           Case: 17-10170   Date Filed: 09/18/2017   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10170
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:13-cv-00443-MTT



AMANDA MALPHURS,

                                                               Plaintiff-Appellee,

                                   versus

COOLING TOWERS SYSTEMS INC.,
JOE COATES,

                                                        Defendants-Appellants.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            (September 18, 2017)

Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
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       Amanda Malphurs worked at Cooling Towers Systems Inc. for about six

months. After she quit her job, she brought suit against Cooling Towers and its

owner, Joe Coates, alleging that the defendants had failed to pay her for overtime

she worked and that Coates had sexually harassed her throughout her employment

at Cooling Towers. A jury found for the defendants on the overtime claim and for

Malphurs on the sexual harassment claims. They challenge a number of the

district court’s pre- and post-trial rulings. 1

                                              I.

       Malphurs’ complaint alleged that “[o]n numerous occasions,” Coates had

her work late so that he “could be alone with her and engage in . . . offensive

conduct and sexual harassment toward her.” It also alleged that Coates told

Malphurs that he would not pay her overtime unless “she submitted to his

offensive sexual demands.” And it included numerous allegations of verbal and

physical harassment.

       The complaint asserted a federal claim under the Fair Labor Standards Act

for failure to pay earned overtime, in violation of 29 U.S.C. § 207. In addition, it

asserted several Georgia law tort claims related to the alleged sexual harassment,

including intentional infliction of emotional distress, battery, and invasion of



       1
        Malphurs did not appeal from the judgment against her on the overtime claim, but the
defendants did appeal the judgment against them on the state law claims.


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privacy. 2 It sought litigation expenses, including attorney’s fees, under § 13-6-11

of the Georgia Code and the FLSA.

       The defendants filed three pretrial motions relevant to this appeal. First,

they moved to dismiss the state law claims under Federal Rule of Civil Procedure

12(b)(1) for lack of supplemental jurisdiction. Second, they moved for a

continuance. One of their proposed witnesses was a former Cooling Towers

employee named Raye Kelley who had been charged with theft by taking for

allegedly embezzling funds from Cooling Towers. The defendants requested that

the court continue the case until after Kelley pleaded guilty to the charges so that

she would not invoke her Fifth Amendment privilege against self-incrimination if

she was called to testify in this case. Third, the defendants moved in limine to

exclude testimony by two Cooling Towers employees, Ericca Raines and

Stephanie King, who were going to testify that Coates had also harassed them.

The district court denied all of those motions.

       At trial Malphurs testified about a continuing pattern of harassment by

Coates. She stated that he “constantly” made comments about wanting to have sex

with her and that he often said “he wanted to fuck [her] or he wanted to play with

[her] titties.” Beyond verbal harassment, she also testified that he took her hand

       2
           The complaint did not assert a claim for sexual harassment or other violation of Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., which applies only to employers with at
least fifteen full time employees, see id. § 2000e(b). Cooling Towers had fewer than fifteen
employees during the relevant time period.


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and forced it to touch his erect penis. She said that on “four or five” occasions he

brushed his groin against her so that she would feel his erect penis on her shoulder.

She said that he was “always touching [her] all the time,” touching “[her] butt,

[her] boobs, [her] inner thigh, [her] back, [and her] shoulders.” And she said that

he squeezed her nipple and, two other times, reached up beneath her shirt and

touched her bare breast.

      In addition, Malphurs testified about the physical and emotional effects that

Coates’ conduct had on her. She explained that she would cry almost every

morning, that she felt worthless, and that she had lost her apartment and “was

homeless for a while.” Her experience at Cooling Towers had caused her to suffer

from depression and nightmares. She had discussed the emotional toll her

experience had taken with her mother and her sister, who were both registered

nurses. And she twice contacted a facility called River’s Edge that provides free

mental health services, but both times it did not have any beds available.

      In addition, Raines and King testified that before Malphurs arrived Coates

repeatedly made lewd comments to them and touched them without their consent.

And Malphurs submitted evidence, such as Coates’ W-2 tax forms, that Cooling

Towers was his employer.

      The jury found for Malphurs on the state law claims but not the FLSA claim,

and it awarded her $50,000 in compensatory damages and $130,000 in attorney’s



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fees. After the jury rendered that verdict, the defendants moved for judgment as a

matter of law on Malphurs’ intentional infliction of emotional distress claim,

contending that the evidence she presented on that claim was insufficient under

Georgia law. They also moved for a new trial, contending, among other things,

that the jury awarded an unreasonable amount for attorney’s fees and that

Malphurs’ invasion of privacy claim “duplicated” her battery claim. The district

court denied both motions.

                                            II.

                                            A.

      The defendants first contend that the district court lacked supplemental

jurisdiction over the state law claims, and as a result the court should have

dismissed those claims for lack of subject matter jurisdiction. “We review de novo

a district court’s determination of whether it has subject-matter jurisdiction.”

Gupta v. McGahey, 709 F.3d 1062, 1064–65 (11th Cir. 2013). 28 U.S.C.

§ 1367(a) provides in relevant part that:

      [I]n any civil action of which the district courts have original
      jurisdiction, the district courts shall have supplemental jurisdiction
      over all other claims that are so related to claims in the action within
      such original jurisdiction that they form part of the same case or
      controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a). That “case or controversy” standard “confers

supplemental jurisdiction over all state claims which arise out of a common



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nucleus of operative fact with a substantial federal claim.” Lucero v.

Trosch, 121 F.3d 591, 597 (11th Cir. 1997).

      The defendants argue that Malphurs’ state law tort claims did not “arise out

of a common nucleus of operative fact” with her federal claim, the FLSA overtime

claim. “In deciding whether a state law claim is part of the same case or

controversy as a federal issue, we look to whether the claims arise from the same

facts, or involve similar occurrences, witnesses or evidence.” Hudson v. Delta Air

Lines, Inc., 90 F.3d 451, 455 (11th Cir. 1996). Because we ordinarily make that

determination based on the parties’ pleadings, Lucero, 121 F.3d at 598, we will

focus our inquiry on Malphur’s complaint.

      The complaint alleged that Coates had her work overtime so that she would

be alone with him in order to facilitate his harassment. And it alleged that she

would not receive overtime payments unless she acceded to his sexual demands.

Those allegations show that Malphurs’ federal and state claims “involve[d] similar

occurrences, witnesses [and] evidence.” See Hudson, 90 F.3d at 455. Evidence of

Malphurs’ working overtime would be essential to her FLSA claim and would also

show that Coates sought and had opportunities to harass her without witnesses.

Similarly, evidence that Coates made overtime payments contingent on Malphurs’

acquiescing to his advances would support both her claim that he harassed her and

her claim that he did not pay her for overtime she earned. As a result, Malphurs’



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federal and state claims “ar[o]se out of a common nucleus of operative fact,” and

the district court had supplemental jurisdiction over her state claims under

§ 1367(a). See Lucero, 121 F.3d at 597.

      The defendants assert that if the district court had jurisdiction over the state

claims, it should have declined to exercise jurisdiction under 28 U.S.C. § 1367(c).

We review only for abuse of discretion a district court’s decision to exercise its

supplemental jurisdiction. See id. at 598. Under § 1367(c)(2) a district court “may

decline to exercise supplemental jurisdiction” if the state claims “substantially

predominate[ ] over” the federal claim. But even if they do, “courts may also

consider additional factors, which include judicial economy, convenience, fairness

to the parties, and whether all the claims would be expected to be tried together.”

Estate of Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1366 (11th

Cir. 2010) (quotation marks omitted).

      We agree with the district court’s conclusion that Malphurs’ state claims

were “intertwined with . . . her FLSA claim.” As we have already explained,

evidence underlying her FLSA claim would be important to her state claims, and

vice versa. Judicial economy and convenience therefore supported the district

court’s decision to exercise supplemental jurisdiction even if the state claims

predominated over the FLSA claim. There was no abuse of discretion.




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                                          B.

      The defendants next contend that the district court erred in denying their

motion for a continuance. “We review for abuse of discretion the district court’s

ruling on a motion for continuance.” SEC v. Levin, 849 F.3d 995, 1000 (11th Cir.

2017). “[W]e will not reverse a district court’s ruling on a motion for continuance

unless the ruling is arbitrary, unreasonable, and severely prejudicial.” Id. at 1005.

When the defendants initially moved for a continuance, the district court directed

the parties to observe Kelley at a state court calendar call and determine, based on

the progress of her criminal case, whether she was likely to assert her Fifth

Amendment privilege if called to testify in the current case. It denied the motion

for a continuance as “moot” in the interim. That decision was not “arbitrary,

unreasonable, and severely prejudicial,” and we will not second guess it. See id.

      To the extent the defendants argue that the district court should have later

granted a continuance because Kelley remained unavailable, we note that there is

no indication that the defendants followed the district court’s instruction to monitor

Kelley’s criminal court proceedings. Nor is there any indication that the

defendants attempted to contact Kelley in the weeks leading up to the Malphurs

trial to gauge whether she was likely to invoke her Fifth Amendment privilege.

And the defendants did not subpoena Kelley to appear at trial. The defendants’




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failure to follow up on their motion, despite the district court’s instruction to do so,

undercuts any argument that the court should have revisited the motion later.

                                           C.

      The defendants also contend that the district court erred in denying their

motion in limine to exclude under Federal Rule of Evidence 404 Raines’ and

King’s testimony. “We review the district court’s legal decision to apply a

particular rule of evidence de novo but its decision to admit or exclude particular

evidence under that rule for an abuse of discretion.” Schafer v. Time, Inc., 142

F.3d 1361, 1370 (11th Cir. 1998).

      Rule 404(a) provides that “[e]vidence of a person’s character or character

trait is not admissible to prove that on a particular occasion the person acted in

accordance with the character or trait.” Fed. R. Evid. 404(a). But when a

defendant’s character is “an element of a crime, claim, or defense” the Rule 404(a)

bar does not apply to evidence relevant to that element. See id. advisory

committee note. “When a person’s character or character trait is an essential

element of a charge, claim, or defense, the character or trait may . . . be proved by

relevant specific instances of the person’s conduct.” Fed. R. Evid. 405(b).

      One of Malphurs’ claims was state law negligent retention, asserted against

Cooling Towers in its capacity as Coates’ employer. In Georgia “to sustain a claim

for negligent hiring and retention, a claimant must show that the employer knew or



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should have known of the employee’s propensity to engage in the conduct which

caused the plaintiff’s injury.” Tecumseh Prods. Co. v. Rigdon, 552 S.E.2d 910,

912 (Ga. Ct. App. 2001). That rule requires the plaintiff to “produce some

evidence of incidents similar to the behavior that was the cause of the injury at

issue.” Hardison v. Enter. Rent-A-Car, 771 S.E.2d 402, 404 (Ga. Ct. App. 2015).

As a result, Coates’ prior wrongful acts were an “essential element” of the claim

against Cooling Towers, and Raines’ and King’s testimony about specific instances

of Coates’ conduct was admissible. 3

                                               D.

       Turning to the post-trial motions, the defendants contend that the district

court erred in denying their motion for judgment as a matter of law as to Malphurs’

intentional infliction of emotional distress claim. “We review de novo the denial

of a motion for judgment as a matter of law.” Brown v. Ala. Dep’t of Transp., 597

F.3d 1160, 1173 (11th Cir. 2010). “[J]udgment as a matter of law is appropriate

only if the facts and inferences point [so] overwhelmingly in favor of one party . . .

that reasonable people could not arrive at a contrary verdict.” Id. (quotation marks

omitted). “In making that determination, we review all of the evidence in the

record, but we must draw all reasonable inferences in favor of the nonmoving



       3
        The defendants did not request a limiting instruction with respect to Raines’ and King’s
testimony.


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party, and . . . may not make credibility determinations or weigh the evidence.” Id.

(quotation marks omitted).

      To sustain a claim for intentional infliction of emotional distress under

Georgia law, a plaintiff must show “1) that defendant’s behavior was wilful and

wanton or intentionally directed to harming plaintiff; 2) that the actions of

defendant were such as would naturally humiliate, embarrass, frighten, or outrage

the plaintiff; 3) that conduct caused mental suffering or wounded feelings or

emotional upset or distress to plaintiff.” Se. Sec. Ins. Co. v. Hotle, 473 S.E.2d 256,

259–60 (Ga. Ct. App. 1996). The defendants argue that Malphurs failed to prove

the second and third elements. They are wrong.

      As to the second element, we have already summarized some of the verbal

and physical harassment that Coates inflicted on Malphurs. A reasonable jury

could find that his actions “were such as would naturally humiliate, embarrass,

frighten, or outrage [Malphurs].” See id.; see also Gordon v. Frost, 388 S.E.2d

362, 366 (Ga. Ct. App. 1989) (“Once the evidence shows that reasonable persons

might find the presence of extreme or outrageous conduct, the jury must find the

facts and make its own characterization.”). The defendants’ argument to the

contrary is meritless.

      As to the third element, to recover for emotional distress Georgia law

requires that “a plaintiff show, at the very least, that physical and/or mental



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manifestations of that distress required her to seek medical or psychological

treatment.” Howerton v. Harbin Clinic, LLC, 776 S.E.2d 288, 301 (Ga. Ct. App.

2015). According to the defendants, Malphurs failed to meet that standard because

“she had no medical treatment; she has not been treated by a therapist; she has not

been treated by a psychiatrist; she has not been treated by a psychologist; and she

has had no professional treatment whatsoever.”

      But Georgia law does not require that a plaintiff receive treatment, only that

she “seek” treatment. See id. (emphasis added). Malphurs presented evidence that

she sought professional help, including talking to her mother and sister (both

registered nurses) and twice attempting to go to River’s Edge. Not only did she

satisfy Georgia’s requirement that she “seek” help, but she also described

numerous physical and emotional effects on her life, including nightmares,

depression, and daily crying, and she testified that she suffered a period of

homelessness as a result of Coates’ harassment. That evidence was sufficient to

support the jury’s finding that the defendants’ “conduct caused mental suffering or

wounded feelings or emotional upset or distress to plaintiff.” See Se. Sec. Ins., 473

S.E.2d at 259–60.

                                          E.

      In addition, the defendants contend that their motion for a new trial was due

to be granted because the jury’s attorney’s fees award was excessive. “We review



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the district court’s decision to deny a new trial for an abuse of discretion.”

Overseas Private Inv. Corp. v. Metro. Dade Cty., 47 F.3d 1111, 1113 (11th Cir.

1995). Malphurs’ counsel testified at trial that he calculated a reasonable hourly

fee based on other cases tried in the same court as this one. He also provided

exhibits detailing the hours spent on the case and the costs incurred in the course of

representing Malphurs. The defendants, by contrast, did not present any evidence

that the hourly rate was unreasonable or that the hours claimed were inflated, and

they did not effectively impeach Malphurs’ counsel’s testimony. Because the

evidence supported the award of attorney’s fees, the district court did not abuse its

discretion in denying the defendants’ motion for a new trial. See id.; see also

Duffy St. S.R.O., Inc. v. Mobley, 471 S.E.2d 507, 508 (Ga. 1996) (“The issue of

attorney fees under . . . § 13-6-11 [of the Georgia Code] is a question for the jury

. . . .”).

                                            F.

         Finally, the defendants contend that the district court erred in denying their

motion for a new trial because Malphurs’ invasion of privacy claim “duplicated”

her battery claim. The Supreme Court of Georgia has explained that “[h]ighly

personal questions or demands by a person in authority may be regarded as an

intrusion on psychological solitude or integrity and hence an invasion of privacy.”

Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 837 (Ga. 1991). And it has



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noted that “sexual demands” are “illustrative of the type of personal demand which

might amount to an invasion of privacy.” Id. at 837 n.4 (emphasis omitted). By

contrast, a Georgia law battery claim turns on whether the defendant committed an

“unlawful touching, that is, a touching of the plaintiff’s person . . . which is

offensive.” Lawson v. Bloodsworth, 722 S.E.2d 358, 359 (Ga. Ct. App. 2012).

      Malphurs testified that Coates, who had authority over her, demanded to

know who her boyfriend was and whether she was in love with him. He also

invited her to his apartment under the pretense that they would discuss her bonus,

but when she refused to have sex with him, he refused to discuss the bonus

anymore. And we have already detailed Coates’ nearly continuous requests to

have sex with Malphurs. Those “[h]ighly personal questions [and] demands,”

including sexual demands, supported Malphurs’ invasion of privacy claim. See

Yarbray, 409 S.E.2d at 837 & n.4. They did not duplicate the factual basis of her

battery claim, which depended on physical contact, not spoken words. See

Lawson, 722 S.E.2d at 359. As a result, Malphurs’ invasion of privacy and battery

claims were not duplicative. The district court’s denial of the defendants’ motion

for a new trial was not an abuse of discretion.

      AFFIRMED.




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