                                                     [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT           FILED
                   ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                        MARCH 20, 2009
                         No. 08-13044
                                                       THOMAS K. KAHN
                   ________________________
                                                           CLERK

            D. C. Docket No. 06-01235-CV-ORL-31-KRS

COLLEEN DEMERS,

                                                        Plaintiff-Appellant
                                                           Cross-Appellee,

                               versus

ADAMS HOMES OF NORTHWEST FLORIDA, INC.,
A Florida corporation,


                                                      Defendant-Appellee
                                                         Cross-Appellant,


MATTHEW MALONE,
individually,
                                                                Defendant.
                   ________________________

            Appeals from the United States District Court
                 for the Middle District of Florida
                  _________________________

                         (March 20, 2009)
Before BARKETT, PRYOR and FARRIS,* Circuit Judges.

PER CURIAM:

       Colleen Demers appeals following a jury trial, verdict, and final judgment in

an action under the Family Medical Leave Act and Title VII of the Civil Rights

Act of 1964. Defendant Adams Homes cross-appeals.

                                           APPEAL

I. Summary judgment on Count 1 was proper.

       “We review a district court's grant of summary judgment de novo, applying

the same legal standards that controlled the district court's decision” and “with all

evidence and reasonable factual inferences viewed in the light most favorable to

the nonmoving party.” Levinson v. Reliance Standard Life Ins. Co., 245 F.3d

1321, 1326 (11th Cir. 2001); Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th

Cir. 1998).

       Demers argues that summary judgment on Count 1 was predicated on the

district court’s erroneous beliefs that monetary damages are necessary to sustain a

cause of action under the FMLA and that it had discretion to deny equitable relief.

       The FMLA’s “§ 2617 provides no relief unless the employee has been



       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.

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prejudiced by the violation” in some way. Ragsdale v. Wolverine World Wide,

Inc., 535 U.S. 81, 89 (2002). The district court did not hold that Demers had to

prove monetary damages, but rather that she had to prove some damages. Adams

Homes violated the FMLA by denying her leave, but Demers cannot articulate any

harm suffered from this denial. Plaintiffs may not recover for “technical

infractions under the FMLA . . . in the absence of damages.” Graham v. State

Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999). The judgment was

appropriate.

       The district court had discretion to deny equitable relief. Under the

applicable language of the FMLA, “[a]ny employer who violates section 2615 of

this title shall be liable to any eligible employee affected for such equitable relief

as may be appropriate.” 29 U.S.C. § 2617(a)(1)(B) (emphasis added). Demers

argues that the “shall” indicates that equitable relief was not discretionary.

However, the “may” clause indicates the contrary; equitable relief may or may not

be appropriate. As the Supreme Court has explained, “[t]he remedy is tailored to

the harm suffered.” Ragsale, 535 U.S. at 89. The question of appropriateness is

left to the trial court’s discretion.

II. The court did not err in instructing the jury or in denying Demers' motion

for judgment as a matter of law with respect to Count 2.

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       We reverse a denial of a motion for judgment as a matter of law “only if the

facts and inferences point overwhelmingly in favor of one party, such that

reasonable people could not arrive at a contrary verdict.” Goldsmith v. Bagby

Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008).

      The facts do not point overwhelmingly in favor of either party. There was

evidence that other women received maternity leave, and that Adams Homes was a

family friendly company. Upon this record, a jury could have reasonably found

that Demers did not complain about the denial of her leave request, or that she did

complain, but was terminated for a different reason.

III. The court erred in vacating the jury verdict for $5,000 in punitive

damages.

      We “review[] the award of damages in a Title VII case for an abuse of

discretion,” but “review[] de novo all underlying questions of law.” EEOC v.

W&O, Inc., d.b.a. Rustic Inn, Inc., 213 F.3d 600, 610 (11th Cir. 2008).

      A plaintiff may recover punitive damages under Title VII if the defendant

“engaged in a discriminatory practice . . . with malice or with reckless indifference

to the federally protected rights of an aggrieved individual.” 42 U.S.C. §

1981a(b)(1). “Malice means ‘an intent to harm’ and recklessness means ‘serious

disregard for the consequences of [one's] actions.’” Rustic Inn, 213 F.3d at 611

                                          4
(citations omitted).

      The jury awarded Demers $5,000 in punitive damages. The district court

granted a motion to vacate the award, on the theory that Adams Homes acted in “a

good faith mistaken belief based on incorrect legal advice” and without malice or

reckless indifference.

      In Rustic Inn, we upheld punitive damages against a restaurant defendant

that forbade women from acting as servers after five months of pregnancy. 213

F.3d at 612. Even though the restaurant purportedly designed the policy to protect

pregnant women from the dangers of carrying trays, and even though the

restaurant contacted the Department of Labor for advice and examined the

pregnancy policies of other restaurants, a finding of malice or reckless indifference

was not unreasonable. Id. at 610. Evidence permitting the inference of malice or

indifference included testimony that the defendant knew of the FMLA yet failed to

draft its policy according to the FMLA model. There were also comments by

managers suggesting they were “from the ‘old school’ and believed that a pregnant

woman who was showing should not wait tables.” Id. at 607, 612.

      Demers presented similar evidence. Testimony showed that Adams Homes

knew of the FMLA, yet failed to adopt the FMLA model. Demers alleged that

Malone made discriminatory comments about pregnant women similar to the

                                         5
comments in Rustic Inn. Other evidence could be deemed by a trier fact to raise a

question regarding Adam Homes’ good faith belief that Demers was an

independent contractor. She received an employee discount that was unavailable

to contractors such as plumbers, and she along with other salespeople received

company memoranda circulated to “All Employees.”

      A reasonable trier of fact could find that Adams Homes acted with malice or

reckless indifference, and thereby justify punitive damages. Vacating the punitive

award was error.

IV. The district court did not err when it reduced Demers’s demand for

attorneys fees and costs.

      We “review the district court's award of attorneys' fees and costs for abuse

of discretion.” Atlanta Journal & Constitution v. City of Atlanta Dep't of Aviation,

442 F.3d 1283, 1287 (11th Cir.2006).

      The trial court cited its reasons for reducing Demers’s attorneys’ fees and

costs. First, Demers had the opportunity to submit expert opinion on market rates,

but failed to do so. Second, Demers presented no evidence as to what rates would

be reasonable. Third, most of Demers’s claims were unsuccessful. Where a

plaintiff succeeds on only some of her claims, fees expended on “discrete and

unsuccessful claims” should be deducted. Duckworth v. Whisenant, 97 F.3d 1392,

                                         6
1397 (11th Cir. 1996). “The district court may attempt to identify certain hours

that should be eliminated, or it may simply reduce the award to account for the

limited success.” Hensely v. Eckerhart, 461 U.S. 424, 436-37 (1983). Demers

succeeded on just one of four counts, and recovered $95,000 of the $1.5 million

she originally sought. The reduction was not an abuse of discretion.

                                CROSS APPEAL

I. The district court did not err by issuing a partial summary judgment

holding that Demers was an employee and not an independent contractor.

      Adams Homes argues that the district court erred when it issued a partial

summary judgment finding that, for purposes of both the FMLA and Title VII,

Demers was an employee, not an independent contractor.

      Adams Homes succeeded on both FMLA counts. To the extent the partial

summary judgment defined Demers’s status under the FMLA, the appeal is moot.

      Title VII unhelpfully defines an “employee” as “an individual employed by

an employer ....” 42 U.S.C.A. § 2000e(f). Since Congress did not define the term

more specifically, we “may well assume that Congress intended the term

‘employee’ to be given its common, everyday meaning.” Cobb v. Sun Papers,

Inc., 673 F.2d 337, 340 (11th Cir. 1982). We construe “employee” “in light of

general common law concepts” taking into account the “the economic realities of

                                         7
the relationship.” Id. The determinative factors are “common law principles of

agency and the right of the employer to control the employee.” Id. at 341.

      Adams Homes argues that summary judgment was inappropriate since

material facts regarding control were in dispute. However, the purported disputes

are mostly semantic distinctions. Viewed in the light most favorable to Adams

Homes, the facts demonstrate that Adams Homes exerted significant control over

Demers. Adams Homes claims it did not require professional dress, but merely

asked for professional dress, allowing salespeople to wear what they pleased,

“subject” to guidelines. The other purported distinctions are similarly unavailing.

Adams Homes argues it permitted salespeople to set their own schedule, “as long

as they follow [Adams Homes’] parameters.” Yet the parameters were stringent:

Demers had to staff the office “a minimum of 5 days per week, including Saturday

and Sunday.” She was limited to two weeks vacation per year. She had to provide

“ample notice” before taking vacation. She could not take her two weeks

consecutively. She could not take vacation more than one weekend a month.

      Other undisputed evidence further demonstrates Adams Homes’ significant

control over Demers. Demers could not sell homes other than those of Adams

Homes. She had to attend weekly sales meetings. She had to call, meet, and invite

to lunch realtors a minimum number of times per month. She had to submit

                                         8
weekly reports. She had to submit substitute staffing for approval. She received

instruction on language to use in sales pitches.

      There were also undisputed indications that Adams Homes perceived

Demers as an employee. Adams Homes provided Demers with supplies and

promotional materials, paying for salespeople’s pagers, sales office phones,

contracts, promotional brochures, and business cards. Demers received memos

addressed to “all employees.” She purchased a home at an “employee discount”

that was unavailable to contractors such as plumbers.

      Adams Homes is correct that some material issues were in dispute, such as

whether it told Demers where to park her car, to what extent Demers is a skilled

professional, and to what extent Demers was reimbursed for certain business

related expenses. There were also disputed issues regarding Demers’ income tax

treatment. Yet viewing these disputed facts in the light most favorable to Adams

Homes, Demers was an employee. Summary judgment was proper.

II. A reasonable juror could conclude that Demers engaged in a Title VII

protected activity by opposing Malone’s discrimination against her on the

basis of pregnancy.

       Title VII’s retaliation provision makes it unlawful “to discriminate against

any individual ... because [s]he has opposed any practice made an unlawful

                                          9
employment practice by” the Act. 42 U.S.C. § 2000e-3(a). It is unlawful under

the Act to discriminate on the basis of pregnancy. See 42 U.S.C. §2000e-(k).

Thus, to sustain a retaliation claim, Demers had to prove that Adams Homes

discriminated against her because she opposed the discriminatory treatment of her

pregnancy. Adams Homes argues that she did not present evidence sufficient for a

reasonable trier of fact to conclude she “opposed” any discrimination.

      The Supreme Court has held that the term “oppose” in this context takes its

ordinary meaning: “to resist or antagonize ...; to contend against; to confront;

resist; withstand.” Crawford v. Metropolitan Government of Nashville and

Davidson County, Tenn., --- S.Ct. ----, 2009 WL 160424 at *3 (2009). In

Crawford, an employee engaged in protected activity where she disclosed

discrimination not on her own initiative, but in response to an internal

investigation. Id.

      Even after Crawford, to engage in protected activity, the employee must

still, “at the very least, communicate her belief that discrimination is occurring to

the employer,” and cannot rely on the employer to “infer that discrimination has

occurred.” Webb v. R & B Holding Co., Inc., 992 F.Supp. 1382, 1390 (S.D.Fla.

1998). A simple request for maternity leave would not suffice, because it alone

would not announce opposition to the discriminatory basis for its denial. See

                                          10
McCormick v. Allegheny Valley Sch., 2008 WL 355617, *17 (E.D. Pa. 2008).

      Demers testified that during a January 9, 2006 meeting, Porter informed her

that Adams Homes would deny her request for maternity leave. To explain, Porter

relayed Malone’s openly discriminatory statement: “The problem with pregnant

women is that you don’t know if they’ll come back to work after having the baby.”

      Demers testified that, in response, “I asked [Porter] if I could [contact

Malone], and she said I could.” In this context, expressing an intent to speak with

Malone also expressed her resistance to or antagonism toward the substance of his

statement. A reasonable juror could infer that Demers’s expressed intent was an

announcement of her opposition.

      Porter testified: “I also explained to [Demers] at that time it was just as if a

man went out on back surgery.” A reasonable juror could conclude that Porter’s

explanation was a response to Demers’s assertion that her request was being

denied on a discriminatory basis.

III. The court did not abuse its discretion when it instructed the jury on

Demers’s employee status, excluded independent contractor evidence, and

admitted “me too” evidence.

      Adams Homes argues that the trial court abused its discretion with respect

to three evidentiary rulings and that the cumulative impact of these rulings was

                                          11
prejudicial. “We review a district court's rulings on the admissibility of evidence

for abuse of discretion and will reverse only if the moving party establishes a

substantial prejudicial effect.” Morgan v. Family Dollar Stores, Inc., --- F.3d ----,

2008 WL 5220263, n.75 (11th Cir. 2008). Adams Homes’ argument fails. None

of the evidentiary rulings was an abuse of discretion.

1. Jury instruction regarding Demers’s employee status

      Adams Homes twice suggests that the trial court abused its discretion by

issuing its preliminary jury instruction that Demers was an employee rather than

an independent contractor. Adams Homes failed to make the argument in its

briefs. The argument is waived. See McFarlin v. Conseco Servs., LLC, 381 F.3d

1251, 1263 (11th Cir. 2004).

2. Independent contractor evidence

      Adams Homes argues that the court abused its discretion by denying

admission of evidence of its good faith belief that Demers was an independent

contractor and not an employee. Where a plaintiff establishes a prima facie claim

of retaliation under Title VII, the burden shifts to the defendant to present a

“legitimate, nondiscriminatory business reason” for the employment decision.

Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). A good

faith belief that Demers was an independent contractor is not a “legitimate, non-

                                          12
discriminatory business reason” for terminating her. The evidence would tend to

prove merely that Adams Homes did not believe that Demers was protected by

Title VII. As is well-established, ignorance of the law is not a defense. See U. S.

v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971).

      On appeal, Adams Homes argues that it sought to introduce the evidence to

provide context for its decision to refuse Demers’s maternity leave request.

However, such context is irrelevant to Count 4. Count 4 is a retaliation cause of

action and therefore concerns Demers’s termination following her opposition to

discrimination, not the incident giving rise to her opposition. Evidence regarding

the reason for denying leave is irrelevant, as the truth or falsehood of the alleged

discrimination does not tend to prove or disprove the fact of subsequent

retaliation. See F.R.E. 401.

3. “Me too” evidence

      Adams Homes argues that the testimony of three former employees

regarding Malone’s discriminatory actions was inadmissable under F.R.E. 404(b).

Under F.R.E. 404(b), “[e]vidence of other crimes, wrongs, or acts . . . may . . . be

admissible for . . . purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” F.R.E.

404(b). The Supreme Court has held that wide evidentiary latitude must be

                                          13
granted to those attempting to prove discriminatory intent and that “the trier of fact

should consider all the evidence.” U.S. Postal Serv. v. Aikens, 460 U.S. 711, 714

n.3 (1983). Those discriminated against will often not be able to rebut a plausible

cover-up with direct evidence, as “[t]here will seldom be ‘eyewitness’ testimony

as to the employer’s mental processes.” Id. at 716. Thus, discriminatory intent

may be proven by direct or circumstantial evidence, such as that admitted under

404(b). Vance, v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1511 (11th Cir.

1989).

      We have approved the use of “me too” evidence under F.R.E. 404(b) in

discrimination and retaliation cases. See Bagby, 513 F.3d at 1285. In Bagby, a

Title VII and civil rights statute racial discrimination and retaliation suit, the trial

court admitted “me too” evidence from four employees, each of whom was

discharged in circumstances very different from the plaintiff’s. Their testimony

was admissible under Rule 404(b) in order to, among other things, demonstrate the

racial intent of a common decisionmaker. Id. at 1286.

      Adams Homes argues that there was no common decisionmaker here,

because Porter gave unrebutted testimony that she—and not Malone—decided to

fire Demers. This argument fails to recognize that the “me too” testimony was

circumstantial evidence that rebuts Porter’s assertion. It tended to prove that

                                           14
Malone was a common decisionmaker and was probative of his discriminatory

intent.

IV. Demers’s attorneys’ fees award should not be reduced.

          Adams Homes suggests that Demers’s attorneys’ fees award should be

further reduced. It does not properly raise the issue on cross-appeal. The

argument is waived. See McFarlin, 381 F.3d at 1263.

                                    CONCLUSION

          We affirm, except that we reinstate the jury’s award of $5,000 in punitive

damages.

          AFFIRMED in part; REVERSED in part.




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