                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT          FILED
                              ______________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                    No. 07-11001              March 12, 2008
                              ______________________        THOMAS K. KAHN
                         D.C. Docket No. 00-03417-CV-JOF-1       CLERK


TRACEY L. TOMCZYK,

                                                                  Plaintiff-Appellee
                                                                  Cross-Appellant,

                                            versus

JOCKS & JILLS RESTAURANTS, LLC,
JOSEPH R. ROLLINS,

                                                                  Defendants-Appellants
                                                                  Cross-Appellees.

                                 ____________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                              _____________________

                                     (March 12, 2008)

Before BIRCH and FAY, Circuit Judges, and RODGERS,* District Judge.

____________________
        * Honorable Margaret C. Rodgers, United States District Judge for the Northern District
of Florida, sitting by designation.
PER CURIAM:

        In this second appeal of Tracey L. Tomczyk’s employment case against

sports bar/restaurant chain Jocks & Jills and its Secretary, Treasurer, Chairman of

the Board, and controlling shareholder Joseph R. Rollins, the defendants challenge

the district court’s order denying their post-trial motion to set aside the jury

verdicts rendered in Tomczyk’s favor on her Georgia state law intentional

infliction of emotional distress and negligent retention claims. Finding that the

district court erred in instructing the jury on the intentional infliction of emotional

distress claim, we REVERSE and REMAND the case for further proceedings.1



                                         Background

       The facts and lengthy procedural history of this long-standing case are set

forth more fully in our unpublished decision in the first appeal, Tomczyk v. Jocks


       1
           The district court granted the defendants’ motion to the extent it vacated the jury’s
award of $200,000 in punitive damages to Tomczyk on her claim of negligent retention, which
judgment Tomczyk cross-appeals. Because the negligent retention claim is derivative of
Tomczyk’s intentional infliction of emotional distress claim, our decision reversing the judgment
on the latter claim renders Tomczyk’s cross-appeal of the former claim moot. Moreover, the
cross-appeal has been mooted by the parties’ announced mediated settlement of Tomczyk’s
claims against J & J; this settlement awaits approval by the United States Bankruptcy Court for
the Northern District of Georgia, which currently is hearing J & J’s petition for bankruptcy. In
light of the mootness of Tomczyk’s cross-appeal we do not reach it or otherwise substantively
address her negligent retention claim. Moreover, because the jury instruction issue alone
warrants reversal and remand for a new trial, we need not reach, and do not discuss, any other
grounds for reversal asserted on appeal.

                                                2
& Jills, LLC, 198 Fed. Appx. 804 (11th Cir. 2006) (“Tomczyk I”). Briefly, the

background of this appeal is as follows. Tomczyk first filed suit against J & J and

Rollins in December 2000. She later amended her complaint to include claims for

sex discrimination, race discrimination, and retaliation arising under Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S C.

§ 1981, the Equal Pay Act, 29 U.S.C. § 206(d); and certain state law claims,

including intentional infliction of emotional distress and negligent retention.

Following summary judgment, the case proceeded to trial in July 2004 on

Tomczyk’s claims of retaliation and sexual harassment under Title VII, intentional

infliction of emotional distress, and negligent retention. At the close of

Tomczyk’s case-in-chief the district court granted the defendants' motion for

judgment as a matter of law on the retaliation and intentional infliction of

emotional distress claims. The jury then deliberated on the sexual harassment and

negligent retention claims, returning defense verdicts on both claims.

      In the first appeal, we reversed the district court’s directed verdict on

Tomczyk’s retaliation claim. We also reversed the directed verdict on Tomczyk’s

intentional infliction of emotional distress claim, to the extent the claim was based

on conduct that occurred on or after December 22, 1998. We remanded those

claims, as well as Tomczyk’s negligent retention claim insofar as it involved the

                                          3
reversed claims, for further proceedings. The judgment was otherwise affirmed.

        On remand, the district court bifurcated the trial. Liability for intentional

infliction of emotional distress and retaliation was tried in Phase One; damages on

those claims and liability for negligent retention were tried separately in Phase

Two. In Phase One, the jury returned verdicts in favor of Tomczyk on the

intentional infliction of emotional distress claim and in favor of J & J and Rollins

on the retaliation claim. In Phase Two of the trial, the jury found J & J liable on

the negligent retention claim. In assessing damages against Rollins, the jury

awarded Tomczyk $250,000 in compensatory damages and $750,000 in punitive

damages. Against J & J, the jury awarded $250,000 in compensatory damages and

$750,000 in punitive damages on the intentional infliction of emotional distress

claim. On the negligent retention claim, the jury awarded Tomczyk $50,000 in

compensatory and $200,000 in punitive damages. The defendants moved for

judgment as a matter of law or for a new trial. The district court denied the

motion, except for vacating the $200,000 punitive damages award on the negligent

retention claim.2 This second appeal ensued.

        2
          The district court found that because the jury had specifically determined by special
verdict that Tomczyk had not suffered any physical injury in connection with her negligent
retention claim, under Georgia law she could not recover punitive damages. While we do not
today address this finding by the district court or its conclusion that Tomczyk was not barred
from recovering punitive damages on her intentional infliction of emotional distress claim, we
are confident in the district court's ability to resolve any tension in the relevant provisions of state

                                                   4
                                               Discussion

       During the second trial the district court admitted evidence of conduct by

Rollins that occurred prior to December 22, 1998. At the close of Phase One, the

district court gave the jury the following deliberation instructions:

       None of the evidence about that prior period may be used by you to
establish any of the elements of intentional infliction of emotional distress. You
may look at it only to determine the severity, if any, of any distress that the
plaintiff claims to have experienced.

                                                ***

       You don't have all the facts about that prior time, and so you shouldn't try to
compute about what happened in that prior time. You can look at what I let in if
that helps you to understand some words that were spoken, some conduct taken, or
to understand whether or not the stress was severe. Those are the only things you
can use it for.

       Errors in jury instructions are reviewed for plain error where, as in this case,

no objection was raised prior to jury deliberations. See United States v. Massey,

89 F. 3d 1433, 1442 (11th Cir. 1996). Under plain error review, we will not

correct an error the defendant failed to raise in the district court unless there is:

"(1) error, (2) that is plain, and (3) that affects substantial rights." United States v.

Rodriguez, 398 F. 3d 1291, 1298 (11th Cir. 2005). If these three conditions are

met, we may then exercise our discretion to notice a forfeited error if "(4) the error



law on this question and, with counsel’s input, properly instruct the jury at retrial.

                                                  5
seriously affects the fairness, integrity, or public reputation of judicial

proceedings." Id.; Maiz v. Virani, 253 F. 3d 641, 676 (11th Cir. 2001) (stating that

"[r]eversal for plain error in the jury instructions or verdict form will occur only in

exceptional cases where the error is so fundamental as to result in a miscarriage of

justice."). We must examine whether the jury charges, considered as a whole,

sufficiently instructed the jury so that the jurors understood the issues and were

not misled. Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F. 3d 1339,

1351 (11th Cir. 2004). If jury instructions accurately reflect the law, the trial

judge is given wide discretion as to the style and wording employed in the

instruction. Id. at 1351. The trial court will be reversed because of an erroneous

instruction only if the appellate court is "left with a substantial and ineradicable

doubt as to whether the jury was properly guided in its deliberations." Id.

      As an initial matter, contrary to the defendants’ contention, in Tomczyk I we

did not state that all evidence regarding conduct that occurred prior to December

22, 1998, was inadmissible. Rather, while we held that the intentional infliction of

emotional distress claim could not encompass conduct that occurred prior to that

date for statute of limitations reasons, we did not expressly limit or preclude all

use of the evidence. The district court could have properly admitted evidence of

Rollins’ pre-limitations period conduct for background and context purposes, with

                                           6
appropriate limiting instructions, and it did so here.

      The defendants’ contention that the instructions quoted above could have

fundamentally misled the jury, however, has merit. The instructions given during

Phase One of the proceedings directed the jury to assess the severity of the distress

suffered by the plaintiff but also stated that severity could not be used to establish

any of the elements of an intentional infliction of emotional distress claim.

Severity, however, is an essential element of this tort: “[a] claim for intentional

infliction of emotional distress must prove four elements: (1) intentional or

reckless conduct (2) that is extreme and outrageous and (3) causes emotional

distress (4) that is severe.” Travis Pruitt & Associates, P.C. v. Hooper, 277 Ga.

App. 1, 8, 625 S.E. 2d 445 (2005) (citing Mears v. Gulfstream Aerospace Corp.,

225 Ga. App. 636, 638, 484 S.E. 2d 659 (1997)).

      We conclude that the district court erred by instructing the jury that it could

consider none of the pre-limitations period evidence to establish the elements of

intentional infliction of emotional distress but that it could consider that evidence

to determine the severity of any distress experienced by the plaintiff. As noted

above, severity is an essential element of an infliction of intentional emotional

distress claim. Given the conflicting – and seemingly confusing – instructions

given by the district court, it is likely the jury considered conduct that occurred

                                           7
prior to December 22, 1998, in finding that Rollins intentionally inflicted

emotional distress on Tomczyk on or after that date.3 The error was plain because

under Georgia law severity is an element of the tort of intentional infliction of

emotional distress as to which the jury must have been charged but, as Tomczyk I

instructed, the jury could not consider evidence of Rollins’ conduct prior to

December 22, 1998, for the purpose of finding liability for conduct that occurred

December 22, 1998, or later.4 Additionally, given the $2,000,000 damages verdict

against the defendants on the intentional infliction of emotional distress claim, we

find that the error also affected their substantial rights. Finally, we conclude that

an error of this magnitude resulted in a miscarriage of justice and seriously

affected the fairness of the judicial proceedings. Based on the direct conflict in the

jury instructions on an essential element of a claim, we are "left with a substantial

and ineradicable doubt as to whether the jury was properly guided in its

deliberations." Bearint, 389 F. 3d at 1351; see, generally, Parker v. Scrap Metal


       3
          Reading the jury instructions at issue here broadly and with the luxury of hindsight, we
can see that the district court was simply attempting to explain to the jury that it could use the
evidence of Rollins’ conduct prior to December 22, 1998, for one purpose but not for another.
Nevertheless, our consideration of this question is of course confined to the instructions as they
were given. So doing, we must recognize that the instructions here, as given, constitute plain
error.
       4
          This evidence showed that Rollins’ conduct prior to December 22, 1998, was highly
offensive. The extreme nature of the evidence increases the likelihood that the jury considered it
in deciding that Rollins intentionally inflicted emotional distress on Tomczyk.

                                                8
Processors, 386 F. 3d 993 (11th Cir. 2004). Accordingly, we reverse the jury’s

verdict on liability and its award of damages, both on Tomczyk’s intentional

infliction of emotional distress claim and her related claim of negligent retention,

and remand for a new trial.

                                         Conclusion

       For the foregoing reasons, we REVERSE the jury’s verdict and award of

damages on Tomczyk’s intentional infliction of emotional distress and negligent

retention claims. This case is REMANDED to the district court for further

proceedings consistent with this opinion.5

       REVERSED and REMANDED.




       5
        At oral argument for both the first and second appeals, as well as in Tomczyk I, we
encouraged the parties to settle this matter. Once again, we urge the parties to do so.

                                               9
