvia Russell, who had alerted Lin to
the existence of the files, wrote an ROC claiming that she saw Zachariah taking
photos. Russell received a bonus and a promotion after writing the ROC on
Zachariah. No one else who kept similar files was punished.
Zachariah believed that all of the discipline was due to her EEO complaints.
She felt disgraced and suffered sleepless nights awaiting the next punishment.
C. Procedural Matters
At the close of the doctors’ case and again at the close of all the evidence,
the Secretary moved for judgment as a matter of law under Rule 50. The court
denied the motion and allowed the retaliation and hostile work environment claims
to go to the jury. The doctors requested that the jury be instructed that each
incident of retaliation was a separate claim. The court stated that it would instruct
the jury that the doctors had to prove that “one or more” of the retaliatory acts
occurred. Counsel indicated that this instruction was acceptable.
12
In closing argument, after listing the retaliatory actions alleged, the doctors’
counsel stated:
[I]f you find one of those adverse acts were the result of that
retaliation, and when you get to the verdict form you mark, yes,
there’s retaliation. You do it whether you find one or all of them. So,
each of them have their own separate claim. So, if you find one of the
retaliation actions, then you’ll find retaliation.
Addressing damages, counsel stated that Gowski incurred damages in the amount
of $15,250 for the failure to receive market pay and for her suspension. Zachariah
lost $6,730 during her suspension and $82,364 for her loss of the section-chief
position.
The Secretary argued in closing that there was no retaliation and that the
doctors simply second-guessed management’s decisions and wanted to run the
hospital. In rebuttal, the doctors’ counsel stated, “each of those claims are separate
claims . . . of retaliation. If you find one of them, you check off yes for
retaliation.”
After listing each of the doctors’ claims, the court instructed the jury that the
doctors were required to prove “[t]hat one or more adverse employment actions
occurred.” The court then explained the verdict form, which set out each
plaintiff’s claims separately. In a sidebar discussion, the doctors’ attorneys stated
that they still believed the retaliation description should clearly state that each
13
incident was a separate adverse employment action. The court disagreed because
this was mentioned clearly in the plaintiffs’ closing argument and in the court’s
instructions.
During its deliberations, the jury asked whether it was answering for all
plaintiffs or for each individual. The doctors’ counsel again raised the issue of the
jury instruction, but the court stated that the jury was not asking about each act of
retaliation. The jury found that Gowski and Zachariah experienced retaliation, but
that the Secretary would have taken the same actions even in the absence of the
protected activity. The jury also found that both doctors experienced a retaliatory
hostile work environment. The jury awarded Gowski $250,000 in emotional
damages and $16,000 in lost wages. The jury awarded Zachariah $1,000,000 in
emotional damages and $90,000 in lost wages.
III. Post-trial Motions
A. Judgment as a Matter of Law
The Secretary filed a post-verdict motion for judgment as a matter of law
under Rule 50, arguing that, even if a retaliatory hostile work environment claim
was cognizable in the Eleventh Circuit, discrete acts of retaliation could not form
the basis of the claim. Thus, the Secretary argued, the doctors’ claim failed
because the only evidence they put forth were the discrete acts.
14
The district court denied the judgment as a matter of law, finding that the
Eleventh Circuit would recognize a hostile work environment claim, and the court
found sufficient evidence of it in this case.
B. Remittitur
The Secretary requested a remittitur of the damages amount, or a new trial
on damages, because the amount found by the jury exceeded what was established
by the evidence. The Secretary noted that, under 42 U.S.C. § 1981a(b)(3)(D),
compensatory damages were capped at $300,000. Because Zachariah’s emotional
damages amount exceeded the cap, it must be remitted. Additionally, Zachariah’s
damage award was due to be reduced because there was no evidence to show
emotional distress given her testimony. Finally, the Secretary asserted that
Gowski’s award was not supported by the evidence.
The court found that lost wages were not recoverable in a hostile work
environment case unless the plaintiff has been constructively discharged.8
Considering the amounts found by the jury, the court concluded that the jury was
attempting to award lost wages on the hostile work environment claim, which was
precluded as a matter of law. Accordingly, the court vacated the awards of lost
8
Although the doctors argued that the Secretary waived any objection to the lost-wages
award, we disagree. See Akouri v. Fla. Dep’t of Transp., 408 F.3d 1338, 1344 (11th Cir. 2005)
(explaining that, although the defendant had raised objection to damages instruction at charge
conference, the district court found it was better raised in a post-verdict motion).
15
wages. The court declined to remit the damages further, finding that the awards
were “neither grossly excessive nor shocking to the conscience.”
C. The Doctors’ New Trial Motion
The doctors moved for a new trial on the retaliation claims, arguing that the
jury verdicts were inconsistent. Specifically, the doctors noted that the jury found
in favor of co-plaintiff Claudia Cote, but applied the same-decision defense to
Gowski on the same issue.9 They also argued that they were entitled to a new trial
due to the court’s failure to give the requested jury instruction. The court denied
the motion, finding that the jury verdicts were consistent. The court also found no
error in the jury instructions because the instructions, as given, covered the
doctors’ concerns, and counsel repeatedly stated in closing argument that each act
of retaliation was a separate claim.
D. Injunctive Relief
On the doctors’ motion, the district court granted equitable relief as follows:
(1) prohibiting any retaliatory practices; (2) preventing the Secretary from taking
any disciplinary action against the doctors for three years unless approved by
independent review; (3) ordering the VA staff to participate in discrimination
9
The plaintiffs argue that the inconsistency arises from the jury’s verdict that the
Secretary retaliated against Cote by removing Gowski from the MICU, but applied the same
decision defense to Gowski. The flaw in this argument is that Gowski’s removal was not part of
Gowski’s retaliation claim – she claimed it was religious discrimination, which the jury rejected.
16
workshops and post the verdict; (4) removing the doctors’ disciplinary files and
preventing their use in any further disciplinary action; (5) ordering that the doctors
be appointed to additional hospital committees; (6) ordering that Gowski be placed
back on the rotation for duty assignments and be permitted to obtain the necessary
credentials and privileges to do so; and (7) ordering that Zachariah be permitted to
continue her research. The Secretary opposed equitable relief on the ground that
the jury applied the same-decision defense.
IV. Appeal
The Secretary now appeals, raising four issues: (1) the district court erred by
denying the motion for judgment as a matter of law; (2) the district court erred by
denying the motion for remittitur; (3) the district court abused its discretion in
awarding injunctive relief; and (4) the plaintiffs were not entitled to attorneys’ fees.
The doctors cross-appeal, raising two issues: (1) they were entitled to a new trial
on the retaliation claims; and (2) the district court erred by vacating the award for
lost wages.10
10
After reviewing the record, and with the benefit of oral argument, we affirm three
issues without further discussion. First, we affirm the award of attorneys’ fees because the
plaintiffs in this case were a prevailing party and, as such, were entitled to fees. 42 U.S.C.
§ 2000e-5(k). In addition, we conclude that the district court properly vacated the lost wages
awards because there is no dispute that Gowski and Zachariah were not constructively
discharged. See Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 (3d Cir. 2006) (holding
that a hostile work environment claim alone, in the absence of a successful constructive-
discharge claim, is insufficient to support an award for lost wages); Mallinson-Montague v.
Pocrnick, 224 F.3d 1224, 1236-37 (10th Cir. 2000) (same). Moreover, to the extent that the
17
A. Standards of Review
We review the denial of a motion for judgment as a matter of law de novo.
Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 582 (11th Cir. 2000). We review the
district court’s decision to grant equitable relief for abuse of discretion, underlying
questions of law de novo, and findings of fact under the clearly erroneous standard.
Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1220 (11th Cir. 2002).
We review jury instructions for abuse of discretion and give trial judges
“wide discretion as to the style and wording employed.” Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). We review jury instructions
de novo to determine whether they misstate the law or mislead the jury. Conroy v.
Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1233 (11th Cir. 2004). Motions
for new trial on the basis of erroneous and prejudicial jury instructions are within
the district court’s discretion and are reviewed for abuse of discretion. Pate v.
awards reflect lost wages for discrete events to which the same-decision defense applied,
damages were not available as a matter of law. Pennington v. City of Huntsville, 261 F.3d 1262,
1270 (11th Cir. 2001); see also 42 U.S.C. § 2000e-5(g)(2)(B). Finally, we conclude that the
district court properly declined to further remit the damages. The jury initially awarded Gowski
$250,000 and Zachariah $1,000,000 in emotional damages. Zachariah’s award was remitted to
$300,000 to reflect the statutory cap. As a general rule, “a remittitur order reducing a jury’s
award to the outer limit of the proof is the appropriate remedy where the jury’s damage award
exceeds the amount established by the evidence.” Rodriguez v. Farm Stores Grocery, Inc., 518
F.3d 1259, 1266 (11th Cir. 2008) (internal citation omitted). Where a district court has already
“invoked its discretion in granting a remittitur, our scope of review is even narrower than usual.”
Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571, 574 n.7 (5th Cir. 1979). Given our
limited scope of review, we cannot say the court abused its discretion by declining to reduce the
award further.
18
Seaboard R.R., Inc., 819 F.2d 1074, 1077 (11th Cir. 1987).
B. The Secretary’s Motion for Judgment as a Matter of Law
Under Rule 50, a court should render judgment as a matter of law when
there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue. Fed. R. Civ. P. 50. We review all of the evidence in the record
and draw all reasonable inferences in favor of the nonmoving party. Cleveland v.
Home Shopping Network, Inc., 369 F.3d 1189, 1192-93 (11th Cir. 2004) (citing
Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 148-51 (2000)). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Reeves, 530
U.S. at 150; see also Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983)
(“Appellate courts reviewing a cold record give particular deference to credibility
determinations of a fact-finder who had the opportunity to see live testimony.”).
“[A]lthough the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe.”
Reeves, 530 U.S. at 151. “[I]f there is substantial conflict in the evidence, such that
reasonable and fair-minded persons in the exercise of impartial judgment might
reach different conclusions, the motion must be denied.” Christopher v. Florida,
449 F.3d 1360, 1364 (11th Cir. 2006) (internal citations and quotation marks
19
omitted).
Title VII prohibits employers from retaliating against an employee “because
[s]he has opposed any . . . unlawful employment practice . . . or because [s]he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
establish a prima facie case of retaliation, the plaintiff must show that (1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse
employment action; and (3) there was a causal link between the two.11 Dixon v.
The Hallmark Companies, Inc., 627 F.3d 849, 856 (11th Cir. 2010). To establish a
hostile work environment claim under Title VII, the plaintiff must show that “the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir. 2002).
1. Does the Eleventh Circuit recognize a claim for retaliatory
hostile work environment?
This court has yet to recognize a retaliatory hostile work environment claim.
But every other circuit does. See Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 928-
11
The parties agree that Gowski and Zachariah engaged in a protected activity.
20
29 (8th Cir. 2007); Jordan v. City of Cleveland, 464 F.3d 584, 598 (6th Cir. 2006);
Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Hussain v.
Nicholson, 435 F.3d 359, 366-67 (D.C. Cir. 2006); Noviello v. City of Boston, 398
F.3d 76, 88 (1st Cir. 2005); Von Gunten v. Maryland, 243 F.3d 858, 864-65 (4th
Cir. 2001), arbrogated on other grounds by Burlington N., 548 U.S. 53; Ray v.
Henderson, 217 F.3d 1234, 1244-45 (9th Cir. 2000); Richardson v. N.Y. State
Dep’t of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999), abrogated on other
grounds by Burlington N., 548 U.S. 53; Gunnell v. Utah Valley State Coll., 152
F.3d 1253, 1264 (10th Cir. 1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th
Cir. 1996).12
We now join our sister circuits and recognize the cause of action. Doing so
is consistent with the statutory text, congressional intent, and the EEOC’s own
interpretation of the statute. See Noviello, 398 F.3d at 89-90; see also 42 U.S.C.
§ 2000e-2(a); EEOC Compl. Man. (CCH) ¶ 8005, § 8-II.D.3 (2004). As the First
Circuit explained,
Given Congress’s intention to strike at the entire spectrum of disparate
treatment of men and women in employment, which includes
12
The Fifth Circuit recognized the cause of action under the Energy Reorganization
Act’s whistleblower provision. Williams v. Admin. Review Bd., 376 F.3d 471, 476-77 (5th Cir.
2004).
21
requiring people to work in a discriminatorily hostile or abusive
environment, it makes sense to construe the qualifier (regarding
“compensation, terms, conditions, or privileges of employment”)
broadly. On that basis, the verb “discriminate,” as used in section
2000e-2(a)(1), logically includes subjecting a person to a hostile work
environment . . . . Title VII’s anti-retaliation provision . . . directs an
employer not to discriminate against any employee “because [the
employee] has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [Title VII].”
42 U.S.C. § 2000e-3(a). Here, the term “discriminate” appears without
the qualifier. A familiar canon of construction teaches that a term
appearing in several places in a statutory text is generally read the
same way each time it appears. We apply that canon here. The result:
the verb “discriminate” in the anti-retaliation clause includes
subjecting a person to a hostile work environment.
Noviello, 398 F.3d at 89-90 (internal quotation marks and citations omitted).
Additionally, it is consistent with Title VII’s remedial goal and prevents
supervisors from deterring protected conduct. Id. Accordingly, we hold that this
circuit recognizes a cause of action for retaliatory hostile work environment.
2. Is there sufficient evidence of the retaliatory hostile work
environment?
Having recognized the cause of action, we must review whether the evidence
in this case was sufficient to establish the claim. Here, the question is whether a
reasonable jury could have found that the Secretary, through Lin, Patel, and Van
Buskirk, subjected Gowski and Zachariah to a hostile work environment in
retaliation for their EEO activity. To so find, the jury had to conclude that the
actions complained of were sufficiently severe or pervasive to alter the terms and
22
conditions of employment, thus constituting an adverse employment action.
The requirement that the harassment be “severe or pervasive” contains an
objective and a subjective component. Miller, 277 F.3d at 1276. “Thus, to be
actionable, this behavior must result in both an environment that a reasonable
person would find hostile or abusive and an environment that the victim
subjectively perceive[s] . . . to be abusive.” Id. (internal quotation marks omitted).
In evaluating the objective severity of the harassment, this court looks at the
totality of the circumstances and considers, among other things: “(1) the frequency
of the conduct; (2) the severity of the conduct; (3) whether the conduct is
physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Id. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be
determined only by looking at all the circumstances.” Harris, 510 U.S. at 23.
Discrete acts cannot alone form the basis of a hostile work environment
claim. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970 (11th Cir.
2008) (emphasis added); see also McCann v. Tillman, 526 F.3d 1370, 1378 (11th
Cir. 2008) (as opposed to “[d]iscrete acts such as termination, failure to promote,
denial of transfer, or refusal to hire,” a hostile work environment claim addresses
acts “different in kind” whose “very nature involves repeated conduct,” such as
23
“‘discriminatory intimidation, ridicule, and insult.’” (quoting Nat’l R.R. Passenger
Corp., 536 U.S. at 117)). But the jury could consider discrete acts as part of a
hostile work environment claim. See, e.g., Nat’l R.R. Passenger Corp., 536 U.S. at
117 (a hostile work environment claim depends on “a series of separate acts that
collectively constitute one ‘unlawful employment practice.’” (internal citation
omitted)); see also Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1349-50
(11th Cir. 2007) (discussing, for timeliness purposes, discrete acts that are
sufficiently related to a hostile work environment claim that they can be considered
part of the same claim).
The Secretary argues that the discrete acts in this case cannot be considered
as part of the hostile environment because the retaliatory intent was not the “but-
for” cause where the jury applied the same decision defense. Although the
Secretary is correct that the retaliation must be the “but-for” cause, we cannot
agree that the same-decision defense eliminates such causation in a hostile work
environment claim. As it does in every case in which the same-decision defense
applies, the jury here found that the discrete acts were motivated in part by
retaliatory animus. Although that may be sufficient under the same-decision
defense to preclude liability for each of the acts individually, it is not enough to
eliminate liability for the hostile environment caused by the retaliatory animus
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when the discrete and non-discrete acts are taken collectively. To allow the same-
decision defense to eliminate but-for causation in a hostile work environment claim
would essentially do away with the claim. Thus, although the same-decision
defense eliminates but-for causation for each discrete action, it does not eliminate
the but-for causation that matters in a retaliatory hostile work environment claim –
that is, the severe and pervasive accumulation of actions that would not have
occurred but-for the retaliatory reason, even if each action alone was justifiable.
Having reviewed the testimony in this trial, and giving proper deference to
the jury’s credibility determinations, we conclude that the district court properly
denied the motion for judgment as a matter of law. Although reasonable people
could disagree about the evidence, there was enough for the jury to conclude that
Lin, Patel, and Van Buskirk created a workplace filled with intimidation and
ridicule that was sufficiently severe and pervasive to alter Gowski and Zachariah’s
working conditions. And although the discrete acts of retaliation played a role in
the intimidation and ridicule, they were certainly not the only conduct that
supported the hostile work environment claim. The evidence here showed that the
administration intended to retaliate against Gowski and Zachariah because of their
EEO activity and then created a hostile environment by spreading rumors about the
doctors, damaging their reputations, and disciplining them. The administration
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solicited ROCs on Gowski and Zachariah, instructed other employees to encourage
the doctors to resign, and attempted to malign them in front of their peers and co-
workers. This scheme was visible to other hospital staff in their day-to-day work
in the units, as was the toll it took on Gowski and Zachariah personally.
And this scheme was both severe and pervasive. There was testimony that
the retaliatory intent was well-known and continued over a period of years.
Gowski and Zachariah were targeted with a campaign to force them to resign by
limiting their privileges and their access to positions within the hospital. They
were removed from committees and projects, prohibited from conducting research,
reassigned to different wards, and given low proficiency ratings. Other doctors
testified to the scheme, with some admitting that they were afraid to testify for fear
of retaliation. And although it did not deter Gowski and Zachariah from filing
complaints, several other staff members testified that they chose not to file EEO
claims out of fear.
In light of this evidence, we agree that the evidence was sufficient to support
the jury's verdict on the retaliatory hostile work environment claim.
C. Injunctive Relief
“The purpose of Title VII relief is to ‘make whole’ victims of unlawful
discrimination.” Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1363 (11th
26
Cir. 1994) (internal quotation marks omitted). The statute vests “broad equitable
discretion” in a federal court to fashion the “most complete relief possible.” Id.
The injunctive relief here included: (1) prohibiting any retaliatory practices;
(2) preventing the Secretary from taking any disciplinary action against the doctors
for three years, unless approved by independent review; (3) ordering the VA staff
to participate in discrimination workshops; (4) removing of the doctors’
disciplinary files and preventing their use in any further disciplinary action;
(5) ordering that the doctors be appointed to additional hospital committees;
(6) ordering that Gowski be placed back on the rotation for duty assignments and
be permitted to obtain the necessary credentials and privileges to do so; and (7)
ordering that Zachariah be permitted to continue her research.
The Secretary contends, and we agree, that no injunctive relief is available
when a defendant prevails in a mixed-motive retaliation case. See 42 U.S.C.
2000e-(g)(2)(B). Although such relief would be available in a mixed-motive
discrimination claim, retaliation is not listed in the statute addressing injunctive
relief for mixed-motive claims.
Thus, the court here was limited in the relief it could fashion. We cannot say
that the court abused its discretion when it prohibited any retaliatory practices,
instructed that the verdict be posted, prevented the Secretary from taking any
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disciplinary action against the doctors for three years unless approved by
independent review, and ordered VA administration and staff to participate in
discrimination workshops. This relief relates directly to the hostile work
environment and scheme to retaliate against the doctors.
The remaining relief ordered by the court is a closer call, as it relates to the
discrete instances of retaliation for which the jury applied the same-decision
defense. Although we concluded that the jury could consider discrete acts as part
of the hostile work environment, those discrete acts cannot be remedied due to the
mixed-motive involved.13 See 42 U.S.C. § 2000e-5(g)(2)(B). Accordingly, we
vacate in part the injunctive award.
D. The Doctors’ New Trial Motion
We examine jury instructions as a whole to determine whether they fairly
and adequately addressed the issue and correctly stated the law. Christopher v.
Cutter Lab., 53 F.3d 1184, 1190 (11th Cir. 1995). “Jury instructions must be put
in context; we consider the allegations of the complaint, the evidence presented,
and the arguments of counsel when determining whether the jury understood the
issues or was misled.” Id. at 1190-91. “The purpose of jury instructions is to give
the jury a clear and concise statement of the law applicable to the facts of the case.”
13
We disagree with the plaintiff-appellants that Gowski can be reassigned to MICU as
part of co-plaintiff Claudia Cote’s remedy. Cote’s remedies are not before us in this appeal.
28
Id. at 1194 (internal citation omitted. “If there is no basis in the record for the
instruction given, such error may raise a substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations, and reversal may be
required.” Id. (citation and internal quotation marks omitted). “If the totality of
the instructions properly express the law applicable to the case, there is no error
even though an isolated clause may be inaccurate, ambiguous, incomplete or
otherwise subject to criticism.” Id. (internal quotation marks and citation omitted).
Considering the record as a whole, we see no reversible error in the jury
instructions.14 The instructions indicated the jury was to consider one or more
actions, and the court listed each allegation of retaliation for the jury to consider.
We presume a jury follows its instructions. Wilbur v. Corr. Servs. Corp., 393 F.3d
1192, 1201 (11th Cir. 2004). Additionally, both parties in closing arguments
reminded the jury that it could consider each separate act in the retaliation claim.
The jury’s answers to the interrogatories on the verdict form were consistent with
each other and with the verdict as a whole. This is not a case in which the jury
rendered inconsistent verdicts. See Fed. R. Civ. P. 49 (addressing inconsistencies
14
We note that the verdict form mirrored the form requested by the plaintiff doctors,
arguably rendering any error here invited. In re Carbon Dioxide Indus. Antitrust Litig., 229 F.3d
1321, 1327 (11th Cir. 2000) (“It is a cardinal rule of appellate review that a party may not
challenge as error a ruling or other trial proceeding invited by that party.” (internal quotation
marks and citation omitted)).
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in general and special verdicts); see also Wilbur, 393 F.3d at 1200-02 (describing a
case in which the jury found in favor of the defendant on the plaintiff’s claims of
harassment and retaliation but nevertheless awarded the plaintiff damages).
Accordingly, the district court properly denied the doctors’ motion for a new trial.
VI. Conclusion
For the foregoing reasons, we affirm the district court’s denial of the motion
for judgment as a matter of law and for a new trial, the remittitur, the vacatur of the
lost-wages award, and the award of attorneys’ fees. We also affirm in part the
grant of injunctive relief, but remand in part the injunctive award with instructions
for the district court to strike the award as it pertains to the removal of the doctors’
disciplinary files and the prevention of their use in any further disciplinary action;
the order that the doctors be appointed to additional hospital committees; the order
that Gowski be placed back on the rotation for duty assignments and be permitted
to obtain the necessary credentials and privileges to do so; and the order that
Zachariah be permitted to continue her research.
AFFIRMED in part, VACATED and REMANDED in part.
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