                Case: 11-14958       Date Filed: 12/19/2012      Page: 1 of 6

                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-14958
                               ________________________

                          D.C. Docket No. 1:08-cv-3758-WCO


FULTON COUNTY, GEORGIA,

                                                                  Defendant - Appellant,


                                            versus


NORMA EDIE PEARSON,

                                                                  Plaintiff - Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________
                                (December 19, 2012)

Before BARKETT and JORDAN, Circuit Judges, and HODGES, * District Judge.

*
 Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
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HODGES, District Judge:

      This is an employment discrimination case. Norma Edie Pearson, the

Plaintiff, was employed by Fulton County, Georgia. She worked as a Probation

Officer in Juvenile Court. She was denied a promotion in May, 2007, and was

terminated in September, 2007. Prior to those events she had complained and had

filed charges with Fulton County and with the EEOC alleging that she was being

discriminated against in various ways by her superiors because of her sex or

gender, behavior that would be a violation of Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq. As such, Pearson’s complaints constituted protected

activity under 42 U.S.C. § 2000e-3(a).

      The Plaintiff’s amended complaint asserted a number of separate claims or

causes of action. After the district court ruled upon dispositive motions not at issue

on this appeal, the case proceeded to jury trial on the Plaintiff’s claims of having

been the victim of an unlawful retaliatory failure to promote and unlawful

retaliatory discharge, both in violation of 42 U.S.C.§ 2000e-3(a) expressly

prohibiting any discrimination against an employee “because [s]he has opposed

any practice made an unlawful employment practice by this subchapter. . . .”

      The jury found for the Plaintiff and returned a general verdict in the amount

of $425,000 damages. The district court later awarded the Plaintiff an additional



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$142,000 in attorney’s fees. Judgments were entered and Fulton County brought

this appeal.

      We heard oral argument and have carefully reviewed the briefs and the

record. We affirm the district court.

                                     I The Facts

      A brief outline of the facts is sufficient to place our rulings in context.

      Pearson began her employment as a Probation Officer in the Juvenile Court

in March, 1994. Her immediate supervisor during the early years of her

employment was Edward Garnes. In the late 1990’s Pearson filed an EEOC

complaint and lawsuit against the County alleging sexual harassment by Garnes.

The dispute was settled – and a written settlement agreement was executed – in

2003. Among other things, the agreement provided that any disputes arising under

it would be subject to arbitration. Nevertheless, according to Pearson the sexual

harassment continued and on October 18, 2006, she wrote a letter of complaint to

the Chief Administrative Officer of the Juvenile Court.

      In March, 2007, Pearson interviewed for a promotion to a supervisor’s

position. The promotion was denied in May. On June 15, 2007, Pearson filed a

complaint of gender discrimination with the County’s Office of Equal Employment

Opportunity. She was terminated on September 14, 2007. The County’s proffered

reason was that Pearson had falsified her time records on July 6, 2007.


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                        II The Allegations of Error On Appeal

       1.     The County first assigns as error the denial by the district court of a

motion to dismiss for lack of subject matter jurisdiction. 1 Specifically, the County

claims that the district court should have granted a motion made on the eve of trial

to dismiss the retaliation claims on the ground that the 2003 settlement agreement

required arbitration of the claims. The district court denied the motion for two

reasons. First, Pearson’s claim was not predicated upon any violation of the

settlement agreement. The claim presented to the jury was one for retaliation in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a). Second,

even if arbitration was available under the settlement agreement, the County

waived its claim of arbitrability by litigating the case for more than two years only

to raise the issue three days before the scheduled jury trial. See Morewitz v. The

West of England Ship Owners Mut. Protection and Indem. Ass’n (Lux.), 62 F.3d

1356, 1366 (11th Cir. 1995) (“Waiver occurs when a party seeking arbitration

substantially participates in litigation to a point inconsistent with an intent to

arbitrate and this participation results in prejudice to the opposing party. Prejudice

has been found in situations where the party seeking arbitration allows the



       1
        We review de novo a district court’s determination of subject matter jurisdiction.
United States v. Rendon, 354 F.3d 1320, 1324 (11th Cir. 2003); Asociacion De Empleados Del
Area Canalera v. Panama Canal Comm’n, 329 F.3d 1235, 1237-38 (11th Cir. 2003).


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opposing party to undergo the types of litigation expenses that arbitration was

designed to alleviate.”) (internal citations omitted).

      The district court correctly denied the motion.

      2.     The County’s second claim on appeal is that the district court erred in

failing to grant the County’s motion for judgment as a matter of law because the

Plaintiff failed to prove retaliation. We review de novo the district court’s rulings

on motions for judgment as a matter of law, and we apply the same standard. The

evidence must be viewed in a light most favorable to the non-moving party. Mee

Industries v. Dow Chemical Co., 608 F.3d 1202, 1210-11 (11th Cir. 2010).

      The jury was free to credit the testimony of the Plaintiff and to draw

reasonable inferences in her favor from the direct evidence and the totality of the

circumstances. The district court, in a thorough order, carefully reviewed the

record and concluded that the verdict was supported by the evidence so that the

motion for judgment as a matter of law should be, and was, denied. Upon de novo

review we conclude that the district court was correct.

      3.     The County asserts that the district court erred in denying its motion

for a new trial and in its award of Plaintiff’s attorney’s fees. Both of these claims

are reviewed under the abuse-of-discretion standard. Myers v. TooJay’s Mgmt.

Corp., 640 F.3d 1278, 1287 (11th Cir. 2011) (motion for a new trial) and Atlanta

Journal & Constitution v. City of Atlanta Dept. of Aviation, 442 F.3d 1283, 1287


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(11th Cir. 2006) (award of attorney’s fees). Applying that standard, we find no

error in the district court’s disposition of both issues.

      AFFIRMED.




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