               Case: 12-12711      Date Filed: 09/18/2013     Page: 1 of 15


                                                                   [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 12-12711
                             ________________________

                         D.C. Docket No. 1:08-cv-01783-JOF



LICHELLE SMITH,

                                                                      Plaintiff-Appellant,

                                          versus


METROPOLITAN SECURITY SERVICES, INC.,

                                                                    Defendant-Appellee.

                             ________________________

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

                                  (September 18, 2013)


Before COX and PRYOR, Circuit Judges, and WALTER ∗, District Judge.

       ∗
        Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
              Case: 12-12711   Date Filed: 09/18/2013   Page: 2 of 15




PER CURIAM:

      This appeal presents issues involving a Title VII retaliation claim and a

Georgia state law battery claim. We affirm.

              I. BACKGROUND & PROCEDURAL HISTORY

      Beginning on May 1, 2006, Metropolitan Security Services, Inc. employed

Lichelle Smith as a receptionist and security guard at the SunGuard Building in

Smyrna, Georgia. Smith had continuously worked as a receptionist and security

guard in the SunGuard Building since 1999, but worked for a variety of security

contractors throughout that time, the last of which was Metropolitan.

      As part of the transition from the previous security contractor, Metropolitan

hired Smith and her supervisor, Felix Holliday, to remain in their positions at the

SunGuard Building as employees of Metropolitan.           On July 5, 2006, Dan

Millhouse, Metropolitan’s general manager, arrived at the SunGuard Building;

fired Smith’s supervisor, Holliday; and installed Michael Garrett as Smith’s new

supervisor.

      At trial, Smith testified that later that day, Donald Porter, who was also an

employee of Metropolitan, approached and hugged her in the break room because

they were both ostensibly upset by Holliday’s termination. Smith testified that

while Porter was hugging her, he grabbed her butt, squeezed it, and then proceeded

                                         2
                Case: 12-12711      Date Filed: 09/18/2013      Page: 3 of 15


to grab her breasts and pinch her nipples as she was pushing him away. At trial,

Porter denied all of these claims.

       Smith testified that she immediately told her new supervisor, Michael

Garrett, about the incident with Smith, and that he promised he would “take care of

it.” (Dkt. 95 at 103.) However, Garrett testified that Smith never reported the

incident with Porter.

       Smith testified that two days after the incident with Porter and the

conversation with Garrett, Garrett called her into his office at the end of her shift

and informed her she had been fired.1 Garrett also contests this version of events,

and instead contends that he simply told Smith she was being reassigned and to

report to Metropolitan Human Resources at the beginning of her next shift to

receive her new assignment.           Garrett testified that he learned about Smith’s

pending reassignment from Metropolitan’s general manager, Dan Millhouse, on

the morning of his first day at the SunGuard Building, which was also the morning

of the alleged attack. Garrett further testified that he did not have the authority to

fire Smith, and that hiring and firing decisions were made by others above him at

Metropolitan.



       1
         Smith testified only that Garrett informed her that she had been fired-not that he made
the decision to fire her. (Dkt. 95 at 103-04.)

                                               3
                     Case: 12-12711       Date Filed: 09/18/2013        Page: 4 of 15


          Following these events, Smith filed a lawsuit against Metropolitan alleging

five claims: (1) a Title VII retaliation claim; (2) a Title VII sexual harassment

claim; (3) a Georgia state law battery claim; (4) a Georgia state law intentional

infliction of emotional distress claim; and (5) a Georgia state law negligent hiring

claim.

          Before giving the case to the jury, the district court granted Metropolitan’s

Rule 50(a) motion to dismiss Smith’s Title VII sexual harassment claim and her

Georgia state law intentional infliction of emotional distress claim. The jury then

returned a verdict in Smith’s favor on the Title VII retaliation claim (awarding

$30,000 in lost wages and $16,000 in punitive damages), the Georgia state law

battery claim (awarding $10,000 in punitive damages), and the Georgia state law

negligent hiring claim (awarding $5,000 in nominal damages and $20,000 in

punitive damages).2 For the Georgia state law battery claim, the jury did not award

Smith compensatory damages, but awarded only punitive damages.

          After the jury’s verdict, the district court granted Metropolitan’s Rule 50(b)

renewed motion for judgment as a matter of law on both Smith’s Title VII

retaliation claim and her Georgia state law battery claim. On her Title VII



          2
              Smith’s Georgia state law negligent hiring verdict and judgment are not at issue in this
appeal.

                                                      4
              Case: 12-12711     Date Filed: 09/18/2013   Page: 5 of 15


retaliation claim, the district court held that the record contained insufficient

evidence to show a causal connection between Smith’s report to Garrett about

having been sexually harassed and her termination. On her Georgia state law

battery claim, the district court held that the verdict was “inconsistent” because

Georgia law bars an award of punitive damages without an accompanying award

of nominal or actual damages. The only two claims at issue in this appeal are the

Title VII retaliation claim and the Georgia state law battery claim.

                                II. ISSUES ON APPEAL

      Smith contends that the district court erred by granting Metropolitan’s Rule

50(b) motion on these two claims. Specifically, Smith presents three issues on

appeal. First, she contends that the district court erred in granting Metropolitan’s

Rule 50(b) motion on her Title VII retaliation claim by wrongly applying the

standard for granting judgment as a matter of law under Rule 50(b). Second, she

contends that the district court wrongly granted Metropolitan’s Rule 50(b) motion

reversing the jury’s punitive damage award on her Georgia state law battery claim

because Metropolitan waived its right to challenge the inconsistent damages

verdict. Finally, she argues that the district court wrongly granted Metropolitan’s

Rule 50(b) motion reversing the jury’s punitive damage award on her Georgia state

law battery claim because the court’s jury instructions constituted plain error. We

address each of these issues in turn.
                                          5
              Case: 12-12711    Date Filed: 09/18/2013    Page: 6 of 15


                            III. STANDARDS OF REVIEW

      We review de novo the district court’s grant of Metropolitan’s Rule 50(b)

motion for judgment as a matter of law, drawing all inferences in the light most

favorable to Smith, the nonmoving party. Rossbach v. City of Miami, 371 F.3d

1354, 1356 (11th Cir. 2004).

                                    IV. DISCUSSION

                       A. TITLE VII RETALIATION CLAIM

      In order to meet the initial burden of proof for a Title VII retaliation claim, a

plaintiff must establish (1) that she engaged in “statutorily protected activity,” (2)

that she suffered a “materially adverse action,” and (3) that “there was some causal

relation between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d

1261, 1277 (11th Cir. 2008).

      The district court granted the Rule 50(b) motion because the court concluded

that the evidence was insufficient to provide a basis for the jury’s conclusion that

Smith’s report about the harassment (the protected activity) and her termination

(the adverse action) were causally linked. Our review of this issue is limited to the

question of whether Smith presented sufficient evidence to prove each element of

this claim. See Collado v. United Parcel Serv. Co., 419 F.3d 1143, 1149 (11th Cir.

2005).


                                          6
             Case: 12-12711     Date Filed: 09/18/2013   Page: 7 of 15


      The causal-link element is construed broadly; “a plaintiff merely has to

prove that the protected activity and the negative employment action are not

completely unrelated.” Goldsmith, 513 F.3d at 1278 (quoting Olmsted v. Taco Bell

Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)). This showing generally requires the

plaintiff to establish “that the decision maker was aware of the protected conduct at

the time of the adverse employment action.” Id. (quoting Brungart v. BellSouth

Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).

      Our decision in, Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197

(11th Cir. 1997), is instructive in this regard. In Raney, Deborah Raney worked for

Vinson Guard Service in one of their branch offices, where she eventually assumed

the title and duties of “branch manager.” Despite performing the same functions as

the male “branch managers” in Vinson’s other offices, Raney asserted that her pay

remained below theirs. After complaining about this discrepancy to her regional

supervisor, Gregory Carter, Raney began drafting a statement to the Equal

Employment Opportunity Commission (EEOC). Soon thereafter, Carter drove

from Vinson’s Birmingham office to search Raney’s Decatur office for missing

paperwork. After finding the paperwork, Carter asked Raney to turn in her office

keys. The next day, he telephoned her and told her that she was terminated.

      Raney then filed a Title VII retaliation suit. The district court granted

Vinson’s motion for summary judgment because Raney failed to “establish the
                                         7
              Case: 12-12711    Date Filed: 09/18/2013    Page: 8 of 15


‘causal link’ prong of a prima facie case, specifically, Raney’s alleged inability to

show that Vinson knew about her threatened legal action before making the

decision to terminate her.” Raney, 120 F.3d at 1197. The court’s analysis of the

causal link prong in Raney is especially relevant to Smith’s case. In Raney, the

court said:

             In order to satisfy the “causal link” prong of a prima facie
      retaliation case, a plaintiff must, at a minimum, generally establish
      that the defendant was actually aware of the protected expression at
      the time the defendant took the adverse employment action.
      Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
      Since corporate defendants act only through authorized agents, in a
      case involving a corporate defendant the plaintiff must show that the
      corporate agent who took the adverse action was aware of the
      plaintiff’s protected expression and acted within the scope of his or
      her agency when taking the action. See Goldsmith, 996 F.2d at 1162
      (general agency principles govern the circumstances in which a
      principal will be held liable for the acts of its agents under Title VII).

             It is not altogether clear which corporate agent took the adverse
      action against Raney in this case. Arguably, Vinson’s vice-president
      provided the catalyst for Raney’s termination when he instructed
      Carter to research the payroll and scheduling records in the Decatur
      branch office. Carter actually told Raney she was terminated, so
      perhaps he too could be viewed as the corporate agent who took the
      adverse action. In either case, Raney failed to meet her burden to set
      forth evidence sufficient for a jury to return a verdict for her after a
      trial.

Raney, 120 F.3d at 1197. Most importantly, we found that if Vinson’s vice

president was the relevant corporate agent, Vinson was entitled to summary

judgment because Raney presented no evidence demonstrating that Vinson’s vice

                                          8
              Case: 12-12711    Date Filed: 09/18/2013    Page: 9 of 15


president knew of her protected expression. Specifically, we stated that “. . . while

we have held that awareness of protected expression may be established based on

circumstantial evidence, our cases have required plaintiffs to show a defendant’s

awareness with more evidence than mere curious timing coupled with speculative

theories.” Raney, 120 F.3d at 1197 (citing Goldsmith v. City of Atmore, 996 F.2d

1155, 1163 (11th Cir. 1993)). We also found that:

             If, alternatively, Carter was the relevant corporate agent,
      Vinson is entitled to summary judgment because Raney offered no
      probative evidence regarding the scope of authority, if any, Vinson
      delegated to Carter over Raney. In its answer to Raney’s complaint,
      Vinson expressly denied Raney’s allegation that Carter, acting within
      the line and scope of his authority as agent for Vinson, terminated
      Raney in retaliation for protected expression. This denial put the
      scope of Carter’s agency in question, and imposed on Raney the
      burden of establishing that Carter’s authority extended to making
      personnel decisions regarding Raney.

             . . . While the fact that Carter personally informed Raney that
      she was terminated for misconduct provides some speculative support
      for a broader view of the scope of Carter’s agency, that isolated fact
      alone is insufficiently probative in light of countervailing facts to
      satisfy Raney’s burden at the summary judgment stage. . . .In this
      case, Raney’s burden included the obligation to set forth significant
      probative evidence regarding the identity, authority and knowledge of
      the Vinson agent who allegedly terminated her for retaliatory
      purposes.

Raney, 120 F.3d at 1198. Just as in Raney, the evidence Smith produced at trial

fails to prove two facts crucial to her case: (1) who it was that made the decision to

terminate her and (2) whether this decision maker knew of her complaint. Without

                                          9
             Case: 12-12711    Date Filed: 09/18/2013   Page: 10 of 15


these facts established, the jury had no basis for finding that the person who

decided to terminate Smith knew about her complaint. And without that finding, no

legally sufficient basis exists to conclude that Smith’s complaint and her

termination were related.

       Smith contends that her testimony that Garrett fired her, coupled with the

jury’s refusal to credit Garrett’s testimony saying that he did not have the power to

terminate employees, provides a basis for finding that her complaint and her

termination were related. But, two problems undercut her argument.

       First, her testimony was not that Garrett made the decision to fire her. She

only testified that Garrett informed her she was being fired. This testimony does

not say who the decision maker was—it only confirms that Garrett, who was the

manager on duty at the end of her last shift, reported the termination decision to

her.

       Second, the jury’s disbelief of Garrett’s testimony that he could not

terminate employees does not suffice to supply the inference that Garrett was the

decision maker. Even if Garrett had the authority to make a termination decision,

Smith presented no evidence that Garrett actually made the termination decision in

this instance.   Smith argues that a jury, when it determines that a witness’s

testimony is false, can actually conclude the opposite of that witness’s testimony.

But that statement of law is true only if the record contains affirmative evidence of
                                         10
               Case: 12-12711       Date Filed: 09/18/2013      Page: 11 of 15


the opposite conclusion; discredited testimony alone cannot be the basis for a

conclusion. See Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485,

512, 104 S. Ct. 1949, 1966 (1984) (“When the testimony of a witness is not

believed, the trier of fact may simply disregard it.              Normally the discredited

testimony is not considered a sufficient basis for drawing a contrary conclusion.”);

see also Moore v. Chesapeake & Ohio Ry. Co., 340 U.S. 573, 576, 71 S. Ct. 428,

429-30 (1951) (“[I]t is the jury’s function to credit or discredit all or part of [a

witness’s] testimony. But disbelief of the [witness’s] testimony would not supply a

want of proof.”)3

       Here, the record contains no affirmative evidence that Garrett had hiring or

firing power. Smith never testified that Garrett had such power, and she produced

no evidence that Garrett had such power. The jury was free to disregard Garrett’s

testimony. Even so, the fact remains that Smith did not show who made the

decision to fire her. Even assuming that Garrett had the authority to fire Smith,

there is no evidence that Garrett actually made the firing decision in this instance.

In corporate settings, those who make termination decisions are often not the ones


       3
         This Court has established an extremely narrow exception to this rule, which is not
applicable here. Where a criminal defendant testifies at trial, and the jury disbelieves the
testimony, the jury is free to draw the opposite inference and consider the disbelieved testimony
as substantive evidence of guilt. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).
We emphasize the narrowness of this exception.

                                               11
             Case: 12-12711     Date Filed: 09/18/2013    Page: 12 of 15


tasked with the unpleasant duty of delivering the termination decisions to

employees.

                   B. GEORGIA STATE LAW BATTERY CLAIM

      The district court also set aside the punitive damages award for Smith under

her Georgia state law battery claim because under Georgia law punitive damages

may only accompany compensatory or nominal damages. See GA. CODE ANN.

§ 51-12-5.1; see also Nelson v. Glynn-Brunswick Hosp. Auth., 571 S.E.2d 557, 564

(2002). Smith contends that the district court erred in two ways when it set aside

the punitive damages award.

      First, she argues that Metropolitan could not challenge the punitive damages

award in its Rule 50(b) motion because it did not object when the jury announced

the verdict and therefore “waived” its challenge. However, Smith has forfeited her

right to argue that Metropolitan waived its challenge to the punitive damages

award because she failed to raise that challenge before the district court. See

Howard v. Walgreen Co., 605 F.3d 1239, 1243 (11th Cir. 2010). In this instance,

not only did Smith fail to raise the issue in the district court, she went so far as to

agree with Metropolitan in her response to the Rule 50(b) motion. Specifically, she

stated:

      Plaintiff’s counsel concedes that O.C.G.A. § 51-12-5.1 prohibits Mrs.
      Smith’s receipt of any punitive damages for her battery claim where
      the jury failed to award any compensatory or nominal damages.
                                          12
             Case: 12-12711    Date Filed: 09/18/2013    Page: 13 of 15




(Dkt. 91 at 12 n.4) If the court’s ruling was error, it was invited error. Invited

error precludes a court from “invoking the plain error rule and reversing.” United

States v. Davis, 443 F.2d 500, 564-65 (5th Cir. 1971).

      Second, she contends that the district court plainly erred by instructing the

jury that nominal damages are awarded in an amount that “you . . . decide [is

appropriate] under all of the facts and circumstances of the case.” (Dkt. 96 at 312.)

Smith contends that Georgia law requires a jury to award, at a minimum, nominal

damages for an intentional tort. See, e.g., Norton v. Holcomb, 646 S.E.2d 94, 101

(Ga. Ct. App. 2007); see also Jeter v. Davis, 127 S.E. 898, 901 (Ga. Ct. App. 1925)

(recognizing that a plaintiff “would at least be entitled to” nominal damages by

proving the elements of an intentional tort). Under Georgia law, compensatory or

nominal damages must be awarded before punitive damages may be awarded. See

GA. CODE ANN. § 51-12-5.1; see also Nelson, 571 S.E.2d at 564. Smith contends

the district court’s error allowed it to set aside the jury’s punitive damage award

because it did not instruct the jury that it must award, at a minimum, nominal

damages before it could award punitive damages.

      Smith correctly recognizes, however, that she waived this contention by

failing to object to the jury instruction before the district court. She accordingly

frames her contention under the plain error doctrine. See Fed. R. Civ. P. 51(c)(2);

                                         13
             Case: 12-12711     Date Filed: 09/18/2013    Page: 14 of 15


Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1414 (11th Cir. 1986). However,

we do not consider whether a court committed plain error if the party making that

contention invited the error. Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283,

1293-94 (11th Cir. 2002). We have held that a party invites error in the jury

instructions when it responds to a court’s proposed instructions by saying, “[T]he

instruction is acceptable to us.” United States v. Fulford, 267 F.3d 1241, 1247

(11th Cir. 2001). We have also held that a party invites error when “the instruction

eventually given to the jury reflect[s] changes that [the party itself] proposed and to

which they did not later object.” Ford, 289 F.3d at 1294.

      In this instance, Smith invited error in the jury instructions. She failed to

propose any jury instruction saying that actual damages are required in the event of

a finding of liability before punitive damages may be awarded. Her proposed

charge, like the charge actually given to the jury, does not say that actual damages

are required. And Smith did not object to the instructions as given with regard to

damages for battery. Smith objected to portions of the jury instructions both

before and after the district court charged the jury, but did not object to the court’s

instructions on damages.      In fact, before charging the jury, the district court

reviewed its proposed instructions with both Smith’s counsel and Metropolitan’s

counsel.   After reviewing the proposed instructions on damages and hearing

feedback from both parties, the court specifically asked Smith’s counsel,
                                          14
             Case: 12-12711     Date Filed: 09/18/2013    Page: 15 of 15


“. . . [H]ave I adequately covered the subject of damages[?]” (Dkt. 96 at 262), and

Smith’s counsel replied, “Yes, your honor.” Id. After charging the jury, the district

court again asked both Smith’s counsel and Metropolitan’s counsel if they had any

objections to the instructions. Smith’s counsel again objected to another part of the

instructions unrelated to damages. The district court stated, “I note your exception.

Anything else?” (Dkt. 96 at 322.) Smith’s counsel replied, “That’s it.” Id. In

essence, Smith, through her counsel, clearly represented her assent to the jury

instruction throughout the process and in fact contributed to its formation. Only on

appeal does Smith raise the alleged error. Thus, we conclude that if there was

error, Smith invited the error, and we decline to review for plain error.

                                    V. CONCLUSION

      We find no error in the district court’s ruling on the Rule 50(b) motions. We

affirm the judgment in the district court.

      AFFIRMED.




                                             15
