           Case: 14-13037   Date Filed: 06/08/2015   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13037
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:11-cv-00225-HLM

MARCUS ANDERSON,

                                                                    Plaintiff-
                                                           Counter Defendant-
                                                                   Appellant,

                                  versus

BROWN INDUSTRIES,

                                                                     Defendant-
                                                              Counter Claimant-
                                                                       Appellee,

MARTY WALKER, et al.,

                                                                  Defendants-
                                                            Counter Claimants.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________
                             (June 8, 2015)
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Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      Marcus Anderson, proceeding pro se and in forma pauperis, appeals

following the district court’s denial of his post-trial motions for judgment as a

matter of law, under Federal Rule of Civil Procedure 50(b), and new trial, under

Federal Rule of Civil Procedure 59(a), after the jury returned a verdict in favor of

Brown Industries (Brown) on Anderson’s hostile work environment claims,

brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and

42 U.S.C. § 1981. Anderson raises several issues on appeal, which we address in

turn. After review, we affirm the district court.

                                  I. DISCUSSION

A. Motion to amend complaint

      Anderson first appeals the district court’s denial of his untimely motion to

amend his complaint to add a retaliatory hostile work environment claim. In

Gowski v. Peake, this Court recognized for the first time a cause of action for

retaliatory hostile work environment. 682 F.3d 1299, 1311-12 (11th Cir. 2012).

We noted that every other circuit had previously recognized such a claim, and that

it was consistent with Title VII’s text and remedial goal, congressional intent, and

the Equal Employment Opportunity Commission’s own interpretation of Title VII.

Id.


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       A party seeking to amend his complaint, after having previously amended

it as of right, may do so only with the opposing party’s written consent or leave of

court. Fed. R. Civ. P. 15(a)(2). Rule 15 instructs that such leave should be freely

given when justice so requires. Id. Where the motion for leave to amend is filed

after the scheduling order’s deadline for such motions, however, the party must

show good cause why leave to amend should be granted. Fed. R. Civ. P. 16(b)(4);

Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1366 (11th Cir. 2007).

      The district court did not abuse its discretion in denying Anderson’s

untimely motion for leave to amend the complaint to add a retaliatory hostile work

environment claim. See Smith, 487 F.3d at 1366 (reviewing the denial of a motion

for leave to amend a complaint for abuse of discretion). Anderson filed his motion

approximately eight months after the scheduling order’s deadline for motions to

amend the pleadings, and did not provide any justification for his untimely request.

As the district court noted, Gowski was decided nearly six months before Anderson

filed his motion for leave to amend, during which time Anderson had ample

opportunity to discover and raise that issue. See Oravec v. Sunny Isles Luxury

Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008) (stating in order to satisfy

Rule 16’s good cause standard, the party must show diligence in pursuing his

claims). Accordingly, the district court did not abuse its discretion in denying

Anderson’s motion.


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B. Judicial Estoppel

       Anderson appeals the denial of his post-trial motions for judgment as a

matter of law and new trial for several reasons. First, Anderson contends the

district court improperly applied the doctrine of judicial estoppel to bar him from

asserting that Josh Cox, his alleged harasser, was not his supervisor, and that the

Faragher-Ellerth 1 affirmative defense was therefore inapplicable. Anderson

asserts his change in position regarding Cox’s supervisory status resulted from an

intervening change in controlling law, namely, the Supreme Court’s decision in

Vance v. Ball State University, 133 S. Ct. 2434, 2439 (2013), which held that, for

purposes of the Faragher-Ellerth defense, a supervisor is someone with the

authority to take tangible employment actions against the plaintiff. Additionally,

Anderson asserts the necessary elements of judicial estoppel were not met.

       The purpose of judicial estoppel is to protect the integrity of the judicial

process by preventing parties from taking inconsistent positions according to the

exigencies of the moment. Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273

(11th Cir. 2010) (citing New Hampshire v. Maine, 532 U.S. 742, 749 (2001)). In

New Hampshire v. Maine, the Supreme Court identified three factors that generally

inform when judicial estoppel may be invoked: (1) whether the present position is


       1
          The Faragher-Ellerth affirmative defense is derived from the Supreme Court’s
decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus. v.
Ellerth, 524 U.S. 742 (1998).
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clearly inconsistent with the prior position; (2) whether the party persuaded the

court to accept the earlier position, such that acceptance of the inconsistent position

would create a perception that the court was misled; and (3) whether the party

advancing the inconsistent position would derive an unfair advantage or impose an

unfair detriment on the opposing party. 532 U.S. at 750-51.

      We employ a two-factor inquiry, requiring a showing that (1) the allegedly

inconsistent positions were made under oath in a prior proceeding, and (2) the

inconsistencies were calculated to make a mockery of the judicial system.

Robinson, 595 F.3d at 1273. We have held that our two-factor approach is

consistent with the principles announced in New Hampshire v. Maine. Burnes v.

Pemco Aeroplex, 291 F.3d 1282, 1285-86 (11th Cir. 2002). To show that a party

intended to make a mockery of the judicial system, we require that the

contradicting positions be intentional, not merely inadvertent. Robinson, 595 F.3d

at 1275.

      As an initial matter, we have not addressed the question of whether judicial

estoppel is appropriate when the party alleges that its change in position is based

on an intervening change in controlling law. However, we need not decide that

issue here because Vance does not constitute an intervening change in controlling

law for purposes of this case. Vance was decided on June 24, 2013, nine months

prior to the commencement of trial in this case on March 24, 2014. Thus, both


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(1) Anderson’s representations that Cox was his supervisor in his trial testimony

and proposed jury instructions and (2) his current position that Cox was not his

supervisor, post-dated the Supreme Court’s decision in Vance. Accordingly,

Anderson’s change in position did not result from an intervening change in the

law, and his argument that judicial estoppel was inappropriate on that basis lacks

merit.

         Moreover, Anderson does not prevail on his alternative argument that the

necessary elements of judicial estoppel were not met. Under the Supreme Court’s

three-factor approach, judicial estoppel was appropriate because Anderson’s

position at trial was clearly inconsistent with his position in his post-trial motions,

Anderson convinced the court to accept his earlier position, and Anderson would

derive an unfair benefit from being allowed to contest the jury’s verdict on a

ground that was available to him at trial, but that he merely failed to raise.

Likewise, under our two-factor inquiry, judicial estoppel was appropriate because

Anderson’s prior inconsistent position was made under oath, and it can be inferred

from the record that Anderson’s assertion of contradictory positions was

intentional, rather than inadvertent. Anderson failed to raise the Vance issue until

after the jury returned a verdict in Brown’s favor, despite the fact that Vance was

issued long before trial commenced and Anderson had raised other challenges to

the applicability of the Faragher-Ellerth defense. Accordingly, the district court


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did not abuse its discretion in applying judicial estoppel, and we affirm the denial

of Anderson’s post-trial motions on this ground. See Burnes, 291 F.3d at 1287

(reviewing the applicability of judicial estoppel, an equitable doctrine invoked at

the court’s discretion, for abuse of discretion).

C. Jury instructions

      Anderson asserts that district court erred in concluding he waived any

objection to the Faragher-Ellerth jury instruction because he objected to the

instruction, albeit on different grounds, in his pre-deliberation motion for directed

verdict. Anderson asserts this earlier objection was sufficient to preserve his post-

verdict challenge to Cox’s supervisory status, and Brown was not entitled to the

Faragher-Ellerth instruction as a matter of law because Cox was not a supervisor.

      When a party fails to object to a jury instruction prior to jury deliberations,

that party waives its right to challenge the instruction on appeal, unless the party

made its position clear to the court previously and further objection would be

futile, or it is necessary to correct a fundamental error. Parker v. Scrap Metal

Processors, Inc., 386 F.3d 993, 1018 (11th Cir. 2004).

      The district court correctly concluded that Anderson waived any challenge

to the jury instruction regarding Cox’s supervisor status because Anderson

repeatedly testified that Cox was his supervisor, included a jury instruction to that

effect in his proposed jury instructions, and did not object to the district court’s


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instruction that he alleged that Cox was his supervisor. Accordingly, because

Anderson waived any objection to the instruction regarding Cox’s supervisor

status, and, as discussed above, is estopped from arguing that Cox was not his

supervisor, he cannot challenge the Faragher-Ellerth instruction on that basis.

D. Supervisor Status

      Finally, Anderson contends that the district court erred in denying his post-

trial motions because there was insufficient evidence to support a jury finding that

Cox was his supervisor. Anderson asserts that no evidence at trial showed that

Cox was empowered to take tangible employment actions against him, and that the

court could not rely on his testimony to support its determination that there was

sufficient evidence for the jury to conclude that Cox was his supervisor.

      As discussed above, the district court correctly concluded that Anderson was

judicially estopped from asserting that Cox was not his supervisor and waived any

challenge to the jury instruction regarding Cox’s supervisory status. Further,

Anderson invited the jury to conclude that Cox was his supervisor through his

testimony and proposed jury instructions, and should not now be allowed to

complain that the jury may have accepted his invitation in rendering its verdict.

See Pensacola Motor Sales, Inc. v. Eastern Shore Toyota, LLC, 684 F.3d 1211,

1231 (11th Cir. 2012) (“A party that invites an error cannot complain when its

invitation is accepted.”). To permit such a challenge would essentially allow


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Anderson to unfairly benefit from providing insufficient support for his own

position at trial and punish Brown for failing to provide evidence in support of a

position it never asserted. We therefore affirm the district court’s denial of

Anderson’s post-trial motions. Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278,

1287 (11th Cir. 2011) (reviewing for abuse of discretion the denial of a motion for

new trial, and reviewing de novo the denial of a Rule 50(b) renewed motion for

judgment as a matter of law, viewing the evidence in the light most favorable to

the nonmoving party).

                                 II. CONCLUSION

      The district court did not abuse its discretion in denying Anderson’s

untimely motion to amend because he failed to show good cause. Additionally, the

district court did not err in denying Anderson’s post-trial motions because

Anderson was estopped from challenging Cox’s supervisory status. Accordingly,

we affirm.

      AFFIRMED.




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