                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                               No. 10-13214                 MARCH 29, 2012
                                                              JOHN LEY
                                                               CLERK

                  D. C. Docket No. 0:08-cv-62005-CMA

ANGELEKE SARIDAKIS,

                                                Plaintiff-Appellant,

                                  versus

SOUTH BROWARD HOSPITAL DISTRICT,

                                                Defendant-Appellee.



                Appeal from the United States District Court
                    for the Southern District of Florida


                             (March 29, 2012)


Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Angeleke Saridakis brought this action in the district court against her

employer, South Broward Hospital District (“SBHD”), for retaliation under Title

VII of the Civil Rights Act of 1964, the Florida Civil Rights Act of 1992

(“FCRA”), and the Equal Pay Act (“EPA”) in relation to allegations of unequal

pay and the non-renewal of her employment contract. The jury returned a verdict

in favor of SBHD and the district court entered a judgment on the jury’s verdict in

favor of SBHD. We affirm.

                                         I.

      Saridakis worked for SBHD as a trauma surgeon. After her contract was not

renewed in August 2006, Saridakis filed suit against SBHD asserting claims of sex

discrimination as to her pay and the non-renewal of her contract in violation of

Title VII and the FCRA; retaliation in violation of Title VII, the FCRA, and the

EPA; and violation of the EPA.

      On December 15, 2009, the parties filed joint proposed jury instructions.

Trial was held from March 2 to March 16, 2010. The parties submitted initial

proposed verdict forms during the course of the trial. Saridakis’s initial proposed

verdict form posed the following questions:

      Do you find from a preponderance of the evidence:




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             1. That Angeleke Saridakis engaged in a statutorily protected
             activity under Federal and State law?
             2. That [SBHD] subjected Angeleke Saridakis to an adverse
             employment action, at least in part, that was causally related to
             her protected activity?


[R. 211-1 (Exh. A) at 3–4.] SBHD’s initial proposed verdict form posed a

different causation question and added a same-decision defense question:

      Do you find by a preponderance of the evidence that:

             3. Plaintiff’s complaint is causally connected to the [SBHD’s]
             decision not to renew Plaintiff’s employment agreement; or, in
             other words, if Plaintiff had not complained, her employment
             agreement would have been renewed.

             4. [SBHD] considered a factor(s) other than Plaintiff’s
             complaint(s) of discrimination in making its decision not to
             renew Plaintiff’s employment agreement?


[Id. (Exh. B) at 5, 10.] Saridakis did not object to SBHD’s inclusion of a same-

decision defense for the retaliation claims but challenged the phrasing of the same-

decision defense, arguing that SBHD’s formulation was incorrect. The district

court advised the parties to provide a joint revised verdict form.

      The parties could not resolve their differences and each submitted separate

final proposed verdict forms. In Saridakis’s final proposed verdict form, she

added a same-decision defense for only the Title VII and the FCRA discrimination



                                          3
claims but not the retaliation claims. For the discrimination claims, Saridakis’s

form asked:

      Do you find by a preponderance of the evidence:

      ...

              3. That [SBHD] considered a factor(s) other than Angeleke
              Saridakis’s gender in making its decision concerning her rate of
              pay?
              ...
              3. That [SBHD] considered a factor(s) other than Angeleke
              Saridakis’s gender in making its decision not to renew her
              employment agreement?


[R. 211-6 (Exh. F) at 3.] Saridakis did not include a same-decision defense

for the retaliation claims and argued that there is no mixed-motive defense

on retaliation. SBHD responded that a same-decision defense could be

raised for both discrimination and retaliation claims and the court agreed

with SBHD. The court accepted SBHD’s final proposed verdict form,

which included same-decision defense questions for retaliation under Title

VII, the FCRA, and the EPA:

      B. Retaliation under the Equal Pay Act:

              Do you find from a preponderance of the evidence:

              ...



                                          4
             3. That [SBHD] considered a factor(s) other than Angeleke
             Saridakis’s complaint(s) of wage discrimination in the non-
             renewal of her employment agreement?
             ...

      F. Retaliation - Title VII and the FCRA:

             Do you find by a preponderance of the evidence:

             ...

             3. That [SBHD] considered a factor(s) other than Angeleke
             Saridakis’s complaint(s) of gender discrimination in the non-
             renewal of her employment agreement?


[R. 211-5 (Exh. E) at 2, 4.] Jury instructions were distributed after closing

arguments. The district court instructed the jury on Title VII, FCRA, and EPA

retaliation claims as follows:

      If you find in the Plaintiff’s favor with respect to each of the facts the
      Plaintiff must prove, you must then decide whether the Defendant has
      shown by a preponderance of the evidence that the adverse
      employment action would have been taken for other reasons even in
      the absence of consideration of Plaintiff’s protected activity. If you
      find that the adverse employment action would have been taken for
      reasons apart from the protected activity, then your verdict should be
      for the Defendant.
      ...
      If you determine that Plaintiff has proved that her statutorily-
      protected activity was a factor motivating Defendant’s decision not to
      renew her employment agreement, then you must consider whether
      the Defendant has presented any evidence that it would have made
      the same decision regardless of Plaintiff’s protected activity. If you
      find Defendant has proven by a preponderance that it would have

                                          5
      made the same decision even if it had not taken Plaintiff’s protected
      activity into account, you should make this finding on the verdict
      form.


[R. 178 at 8.] The jury began deliberations on March 17, 2010. On March 18,

2010, the jury sent a note to the court requesting clarification on question F.3 of

the verdict form: “Need clarification on F3: Is the question to be answered as it is

literally stated? Can the question be stated any other way? Need to know how

question is related to retaliation.” [R. 182 at 1.] The district court discussed the

note with the parties and adopted language from the jury instructions, over

Saridakis’s objections. The court restated question F.3 as follows: “That [SBHD]

would have made the decision not to renew Angeleke Saridakis’s employment

agreement regardless of any steps by Plaintiff to enforce her rights?” [Id. at 1.] An

hour later the jury sent another note: “We are deadlocked on F3. We need

someone to talk to us. Please!!!” [Id. at 2.] The jury retired and reconvened on

March 22, 2010.

      On March 21, 2010, Saridakis submitted a trial brief for supplemental jury

instructions and an amended verdict form. Saridakis argued that a same-decision

defense was not available to SBHD on the Title VII retaliation claim because the

standard should be “but-for” causation under Gross v. FBL Fin. Servs., Inc., 557



                                           6
U.S. 167, 129 S. Ct. 2343 (2009). Additionally, Saridakis argued that the same-

decision defense required the defendant to prove by a preponderance of the

evidence that it would have made the same decision absent alleged retaliation, not

merely that it had considered other factors as suggested by question F.3.

      The court was not persuaded by Saridakis’s brief and directed the parties to

draft a response to the jury’s note. Saridakis moved for a mistrial because the

district court failed to revise the verdict form, but the motion was denied. With

the parties’ approval, the district court responded to the jury’s second note and

rephrased question F.3: “Do you find that [SHBD] would have made the same

decision of not renewing Angeleke Saridakis’s employment agreement even if it

had not taken Plaintiff’s protected activity into account?” [R. 182 at 3.]

      The jury reached a verdict in favor of SBHD on March 22, 2010. On the

retaliation claims, the jury found that SBHD’s decision not to renew Saridakis’s

employment agreement was causally connected to Saridakis’s protected activity,

but that SBHD had considered a factor other than Saridakis’s protected activity in

deciding not to renew the agreement. The jurors were polled at Saridakis’s request

and each confirmed that question F.3 was answered as it was rephrased. Final

judgment was entered on March 22, 2010.




                                          7
      Saridakis filed a motion to amend the judgment under Rule 59 of the

Federal Rules of Civil Procedure asking the district court: (1) to amend the

judgment; (2) for a new trial on compensatory damages; (3) for an evidentiary

hearing; (4) for entry of declaratory relief; and (5) for injunctive relief. The

district court denied the post-trial motion in its entirety on June 7, 2010. Saridakis

filed this appeal on July 7, 2010.

                                          II.

      “[W]hether the jury instructions and verdict form accurately reflect the law”

is a question of law that we review de novo. McNely v. Ocala Star-Banner Corp.,

99 F.3d 1068, 1072 (11th Cir. 1996). Questions of statutory interpretation are also

reviewed de novo. Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1080 (11th Cir. 2004).

      This court reviews “jury instructions and verdict forms together rather than

separately for reversible error.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d

1322, 1329 (11th Cir. 1999). Where a party fails to object to the verdict form

before jury deliberations, we review for plain error. Id. Further, this court will not

review an issue raised on appeal if it is waived through the doctrine of invited

error by requesting the substance of the instruction given. United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

                                          III.

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       On appeal, Saridakis argues that the district court erred when it instructed

the jury that SBHD could raise the same-decision defense1 against her Title VII,

FCRA, and EPA retaliation claims. In the alternative, Saridakis argues that the

district court erred when it gave jurors an incorrect verdict form on the EPA

retaliation claim.

A.     Same-decision defense.

       Saridakis argues that the district court erred in giving a same-decision

instruction on her Title VII, FCRA, and EPA retaliation claims. She argues that

the mixed-motive/same-decision defense should be limited to the substantive

discrimination provisions of Title VII. This court need not independently analyze

whether the FCRA authorizes a same-decision defense to retaliation claims

because the FCRA is patterned after Title VII and courts generally apply Title VII

case law to retaliation claims brought under the FCRA. Wilbur v. Corr. Servs.

Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (noting that “[t]he Florida Civil

Rights Act was patterned after Title VII, and Florida courts have construed the act

in accordance with decisions of federal courts interpreting Title VII”). For the




       1
        The same-decision or mixed-motive defense requires the defendant to demonstrate by a
preponderance of the evidence that the same decision would have been made even in the absence of
the impermissible motivating factor.

                                               9
same reason, this court rejects Saridakis’s argument that the FCRA issue should be

certified to the Florida Supreme Court.

      1) EPA claim.

      Saridakis did not specifically argue that there was no same-decision defense

available for retaliation claims brought under the EPA until filing her post-trial

motion. Prior to filing the post-trial motion, Saridakis represented that a same-

decision defense was applicable to her EPA retaliation claim. In her amended

verdict forms, Saridakis did not delete the mixed-motive defense as to the EPA

retaliation claim. In fact, Saridakis’s counsel explained during the hearing on her

trial brief that the EPA questions were correctly stated. The first time Saridakis

raised the argument against the same-decision defense on the EPA retaliation

claim was in her post-trial motion. Thus, Saridakis failed to preserve her objection

on this issue.

      2) Title VII claim.

      A plaintiff establishes a Title VII discrimination violation by showing that

his or her sex was “a motivating factor for any employment practice, even though

other factors also motivated the practice.” The Civil Rights Act of 1991, 42

U.S.C. § 2000e-2(m). In mixed-motive discrimination cases, a court may award


                                          10
the plaintiff both declaratory and injunctive relief when an employer has shown

that it would have taken the same action in the absence of the illegal motive. 42

U.S.C. § 2000e-5(g)(2)(B). However, a court may not award damages or order the

plaintiff hired, reinstated, or promoted. Id. This court has held that a same-

decision defense applies to retaliation claims brought under Title VII. Pennington

v. City of Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001).

      Saridakis argues that the Civil Rights Act of 1991 (“CRA”) limited the

application of the same-decision doctrine to cases involving discrimination and

that the Supreme Court’s decision in Gross is controlling. In Gross, the Supreme

Court held that “the ordinary meaning of the ADEA’s requirement that an

employer took adverse action ‘because of’ age is that age was the ‘reason’ that the

employer decided to act.” Gross, 557 U.S. at __, 129 S. Ct. at 2350. To prove a

disparate-treatment claim under the ADEA, a plaintiff must prove “that age was

the ‘but-for’ cause of the employer’s adverse decision.” Id. Unlike Title VII, the

burden of persuasion does not shift to the party defending an alleged mixed-

motive discrimination claim under the ADEA. See id. at __, 129 S. Ct. at 2348.

      Although Saridakis argues that Gross is controlling in this case for Title

VII, this court has not addressed whether Gross requires a but-for causation

standard and prohibits a same-decision defense for retaliation claims brought

                                         11
under Title VII. Notably, there is a circuit split between the Fifth and Seventh

Circuits on this issue. The Fifth Circuit held in Smith v. Xerox Corporation that

the same-decision/mixed-motive defense applies to Title VII retaliation cases

because the ADEA and Title VII are materially different and Gross is not

controlling for the standard of causation and shifting burdens in a Title VII

retaliation case. Smith, 602 F.3d 320, 329–30 (5th Cir. 2010). In Serwatka v.

Rockwell Automation, Inc., the Seventh Circuit recognized that Title VII does not

authorize a mixed-motive retaliation claim because there is no language in the

CRA stating that an adverse employment decision motivated in part by retaliation

but also by one or more legitimate factors constitutes a violation of Title VII.

Serwatka, 591 F.3d 957, 962–63 (7th Cir. 2010).

      However, our decision in Pennington is controlling, holding that a same-

decision defense applies to retaliation claims brought under Title VII. See 261

F.3d at 1269. Gross is not controlling because it is an ADEA case, and the ADEA

and Title VII have materially different burdens of persuasion. Accordingly, we

conclude that the district court did not err in giving a same-decision instruction on

Saridakis’s Title VII, FCRA, and EPA retaliation claims.

B.    Verdict form.



                                          12
      Under Federal Rule of Civil Procedure 51, “[a] party who objects to an

instruction or the failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds for the objection.” FED. R. CIV.

P. 51. Objections to the form of interrogatories on a special verdict form must be

raised before the jury is charged, or they are waived. Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999). In Farley, the defendant’s own

proposed jury instruction used the same language to which defendant later

objected in the verdict form, and this court held that the defendant waived its

objection to the verdict form interrogatory. Id. at 1331.

      Although SBHD argues to the contrary, the record supports that Saridakis

preserved this issue—that the mixed-motive defense should not have been

available to SBHD on Saridakis’s retaliation claims—before the jury began its

deliberations. During the charge conference on March 16, 2010, Saridakis argued

that SBHD’s statement of the same-decision defense in the jury instructions and

verdict form was incorrect. However, she waived her right to argue that issue on

appeal because she conceded that the question, as submitted to the jury, was

correct. On March 17, 2010, the trial court heard arguments on the parties’ final

proposed verdict forms. Saridakis argued that a mixed-motive defense should not

be allowed on the Title VII retaliation claim, but made no argument that the

                                          13
language used in SBHD’s proposed verdict form for the EPA retaliation was

incorrect. Further, she admitted that the verdict form submitted to the jury

correctly stated the EPA retaliation mixed-motive defense. [R. 199 at 13.] (“[W]e

went back into the verdict form and changed only the Title VII questions. We

didn’t change the EPA questions. Those are correctly stated.”) Saridakis invited

the alleged error by objecting to language in the verdict form that she previously

conceded was correct. Thus, the issue is waived on appeal.

                                        IV.

      For the foregoing reasons, we affirm the judgment entered on the jury’s

verdict.

      AFFIRMED.




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