                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                         _____________________________
                                                                  FILED
                                   No. 06-16251          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                         _____________________________          Aug. 7, 2008
                                                            THOMAS K. KAHN
                          D. C. Docket No. 04-00190-CV-2         CLERK

JOHN W. ODUM,


                                                        Plaintiff-Appellee,

         versus

RAYONIER, INCORPORATED,
STEVE WORTHINGTON,
JOHN ENLOW,
DON RAY,

                                              Defendants-Appellants.
                  _________________________________________

                     Appeal from the United States District Court
                        for the Southern District of Georgia
                  _________________________________________

                                    (August 7, 2008)

Before EDMONDSON, Chief Judge, BLACK and FARRIS,* Circuit Judges.



     *
      Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      John W. Odum (“Plaintiff”) filed this action against Rayonier, Inc., Steve

Worthington, John Enlow, Don Ray, and John Doe (collectively “Defendants”),

pursuant to 42 U.S.C. § 1985(2), alleging that Defendants conspired to deter him

from testifying truthfully in federal court and to retaliate against him after he

testified. Before trial, the district court dismissed Plaintiff’s deterrence claim as

untimely. Following a jury trial, judgment against Defendants was entered on the

retaliation claim. We affirm.



                                     Background



      Plaintiff began his employment with Rayonier in 1973. Although Plaintiff’s

job title changed over the years, Plaintiff’s employment regularly consisted of

bidding on timber to purchase on Rayonier’s behalf.

      In 1999, a third-party wood producer sued Rayonier for alleged breach of

contract. At trial, Plaintiff gave damaging testimony against Rayonier. In October

2000, a jury verdict was rendered against Rayonier for approximately $1.2 million.

Rayonier ultimately settled the case in January 2001.




                                           2
        Plaintiff asserts that Defendants began their alleged retaliatory acts in the

Fall of 2001. Plaintiff argues that the steps that led directly to the injuries in this

case began after Worthington, Director of Rayonier’s Southeast Wood

Procurement business unit, promoted Defendant John Enlow to a newly created

supervisory position over Defendant Ray (Plaintiff’s immediate supervisor) and

Plaintiff. Although Defendants suggested at trial that Enlow was brought in to

provide “leadership,” Plaintiff contends that Enlow’s efforts to eradicate

“cynicism” in the division were code for retaliating against Plaintiff for providing

testimony that hurt Rayonier’s interests. The specific retaliatory acts alleged by

Plaintiff include these acts: (1) ordering him to move his home closer to his office

(even though he was already living in the area where he bought timber); (2)

providing him with a negative employment evaluation; (3) establishing

unreasonable requirements for performance improvement; and (4) fabricating

additional transgressions.1

        Plaintiff contends that he suffered a nervous breakdown as a result of

Defendants’ retaliatory acts. According to Plaintiff, it was undisputed at trial that

Plaintiff is permanently and totally disabled. Plaintiff’s condition has been



    1
     According to Defendants, Plaintiff used foul language and disregarded Rayonier’s policy
prohibiting personal use of the company pickup truck.

                                             3
diagnosed as “major depressive disorder, severe” and post-traumatic stress

disorder. Plaintiff has suffered, among other things, these physical ailments: chest

pain, impaired sleep, and digestive problems.

      Plaintiff filed this civil action in December 2004 against Defendants

pursuant to 42 U.S.C. § 1985(2) and Georgia tort law. Plaintiff alleged that

Defendants (1) conspired to deter him from testifying truthfully and (2) conspired

to retaliate against him for testimony in a trial in federal court. Defendants filed a

motion for summary judgment.

      The district court dismissed Plaintiff’s claim that Defendants conspired to

deter him from testifying as one barred by the statute of limitations. The district

court also dismissed Plaintiff’s Georgia tort claim in its entirety. Plaintiff has not

appealed either ruling. The district court did conclude, however, that sufficient

issues of material fact on Plaintiff’s section 1985(2) retaliation claim existed to

allow the retaliation claim to survive summary judgment.

      The case was tried to a jury; and the jury returned a verdict for Plaintiff on

his claim for retaliation. Defendants filed a renewed motion for judgment as a

matter of law or, in the alternative, motion for new trial. The district court denied

Defendants’ motions; and Defendants appealed.




                                           4
                                          Discussion



       Defendants argue that the judgment in this case must be reversed on these

grounds: (1) the intracorporate conspiracy doctrine applies; (2) Plaintiff’s claim is

barred by the statute of limitations; and (3) the evidence presented at trial was

insufficient. After a review of the record, we see no reversible error.2

       We agree with the district court’s conclusion that the intracorporate

conspiracy doctrine does not apply here. Although the acts of corporate

employees generally cannot form the basis of a conspiracy claim, we have held

that the intracorporate conspiracy doctrine does not apply where Defendants’

alleged acts amount to a criminal conspiracy. McAndrew v. Lockheed Martin

Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc).

       To conspire to retaliate against a witness by causing “bodily injury” to that

person for testifying in an official proceeding is a federal crime. 18 U.S.C. §§

1513(b), (f). Bodily injury is, among other things, “physical pain” or an




  2
    A JNOV “should only be entered if, in viewing all the evidence and construing all inferences in
a light most favorable to the nonmoving party, the Court finds no reasonable juror could have
reached the verdict returned.” FDIC v. Stahl, 89 F.3d 1510, 1514 (11th Cir. 1996). This Court is
bound by the jury’s findings unless Defendants show the absence of probative facts to support those
findings. Fitzgerald v. McDaniel, 833 F.2d 1516, 1519 (11th Cir. 1987).

                                                5
“impairment of the function of a bodily member, organ, or mental faculty.” 18

U.S.C. § 1515(5)(B), (D).

       Here, Plaintiff presented evidence at trial that Defendants’ retaliatory acts

caused him bodily injury. Acts indicate the intention. As a result of those acts,

Plaintiff suffered a mental breakdown and experienced, among other things, chest

pain, impaired sleep, reduction in appetite, and digestive problems. Because

Plaintiff’s allegations form the basis of a criminal conspiracy, we conclude that the

McAndrew exception to the intracorporate conspiracy doctrine applies.

       We also conclude that a jury could have found that Plaintiff reasonably was

unaware of Defendants’ conspiracy to retaliate until the meeting of 13 December

2002.3 Although Plaintiff was given his first unfavorable review in March 2002, a

reasonable jury could have concluded that Plaintiff thought his twenty-seven year

career could have been saved by hard work and that it was not until he received

yet another poor rating—this time for (as Plaintiff saw it) pretextual reasons—that

Plaintiff must have been aware of the conspiracy. As such, Plaintiff’s claim is not

barred by the statute of limitations.


  3
    The complaint here was filed on 9 December 2004. The applicable statute of limitations is two
years. Rozar v. Mullis, 85 F.3d 556, 560-61 (11th Cir. 1996). “[T]he statute [of limitations] does not
begin to run until the facts which would support a cause of action are apparent or should be apparent
to a person with a reasonably prudent regard for his rights.” Id., at 561-62 (internal quotation marks
omitted) (alteration in original).

                                                  6
      We also conclude that the evidence was sufficient to support the claim for

conspiracy to retaliate.

      AFFIRMED.




                                        7
