                                                                 [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                               ________________________
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                      No. 10-11487         NOVEMBER 22, 2011
                                ________________________        JOHN LEY
                                                                  CLERK
                             D.C. Docket No. 4:07-cv-00186-RDP

ANNIE HOWELL,

lllllllllllllllllllll                                      Plaintiff - Appellee,

    versus

COMPASS GROUP,

lllllllllllllllllllll                                      Defendant,

MORRISON MANAGEMENT SPECIALISTS, INC.,

lllllllllllllllllllll                                      Defendant - Appellant.

                                ________________________

                                      No. 10-11686
                                ________________________

                             D.C. Docket No. 4:07-cv-00186-RDP

ANNIE HOWELL,

lllllllllllllllllllll                                      Plaintiff - Appellant,

    versus
COMPASS GROUP,

lllllllllllllllllllll                                            Defendant,

MORRISON MANAGEMENT SPECIALISTS, INC.,

lllllllllllllllllllll                                            Defendant - Appellee.

                               ________________________

                        Appeals from the United States District Court
                           for the Northern District of Alabama
                               ________________________

                                   (November 22, 2011)

Before DUBINA, Chief Judge, CARNES, Circuit Judge, and SANDS,* District
Judge.

PER CURIAM:

         Annie Howell filed a lawsuit against her employer, Morrison Management

Specialists, Inc., claiming that Morrison discriminated against her based on her

race, which is African-American, and her age, which was fifty-four at that time.

Howell also claimed that Morrison retaliated against her after she filed a charge

with the Equal Employment Opportunity Commission. She alleged violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. §

1981; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et


         *
       Honorable W. Louis Sands, United States District Judge for the Middle District of
Georgia, sitting by designation.

                                              2
seq.; and Alabama state law.

       The district court granted summary judgment in favor of Morrison on

Howell’s age and race discrimination claims. Her retaliation claim, however, went

to trial and the jury returned a verdict in her favor. The jury awarded Howell

$50,000 in compensatory damages, and the district court entered judgment on the

verdict. Morrison appeals that judgment, contending it should have been awarded

judgment as a matter of law or a new trial. It also challenges an evidentiary ruling.

       Howell cross-appeals the district court’s decision granting summary

judgment against her on the discrimination claims and its judgment as a matter of

law against her on punitive damages. We will address the parties’ contentions in

the order of the proceedings in the district court, beginning with Howell’s

arguments about why the district court should have denied summary judgment on

her discrimination claims.1

                                                  I.

           Howell contends that the district court erred by granting summary judgment

in favor of Morrison on her age and race discrimination claims. The court

       1
         In the statement of issues section of her brief to this Court, Howell asserts that she is also
challenging the district court’s grant of summary judgment on her claims based on state law, but
she makes no argument about those claims, so they are waived. See United States v. Gupta, 463
F.3d 1182, 1195 (11th Cir. 2006) (“We may decline to address an argument where a party fails to
provide arguments on the merits of an issue in its initial or reply brief. Without such argument
the issue is deemed waived.”).

                                                  3
concluded that Howell could not establish a prima facie case of discrimination

based on Morrison’s decision in 2006 to promote a younger, white employee to an

Assistant Director position because Howell never applied for that position. “We

review de novo a district court’s grant of summary judgment, applying the same

legal standards as the district court.” Alvarez v. Royal Atl. Developers, Inc., 610

F.3d 1253, 1263–64 (11th Cir. 2010).

       To establish her discriminatory failure to promote claims, Howell had to

show that she applied for the 2006 Assistant Director job opening. She did not.

As the district court recognized, Howell gave some conflicting testimony about

whether she knew that the 2006 job opening was posted on the internet, but there

is no dispute that Morrison posted jobs on the internet, the person who got the

2006 Assistant Director position applied for that job on the internet, and Howell

did not apply on the internet for it.2 Howell did apply online for a 2007 Assistant

Director job opening and did not get that promotion, but that is the subject of a

separate lawsuit Howell has brought against Morrison.

       We have explained that for a Title VII employment discrimination claim:



       2
         One of Howell’s own exhibits from trial, a job description for the Assistant Director
position, shows that the job was posted on the internet in 2006. The bottom of the printed copy
shows the web address and a date of 4/5/2006. There is an image of a box that appears to be
something website users can click that says “Apply Now.”

                                               4
       In order to establish a prima facie case, and thus raise an inference of
       discriminatory intent, the plaintiff must demonstrate only that: (i) he
       or she belonged to a protected class; (ii) he or she was qualified for
       and applied for a position that the employer was seeking to fill; (iii)
       despite qualifications, he or she was rejected; and (iv) the position
       was filled with an individual outside the protected class.

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (citation

and footnote omitted; emphasis added). We have qualified the application

requirement with an exception: “[W]here an employer does not formally

announce a position, but rather uses informal and subjective procedures to identify

a candidate, a plaintiff need not show under the second prong that he applied for

the position—only that the employer had some reason to consider him for the

post.” Id. Here, however, Morrison used the internet to formally announce the

2006 Assistant Director position.3 Howell testified repeatedly in her deposition

that Morrison posted jobs on the internet. She also testified that she knew how

access the job postings through Morrison’s website. The person who was awarded

the job, Tanya Williamson, applied for it online.

       Howell argues that she was not told the job was posted on the internet and

that Williamson was told about it, but postings on the internet are available for

       3
          Before Morrison sought to fill the 2006 Assistant Director position, Howell mentioned
to her former and present supervisors and to the Regional Director that she was interested in that
job, but when it became available and was posted online, she did not apply. Not only that, but in
her 2006 evaluation in answer to the question, “Does your current job satisfy your aspirations?,”
she answered: “Yes.”

                                                5
anyone to see, and Howell admits that she had access to the internet postings.

Howell asserts in her brief to this Court that the “secret posting” on the internet

“deviated from the normal procedure of posting all jobs at the time clock,” but

Howell testified in her deposition that “they never have posted jobs in the

department, on the bulletin board where people can—the associates can view them

and apply for them. . . . . Never.”

      Howell could have—but did not—access the 2006 Assistant Director job

opening when it was posted to the internet. She also could have—but did

not—apply for the job. The fact that Howell did not get a job for which she did

not apply is not evidence of discrimination. The district court did not err by

granting summary judgment in favor of Morrison on Howell’s Title VII race

discrimination claim.

      As for her ADEA age discrimination claim based on failure to promote,

Howell had to show the following: (1) she was a member of a protected age

group; (2) she was subject to adverse employment action; (3) a substantially

younger person filled the position that she was seeking; and (4) she was qualified

to do the job for which she was rejected. See Bogle v. Orange Cnty. Bd. of Cnty.

Comm’rs, 162 F.3d 653, 656–57 (11th Cir. 1998). For the same reasons that she

could not establish a genuine issue of material fact on her Title VII claim, her

                                          6
ADEA claim also fails. Because Howell did not apply for the 2006 Assistant

Manager position, she cannot establish that her employer discriminated against her

by not hiring her for it. The district court did not err by granting summary

judgment in favor of Morrison on Howell’s ADEA claim.

                                       II.

      About Howell’s retaliation claim, which went to trial and resulted in

judgment in her favor, Morrison contends that the district court erred by denying

its motion for judgment as a matter of law and its motion for a new trial. To make

a prima facie showing of retaliation under Title VII, the plaintiff must show: (1)

that she engaged in statutorily protected conduct; (2) that she suffered a materially

adverse action that might have dissuaded a reasonable worker from making a

charge of discrimination; and (3) that there is some causal relationship between

the two events. See Alvarez, 610 F.3d at 1268; see also Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006). Morrison argues

that Howell failed to show a materially adverse action.

      We review de novo the district court’s denial of a motion for a renewed

judgment as a matter of law. Etienne v. Inter-Cnty. Sec. Corp., 173 F.3d 1372,

1374 (11th Cir. 1999). “If the facts and inferences overwhelmingly favor one

party, such that reasonable people could only arrive at one verdict, then the motion

                                             7
should have been granted.” Id.; see also Myers v. TooJay’s Mgmt. Corp., 640

F.3d 1278, 1287 (11th Cir. 2011) (“[A] motion for judgment as a matter of law

may be granted only if after examining all evidence in a light most favorable to the

non-moving party we determine there is no legally sufficient evidentiary basis for

a reasonable jury to find for that party.” (quotation marks omitted)). As for

credibility determinations, “[i]t is the jury’s task—not ours—to weigh conflicting

evidence and inferences, and determine the credibility of witnesses.” Brochu v.

City of Riviera Beach, 304 F.3d 1144, 1154–55 (11th Cir. 2002) (quotation marks

omitted); see also Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,

1193 (11th Cir. 2004) (“‘Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge.’” (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

150, 120 S.Ct. 2097, 2110 (2000))). We review for abuse of discretion the district

court’s denial of a motion for a new trial. Brochu, 304 F.3d at 1155.

      Morrison asserts that, as a matter of law, putting Howell on a “Performance

Improvement Plan” was not a materially adverse action. It argues that Howell

testified only about how the Performance Improvement Plan made her subjectively

feel, which is not enough to show a materially adverse action that could dissuade a

reasonable employee from making a charge of discrimination.

                                         8
      Howell unequivocally testified that she was singled out for the Performance

Improvement Plan, and she considered it to be a disciplinary action taken against

her, and it made her want to retire because she was so embarrassed about it:

      Q. Did you know of any other manager that was placed on a
      performance plan?

      A. No, ma’am. I was the only one.

      Q. Did you consider the performance plan a disciplinary action?

      A. Yes, ma’am, I did.

      Q. Why?

      A. Because I was the only one that [the Director of Food Services]
      put on there. I was the only one that had [a] set time schedule. I was
      the only one that he treated the way he treated me. I was the only one
      that didn’t have a computer to work with.

      *       *     *
      A. . . . After I was put on the performance improvement
      plan, I wanted to retire.

      Q. And why?

      A. Because it was just too embarrass[ing] to know that my 37
      years, that I had to be put on—I was just embarrassed. And I
      wanted to get out of there.

      As for what constitutes a materially adverse action, the district court

correctly instructed the jury on the Burlington reasonable employee standard as

follows:

                                          9
      Under the law applicable to this case, an adverse employment action
      is any action which is materially adverse to an employee such that it
      could dissuade a reasonable employee from making a charge of
      discrimination. Whether a particular action is materially adverse is to
      be judged from the perspective of a reasonable employee in the
      plaintiff’s position considering all of the circumstances.

The jury was also instructed that whether an action is materially adverse was a

question of fact for it to decide and that it could consider several possible actions

to determine if any of them were materially adverse:

      You will have a form of verdict with you that is a series of questions,
      and it in effect follows the pattern of what I have just discussed with
      you. The first question is this: “Do you find that the plaintiff proved
      by a preponderance of the evidence that the defendant committed any
      adverse employment actions against the plaintiff”; that is, an adverse
      employment action as I discussed it and, as I indicated, these
      possibilities for you to consider: whether the performance
      improvement plan was an adverse action, whether there was an
      adverse action resulting from some employment environment change,
      whether there was a downgrade of a performance evaluation based on
      retaliation, or whether there was failure to give a raise of a greater
      amount. Those are the areas that you can consider.

Morrison did not object to those instructions.

      During deliberations the jury asked, “Can you tell us what the adverse

actions were?” The court referred the jury to the instructions. In its verdict the

jury specified that it had found these adverse actions:

      (1) the Performance Improvement Plan was isolated just the plaintiff
      as disciplinary action; (2) Associate Performance Appraisal lowered
      from 3.8 to 1.9 after an EEOC charge; (3) Plaintiff unpromotable due

                                          10
       to disciplinary action by company (Jan. 07) email.4

       We presume that juries follow their instructions. United States v.

Townsend, 630 F.3d 1003, 1013–14 (11th Cir. 2011). Thus, we presume that the

jury applied the Burlington reasonable employee standard to the evidence and

decided that a reasonable employee would be dissuaded from making a charge of

discrimination based on the implementation of the Performance Improvement Plan

under the facts of this case. The jury was free to find that the Performance

Improvement Plan amounted to a disciplinary action even though Morrison’s

witnesses testified that it did not. It is the jury’s job, not ours, to make credibility

determinations. Brochu, 304 F.3d at 1154–55.

       Because that finding was enough to support the jury’s conclusion that an

adverse action was taken against Howell, we need not address the other two

findings about the “Associate Performance Appraisal” and the “(Jan. 07) email.”

The district court instructed the jury that “whether the performance improvement

plan was an adverse action” was one from among several possible adverse actions

that it could consider. The court asked the jury whether it found “that the plaintiff



       4
         Although the third finding is ambiguous, it appears from the parties’ representations at
oral argument and this Court’s review of the record that the jury’s finding was based on copies of
two e-mail messages dated January 2007 that were used at trial to refresh a witness’ recollection
but were not admitted into evidence.

                                               11
proved by a preponderance of the evidence that the defendant committed any

adverse employment actions against the plaintiff,” and it listed several

“possibilities” for the jury to “consider.” (emphasis added.) As we have already

mentioned, Morrison did not object to those instructions.

      Because the jury found that the Performance Improvement Plan was

“isolated” and was directed at Howell alone as a “disciplinary action,” we cannot

say that viewing “all evidence in a light most favorable to [Howell] . . . there is no

legally sufficient evidentiary basis for a reasonable jury to find” for her on her

retaliation claim. Myers, 640 F.3d at 1287 (quotation marks omitted). The facts

and inferences do not so overwhelmingly favor Morrison that the only verdict

reasonable people could reach was one for Morrison based on the materially

adverse action issue. See Etienne, 173 F.3d at 1374. The district court did not err

by denying Morrison’s motion for judgment as a matter of law, and for the same

reasons, it did not abuse its discretion by denying Morrison’s motion in the

alternative for a new trial.

                                         III.

      Morrison also contends that the district court erred by allowing testimony

about facts related to another lawsuit Howell brought against it based on

Morrison’s decision not to promote her to the Assistant Director position that

                                          12
became available in 2007. This issue involves testimony about a conversation

Howell allegedly had with Rob Cooperman, a recruiter for Morrison, when she

was applying for the Assistant Director position in 2007.

      This was Howell’s testimony about that conversation on cross-examination:

      A. See, I misunderstood Mr. Cooperman when he asked me, “Have
      you had a write-up in the last six months?” I said yes. And then I
      had to go back and say, “Mr. Cooperman, I’m sorry. I meant I
      haven’t had one—it’s been over a year. I haven’t had one.” He said,
      “Well, I’m sorry. You just messed yourself up.”

      Q. [Counsel for Morrison] But you told him that you hadn’t been
      written up in six months?

      A. I made a mistake, and I told him that, too.

      *       *    *

      Q. That you had not been written up within the six months of January
      of ‘07.

      A. Yes, ma’am.

Howell’s retaliation claim based on not receiving the 2007 promotion is the

subject of a separate lawsuit. Morrison argues that the evidence about it

influenced the jury to find that Howell was “unpromotable” as a result of the

company’s disciplinary actions, which was the third specific adverse action the

jury found.

      We review evidentiary rulings for abuse of discretion and reverse for a new

                                        13
trial only where there is substantial prejudice. Brochu, 304 F.3d at 1155. For the

reasons we have already discussed, the jury’s finding about the Performance

Improvement Plan, which was implemented in 2006, was enough to support its

conclusion that there was an adverse action taken against Howell that would have

dissuaded a reasonable employee from making a charge of discrimination. Thus,

any additional finding the jury made about Howell being “unpromotable” in 2007

did not substantially prejudice Morrison.

                                       IV.

      Finally, Howell contends that the district court erred by granting judgment

as a matter of law to Morrison on her punitive damages claim. Applying Dudley

v. Wal-Mart Stores, Inc., 166 F.3d 1317 (11th Cir. 1999), the district court

determined that the Director of Food Services, Andy Carmichael, was not high

enough up the corporate ladder to impute liability for his actions to the company.

Howell argues that our Dudley decision is no longer good law after the Supreme

Court issued Kolstad v. American Dental Ass’n, 527 U.S. 526, 119 S. Ct. 2118

(1999).

      We review de novo a district court’s ruling on a motion for judgment as a

matter of law on the issue of punitive damages. See Goldsmith v. Bagby Elevator

Co., 513 F.3d 1261, 1275 (11th Cir. 2008); see also Snapp v. Unlimited Concepts,

                                         14
Inc., 208 F.3d 928, 932 (11th Cir. 2000) (“We review the district court’s grant of

defendants’ motion for judgment as a matter of law on the issue of punitive

damages de novo.”).

      In Dudley we held that a Wal-Mart store manager and a co-manager were

not high up enough in the “corporate management hierarchy” to justify imputing

liability to the corporate employer for punitive damages based on the manager’s

racial discrimination against an employee. See 166 F.3d at 1323. We reasoned

that Wal-Mart was a “giant business” with “more than 2,000 stores.” Id.

Although the evidence supported the jury’s finding that the store manager and the

co-manager had abused the authority Wal-Mart had delegated to them by

discriminating against the plaintiff on the basis of race, their acts did not impute

liability to Wal-Mart for punitive damages because they were too low in the

corporate hierarchy. Id.

      About four months after this Court issued the Dudley decision, the Supreme

Court held in Kolstad that for Title VII cases, “Punitive damages are limited . . . to

cases in which the employer has engaged in intentional discrimination and has

done so ‘with malice or with reckless indifference to the federally protected rights

of an aggrieved individual.’” Kolstad, 527 U.S. at 529–30, 119 S.Ct at 2122

(citing 42 U.S.C. § 1981a(b)(1)). The Court rejected a standard that had applied in

                                          15
our Dudley decision—the “egregious” conduct standard. See id. at 546, 119 S.Ct.

at 2129 (“[A]n employer’s conduct need not be independently ‘egregious’ to

satisfy § 1981a’s requirements for a punitive damages award, although evidence of

egregious misconduct may be used to meet the plaintiff’s burden of proof.”).

       Even after Kolstad, however, the high-enough-up-the-ladder rule for

punitive damages set forth in Dudley is still binding precedent. More than two

years after Kolstad was issued, this Court reiterated the Dudley punitive damages

rule.5 See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1279–80 (11th Cir.

2002). In Miller we first applied Dudley to determine whether the employer had

constructive knowledge of a hostile work environment that would justify imputing

liability for compensatory damages, and we concluded that it did have that

knowledge. See Miller, 277 F.3d at 1279–80. We held that the service manager

of the tractor-trailer dealership, who in the company hierarchy was separated from

the owner and president by only one person, was high enough on the corporate

ladder that his notice of the hostile work environment served as notice to the

company. Id. at 1279. For that reason, liability was imputed to the company for


       5
         We also note that Kolstad cited Dudley with approval for its use of the common law rule
that agency principles limit vicarious liability for punitive damages awards against employers.
Kolstad, 527 U.S. at 541, 119 S. Ct. at 2127 (“This is a principle . . . that this Court historically
has endorsed.”).


                                                 16
compensatory damages on the plaintiff’s hostile work environment claim. See id.

      In the Miller decision we also applied Dudley on the issue of punitive

damages, reiterating the Dudley holding:

      We have held that “punitive damages will ordinarily not be assessed
      against employers with only constructive knowledge” of harassment;
      rather, punitive damages may only be considered in cases where the
      “discriminating employee was high[ ] up the corporate hierarchy” or
      where “higher management countenanced or approved [his]
      behavior.”

Miller, 277 F.3d at 1280 (quoting Dudley, 166 F.3d at 1323). We held in Miller

that there was not enough “evidence on the record to support the necessary finding

of malice or reckless indifference by [the corporate employer] for the federal rights

of [the plaintiff] to justify the award of punitive damages.” Id.

      In light of Miller which, as we have mentioned, was decided after Kolstad,

Dudley’s high-enough-up-the-ladder or “corporate hierarchy” requirement for an

award of punitive damages against a corporate employer is still good law and still

binds this Court. See Miller, 277 F.3d at 1280. Kolstad only did away with the

egregiousness requirement for punitive damages. See 527 U.S. at 546, 119 S. Ct.

at 2129.

      Recognizing that Miller was decided after Kolstad, the district court

correctly applied Dudley to the undisputed facts of this case and concluded, as a



                                          17
matter of law, that Carmichael was not high enough up the corporate ladder for

punitive damages to be awarded against Morrison. Gina Paige, who worked in

human resources for Compass Group (Morrison’s parent company), testified that

the Compass Group purchased Morrison in 1997 or 1998. Compass has about

144,000 employees in the United States, union and non-union, and 366,000

internationally. Morrison has about 20,000 employees. There is a Director of

Dining Services in each Morrison Facility and there are 400 or more facilities in

the United States. Carmichael was one of about 400 directors in the Morrison

hierarchy.

      Furthermore, Howell admitted that Morrison had policies prohibiting

discrimination and harassment. She understood that she had avenues for

complaints, although she did not use them, and she does not contend that any

managerial employee other than Carmichael retaliated against her. Cf. Miller, 277

F.3d at 1280 (“[E]mployers may assert a good faith defense to vicarious liability

for punitive damages where the ‘employment decisions of managerial agents . . .

are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”

(quoting Kolstad, 527 U.S. at 545, 119 S.Ct. at 2129)). Howell failed to show that

Carmichael was high enough up the corporate ladder to impute liability to

Morrison or that Morrison acted with the malice or reckless indifference for

                                         18
Howell’s federal rights necessary to justify an award of punitive damages.

                                         V.

      For the foregoing reasons, the judgment of the district court is, in all

respects,

      AFFIRMED.




                                         19
