                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 05-10744                  AUGUST 9, 2006
                       ________________________           THOMAS K. KAHN
                                                              CLERK
                   D. C. Docket No. 00-03417-CV-JOF-1

TRACEY L. TOMCZYK,


                                                  Plaintiff-Appellant,

                                  versus

JOCKS & JILLS RESTAURANTS, LLC,
JOSEPH R. ROLLINS,
JOCKS & JILLS JACKSONVILLE, INC.,
JOCKS & JILLS DULUTH, INC.,
JOCKS & JILLS GALLERIA, INC., et al.,


                                                  Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (August 9, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      This is a sex and race discrimination case brought by a former upper-

management employee, Tracey Tomczyk, against the sports bar/restaurant chain

Jocks & Jills and against Joe Rollins, who is the Secretary, Treasurer, Chairman of

the Board, and controlling shareholder of Jocks & Jills. Tomczyk also brought

state law claims, including intentional infliction of emotional distress and

negligent retention. The district court granted summary judgment in favor of the

defendants on some of Tomczyk’s claims. At trial, the court entered a directed

verdict for the defendants on some of her claims, and the jury returned a verdict

for J&J on the remaining ones.

      During the summary judgment stage of the proceedings, the magistrate

judge wrote a 103-page report and recommendation. The district court later noted

that “no party has contended in objections that the magistrate judge found any

facts in clear error,” and it accepted the magistrate judge’s version of the facts for

summary judgment purposes. The R&R set out detailed findings and the parties

have not actually contested those findings for purposes of this appeal, so we will

accept them as well. We will not recount them at length in this opinion because

the parties and district court are well aware of them.




                                           2
                                          I.

      In her complaint against J&J and Rollins, Tomczyk claimed that the

defendants did the following: discriminated against her on the basis of her sex,

subjected her to a sexually hostile work environment, and retaliated against her, all

in violation of Title VII, discriminated against her on the basis of race, and

subjected her to a racially hostile work environment in violation of Title VII and

42 U.S.C. § 1981, violated the Equal Pay Act, and intentionally inflicted

emotional distress. She also claimed that defendant J&J negligently retained and

supervised Rollins and that both defendants were liable for assault and battery

and invasion of privacy.

      After discovery, J&J and Rollins filed motions for summary judgment. The

district court entered an order granting those motions in part. The court granted

both defendants summary judgment on the following claims: disparate treatment

racial harassment and hostile environment racial harassment under Title VII and §

1981; disparate treatment sexual discrimination under Title VII; disparate wages

under the Equal Pay Act and under Title VII; assault and battery; and invasion of

privacy. The court also granted Rollins summary judgment on the remaining Title

VII claims against him.




                                          3
        The district court denied J&J’s motion for summary judgment on

Tomczyk’s claims for hostile environment sexual harassment and retaliation under

Title VII and for negligent retention. It also denied both defendants’ motions for

summary judgment on the intentional infliction of emotional distress claim. The

parties proceeded to trial on those four claims. During trial the court granted

J&J’s motion for directed verdict on Tomczyk’s retaliation claim under Title VII,

and it granted both defendants summary judgment on statute of limitations

grounds on her claim for intentional infliction of emotional distress. That

disposed of the last remaining claims against Rollins, leaving only J&J to face the

jury.

        Thereafter the jury rendered a verdict in favor of J&J on the remaining

claims against it—Title VII hostile environment sexual harassment and negligent

retention. The jury verdict included the following responses to these written

interrogatories:

                     1. Plaintiff was subjected to sexually offensive
              acts or statements because of her gender. Yes.

                    2. Plaintiff personally believed the workplace
              environment to be hostile or abusive. Yes.

                     3. The acts or statements were dangerous or
              unwelcome and had not been invited or solicited, directly
              or indirectly, by plaintiff’s own acts or statements. Yes.

                                          4
                    4. The acts or statements resulted in a work
             environment that was so permeated with discriminatory
             intimidation, ridicule or insult of sufficient severity or
             pervasiveness that it materially altered the conditions of
             plaintiff’s employment. No.

      The jury also found that J&J was not liable for negligent retention. Because

the court had directed a verdict for the defendants on the retaliation and intentional

infliction of emotional distress claims and the jury had determined that J&J was

not liable for hostile environment sexual harassment, there was no underlying tort

that would support a negligent retention claim.

      Tomczyk filed a motion for a new trial, arguing that she deserved one for

three reasons. Tomczyk’s first contention was that the jury should have been

allowed to determine whether her termination was a product of sexual harassment

or retaliation, or both. The court had determined as a matter of law that

Tomczyk’s termination was not retaliatory, but that Rollins had instead fired her

because of pay raises that she gave herself and two other managers in violation of

Rollins’ written directive to give them only after his written approval. The court

noted that Georgia is an at will employment state, and even though Tomczyk was

able to show temporal proximity based on her verbal complaint about

“inappropriate behavior,” she “has no positive evidence that the morning

conversation was linked to the later termination.” The court concluded:

                                          5
               No reasonable juror could draw an inference from these
               circumstances that Plaintiff was fired because she was
               opposing unlawful practices. To the contrary, if
               Plaintiff’s testimony is to be believed, she had been
               complaining about inappropriate behavior for nine years
               and had never been fired until June 14, 1999, the day the
               pay issue came to a head.

The court went on to say that Tomczyk “presented no positive evidence that

Rollins’ decision to terminate [her] was based on anything other than his

disagreement with her about the salary increases.” The court also noted that

Tomczyk should not have relied on Desert Palace, Inc, v. Costa, 539 U.S. 90, 123

S. Ct. 2148 (2003), in her motion for a new trial because she did not plead her case

as a mixed motive case, and it was too late to do so at the motion for new trial

stage.

         Tomczyk’s second new trial contention was that the statute of limitations

should not have been applied to bar her intentional infliction of emotional distress

claim. In doing so the court had relied on Waters v. Rosenbloom, 490 S.E.2d 73

(Ga. 1997), and rejected Tomczyk’s interpretation of Everhart v. Rich’s, Inc., 194

S.E.2d 425 (Ga. 1972), and Mears v. Gulfstream Aerospace Corp., 484 S.E.2d 659

(Ga. Ct. App. 1997).

         Finally, Tomczyk contended that the jury’s finding that discriminatory

conduct did not affect the conditions of her employment was against the

                                           6
overwhelming weight of the evidence. The court disagreed, concluding that

Tomczyk had not established a sexual harassment claim because she had failed to

prove that the material terms and conditions of her employment were adversely

affected.

                                       II.

      In this appeal Tomczyk has raised seven issues. First, she contends that we

should reverse the district court’s grant of summary judgment in favor of J&J on

her hostile environment racial harassment claim because Rollins’ alleged conduct

constituted racial harassment as well as sexual harassment. Second, she contends

that the district court erroneously granted summary judgment against her on the

disparate treatment racial discrimination claim based on its overly narrow

definition of comparators. Third, she appears to contend that we should reverse

the jury’s verdict for J&J on her sexual harassment claim because the jury should

have been permitted to consider her termination as part of that claim, which would

have enabled her to show a tangible employment action under Faragher v. City of

Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998). Fourth, she contends that the

district court improperly directed the verdict on the issue of whether her

termination was retaliatory, arguing that she presented enough evidence for a

reasonable juror to believe that the defendant’s stated reason for firing her was

                                             7
pretextual. Fifth, she contends that the district court improperly directed the

verdict on that same issue because she showed that the defendant had at least a

mixed motive for her termination. Sixth, she contends that the statute of

limitations does not bar her intentional infliction of emotional distress claim. She

argues that even if her cause of action based on some of the alleged conduct is

time-barred, under Georgia law the continuing tort doctrine saves her claim as to

subsequent conduct. Seventh and finally, she argues that her claim for negligent

retention must be reinstated if we reinstate her sexual harassment or intentional

infliction of emotional distress claims.

      At oral argument, we informed the parties that there were problems with the

positions and arguments on both sides of the appeal and that under the

circumstances it would be better if they settled their case. After that we issued an

order directing them to participate in mediation. They did so but were unable to

resolve their dispute. Here is our resolution of it.

                                           III.

      We review de novo any grant of summary judgment or mid-trial judgment

as a matter of law. Jones v. Dillard’s, Inc., 331 F.3d 1259, 1262 (11th Cir. 2003);

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1344 (11th Cir. 2000). The

same requirements of proof and the same analytical framework apply to Title VII

                                            8
and § 1981 claims, so we “explicitly address the Title VII claim with the

understanding that the analysis applies to the § 1981 claim as well.” Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

        We will take up Tomczyk’s contentions in the order in which she has stated

them.

                                          A.

        We first address Tomczyk’s contentions that the district court erred in

granting summary judgment in favor of J&J on her racial harassment hostile

environment claim. To establish a hostile work environment claim, a plaintiff

must show: “(1) that [s]he belongs to a protected group; (2) that [s]he has been

subject to unwelcome harassment; (3) that the harassment must have been based

on a protected characteristic of the employee . . . ; (4) that the harassment was

sufficiently severe or pervasive to alter the terms and conditions of employment

and create a discriminatorily abusive working environment; and (5) that the

employer is responsible for such environment under either a theory of vicarious or

of direct liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002).




                                           9
      Concluding that no reasonable factfinder could find that the alleged

harassment was based on Tomczyk’s race, the district court granted summary

judgment on this claim, explaining:

             The court has carefully considered whether these
             particular allegations sound in racial—or
             sexual—harassment. If Rollins’ comments were critical
             of Plaintiff for violating some taboo prohibiting white
             women from having a sexual relationship with an
             African-American male, the court might find that
             Rollins’ comments were based on Plaintiff’s race.
             However, Rollins’ comments are not of that character.
             Rather, Rollins conveyed his opinions about the relative
             quality of Plaintiff’s experiences. The court determines
             that no reasonable juror following the law could
             conclude that Rollins’ comments are because of
             Plaintiff’s race, and thus, Plaintiff has not stated a claim
             for racial harassment.

(emphasis in original).

      We disagree. The evidence proved a slew of vulgar and harassing

comments that continued over a period of years established genuine issues of

material fact exist concerning whether the harassment she suffered was based on

race, specifically the race of the man with whom she was romantically involved.

A reasonable jury could have concluded that Rollins’ comments were about that

interracial relationship, and harassment based on an interracial relationship is

forbidden under Title VII. Parr v. Woodmen of the World Life Ins. Co., 791 F.2d



                                          10
888, 890–92 (11th Cir. 1986) (holding that participation in an interracial

relationship places a plaintiff in a protected class under Title VII and § 1981).

Tomczyk presented enough evidence to permit a jury to find that the harassment

inflicted on her was because of race.

      To establish her claim, Tomczyk’s evidence must also establish that the

harassment was severe or pervasive. See Miller, 277 F.3d at 1276–77 (applying a

totality of the circumstances test and holding that a reasonable jury could have

concluded that name-calling and ethnic slurs were frequent, severe, and

humiliating). To determine whether a working environment is hostile or abusive

we must evaluate “all the circumstances.” Harris v. Forklift Sys., Inc., 510 U.S.

17, 23, 114 S. Ct. 367, 371 (1993). In doing so, we consider these factors: “the

frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Id.; see also

Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521–22 (11th Cir. 1995).

      At this point in the proceedings, Tomczyk’s position is undermined by the

fact that a jury has already had an opportunity to consider whether the sexual

harassment that she allegedly suffered was severe or pervasive enough to alter the

terms and conditions of her employment, and the jury found that it was not. This

                                          11
is an unusual case because all of the racial harassment Tomczyk suffered was a

subset of the sexual harassment to which she was subjected. If the sexual

harassment was not sufficiently severe or pervasive, it follows that the subset of it

which was racial in nature was not either. Given that, we conclude that any error

the district court may have committed in granting summary judgment against

Tomczyk on her racial harassment claim was harmless.

                                         B.

      In regard to Tomczyk’s disparate treatment racial discrimination claim, we

must determine whether her termination, which clearly qualifies as an adverse

employment action, was the result of racial discrimination or instead resulted from

the fact that she raised her salary and that of two other managers without Rollins’

written permission.

      A plaintiff may establish a prima facie case for disparate treatment in a race

discrimination case using either direct or circumstantial evidence. EEOC v. Joe’s

Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). Direct evidence is that

which “establishes the existence of discriminatory intent behind the employment

decision without any inference or presumption.” Id. Using circumstantial

evidence, however, the plaintiff must show that: (1) she is a member of a

protected class; (2) she was subjected to an adverse employment action; (3) her

                                         12
employer treated similarly situated employees outside of her protected class more

favorably than she was treated; and (4) she was qualified to do the job. Id. If the

plaintiff satisfies these elements, the defendant must show a legitimate, non-

discriminatory reason for its employment action. Id. If it does so, then the

plaintiff must offer evidence to support a finding that the reason provided by the

defendant is a pretext for unlawful discrimination. Id. If the plaintiff does that,

she can avoid judgment as a matter of law against her. See Combs v. Plantation

Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997).

      Tomczyk contends that she has presented direct evidence of discrimination,

and the McDonnell Douglas burden-shifting analysis does not apply. See Joe’s

Stone Crab, Inc., 220 F.3d at 1286. She argues that Rollins used racial slurs to

describe her physical appearance and to characterize her as attractive to African

American men. She contends that there is direct evidence that he found interracial

relationships repulsive; therefore, there is direct evidence that her termination was

the result of racial discrimination. We disagree. We have explained that “only the

most blatant remarks, whose intent could mean nothing other than to discriminate

on the basis of some impermissible factor constitute direct evidence of

discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.

2004) (quotation marks omitted); see also Haynes v. W.C. Caye & Co., Inc., 52

                                          13
F.3d 928, 931 (11th Cir. 1995) (“[A] statement that members of a racial minority

in general or women in general are simply not competent enough to do a particular

job would seem to be a classic example of direct evidence.”). “If the alleged

statement suggests, but does not prove, a discriminatory motive, then it is

circumstantial evidence.” Wilson, 376 F.3d at 1086.

      Tomczyk does not contend that Rollins ever explicitly threatened to fire her

because of her interracial relationship or said that was why he was firing her.

According to her, Rollins did threaten to fire her if she kept hiring her boyfriend

for J&J’s promotional events, but that is a different matter. Any business has the

right to insist on conflict-free decision making about the expenditure of its funds.

Not only that, but Tomczyk did quit hiring her boyfriend. Any racially derogatory

comments that Rollins made were not directly linked to the termination decision,

so they can serve as circumstantial evidence at best. Her claim is to be evaluated

using the circumstantial evidence, burden-shifting model. See Joe’s Stone Crab,

Inc., 220 F.3d at 1286.

      J&J contends that Tomczyk has failed to establish a prima facie case under

that model, because she has not shown that similarly situated employees outside of

her protected class were treated more favorably than she was. As we have

explained, Tomczyk was in a protected class because she was involved in an

                                         14
interracial relationship. See Parr, 791 F.2d at 890. J&J argues that the district

court properly required Tomczyk to show as a comparator a J&J employee

engaged in a same-race relationship who engaged in the same conduct and was not

fired. It asserts that Rollins even-handedly applied J&J’s anti-fraternization policy

which did not tolerate romantic relationships between J&J employees or

employees and contractors, regardless of race.

      The anti-fraternization policy, however, is not a proper way to define

comparators because no one contends that Tomczyk was terminated for violating

that policy. The defendants’ stated reason for firing her was that she violated

Rollins’ policy requiring that increases in salaries must be approved by him in

writing. The proper comparator would be another J&J employee, outside of

Tomczyk’s protected class, who violated that same policy and was not fired.

      Tomczyk contends that Trang Do, a female subordinate, is such a person.

Do, who worked in payroll, increased some salaries when Tomczyk told her to do

so even without Rollins’ written permission. Do was not fired as a result of her

actions. J&J contends that Do is not an appropriate comparator because Tomczyk

was her supervisor, and she was merely acting on Tomczyk’s orders.

      “When a plaintiff alleges discriminatory discipline, to determine whether

employees are similarly situated, we evaluate whether the employees are involved

                                         15
in or accused of the same or similar conduct and are disciplined in different ways.”

(quotation marks omitted). Burke-Fowler v. Orange County, Fla., 447 F.3d 1319,

1323 (11th Cir. 2006). “When making that determination, we require that the

quantity and quality of the comparator’s misconduct be nearly identical to prevent

courts from second-guessing employers’ reasonable decisions and confusing

apples with oranges.” Id. (quotation marks and alteration omitted).

      Do’s alleged misconduct was not “nearly identical” to Tomczyk’s. See id.

Although she did violate the same J&J policy that Tomczyk violated, she acted

under direct orders from Tomczyk. Not only that, but Tomczyk also left Rollins

an arguably rude note regarding the pay raises, and he viewed that note as

insubordinate. Do did not leave Rollins an insubordinate note. Tomczyk’s note,

combined with her deliberate decision to raise the salaries despite Rollins’ direct

order not to do so without his written approval, adds up to the conclusion that

Tomczyk’s conduct was significantly different from that of Do, who was only

following Tomczyk’s orders and did not compound her offense with an

inappropriate note. Because Do is not a valid comparator, Tomczyk has failed to

establish a prima facie case of racially disparate treatment. See Joe’s Stone Crab,

Inc., 220 F.3d at 1286. The district court did not apply an overly narrow definition




                                         16
of comparators, and it properly granted summary judgment for J&J on Tomczyk’s

racially disparate treatment claim.

                                          C.

      Tomczyk’s third contention, to the extent we understand it, is that the jury

should have been but was not permitted to consider her termination as part of her

sexual harassment claim, which she argues would have enabled her to show a

tangible employment action.

      In Faragher the Supreme Court reiterated that “conduct must be extreme to

amount to a change in the terms and conditions of employment.” 524 U.S. at 788,

118 S. Ct. at 2284. The Court also stated that “there is nothing remarkable in the

fact that claims against employers for discriminatory employment actions with

tangible results, like hiring, firing, promotion, compensation, and work

assignment, have resulted in employer liability once the discrimination was

shown.” Id. at 790, 118 S. Ct. at 2284. We have explained that “[w]hen we talk

about tangible employment action and hostile environment, what we are or should

be talking about are the two alternative ways a plaintiff may establish a basis for

the employer’s vicarious liability, which is the fifth factor of a Title VII sexual

harassment claim.” Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1246 (11th Cir.

2004).

                                          17
      Tomczyk does not state her argument in clear terms. The jury did hear

evidence about her termination and the circumstances surrounding it during the

course of the trial. Although the court directed the verdict against Tomczyk on her

retaliation claim, there was nothing to prevent the jury from considering her

termination as a factor in deciding her harassment claim. To the extent that

Tomczyk is arguing the jury was not permitted to do so by the jury instructions,

her argument is barred by her failure to request an instruction to that effect or

object to those that were given on this ground.

                                          D.

      Tomczyk also contends that the jury should have been permitted to consider

her termination as part of her retaliation claim. To establish a prima facie case of

retaliation under Title VII, a plaintiff must show that: “(1) she participated in an

activity protected by Title VII; (2) she suffered an adverse employment action; and

(3) there is a causal connection between the participation in the protected activity

and the adverse employment decision.” Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000).

      Tomczyk argues that she presented enough evidence for a reasonable juror

to believe that the defendants’ reasons for firing her were pretextual. J&J

contends that there was no causal connection between Tomczyk’s protected

                                          18
activity of complaining about harassment and her termination. It argues that

intervening factors—Rollins’ discovery of the improperly authorized pay raises

and the insubordinate note to him from Tomczyk—were the actual reasons for her

termination.

      Tomczyk responds that Rollins often made contradictory pronouncements

and acted inconsistently regarding the policy against pay raises without his written

approval. She presented evidence that Rollins had previously given verbal

directions to give managers raises and bonuses, and that neither she nor anyone

else had been disciplined for doing so without his written approval. There was

evidence that on the day Tomczyk was fired, she walked out of a board meeting

after complaining about inappropriate, sexually harassing comments that were

undermining her authority as a manager. Although she admits that she had

complained about those type of comments many times before that day, Tomczyk

alleges that her complaint about inappropriate behavior on that day coupled with

the action of walking out of the meeting caused the retaliatory termination that

followed.

      Tomczyk presented enough evidence for a reasonable juror to have found

that J&J’s stated reasons for firing her were pretextual; a genuine issue of material

fact existed regarding whether she was retaliated against in violation of Title VII

                                          19
after she complained about sexual harassment. The district court erred in not

allowing the retaliation claim to go to the jury.

                                          E.

       Tomczyk also contends that she has preserved a mixed motive claim with

regard to her termination. The district court found that she had not, and we agree

with the district court about that. Tomczyk did not plead or otherwise argue a

mixed motive theory, and she voluntarily removed a mixed motive charge from her

set of requested jury instructions. She did not object to the failure to give such a

charge. She raised the issue for the first time in the motion for new trial, which is

too late.

                                           F.

       Tomczyk next contends that the district court erred in concluding that her

intentional infliction of emotional distress claim was completely barred by the

statute of limitations. She contends that under Georgia’s continuing tort doctrine

none of the acts about which she complains are barred from consideration by the

statute of limitations. She also contends that even if those acts occurring more than

two years before she filed her complaint are barred, those that occurred within two

years are not.




                                          20
      The Georgia Supreme Court recognized the continuing tort doctrine in

Everhart v. Rich’s, Inc., 194 S.E.2d 425 (Ga. 1972). Everhart involved a family’s

claims for personal injury and property damage allegedly caused by a set of

draperies purchased at Rich’s department store. 194 S.E.2d at 427. The draperies

were made from fabric composed mainly of “fiberglas,” a registered trademark of a

glass fiber manufactured by Owens-Corning. Id. The plaintiffs alleged that they

hung the draperies in their bedroom and after they became ill years later, they

discovered that billions of “fiberglas” particles had broken loose from the draperies

and had been carried through the house by the heating system. Id. The plaintiffs

also alleged that the defendants had failed to warn them that the material could and

would injure human skin. Id. The trial court found that the plaintiffs’ claims were

barred by the statute of limitations. Id.

      The Georgia Supreme Court disagreed. See id. at 427–28. It noted that

when continued exposure is caused by continued failure to warn, the tort is of a

continuing nature. Id. at 428. Because of the continuing nature of the tort, the

statute of limitations does not begin to run until “such time as the continued

tortious act producing injury is eliminated, e.g., by an appropriate warning in

respect to the hazard.” Id. The court held that this theory of continuing tort

applied “to those factual situations analogous to the situation here involved where

                                            21
any negligent or tortious act is of a continuing nature and produces injury in

varying degrees over a period of time.” Id.

      Everhart involved a failure to warn. See id. Its facts suggest that there is

nothing those plaintiffs, using due diligence, could have done to discover the

hazard until they realized that they were ill. See id. The Everhart plaintiffs bought

new draperies in 1964; “began to suffer extreme personal discomfort and illness” in

1970 and that same year discovered that they were being injured by the fibers in the

draperies; and they filed suit in 1971. Id. at 426–27. The Everhart opinion does

support Tomczyk’s contention that the continuing tort theory generally applies to

her intentional infliction of emotional distress claim. However, that and other

Georgia decisions also indicate that a discovery rule applies to her claim. Under

that rule discovery of the hazard marks the time from which the limitations period

begins to run. See id.

      In Waters v. Rosenbloom, 490 S.E.2d 73 (Ga. 1997), a medical malpractice

case, the defendant doctor had prescribed Valium and Librium to his patient for

eighteen years. After the patient’s death, his surviving spouse and the

administrator of his estate brought suit for wrongful death. Id. at 75. The plaintiffs

alleged that the patient’s addiction to the prescribed drugs rendered him incapable

of controlling his diabetes, which ultimately led to his death. Id. They argued that

                                          22
the court should apply the continuing tort theory in order to avoid the bar of the

five-year medical malpractice statute of repose. Id. The court refused to apply the

continuing tort theory, explaining that “Georgia courts have consistently held that .

. . a continuing tort cause of action accrues when a plaintiff discovers, or with

reasonable diligence should have discovered, both the injury and the cause

thereof.” Id. There was evidence that the patient’s family had recognized as early

as 1975 that he was developing a drug problem because of the defendant doctor’s

prescriptions, and in 1978 the patient even checked himself into the hospital to try

to “get off” of the Valium. Id. These problems and the family’s concern about

them continued into the 1980s, but the lawsuit was not filed until 1995, two years

after the patient had died. Id. at 74.

      Tomczyk argues that Waters is legally and factually distinguishable from her

situation because Waters involved the statute of repose in the Georgia medical

malpractice statute of limitations, which places a five-year limitations period on

claims beginning from the date of the “negligent or wrongful act or omission,” Ga.

Code Ann. § 9-3-71(b). Tomczyk contends that the discovery rule in Waters

applies only to the medical malpractice statute of limitations and repose and has no

application in other circumstances.




                                          23
      We disagree. The Waters opinion does not expressly limit application of the

discovery rule to medical malpractice claims or to those involving a statute of

repose. Moreover, the Georgia Court of Appeals decision upon which Tomczyk

relies for the proposition that the statute of limitations for an intentional infliction

of emotional distress claim does not begin to run until the continuing tort stops also

applies the discovery rule. See Mears v. Gulfstream Aerospace Corp., 484 S.E.2d

659 (Ga. Ct. App. 1997).

      In Mears the court held that the plaintiff’s intentional infliction of emotional

distress cause of action accrued when the defendant’s conduct “allegedly

culminated in damage,” which occurred no later than the date that the plaintiff was

unable to return to work after taking medical leave and being treated by a physician

for stress and depression. Id. at 663. Because the plaintiff did not file her claim

within two years of the date she discovered the injury, the statute of limitations

barred it. Id. at 663–64. The court also held that her husband had a valid loss of

consortium claim, but that was because a four-year, rather than a two-year,

limitations bar applied to his claim, and some of the allegedly tortious conduct did

occur within that longer limitations period. Id. at 664. Although the court stated

that “a series of acts allegedly causing emotional distress should be viewed

cumulatively, rather than in isolation,” it made that statement in the context of

                                            24
determining whether a fact issue existed concerning the extreme and outrageous

nature of the conduct, rather than in the context of determining what the limitations

period was. See id.

      The discovery rule was applied in Everhart, Waters, and Mears, and it

applies to Tomczyk’s intentional infliction of emotional distress claim. The

discovery rule does bar that claim insofar as it is based on the conduct that occurred

outside of the limitations period. The district court found that Tomczyk’s injuries

“manifested themselves at the very latest in November 1998 when she began taking

Prozac for depression.” The court reasoned that Tomczyk’s injury was the “mental

stress that necessitated the prescription of Prozac,” which “manifested itself, at the

latest, as of November 1998.” There is no evidence to the contrary.

      Tomczyk filed her complaint on December 22, 2000, more than two years

after her cause of action accrued with discovery of the injury in November of 1998.

Therefore, the district court did not err in holding that Tomczyk’s intentional

infliction of emotional distress claim was barred by the statute of limitations as to

the conduct that occurred before December 22, 1998.

      However, conduct occurring after December 22, 1998 is a different matter,

because Tomczyk did file her lawsuit within two years of that conduct. There is no

basis for concluding that a plaintiff who fails to file her complaint in time to cover

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all of the tortious conduct inflicted on her is barred from seeking relief for that

which is inflicted during the limitations period. The evidence provides a

reasonable basis for a jury to find that the conduct to which Tomczyk was

subjected during the two years immediately preceding the filing of her lawsuit did

amount to intentional infliction of emotional distress. A jury would not be required

to find that from the evidence, but the issue should be submitted to a jury. For

these reasons, the district court’s statute of limitations ruling involving the

intentional infliction of emotional distress claim is not error insofar as conduct

occurring before December 22, 1998 is concerned, but it is error insofar as conduct

occurring on or after December 22, 1998 is concerned.

                                           G.

      Finally, Tomczyk contends that because Georgia law requires a plaintiff to

show an underlying tort committed by the negligently retained individual in order

to support a negligent retention claim, if we reverse the district court’s judgment

on her Title VII claims or on her intentional infliction of emotional distress claims,

we must reinstate her negligent retention claim. She argues that her negligent

retention claim failed based solely on the failure to establish an underlying tort.

J&J contends that the jury heard all the evidence and that Tomczyk simply failed to

prove a negligent retention claim.

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      Under Georgia law, “a defendant employer has a duty to exercise ordinary

care not to hire or retain an employee the employer knew or should have known

posed a risk of harm to others where it is reasonably foreseeable from the

employee’s ‘tendencies’ or propensities that the employee could cause the type of

harm sustained by the plaintiff.” Munroe v. Universal Health Servs., Inc., 596

S.E.2d 604, 606 (Ga. 2004); see also Eckhardt v. Yerkes Reg’l Primate Ctr., 561

S.E.2d 164, 166 (Ga. Ct. App. 2002) (holding that a negligent retention claim was

properly dismissed when there was no underlying tort upon which it could have

been based).

      As we have discussed, the jury checked the “no” box when asked if J&J was

liable for negligent retention. The jury may have checked this box based on its

belief that no underlying tort committed by J&J had been proven. In fact, the jury

foreperson sent a note to the district court judge asking him, “if we find the

defendant not liable of Sexual Harassment/Hostile Work Environment do we have

the choice of answering yes to Ne[g]ligent Rentention?” Record Vol. 8 at 227

(scratched out words omitted). The court responded in the negative. Id. That was

correct; however, because we have reinstated Tomczyk’s retaliation and intentional

infliction of emotional distress claims (the latter claim only in part), we also

reinstate her negligent retention claim.

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                                          IV.

       The judgment is REVERSED insofar as it involves: the retaliation claim;

the intentional infliction of emotional distress claim based on conduct occurring on

or after December 22, 1998; and the negligent retention claim to the extent that it

involves the other two claims for which we are reversing the judgment. The

judgment is in all other respects AFFIRMED. The case is remanded to the district

court for further proceedings consistent with this opinion.

       In sending the case back for another trial, we remind the parties that it is

never too late to settle.




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