              Case: 14-13563   Date Filed: 05/18/2015   Page: 1 of 9


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-13563
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 4:13-cv-00031-RH-CAS

VALERIE DAVIS,

                                                                 Plaintiff-Appellee,

                                       versus

FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION,

                                                            Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                 (May 18, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      The Florida Agency for Health Care Administration (“FAHCA”) appeals

from the district court’s denial of its renewed motion for judgment as a matter of

law, motion for new trial, and motion for remittitur, in a suit raised by Valerie
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Davis, an African-American, pursuant to Title VII of the Civil Rights Act (“Title

VII”) and the Florida Civil Rights Act (“FCRA”). On appeal, it argues that: (1) the

district court erred by denying its motion for judgment as a matter of law because

Davis failed to present evidence that she suffered a materially adverse action or

evidence that her discrimination grievance was the but-for cause of any adverse

action taken against her; (2) the district court abused its discretion by denying its

motion for a new trial because Davis presented a retaliatory hostile work

environment theory during closing arguments but did not request a jury instruction

for that claim; and (3) the court clearly abused its discretion by denying its motion

for a new trial or remittitur because the jury’s award of compensatory damages for

Davis’s mental and emotional anguish was not supported by the evidence. After

thorough review, we affirm.

      We review the denial of a motion for judgment as a matter of law de novo.

Howard v. Walgreen Co., 605 F.3d 1239, 1242 (11th Cir. 2010). We consider the

evidence in the light most favorable to the nonmoving party. Id. We do not make

credibility determinations or weigh the evidence.         Hubbard v. BankAtlantic

Bancorp, Inc., 688 F.3d 713, 724 (11th Cir. 2012).          We consider evidence

supporting the nonmovant’s case, as well as uncontradicted and unimpeached

evidence supporting the movant that comes from disinterested witnesses. Id. We

apply decisions construing Title VII when considering a claim under the FCRA,


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and thus, do not address Davis’s FCRA retaliation claim separately. Harper v.

Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).

      We review the denial of a motion for a new trial for abuse of discretion.

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1196 (11th Cir. 2004).

We review a jury instruction deferentially, and will only grant a new trial for an

erroneous instruction if the instructions did not accurately reflect the law and we

are “left with a substantial and ineradicable doubt as to whether the jury was

properly guided.” Id. (quotation omitted). However, an appellant waives its right

to challenge an improper jury instruction on appeal if it did not timely object to the

instruction before the district court, unless the error affected its substantial rights.

Badger v. S. Farm Bureau Life Ins. Co., 612 F.3d 1334, 1342 (11th Cir. 2010).

      We review an allegedly improper statement during closing argument for

plain error when the appellant makes no objection to the argument before the

district court. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir.

2002). To show plain error, the defendant must show (1) an error, (2) that is plain,

and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265,

1276 (11th Cir. 2007). If the defendant satisfies the three conditions, we may

exercise our discretion to recognize the error if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. “A finding of plain

error is seldom justified in reviewing argument of counsel in a civil case.” Brough,


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297 F.3d at 1179 (quotation omitted). Finally, we review a district court’s decision

to sustain a jury’s award of compensatory damages for clear abuse of discretion.

Bogle v. McClure, 332 F.3d 1347, 1359 (11th Cir. 2003). We defer to the fact

finder’s award of damages for intangible, emotional harm because the evaluation

of these harms depends heavily on the consideration of witnesses’ demeanors. Id.

A damage award is presumptively valid if a district court has reviewed and upheld

the award. Ferrill v. Parker Group, Inc., 168 F.3d 468, 476 (11th Cir. 1999).

      First, we are unpersuaded by FAHCA’s claim that the district court erred by

denying its motion for judgment as a matter of law concerning Davis’s

discrimination claim. A judgment as a matter of law is granted to a defendant

when the plaintiff fails to present a sufficient evidentiary basis for a reasonable

jury to find in her favor on a material element of her claim. Howard, 605 F.3d at

1242. When a substantial conflict in the evidence exists, and reasonable people

may reach different conclusions, the motion for judgment as a matter of law must

be denied. Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).

      To raise a successful retaliation claim under Title VII, a plaintiff must show

that: (1) she engaged in statutorily protected activity; (2) she suffered a materially

adverse action; and (3) a causal connection existed between the protected activity

and the adverse action. Howard, 605 F.3d at 1244. After the plaintiff establishes

these elements, the defendant must articulate a legitimate, nonretaliatory reason for


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the challenged action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277

(11th Cir. 2008).    If the defendant provides a nonretaliatory reason, then the

plaintiff must show that the defendant’s reason is a pretext for retaliation. Id.

      In retaliation cases, a materially adverse action is any action that may

dissuade a reasonable worker from making or supporting a discrimination charge.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).                  In

Burlington, the Supreme Court noted that the significance of a retaliatory act

depends on the context of the act, and a specific action may be materially adverse

in some situations but immaterial in others. Id. at 69. We’ve said that “Burlington

also strongly suggests that it is for a jury to decide whether anything more than the

most petty and trivial actions against an employee should be considered materially

adverse to him.” Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008)

(quotation omitted). We’ve held that an employee suffers a materially adverse

action when she receives an unfavorable performance review that affects her

eligibility for a pay raise. Id. at 974. We’ve also noted that a set of actions may

constitute an adverse employment action when considered collectively, even if

some actions do not rise to the level of an adverse employment action individually.

Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002).

      To show a causal connection, the plaintiff must show that the decisionmaker

was aware of her protected conduct, and that the protected activity and adverse


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action were not wholly unrelated. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211

(11th Cir. 2013). In the absence of other evidence demonstrating causation, a

three-month interval between the protected activity and the adverse action is too

long to show causation through temporal proximity. Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1182 (11th Cir. 2010). A plaintiff in a Title VII retaliation

case must also show that retaliatory animus was the but-for cause of the challenged

adverse action. Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014). We

have noted that a jury may infer that a defendant’s action was retaliatory if it is

permitted to disbelieve the defendant’s explanation for the action. Id.

      In this case, Davis presented sufficient evidence for a reasonable jury to

conclude that she suffered retaliation. As the record reveals, Davis demonstrated

first that she had engaged in statutorily protected activity with evidence of the

grievance she filed with FAHCA’s human resources department. Second, she

showed that she had suffered a materially adverse action with evidence of the

unsatisfactory performance evaluation Suzanne Hurley gave her that constituted

the first step to Davis being fired from FAHCA. As for establishing a causal

connection, she demonstrated that the evaluation was not wholly unrelated to her

grievance because Hurley raised complaints about Davis’s poor grammar,

insubordination, and lack of communication in the evaluation that only began after

she learned about Davis’s grievance. She also presented enough evidence for a


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jury to reasonably conclude that her grievance was the but-for cause of the

retaliatory action, since Davis testified that Hurley got along well with her until she

was interviewed about the discrimination grievance. Furthermore, the jury could

have reasonably inferred retaliatory animus because Davis presented sufficient

evidence for the jury to disbelieve FAHCA’s explanations for Hurley’s actions

towards Davis. Therefore, the district court did not err by denying FAHCA’s

renewed motion for judgment as a matter of law for Davis’s retaliation claim.

      We are also unconvinced by FAHCA’s argument that the district court

abused its discretion by denying the motion for a new trial concerning Davis’s

retaliatory hostile work environment claim. For starters, FAHCA waived its right

to challenge the omission of a retaliatory hostile work environment instruction

because it did not object to the court’s exclusion of that instruction. Badger, 612

F.3d at 1342. Moreover, since Davis did not prevail on a retaliatory hostile work

environment claim at trial, FAHCA has not shown that the exclusion of this theory

of liability from the jury instructions affected its substantial rights. Nor did the

court commit any error, plain or otherwise, by permitting Davis to state during her

closing argument that a hostile environment was part of the retaliatory conduct. As

the record shows, Davis did not argue a retaliatory hostile work environment

theory during her closing argument; instead, she said only that this environment

was part of the materially adverse action taken against her by FAHCA for purposes


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of her retaliation claim. She accurately informed the jury that they had to find a

materially adverse action taken against her because of her grievance in order to

conclude that she suffered from retaliation, and explained that a set of actions may

constitute a materially adverse action when considered in the aggregate, even if

individual actions do not rise to a materially adverse action. Shannon, 292 F.3d at

716. As for FAHCA’s argument that it should have been granted judgment as a

matter of law because Davis improperly argued for a retaliatory hostile work

environment, it is meritless. As we’ve already held, the district court correctly

concluded that the jury had sufficient evidence to reasonably conclude that

FAHCA was liable for retaliation. Therefore, the district court did not abuse its

discretion by denying FAHCA’s motion for a new trial.

      Finally, we reject FAHCA’s claim that the court clearly abused its discretion

by denying its motion for a new trial or remittitur because the jury’s award of

compensatory damages for Davis’s mental and emotional anguish was not

supported by the evidence. General compensatory damages do not have to be

proven with a high degree of specificity, and they may be inferred from the

circumstances or proven through testimony. Akouri v. Fla. Dep’t of Transp., 408

F.3d 1338, 1345 (11th Cir. 2005). A plaintiff’s own testimony may support an

award of compensatory damages for emotional distress, but the testimony must

consist of more than conclusory statements that the plaintiff suffered from


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emotional distress. Id. Thus, we’ve previously affirmed a denial of remittitur for a

damages award of $300,000 based on the plaintiff’s mental anguish when the

plaintiff testified that he became physically ill due to the discrimination against

him, he lost 40 pounds in five months, he lost self-esteem, he felt degraded when

having to train someone for the position he wanted, and he heard jokes about the

denial of his promotion. Ash v. Tyson Foods, Inc., 664 F.3d 883, 899-900 (11th

Cir. 2011). In Ash, the plaintiff’s wife also testified that the plaintiff withdrew

from relationships with his family following the denied promotion, his

relationships deteriorated, and he lost a lot of weight. Id. at 900.

      At trial, Davis presented sufficient evidence of mental and emotional

anguish to support the jury’s award of compensatory damages. As in Ash, Davis

testified that she suffered from weight fluctuations and stopped going to events

with friends due to the stress caused by Hurley’s actions. She was embarrassed

when Hurley wore a mask after she left Hurley’s office due to Hurley’s claim that

she wore a noxious perfume, and this lowered her self-esteem. She added that she

lost friends at work and that co-workers were afraid to talk to her. Since Davis

presented detailed evidence of her emotional harm, and since the jury’s award is

presumptively valid, the district court did not clearly abuse its discretion by

denying FAHCA’s motion concerning the jury’s award of compensatory damages.

      AFFIRMED.


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