Buskey v. Oliver Court Opinion

    Case No:

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1994

MARY ANN VANCE,
Petitioner,

SOUTHERN BELL TELEPHONE 
& TELEGRAPH COMPANY,

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

Petition for Writ of Certiorari

SCOTT THOMAS FORTUNE 
447 Atlantic Boulevard 
Atlantic Beach, FL 32233 
(904) 246-2125

October 19, 1994 Attorney for Petitioner



QUESTIONS PRESENTED

1. Where the District Court erroneously vacated Plaintiff’s $3.5 
million verdict entered on April 13, 1987, after the first of two 
successful, two-week jury trials, on her claim of racial discrimination 
in employment, under 42 U.S.C. §1981, and where the Eleventh 
Circuit, on January 23,1989 (Vance I), reversed the District Court’s 
JNOV and ordered a new trial, expressly rejecting Defendant’s 
argument that Plaintiff’s §1981 claim was barred by Patterson v. 
McLean Credit Union, 805 F.2d 1143 (4th Cir. 1986); and where 
the District Court, prior to retrial, denied Defendant’s Motion for 
Summary Judgment premised on this Court’s intervening decision 
in Patterson v. McLean Credit Union, 491 U.S. 164 (1989), basing 
that denial upon a detailed analysis of this Court’s ruling on 
retroactivity set forth in Chevron Oil v. Huson, 404 U.S. 97 (1971); 
and where, upon retrial in 1990, a second jury awarded the Plaintiff 
in excess of $1 million; but where the Eleventh Circuit thereafter 
ruled, on February 5,1993 (Vance II), that the second verdict, too, 
must be vacated, based upon retroactive application of Patterson v. 
McLean Credit Union, 491 U.S. 164 (1989), and where one judge 
of the Eleventh Circuit described that Court’s decision in Vance II 
as a “manifest injustice,” leaving the Plaintiff without a legal 
remedy, despite two successive jury verdicts in her favor, has the 
Plaintiff’s Seventh Amendment guarantee of trial by jury, or Fifth 
Amendment guarantee of due process been violated?

2. Whether a three-judge panel of the Eleventh Circuit (Fay, 
Circuit Judge, dissenting) erroneously affirmed the district court’s 
entry of directed verdict against the Plaintiff at the close of her 
case on her tort claim of intentional infliction of emotional distress, 
under Florida law, upon a legal determination that a continuous 
and oppressive pattern of racially motivated intimidation and 
harassment on the part of Plaintiff’s fellow workers and supervisors, 
including nooses twice left at Plaintiff’s work station by her 
supervisor, did not amount to “outrageous” conduct?



Page

Questions........................................................................................i

Table of Authorities.....................................................................iii

Opinions Below.............................................................................1

Jurisdiction................................................................................... 2

Constitutional Provisions Involved............................................. 2

Statement of the C ase..................................................................3

Argument..........................   4

Question 1....................................   4

Question 2 ............................................................... 8

Appendices:

I- A Vance v Southern Bell Telephone
and Telegraph Co., 983 F.2d 1573
(11th Cir. 1993)................................................................ A-l

II- A Vance v. Southern Bell Telephone
and Telegraph Co., 863 F.2d 1503
(11th Cir. 1989).............................................................. A-29

II- B Vance v. Southern Bell Telephone
and Telegraph Co., 672 F. Supp.
1408 (M.D. Fla. 1987)................................................... A-55

III- A Order denying rehearing en banc.......................... A-72

TABLE OF CONTENTS

ii



TABLE OF AUTHORITIES

CASES
Page(s)

Baynes v. AT&T Technologies, Inc.,
976 F.2d 1370 (11th Cir. 1992)....................................... 4, 6, 7, 8

Bradley v. School Board of Richmond,
416 U.S. 696,711 (1974)..................................................... .......7

Chevron Oil v. Huson,
404 U.S. 97(1971)....................................................................3,5

Curtis v. Metro Ambulance Service, Inc.,
982 F.2d 472 (11th Cir. 1993)..................................................... 7

James B. Beam Distilling Co. v.
Georgia, 111 S.Ct. 2439 (1991)............................................5, 6, 7

Patterson v. McLean Credit Union,
491 U.S. 164 (1989)................................................. 3,4, 5, 6, 7,8

Vance v. Southern Bell,
863 F.2d 1503 (11th Cir. 1989)........................................ ....... 3, 4

Vance v. Southern Bell,
983 F.2d 1573 (11th Cir. 1993)............................... 4, 5, 6, 7, 8, 9

STATUTES

42 U.S.C. §1981................................................................... 2 , 4, 9

The Civil Rights Act of 1991................................................ 4, 5, 7

iii



IN THE
SUPREME COURT OF THE UNITED STATES,

October Term, 1994

MARY ANN VANCE, 

vs.
Petitioner,

SOUTHERN BELL TELEPHONE 
& TELEGRAPH COMPANY,

Respondents.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

Petition for Writ of Certiorari

OPINIONS BELOW

The opinion of the United States Court of Appeals for the 
Eleventh Circuit is reported at Vance v. Southern Bell Telephone 
and Telegraph Company, 983 F.2d 1573 (11th Cir. 1993) (“Vance 
II”). The petition for rehearing and suggestion of rehearing en 
banc on this matter was denied on July 21, 1994. The opinion of 
the United States Court of Appeals for the Eleventh Circuit on 
the first appeal in this case is reported at Vance v. Southern Bell 
Telephone and Telegraph Co., 862 F.2d 1503 (11th Cir. 1989) 
(“Vance I”). The United States District Court for the Middle 
District of Florida, Jacksonville Division, issued findings of fact 
and conclusions of law on August 11, 1987. These findings are 
reported at Vance v. Southern Bell Telephone and Telegraph Co., 
672 F. Supp. 1408 (M.D. Fla. 1987).



JURISDICTION

The judgment of the Court of Appeals was entered on February 
5, 1993.

Petitioner filed a petition for rehearing and suggestion of 
rehearing en banc which was denied on July 21, 1994.

The jurisdiction of this Court rests upon 28 U.S.C. §1254(1) 
and 2101(c).

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Seventh and Fifth Amendments to the
Constitution of the United States:

I. No persons shall be held to answer for a capital, or 
otherwise infamous crime, unless on a presentment or 
indictment of a Grand Jury, except in cases arising in 
the land or naval forces, or in the militia, when in actual 
service in time of war or public danger; nor shall any 
person be subject for the same offence to be twice put 
in jeopardy of life or limb; nor shall be compelled in 
any criminal case to be a witness against himself, nor 
be deprived of life, liberty, or property, without due 
process of law; nor shall private property be taken for 
public use, without just compensation.

U.S. Constitution, Amendment V.

II. In Suits at common law, where the value in controversy 
shall exceed twenty dollars, the right of trial by jury 
shall be preserved, and no fact tried by a jury, shall be 
otherwise re-examined in any Court of the United 
States, then according to the common law.

U.S. Constitution, Amendment VII.
2



STATEMENT OF THF, ( ASF

Mary Ann Vance was first employed with the Defendant in 
March, 1972. Upon a change of assignment and location on August 
13, 1984, Mrs. Vance, a black woman, was racially harassed in a 
terrifying and systematic manner by certain of her new supervisors 
and co-workers. She ultimately had a nervous breakdown on the 
job and was thereafter separated from the Company in 1985 and 
ultimately terminated in October of 1986. On March 27, 1986, 
Vance brought suit in the U.S. District Court for the Middle District 
of Florida, Jacksonville Division, which had jurisdiction pursuant 
to 28 U.S.C. §§ 1331 and 1343. Her case went to the jury on the 
issues of racial discrimination and constructive discharge, in 
violation of 42 U.S.C. §1981. On April 13, 1987, an all-white jury 
awarded Mrs. Vance $1,045,700 in compensator)' damages and $2.5 
million in punitive damages, finding that the Defendant, acting 
through certain of its supervisory employees, had acted with 
“malice” and “evil motive.” Thereafter, on August 11, 1987, the 
District Court granted Defendant’s Motion for JNOV, finding that 
reasonable jurors could not have found for the Plaintiff, alternately 
granting a new trial.

On January 23, 1989, the Eleventh Circuit reversed the JNOV 
and ordered a new trial (Vance I). Before the second trial 
commenced, this Court’s decision in Patterson v. McLean Credit 
Union, 491 U.S. 164 (1989) intervened. Thereupon, the Defendant 
sought a summary judgment, on the grounds that Plaintiff’s §1981 
claim was no longer viable. The District Court denied the motion, 
determining it would be inequitable to apply Patterson retroactively, 
based upon an analysis of this Court’s decision in Chevron Oil v. 
Huson, 404 U.S. 97 (1971).

The case proceeded to trial for a second time in 1990. After 
two weeks of trial, another all-white jury ruled in favor of Vance, 
awarding her more than $1 million, and again finding that the 
Defendant had acted with “malice” and “evil motive” toward the 
Plaintiff. The District Court denied the Defendant’s various post­
trial motions. The Defendant appealed.

3



On February 5, 1993, a three-judge panel of the Eleventh 
Circuit reversed the District Court for failing to grant summary 
judgment, based on Patterson. One Judge of that panel stated that 
the Court’s opinion resulted in a “manifest injustice,” but that the 
result was compelled by the state of judicial precedent. The 
Eleventh Circuit panel also affirmed the District Court’s entry of 
directed verdict on Plaintiff’s tort claim of intentional infliction of 
emotional distress, under Florida law, with one Judge dissenting.

On July 21, 1994, the Eleventh Circuit summarily denied 
Plaintiff’s petition for Rehearing En Banc.

Plaintiff is seeking reinstatement of the jury’s 1990 verdict on 
her §1981 count or, alternately, a new (third) trial, under 42 U.S.C. 
§1981, and reinstatement of her tort count for intentional infliction 
of emotional distress, under Florida law.

ARGUMENT

Two different all-white juries, on two separate occasions, returned 
substantial verdicts for the Plaintiff for racial harassment and 
constructive discharge in violation of 42 U.S.C. §1981. Plaintiff’s first 
verdict in 1987, for 3.5 million dollars, was remanded for a new trial in 
1989 after the Eleventh Circuit determined that there was sufficient 
evidence to support the determination of liability, but the damages 
were excessive. Vance v. Southern Bell, 863 F.2d 1503 (11th Cir. 1989). 
“Now, her second verdict is ground to dust between the upper millstone 
of the decision not to apply the Civil Rights Act of 1991 to her case, 
and the lower millstone of Patterson, a decision on which no one in 
this case could be said to have relied.” Vance v. Southern Bell, 983 F.2d 
1973, 1578 (11th Cir. 1993)(Fay, J. concurring). Although finding 
himself constrained by the decision in Baynes v. AT&T Technologies, 
Inc., 976 F.2d 1370 (11th Cir. 1992), on which he sat as a member of 
the panel, Judge Fay filed his own opinion because “the application of 
the rules articulated in Baynes lead, in Mary Ann Vance’s case, to a 
manifest injustice.” Id.

4



Shortly after remand from the first appeal (Vance I), the 
Supreme Court issued its decision in Patterson v. McLean Credit 
Union, 494 U.S. 164 (1989), which interpreted §1981 as not 
including claims of racial harassment. The trial court was, thus, 
presented with a choice of law as to whether to apply the law that 
existed at the time the racial harassment occurred in 1985 or to 
apply the decision in Patterson retroactively. The trial court decided 
that it would be unjust to apply Patterson retroactively after the 
parties had relied upon the pre-Patterson prohibition of racial 
harassment at the time the harassment occurred and throughout 
nearly four years of litigation. A re-trial before a second all-white 
jury resulted in another verdict for the Plaintiff for more than one 
million dollars.

In Vance II, the 3-judge panel of the Eleventh Circuit was 
presented with the same choice of law earlier confronted by the 
district court, but by this time Congress had nullified Patterson by 
enacting the Civil Rights Act of 1991. Thus, the choice of law for 
the Vance II panel was between applying the law that existed at 
the time the racial harassment occurred in 1984 and at the time of 
the appellate review in 1993, or applying Patterson retroactively 
despite the fact that it had already been nullified by Congress. The 
panel chose to apply Patterson retroactively, but not to apply the 
statutory nullification of the decision retroactively. The panel held 
that Patterson is retroactive because of another intervening decision 
of the Supreme Court, James B. Beam Distilling Co. v. Georgia, 111 
S.Ct. 2439 (1991), which did not exist during any of the trial court 
proceedings. At the time of the decision below not to apply 
Patterson retroactively, the district court correctly applied the rules 
regarding retroactive application of caselaw set forth in Chevron 
Oil v. Huson, 404 U.S. 97 (1971). The Vance II panel chose to 
apply Patterson based on Beam despite the fact that neither of these 
decisions was the law at the time the wrongs occurred in 1984, at 
the time of Southern Bell’s first conviction in 1987 or at the time of 
the first appellate mandate in 1989. Patterson was also not the law 
at the time of the second appellate mandate in February of 1993.

5



Judge Fay in his concurring Opinion questioned this result by 
pointing out that “in Beam the Court was dealing with the 
retroactive application of its interpretation of constitutional law -  
an area given over almost exclusively to the courts. In contrast, 
Patterson was a judicial interpretation of a statute.” Vance, 983 at 
1579, n.6. Because “the court’s role in statutory interpretation is 
to uphold legislative intent, not to make new law,” Judge Fay would 
hold that “when Congress rejects the Suprem e C ourt’s 
interpretation of a statute,” the court’s “constitutional role is to 
limit the operation of that erroneous interpretation, not to expand 
it” by retroactive application. Id. at 1579. Judge Fay reasoned 
that “to keep Patterson on 'life support’ by applying it to cases 
beyond those tried in reliance upon it, like Baynes, or for which it 
provided the governing standard at the times the acts occurred, 
makes the [Supreme] Court’s reassurance in Patterson that 
'Congress remains free to alter what we have done’ ring hollow.” 
(QuotingPatterson, 109 S.Ct. at 173). In Judge Fay’s view, to apply 
a decision retroactively which has already been nullified by 
Congress, “raises troubling questions of separation of powers.”

Judge Fay also found that the policy behind retroactive 
application of caselaw set forth in James B. Beam Distilling, supra, 
did not support retroactive application of a case that has already 
been nullified by Congress. Vance, 983 F.2d at 1579, n.l. The 
policy behind retroactivity of caselaw “ 'derives from the integrity 
of judicial review, which does not justify applying principles 
determined to be wrong to litigants who are or may still come to 
court’”. Id. at 1579, (quoting James B. Beam, supra, Blackmun, J., 
concurring, joined by Scalia, J. and Marshall, J.). For Judge Fay 
this policy is inconsistent with applying Patterson retroactively 
because in doing so “[w]e are not only applying a principle already 
determined to be wrong, but we do so in a context where this 
principle was not relied upon by anybody in the case as the relevant 
law.” Thus, Judge Fay would hold that neither the decision in Beam, 
nor the policy behind retroactive application of caselaw, supports 
retroactivity of a case such as Patterson which involves a statutory 
interpretation of Congressional intent which already has been 
repudiated as wrong by Congress itself.

6



In regard to the application of this Court’s decision on 
retroactivity in Baynes, Judge Fay also disagreed with the other 
members of the panel. He states that “the application of the rules 
articulated in Baynes lead, in Mary Ann Vance’s case, to a manifest 
injustice.” Id. at 1578. Judge Fay found two decisive differences 
between Baynes and the current case. First, unlike Baynes, this 
case was tried on the basis of the pre-Patterson state of the law and 
affirmance would uphold, rather than upset, the district court’s 
judgment. Id. (courts should not “keepPatterson on 'life support’ 
by applying it to cases beyond those tried in reliance upon it, like 
Baynes, or for which it provided the governing standard at the times 
the act occurred.”) Secondly, the twice-proven racial harassment 
and discrimination was illegal when it occurred in 1985, and at all 
other times since then, including the short period between the 
issuance of Patterson on June 15, 1989 and its nullification on 
November 21, 1991. Id. at 1579, n.3. (“There is no dispute that 
the discrimination and harassment of which Southern Bell was 
accused, was, is and always has been illegal, irrespective of any 
retroactivity given to either the Civil Rights Act of 1991 or 
Patterson.” For this reason, “it cannot be said that anyone in this 
case relied on Patterson, either for knowledge of what the law 
prohibited or for estimating liability in the event the law was 
broken.”) Id. In this posture, Judge Fay found manifest injustice 
in relieving Southern Bell of liability for racial harassment known 
to be wrong when it occurred and at all times since.” (As Justice 
Scalia noted ... ' The principle that the legal effect of conduct should 
ordinarily be assessed under the law that existed when the conduct 
took place has timeless and universal human appeal’”.)

The two other members of the panel did not join in Judge 
Fay’s concerns, but one of them, Chief Judge Tjoflat, joined in the 
decision four days earlier in Curtis v. Metro Ambulance Sendee, Inc., 
982 F.2d 472 (11th Cir. 1993), which stated that “the issue of 
statutory retroactivity in general, and retroactivity questions 
involving the Civil Rights Act of 1991 in particular, are of 
exceptional importance warranting en banc review.”

7



In this case, however, the Vance II panel concluded that the 
decision in Baynes should control for two reasons: (1) the “Bradley 
factors” applied in Baynes also applied here “[bjecause judgment 
in this case was entered in May, 1990, before the effective date of 
the Act”; and (2) because of the “principle th a t ' litigants in similar 
situations should be treated the same.”’ Vance, 983 F.2d at 1578. 
[applying Bradley v. School Board o f Richmond, 416 U.S. 696, 711 
(1974), and quoting James B. Beam Distilling Co. v. Georgia, 111 
S.Ct. 2439, 2444 (1991)]. No other reasons for applying Baynes 
were given. Judge Fay disagreed with both of these reasons. As to 
the “consistency” of treatment thesis, Judge Fay demonstrated that 
Baynes is not similar to the current case which involves pre-Patterson 
conduct which was tried under pre-Patterson principles of law. He 
reminded that “consistency is not one of many values with which 
we must be concerned” and that “justice is better than consistency.” 
Id. at 1580.

Despite these arguments, on July 21,1994, the Eleventh Circuit 
denied Plaintiff’s Petition for Rehearing En Banc. As a result, 
Plaintiff has been denied her Seventh Amendment guarantee of 
trial by jury and her Fifth Amendment guarantee of due process of 
law.

QUESTION 2

Mary Ann Vance testified to a continuous and oppressive pattern 
of intimidation and harassment on the part of her fellow workers 
and supervisors at Southern Bell. That Southern Bell would allow 
such an atmosphere to develop, or having been appraised of it, fail 
to take the firmest possible steps to eradicate it. is bv itself 
outrageous. But of all of those incidents, two stand out as 
particularly horrific -  the nooses twice left at Vance’s work station. 
The noose in this context is a symbol not just of racial discrimination 
or of disapproval, but of terror. Those of us for whom a particular 
symbol is just that — a symbol — may have difficulty appreciating 
the very real, very significant fear that such symbols inspire in those



to whom they are targeted. No less than the swastika or the 
Klansman’s hood, the noose in this context is intended to arouse 
fear. If a jury would not cry “Outrageous!” upon hearing these 
facts (and I think these juries did through their verdicts), I cannot 
think of a set of facts for which it would.

Vance II, 983 F.2d at 1583 (Fay, J. dissenting).

By directing a verdict against the Plaintiff at the close of her 
evidence, on her tort count, when the jury expressly found that 
under §1981, based on the same facts, that the Defendant’s conduct 
was “malicious” and “evil,” the district court erroneously denied 
the Plaintiff her Seventh Amendment right to trial by jury, on her 
tort claim. The three-judge panel of the Eleventh Circuit (Fay, J., 
dissenting) erroneously affirmed the district court’s directed verdict, 
on the grounds that the Plaintiffs allegations did not amount to 
“outrageous” conduct on the part of the Defendant, Vance II, 983 
F.2d at 1575, n.7., so that the Plaintiff has been wrongfully deprived 
of her Seventh Amendment guarantee of trial by jury, warranting 
reinstatement of her claim for intentional infliction of emotional 
distress, and a new trial on that claim.

Respectfully submitted,

SCOTT THOMAS FORTUNE 
447 Atlantic Boulevard 
Atlantic Beach, FL 32233 
(904) 246-2125 
Attorney for Petitioner

October 19, 1994

9



APPENDIX

I. OPINION OF THE COURT WHOSE DECISION IS 
SOUGHT TO BE REVIEWED

A. Vance v. Southern Bell Telephone and Telegraph Co., 
983 F.2d 1573 (11th Cir. 1993).

II. ANY OTHER OPINIONS, FINDINGS OF FACT AND 
CONCUUSIONS OF LAW RENDERED IN THE CASE BY 
COURTS

A. Vance v. Southern Bell Telephone and Telegraph Co., 
863 F.2d 1503 (11th Cir. 1989).

B. Vance v. Southern Bell Telephone and Telegraph Co., 
672 F. Supp. 1408 (M.D. Fla. 1987).

III. ANY ORDER ON REHEARING

A. Rehearing en banc denied on July 21, 1994.



APPENDIX I-A

Vance v. Southern Bell Telephone and Telegraph Co., 
983 F.2d 1573 (11th Cir. 1993)



MARY ANN VANCE, Plaintiff-Appellee, Cross-Appellant,
v.

SOUTHERN BELL TELEPHONE AND TELEGRAPH
COMPANY,

a Georgia Corporation, Defendant-Appellant, Cross-Appellee, 
JOYCE FOSKEY, ET AL., Defendants.

VANCE v. SOUTHERN BELL TEL. & TEL. CO.

No. 90-3559

UNITED STATES COURT OF APPEALS FOR THE 
ELEVENTH CIRCUIT

983 F.2d 1573; 1993 U.S. App. LEXIS 2009; 61 Fair Empl. 
Prac. Cas. (BNA) 925; 60 Empl. Prac. Dec. (CCH) P42,049; 7 

Fla. Law W. Fed. C 43

February 5, 1993, Decided 
February 5, 1993, Filed

SUBSEQUENT HISTORY: As Amended.

PRIOR HISTORY: Appeals from the United States
District Court for the Middle District of Florida. D. C. Docket 
No. 86-00227-CIV-J-l 6. D/C Judge MOORE

DISPOSITION: REVERSED.

COUNSEL: For MARY ANN VANCE, Plaintiff-Appellee, 
Cross-Appellant: Charles Cook Howell, III, COMMANDER, 
LEGLER, WERBER, DAWES, SADLER and HOWELL, Post 
Office Box 240, 200 Laura Street, The Greenleaf Building, 
Jacksonville, Florida 32201, (904-359-2000), Robert L. Wiggin, 
Jr., 1400 SouthTrust Twr, B’ham, AL 35203/205-328-0640, 
William J. Sheppard, SHEPPARD and WHITE, P.A., 215

A -l



Washington Street, Jacksonville, Florida 32202, (904-346-9661), 
Scott Fortune, 447 Atlantic Blvd., Suite 2, Atlantic Beach, FL 
32233, (904) 246-2125.

For SOUTHERN BELL TELEPHONE AND TELEGRAPH 
COMPANY, a Georgia corporation, Defendant-Appellant, 
Cross-Appellee: Dana G. Bradford, II, Lee S. Haramis, 
BAUMER, BRADFORD & WALTERS, P.A., Suite 2000, 225 
Water Street, First Union Bank, Post Office Box 4788, 
Jacksonville, Florida, 32201, (904-358-2222), Francis B. Semmes, 
Southern Bell Telephone and Telegraph Company, Suite 430,
675 W. Peachtree Street, Atlanta, Georgia 30375, (404-529- 
7611).

AMICUS CURIAE: NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, Julius L. Chambers, NAACP Legal 
Defense, 16th Floor, 99 Hudson Street, N.Y., N.Y. 10013, (212) 
219-1900.

EEAC: Douglas S. McDowell, 1015 15th St., N.W., Washington, 
D.C., 20005, (202) 789-8600.

JUDGES: Before TJOFLAT, Chief Judge, FAY and 
EDMONDSON, Circuit Judges.

OPINION BY: EDMONDSON

OPINION: [*1574] EDMONDSON, Circuit Judge:

Mary Ann Vance won a jury verdict on her claim that Southern 
Bell Telephone and Telegraph Company (“Southern Bell”) 
violated her rights under 42 U.S.C. § 1981. Southern Bell 
appeals the denial of its motions for summary judgment, directed 
verdict and judgment notwithstanding the verdict on Vance’s 
section 1981 claim. We reverse.

A-2



I. Background

A. The First Trial: Vance I

This case is detailed in Vance v. Southern Bell Tel. and Tel. 
Co., 863 F.2d 1503 (11th Cir.1989) (“Vance I”). To review, Mary 
Ann Vance in 1986 brought an action under 42 U.S.C. § 1981' 
against her former employer, Southern Bell. Vance said that 
various acts of racial harassment had injured her and driven her 
from her job.* 2 A jury returned a verdict for Vance on her racial

!42 U.S.C. § 1981 contains section 1 of the Civil Rights 
Act of 1866. It provides:

All persons within the jurisdiction of the United 
States shall have the same right in every state and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security 
of persons and property as is enjoyed by white 
citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of 
every kind, and to no other.

42 U.S.C.A. § 1981(a) (West 1981 & Supp. 1992).

2Vance claims Southern Bell violated section 1981 by: (1) 
hanging a rope “noose” over her work station shortly after she 
started work in August 1984; (2) suspending her in September 
1984 for an offense for which white employees were not 
suspended; (3) “subjecting [Vance] ... to a physical altercation 
with a white [female] co-worker” in October 1984 and 
disciplining only Vance for the incident; (4) sabotaging her 
work on a pay phone; (5) refusing to treat her equally in 
disciplinary proceedings unless she dismissed charges of racial

A-3



harassment claim and awarded multi-million dollar damages, but 
the district court granted Southern Bell’s motion for JNOV or a 
new trial. Vance v. Southern Bell Tel. and Tel. Co., 672 F. Supp. 
1408 (M.D.Fla.1987). On appeal, we reversed the JNOV, but 
allowed a new trial. 863 F.2d at 1506. The Vance I panel 
decided that the evidence was sufficient to hold Southern Bell 
liable for racial harassment, but that the size of the jury’s award 
was “outside the realm of reasonableness” given the evidence.
Id. at 1516. This appeal arises from the retrial of the action.

B. The Second Trial

After we decided Vance I, the Supreme Court decided 
Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 
105 L. Ed. 2d 132 (1989).3 In Patterson the [*1575] Court held

discrimination then pending before a local government 
agency; (6) refusing to purge stale disciplinary actions from 
her file; (7) “confining her to the supervision of the white 
woman who attacked her in October ... causing her to suffer a 
nervous breakdown on the job”; (8) “intentionally 
transporting [Vance] to the wrong hospital during her nervous 
breakdown in an effort to cause her further trauma”; (9) 
refusing Vance’s doctor’s January 1985 request to transfer 
Vance to a different department; (10) continuing to refuse to 
transfer Vance, despite her doctor’s requests, until October 
1985; and (11) constructively discharging her on October 14, 
1985 when she was physically and medically unable to 
continue working under her tormentors without a transfer to a 
department which did not harass or intimidate her.” Id.

3In October 1987, some six months after the jury rendered 
its verdict in Vance I, the Supreme Court granted certiorari in 
Patterson. Id., cert, granted, 484 U.S. 814, 108 S. Ct. 65, 98 L. 
Ed. 2d 29 (1987). Fifteen months later, with Patterson still

A-4



that racial harassment claims “[are] not actionable under § 1981, 
which covers only conduct at the initial formation of the contract 
and conduct which impairs the right to enforce contract 
obligations through legal process.” 491 U.S. at 179, 109 S. Ct. at 
2374 . Relying on Patterson, Southern Bell moved for summary 
judgment. The district court acknowledged the “inescapable 
conclusion that the holding in Patterson would preclude 
maintenance of this suit if it were filed today,” but refused to 
apply the Patterson holding retroactively based on the equitable 
considerations outlined by the Supreme Court in Chevron Oil v. 
Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971).* 4

This case then went to a jury trial in April 1990. The jury 
awarded Vance about a million dollars in compensatory and 
punitive damage on her section 1981 claim. The district court 
entered judgment for Vance and denied Southern Bell’s renewed 
motions for directed verdict, JNOV or a new trial. In June 1990, 
Southern Bell appealed the section 1981 rulings.

In November 1991, while this appeal was pending, Congress 
enacted the Civil Rights Act of 1991, which, among other things, 
enlarges the range of behavior subject to section 1981 to include 
the “performance, modification, and termination” of contracts.5 
Under Patterson, plaintiffs alleging most kinds of post-hiring

undecided in the Supreme Court, this court decided Vance I. 
Vance I, 863 F.2d 1503 (11th Cir.1989).

4R.Vol. 10-302.

5See 42 U.S.C.A. § 1981(b) (West 1981 & Supp.1992), 
codifying section 101 of the Civil Rights Act of 1991. Section 
101 of the Civil Rights Act of 1991, enacted on November 21, 
1991, amended 42 U.S.C. § 1981. The 1991 Act redefines the 
phrase “make and enforce contracts” to include “the making,

A-5



discrimination were limited to the set of equitable remedies 
provided under Title VII.6 But under the Civil Rights Act of 
1991, such plaintiffs may sue under section 1981 for damages.

II. Issues Presented

We must decide two related issues: First, whether the district 
court erred by refusing to apply Patterson retroactively; and 
second, whether the Civil Rights Act of 1991 overrules Patterson 
retroactively. We hold that the Supreme Court’s decision in 
Patterson v. McLean Credit Union, which interpreted 42 U.S.C. § 
1981 as it existed during all times material to this action, applies 
retroactively and barred Vance’s section 1981 claim. We further 
hold that the Civil Rights Act of 1991, which extended the scope 
of section 1981 to performance and termination of contracts, 
applies prospectively and, therefore, has no bearing on Vance’s 
bar under Patterson.7

performance, modification, and termination of contracts, and 
the enjoyment of all benefits, privileges, terms and conditions 
of the contractual relationship,” and protects these 
contractual rights “against impairment by nongovernmental 
discrimination and impairment under color of state law.”
See 42 U.S.C.A. § 1981(b), (c) (West 1981 & Supp.1992).

6See 42 U.S.C. §§ 2000e et seq. Mary Ann Vance made no 
claim under Title VII.

7We must also decide Vance’s appeal of the dismissal of a 
state law claim for intentional infliction of emotional distress. 
We see no error. In Florida, “the issue of whether or not the 
activities of the defendant rise to the level of being extreme 
and outrageous so as to permit a claim for intentional

A-6



III. The 42 U.S.C. § 1981 Claim

A. The Nature of Vance’s 42 U.S.C. § 1981 Claim

Vance claims that Southern Bell discriminated against her 
during her employment [*1576] at Southern Bell’s Western 
Way service facility between August 1984 and October 1985. 
Supra note 2. Vance further says that by these “cumulative 
actions,” Southern Bell effectively “terminated” her 
employment. R.Vol. 6-208, P 46. We understand Vance’s claim 
to state three separate theories of liability: racial harassment, 
discriminatory denial of a transfer, and constructive discharge.

infliction of emotional distress is a legal question in the first 
instance for the court to decide as a matter of law.” Baker v. 
Florida N a t’l Bank, 559 So. 2d 284, 287 
(Fla.Dist.Ct.App.1990). As we read Florida’s decisions, the 
acts Vance alleged do not rise to the level of extremity or 
outrageousness required to sustain Vance’s claim for 
intentional infliction of emotional distress. See, e.g., Lay  v. 
Roux Laboratories, Inc., 379 So. 2d 451, 452 (Fla. 1st 
DCA1980) (although “extremely reprehensible,” racially 
hostile misconduct did not rise to the degree of 
“outrageousness or atrociousness” required to sustain a 
claim). See also Mundy v. Southern Bell Tel. & Tel. Co., 676 
F.2d 503, 505-506 (11th Cir.1982) (surveying Florida cases 
rejecting claims in employment context); Studstill v. Borg 
Warner Leasing, 806 F.2d 1005,1007 (11th Cir.1986) (This 
court is bound by decisions of Florida’s intermediate courts of 
appeals absent “some persuasive indication that the state’s 
highest court would decide the issue otherwise.”). Therefore, 
we affirm the district court’s order directing a verdict for 
Southern Bell on the state law claim.

A-7



Vance’s allegations describe the kinds of “postformation ... 
incidents relating to the conditions of employment” that were 
unactionable under section 1981. Patterson, 491 U.S. at 179, 109 
S. Ct. at 2374 . Vance’s allegations about her initial months of 
work at the Western Way facility describe the same kind of 
behavior — post-hiring racial harassment — that the Court held 
to be outside the scope of section 1981 in Patterson. Id. 491 U S 
at 177, 109 S. Ct. at 2373.

In a similar way, Vance’s claim that Southern Bell wrongfully 
refused to transfer her to a different assignment within the 
company is unactionable under section 1981 because such 
lateral transfers [do] not rise ‘to the level of an opportunity for 

a new and distinct relation between the employee and the 
employer.’” Jones v. Firestone Tire and Rubber Co., 977 F.2d 527 
(11th Cir.1992) (Tjoflat, C.J.), quoting Patterson, 491 U.S. at 185, 
109 S. Ct. at 2377. And it is settled in this circuit that, under the 
Patterson rule, section 1981 provides no relief on claims of 
discriminatory discharge. E.g., Pearson v. Macon-Bibb Co. Hosp. 
Auth., 952 F.2d 1274, 1277-78 (11th Cir.1992); Weaver v. Casa 
Gallardo, 922 F.2d 1515, 1519-20 (11th Cir.1991). Thus we 
conclude that Vance’s section 1981 claim is among the kinds of 
post-hiring claims that Patterson bars.8

8This court decided Vance I when Patterson v. McLean 
Credit Union was pending before the Supreme Court. In 
Vance I, we saw a distinction between the constructive 
discharge theory of Vance’s case and the “pure” harassment 
claims of the plaintiff in Patterson. Vance I, 863 F.2d at 1509 
n. 3. But there has been an intervening change in the law 
that alters what some may have seen as the law of this case. 
See Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir.1984)
( iaw of the case” doctrine subject to intervening change in 
controlling law). After the Supreme Court’s opinion in 
Patterson, no basis exists in section 1981 cases to sustain the

A-8



B. Retroactive Application of Patterson v.
McLean Credit Union

The district court declined to apply Patterson retroactively 
based on the pragmatic and equitable considerations set out in 
Chevron Oil v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 
(1971). We think the Supreme Court’s recent decision in James
B. Beam Distilling Co. v. Georgia, — U.S.------, 111 S. Ct. 2439,
115 L. Ed. 2d 481 (1991), forecloses Chevron Oil analysi s in this 
case and commands retroactive application of Patterson.

In Beam, the Supreme Court held that if the court applies a 
rule to the parties in the case in which the rule is announced, the 
rule must be applied retroactively to cases pending at the time 
the rule issues. “The question is whether it is error to refuse to 
apply a rule of federal law retroactively after the case 
announcing the rule has already done so. We hold that it is, 
principles of equity and stare decisis here prevailing over any
claim based on a Chevron Oil analysis.” Beam, — U.S. a t____,
111 S. Ct. at 2446. Under Beam, the dispositive question is 
whether the Patterson court applied its interpretation of section 
1981’s “make and enforce” language to the parties in the 
Patterson case. See Lufkin v. McCallum, 956 F.2d 1104, 1106-07 
(11th Cir.1992) (applying Beam).

distinction between claims of “pure” harassment and claims 
which allege that acts of harassment caused the discharge of 
the employee. Given the sweep of the words of the Patterson 
opinion, all such claims would involve “postformation” 
contractual activity outside the protection of section 1981.
See Patterson, 491 U.S. at 179, 109 S. Ct. at 2374 (Section 1981 
“covers only conduct at the initial formation of the contract 
and conduct which impairs the right to enforce contract 
obligations through legal process.”).

A-9



The Court in Patterson did apply its interpretation of section 
1981 to the litigants there. See Patterson, 491 U.S. at 177-80,
189, 109 S. Ct. at 2373-74, 2379 (affirming court of appeals’ 
dismissal of racial harassment claim as unactionable under 
section 1981). So, even assuming for the sake of argument that 
Patterson did [*1577] announce a new rule (as opposed to 
declaring what section 1981 always meant), that rule would apply 
to all cases then pending, such as this one.

Based on the principles announced in Beam, we conclude 
that the district court erred in refusing to apply Patterson v. 
McLean Credit Union to dismiss the section 1981 claim in this 
case.

C. Prospectivity of the Civil Rights Act of 1991

The remaining question is whether the Civil Rights Act of 
1991 applies retroactively to overrule Patterson to save Vance’s 
section 1981 claim. One effect of the 1991 Act, in cases where 
it applies, is to make the rule in Patterson obsolete by 
statutorily adding certain categories of post-hiring 
discrimination to the list of practices liable to suit under 
section 1981. In Baynes v. A T  & T Technologies, Inc., 976 F.2d 
1370 (11th Cir.1992), we decided that section 101 has no 
retroactive application in cases in which entry of judgment 
predates the effective date of the Act.9

9Almost every circuit that has addressed the retroactivity 
of the Civil Rights Act of 1991 has concluded that the 1991 
Act does not apply retroactively. See Baynes v: A T  & T, supra; 
Gersman v. Group Health Ass’n, Inc., 975 F.2d 886 
(D.C.Cir.1992); Johnson v. Uncle Ben’s Inc., 965 F.2d 1363 (5th 
Cir.1992), petition for cert, filed, 61 U.S.L.W. 3356 (U.S. Sept. 
29, 1992) (No. 92-737); Mozee v. American Commercial Marine
Svc. Co., 963 F.2d 929 (7th Cir.), cert, denied, — U.S.------,
113 S. Ct. 207, 121 L„ Ed. 2d 148 (1992); Hicks v. Brown

A-10



Group, Inc., 982 F.2d 295 (8th Cir.1992) (en banc); Vogel v.
City o f Cincinnati, 959 F.2d 594 (6th Cir.), cert, denied, — U.S.

, 113 S. Ct. 86, 121 L. Ed. 2d 49 (1992). But see Davis v. 
City and County of San Francisco, 976 F.2d 1536 (9th 
Cir.1992).

In Davis, a panel of the Ninth Circuit inferred from 
sections 109(c) and 402(b) of the Act that Congress did intend 
the Act to apply retroactively except in specific kinds of cases. 
Section 109 makes Title VII applicable to U.S. citizens 
employed in foreign countries, overruling EEOC v. Arabian
Amer. Oil Co., — U.S.----- , 111 S. Ct. 1227, 113 L. Ed. 2d 274
(1991); section 109(c) expressly makes section 109 purely 
prospective. Pub.L. No. 102-166, § 109(c) (1991). Section 
402(b) makes the Act inapplicable to the Wards Cove 
litigation. See Pub.L. No. 102-166, 105 Stat. 1071, § 402(b) 
(1991); Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. 
Ct. 2115, 104 L. Ed. 2d 733 (1989); 137 Cong.Rec. S15950-968 
(daily ed. Nov. 5, 1991) (Senate discussion preceding vote on 
section 402(b)). Considering these two provisions, the Ninth 
Circuit decided that to conclude the whole Act applies only 
prospectively would violate the general canon of construction 
that statutes be interpreted “so as not to render one part 
inoperative” and so that “no provision ... be construed to be 
entirely redundant.” Davis, 976 F.2d at 1551 (citations 
omitted).

Recalling that there are exceptions to almost all general 
propositions, we cannot accept the Davis reasoning. The 
negative inference (that Congress intended general 
retroactivity) that the Davis court drew from sections 109(c) 
and 402(b) is an unhelpful legal fiction given the reality of a 
sharp conflict between legislators on the retroactivity of the 
Act generally. See Davis, 976 F.2d at 1554 (collecting citations

A -11



Because judgment in this case was entered in May 1990, before

to legislators7 divergent views). We think it makes little sense 
to know that Congress never acted on retroactivity and then to 
infer from a couple of provisions — here, distinctive 
provisions that made prospectiveness especially plain for 
certain situations — that Congress generally “envisioned” or 
“intended” retroactive application as a general matter. Cf 
Davis, 976 F.2d at 1552-56.

Congress probably only intended for sections 109(c) and 
402(b) to minimize, in specific instances, the risk posed by 
uncertain outcomes in the courts on the general retroactivity 
issue. See Gersman, supra, 975 F.2d at 890 (sections may be 
viewed as an “insurance policy”); Johnson, supra, 965 F.2d at 
1373 (sections may evince no general conclusion about 
general retroactive application). And when a court holds that 
the Act generally applies prospectively, the court does not 
render sections 109(c) and 402(b) “entirely redundant" nor 
inoperative. Those sections operate to ensure that, although 
some court might hold the Act retroactive as a general matter, 
no court may hold that the Act applies in Wards Cove or in a 
section 109 case where the conduct predates enactment. With 
that understanding of sections 109(c) and 402(b), and given 
the abundant evidence that Congress never agreed on the 
retroactivity of the Act in general, but instead left that issue to 
the courts, e.g., compare 137 Cong.Rec. S15483-485 (daily ed. 
Oct. 30, 1991) (interpretive memorandum of Sen. Danforth) 
with 137 Cong.Rec. S15485 (daily ed. Oct. 30, 1991) 
(statement of Sen. Kennedy), we decline to infer general 
“intent” on retroactivity from sections 109(c) and 402(b).

A -12



the effective date of the Act,10 the Act does not apply 
retroactively [*1578] to Vance’s action.11

IV. Conclusion

The district court’s order denying Southern Bell’s motion for 
summary judgment on Count I, the 42 U.S.C. § 1981 claim, is 
REVERSED.

CONCUR BY: FAY (In Part)

DISSENT BY: FAY

DISSENT: FAY, Circuit Judge, concurring in part and dissenting 
in part:

10Section 402 of the Civil Rights Act of 1991 provides that 
the Act took effect on its date of enactment, November 21, 
1991, unless otherwise provided.

11 We recognize that Vance’s section 1981 claims went to 
trial despite Patterson, while Baynes’s section 1981 claims, in 
contrast, fell to Patterson in a summary judgment. Baynes, 976 
F.2d at 1372. But in view of all the Bradley factors, this 
distinction leads us to no different conclusion in this case 
about the retroactivity of the Civil Rights Act of 1991. See 
Baynes, 976 F.2d at 1373-75, applying Bradley v. School Board 
of Richmond, 416 U.S. 696, 711, 94 S. Ct. 2006, 2016, 40 L.
Ed. 2d 476 (1974). In addition, the principle that “litigants in 
similar situations should be treated the same,” Beam, — U.S.
a t ------, 111 S. Ct. at 2444, dissuades us from a different view
of the Act in this case.

A-13



Part I

I reluctantly concur with the majority that the existing case 
law compels both retroactive application of Patterson1 and 
prospective application of the Civil Rights Act of 1991, thus 
eliminating Vance’s § 1981 claim. The law of this circuit was 
settled on these two issues in Baynes v. A T & T  Technologies, Inc., 
976 F.2d 1370 (11th Cir. 1992) (per curiam).2

‘In advocating purely retroactive application of case law, 
(as opposed to statutes) Justice Blackmun, in James B. Beam
Distilling Co. v. Georgia, — U.S.----- , ------, 111 S. Ct. 2439,
2450, 115 L. Ed. 2d 481 (1.991) (Blackmun, J. concurring), said 
this policy “derives from the integrity of judicial review, which 
does not justify applying principles determined to be wrong to
litigants who are in or may still come to court.” Id. a t ------,
111 S. Ct. at 2450 (emphasis added). But of course when we 
apply Patterson retroactively, without viewing it from the 
perspective of its repudiation by Congress, that is exactly what 
we do. We are not only applying a principle determined to be 
wrong, but we do so in a context where this principle was not 
relied upon by anybody in the case as the relevant law. It is 
true, as Justice Blackmun points out, that courts with the 
option to apply new rules prospectively only “dodge the stare 
decisis bullet," and perhaps are thereby encouraged to disrupt
“settled expectations” more often. Id. a t ------, 111 S. Ct. at
2450. However, it hardly advances his concern for settled 
expectations to apply a law retroactively that was not only 
contrary to those settled expectations, but is also now 
repudiated. Such a circumstance should be an exception to 
the general rule.

2In my view, the majority perhaps too hastily dismisses, in 
footnote 11 of its opinion, the circumstances of this case which 
distinguish it from Baynes. I would be inclined, for all of the 
reasons noted in this opinion, to find the distinction noted by

A-14



Nevertheless, I cannot help but feel that the application of the 
rules articulated in Baynes lead, in Mary Ann Vance’s case, to a 
manifest injustice. Two all-white juries, on two separate 
occasions, have heard all of the evidence and concluded that 
Southern Bell discriminated against Mrs. Vance and awarded her 
multi-million dollar verdicts on her claim. We reversed her first 
verdict as excessive three months before the decision in Patterson 
was announced. Now, her second verdict is ground to dust 
between the upper millstone of the decision not to apply the 
Civil Rights Act of 1991 to her case, and the lower millstone of 
Patterson, a decision on which no one in this case could be said 
to have relied.* 3 Much of [*1579] what I could say on the

the majority as dispositive, entitling Vance to affirmance of 
her verdict. Nor do I believe that this result would offend the 
principles in Bradley. However, Bradley is not the only 
applicable precedent, and Bowen would compel the opposite 
result. Although this Circuit has in general cleaved to the 
Bradley rule, see, e.g., Federal Deposit Ins. Corp. v. 232, Inc.,
920 F.2d 815, 818 n. 4 (11th Cir.1991) (per curiam), we are not 
free to disregard Bowen. See Litman v. Massachusetts Mutual 
Life Ins. Co., 825 F.2d 1506, 1509 (11th Cir.1987) (en banc). In 
the absence of more guidance from the Supreme Court as to 
the choice between Bradley and Bowen, it is impossible to say 
that the majority’s conclusion is clearly wrong, even if I 
disagree with its interpretation of what Bradley requires in this 
case.

3There is no dispute that the discrimination and 
harassment of which Southern Bell was accused, was, is and 
always has been illegal, irrespective of any retroactivity given 
to either the Civil Rights Act of 1991 or Patterson. The only 
thing altered by these two changes in the law was the nature 
of the remedy — that is, the availability of damages beyond

A-15



fairness question has already been said by others, so I will not 
belabor the point here. See, e.g., Mozee v. American Commercial 
Marine Service Co., 963 F.2d 929, 940 (7th Cir.1992) (Cudahy, J. 
dissenting).4 I would add only that, for me, this application of

the relatively limited equitable remedies provided by Title 
VII. (In other circumstances we have held that changes in the 
law affecting only the remedy are applied retroactively. See, 
e.g., Bimholz v. 44 Wall Street Fund, Inc., 880 F.2d 335, 339 
(11th Cir.1989) (per curiam)). Thus, it cannot be said that 
anyone in this case relied on Patterson, either for knowledge 
of what the law prohibited or for estimating liability in the 
event the law was broken. As Justice Scalia noted in his 
concurrence in Kaiser Aluminum & Chemical Corp. v.
Bonjomo, 494 U.S. 827, 840, 110 S. Ct. 1570, 1579, 108 L. Ed. 
2d 842 (1990) (Scalia, J. concurring): “The principle that the 
legal effect of conduct should ordinarily be assessed under the 
law that existed when the conduct took place has timeless and 
universal human appeal.” Id. at 855, 110 S. Ct. at 1586.

4What Judge Cudahy wrote there is equally true of this 
case. “Patterson was the effective law of the land at no time 
that is relevant to the disposition of this case. No one relied 
upon it when liability was incurred in this case, nor can we 
rely on it now that it has been overruled by Congress.” Mozee, 
963 F.2d at 941 (Cudahy, J. dissenting).

Other objections which could be raised to the majority’s 
reasoning have been discussed in great detail by Judge 
Fletcher of the Ninth Circuit in her majority opinion in Davis 
v. City and County of San Francisco, 976 F.2d 1536 (9th 
Cir.1992) and by Judge Wald of the D.C. Circuit in her dissent 
in Gersman v. Group Health Assoc., 975 F.2d 886, 900 
(D.C.Cir.1992) (Wald, J. dissenting). However, these

A-16



Patterson also raises troubling questions of separation of powers.

In Patterson the Supreme Court was engaging in statutory 
interpretation, not constitutional interpretation, when it 
interpreted § 1981 to preclude the cause of action upon which 
Vance has relied. Theoretically, the Court’s role in statutory 
interpretation is to uphold legislative intent, not to make new 
law. Nevertheless, new interpretations of statutes often have 
that practical effect, as Patterson did when it sub silentio 
overruled prior court of appeals opinions (such as our own)5 
interpreting § 1981 more expansively. Judicial “law making” is 
an inevitable byproduct of our system,6 albeit one that, at times, 
seems to be barely tolerated — like a relative you’d rather not

interpretations have not been adopted by this circuit.

5See, e.g., Vance /, 863 F.2d at 1509 n. 3 (citing cases 
holding that the legal elements of disparate impact cases are 
identical under Title VII and § 1981).

6See James B. Beam Distilling Co. v. Georgia, — U.S.------.
------, 111 S. Ct. 2439, 2449, 115 L. Ed. 2d 481 (1991) (White,
J. concurring) (criticizing what he took to be Justice Scalia’s 
suggestion that although judges do “make” the law in a real 
sense they ought to pretend that they do not). But see id., at
------, 111 S. Ct. at 2451 (Scalia, J. concurring in the judgment)
( defending the traditional stance that courts “find” the law not 
“make” it as one of the checks on judicial decision-making 
that forms an integral part of the constitutional separation of 
powers). Notably, although the majority relies on Beam for 
its retroactive application of Patterson, in Beam the Court was 
dealing with the retroactive application of its interpretation of 
constitutional law — an area given over almost exclusively to 
the courts. In contrast, Patterson was a judicial interpretation 
of a statute.

A-17



acknowledge — because it is difficult to square with the theory 
of the courts' role. But whatever theoretical difficulties judicial 
law making poses in the ordinary course of things, the practice is 
more troubling still when Congress rejects the Supreme Court’s 
interpretation of a statute. It is difficult to argue then that the 
court is merely effectuating the Congress’ intent. In that case, I 
would think our constitutional role is to limit the operation of 
that erroneous interpretation, not expand it.

To keep Patterson on “life support” by applying it to cases 
beyond those tried in reliance upon it, like Baynes, or for which 
it provided the governing standard at the times the acts occurred, 
makes the Court’s reassurance in Patterson, that “Congress 
remains free to alter what we have done,” ring hollow. Patterson, 
491 U.S. at 173, 109 S. Ct. at 2370. Whatever Congress’ intent on 
retroactivity,* & 7 it is clear Congress intended to alter what the 
Court had done. Disregarding that aspect of the legislative 
intent and focusing exclusively on the intent with regard to 
retroactivity might well be viewed as a refusal to implement 
Congressional will or as not reflecting the appropriate respect 
for our co-equal branch.

[*1580] Finally, while I share the majority’s concerns for 
equity and stare decisis, it is far too late in the day to ensure that 
everyone similarly situated will be treated equally with respect to 
§ 1981.8 Moreover, consistency is only one of many values with

7The majority in Gersman aptly noted that looking at the 
legislative history of the Civil Rights Act of 1991 provides no 
guidance on the issue of Congress’s intent regarding 
retroactivity. 975 F.2d 886, 890-92 (D.C.Cir. 1992).

&Cf Baynes (Patterson bars 1981 claim) with McGinnis v. 
Ingram Equip. Co., 918 F.2d 1491, 1497 (11th Cir. 1990) (en
banc) (Patterson does not bar 1981 claim because not timely
raised by defendant, even though Patterson had not been

A -18



which we must be concerned. As we have said elsewhere, 
‘“justice is better than consistency.”’ Westbrook v. Zant, 743 F.2d 
764, 768 (11th Cir. 1984) (citations omitted).9 Nevertheless, 
while I believe that upholding Vance’s verdict in this case would 
be just, I cannot say that the majority has misread the precedent 
or has clearly erred, therefore I concur in its ruling.

Part II

I cannot join the majority in its assessment of Vance’s state 
law claim. See majority opinion supra at n. 7. The District 
Court decided that the tort of intentional infliction of emotional 
distress “is incident specific,”10 and that as the judge found “no

decided at time of trial), and Weaver v. Casa Gallardo, Inc.,
922 F.2d 1515, 1519 (11th Cir.1991) (remanded in light of 
Patterson, even though defendant did not argue that case at 
trial, because plaintiff did not argue that defendant had 
waived his right to argue Patterson on appeal by failing to raise 
it below).

9Even where the law has not undergone such rapid and 
dramatic shifts, as has the interpretation of § 1981. our system 
of adjudication tolerates a great deal of disparity of outcome, 
most notably via the juiy system itself, but also through the 
operation of the doctrines of res judicata, collateral estoppel 
and the law of the case.

“ Because the District Judge ruled orally on Southern 
Bell’s motion for a directed verdict at the close of the 
plaintiff’s case it is not clear what precedent he was relying on 
for this ruling. However, whatever that precedent it would 
seem to be discredited by the Florida Supreme Court’s ruling 
in Byrd v. Richardson- Greenshields Securities, Inc., 552 So. 2d

A -19



incident subsequent to July of ’85,” the statute of limitations 
barred Vance’s claim. That ruling is erroneous. Under the 
Federal Rules of Civil Procedure Vance’s amended complaint 
relates back to her original filing because there is no question 
that the basis for her claim of intentional infliction of emotional 
distress arises out of the same “conduct, transaction, or 
occurrence” as her § 1981 claim. Fed. R. Civ. Pro. 15(c).11 See 
also Fonley v. Avco Corp., 826 F.2d 974, 981 (11th Cir.1987). 
Southern Bell’s argument to the contrary is simply spurious.12

1099 (Fla. 1989). Although the Florida Supreme Court did not 
address this question directly, its discussion obviously reflects 
an understanding that such claims need not be “incident 
specific” in the sense that each incident, taken alone must 
meet the outrageousness standard. This understanding is also 
consistent with our own previous statement in Vance /. “A 
hostile environment claim is a single cause of action rather 
than a sum total of a number of mutually distinct causes of 
action to be judged each on its own merits.” 863 F.2d at 1511.

nThe version of Rule 15(c) effective at the time Mary Ann 
Vance amended her pleading read as follows:

Whenever the claim or defense asserted in the 
amended pleading arose out of the conduct, 
transaction, or occurrence set forth or 
attempted to be set forth in the original 
pleading, the amendment relates back to the 
date of the original pleading.

12Southern Bell’s argument that the claims are factually 
distinct is confined to the following statement in its brief.
“The distinctions between these claims are too numerous to 
list in an appellate brief. Suffice it to say they concern totally

A-20



The only thing that is changed by Vance’s amended 
complaint is some of the legal inferences to be drawn from the 
same conduct. Vance s amendment does not so vary from her 
original complaint that Southern Bell did not have notice as to 
the facts alleged or the evidence which would be relevant. 
Southern Bell cannot reasonably assert that it was prejudiced by 
her amendment. Indeed, because of the change in the law, if 
anyone is prejudiced it is Vance. Therefore, she ought to be 
allowed the opportunity to amend her complaint to assert a 
claim that she understandably did not assert before, as long as 
Southern Bell was given “fair notice of the [*1581] general 
fact situation out of which” her claim arose. Forzley, 826 F.2d at 
981 (citation omitted).

As the United States Supreme Court noted in Lewis v. 
Continental Bank Corp., 494 U.S. 472, 110 S. Ct. 1249, 108 L. Ed. 
2d 400 (1990) in a related context:

Our ordinary practice in disposing of a case that has 
become moot on appeal is to vacate the judgment 
with directions to dismiss. However, in instances 
where the mootness is attributable to a change in 
the legal framework governing the case, and where 
the plaintiff may have some residual claim under the 
new framework that was understandably not asserted 
previously, our practice is to vacate the judgment and 
remand for further proceedings in which the parties 
may, if necessary, amend their pleading or develop 
the record more fully.

distinct subject matter, and are not even similar in genesis, as 
one is statutory and the other arises at common law.” 
Appellant/Cross- appellee’s Brief at 49. Suffice it to say, the 
appellant’s conclusions do not strike me with the crystal 
clarity appellant believes they possess.

A-21



Id. at 482, 110 S. Ct. at 1256 (emphasis added) (citations 
omitted). This quote reflects the liberal amendment policy that 
has been the practice of the federal courts. See also Comments 
to 1991 amendments of Rule 15(c) (“Whatever may be the 
controlling body of limitations law, if that law affords a more 
forgiving principle of relation back than the one provided in this 
rule, it should be available to save the claim.”) (indicating that, 
notwithstanding the supremacy of federal procedural rules in 
federal court, the courts are to use whichever rule allows more 
liberal relation back).

The District Court also ruled as a matter of law that Vance’s 
claims did not rise to the level of “outrageousness” necessary to 
support her claim. The Florida Supreme Court has stated the 
necessary standard as follows:

Liability has been found only where the conduct has 
been so outrageous in character, and so extreme in 
degree, as to go beyond all possible bounds of 
decency, and to be regarded as atrocious, and utterly 
intolerable in a civilized community. Generally, the 
case is one in which the recitation of the facts to an 
average member of the community would arouse 
his resentment against the actor, and lead him to 
exclaim, “Outrageous!”

Eastern Airlines, Inc. v. King, 557 So. 2d 574, 576 (Fla.1990) 
(quoting Restatement (Second) of Torts, § 46 (1965), comment 
d). If the conduct which two juries found that Southern Bell 
engaged in does not meet this standard I can scarcely conceive of 
the case which would.

The question of whether a complaint will support a cause of 
action sufficient to go to the jury on the issue of intentional 
infliction of emotional distress is initially one for the judge. But 
the district court judge in this case did not appear to correctly 
apply the standard employed by the Florida courts.

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Whether the conduct is outrageous enough to rise to the 
level required by the tort may be decided as a question of 
law when the facts of a case can under no conceivable 
interpretation support the tort, but where significant facts 
are disputed, or where differing inferences could 
reasonably be derived from undisputed facts, the question 
of outrageousness is for the jury to decide.

Williams v. Minneola, 575 So. 2d 683, 692 (Fla. Dist. Ct. App.
1991) (citations omitted). See also Mundy v. Southern Bell Tel. & 
Tel. Co., 676 F.2d 503, 505 n. 4 (11th Cir.1982) (per curiam) 
(degree of outrageousness is a mixed question of law and fact). 
Cf. McAlpin v. Sokolay, 596 So. 2d 1266, 1269-70 (Fla. 5th App.
1992) (holding that question is one for the court, but 
nevertheless reversing trial court’s dismissal of claim, suggesting 
that standard for the judge is whether any reasonable juror could 
find the conduct sufficiently outrageous); with Baker v. Florida 
National Bank, 559 So. 2d 284, 287 (Fla. 4th App. 1990)
(question is one for the court, no elaboration on standards to 
guide judge). There is no question that there were disputed facts 
in this case,13 quite apart from [*1582] the issue of whether the 
facts could under “no conceivable interpretation support the 
tort”14 as would seem necessary to support the district judge’s

13Even at this late stage in the litigation Southern Bell 
continues to dispute the facts and attempts to relitigate them.

l4This would be the case were Florida to have an 
employment, or other, “exception” to the intentional infliction 
of emotional distress cause of action. In every such case you 
would have a failure to state a cause of action on the face of 
the complaint because “no conceivable interpretation” of the 
facts could support the tort because of the exception. Even 
though no such “exception” is articulated, a de facto exception 
appeared to exist prior to 1989, in that employees seldom won

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directed verdict.

Although the transcript does not reveal the authority on 
which the district court relied, the majority opinion cites only 
two15 cases to support this ruling; Lay v. Roux Laboratories, Inc., 
379 So. 2d 451, 452 (Fla. Dist. Ct. App. 1980) (per curiam), and 
Mundy, 676 F.2d at 505-506.1 fail to see how either of these 
cases support this position. Not only are both cases over 10 
years old,16 (a point to which I will return later), neither can be 
said to stand for much beyond its own facts.

In Lay a Florida court of appeals merely determined that the 
facts in that case would not sustain a claim of intentional 
infliction of emotional distress.17 The plaintiff claimed that her

such cases. This is the proposition for which the majority cites 
Mundy. However, that is clearly no longer the state of the law 
in Florida.

15It further cites Studstill v. Borg Warner Leasing, 806 F.2d 
1005, 1007 (11th Cir. 1986) for the proposition that “this court 
is bound by decisions of Florida’s intermediate courts of 
appeal absent ‘some persuasive indication that the state’s 
highest court would decide the issue otherwise.’” See majority 
opinion supra n. 7. In this case, I believe there is such a 
“persuasive indication.”

16The majority’s reliance on these precedents is not 
dubious merely because the precedents are old, some of our 
most venerable principles are articulated in cases hundreds of 
years old. Rather, the cases on which it relies are of 
diminished value in light of the changes in the law. This 
reliance is even more surprising because there is no dearth of 
more current case law.

,7While it is always possible to argue that a case is limited 
to its facts, in some cases it is a fairer reading than others. In 
the court gave no hint that its ruling was to extend beyond the

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supervisor threatened her with the loss of her job and “‘began 
using humiliating language, vicious verbal attacks, racial epithets 
and called [her] a “nigger” when an argument arose concerning 
a parking space.” Id. at 452. There is no indication in the 
recitation of the facts that any more than this single altercation 
was at issue there, or that any pattern of harassment was alleged. 
This is a far cry from the pattern of conduct in which Vance 
alleged that Southern Bell engaged. Lay cannot reasonably be 
read to hold that racially hostile misconduct can never support a 
claim of intentional infliction of emotional distress, and if it can 
not be so read I fail to see how it supports the district court’s 
ruling.

Mandy is of even less value to the majority. Mundy is 
precedent from this circuit.18 At that time it was not even clear 
“whether Florida recognized an independent cause of action for 
intentional infliction of emotional distress,” Mundy, 676 F.2d at 
505, let alone what sort of conduct would meet the standard.
The majority suggests that the relevance of Mundy is that Florida 
rejects this cause of action in the employment context based on 
this court’s survey of Florida precedent. In an aside the panel in

very limited facts of the case. Because, factually, the two 
cases do not appear similar, Lay is of little value to 
anticipating how a Florida court would view Vance’s claim.

i8The federal courts’ interpretation of Florida law in the 
face of ambiguity, must necessarily give way once the state’s 
highest court removes that ambiguity. Of course, determining 
when an ambiguity exists is no easy task. Thus, “federal 
courts looking to Florida law have arrived at various 
conclusions about where this state stands on the issue [of 
intentional infliction of emotional distress]. Often citing to 
the same cases, it has been said that Florida recognizes the 
cause of action, does not, or has not made up its mind.” 
Dominguez v. Equitable Life Assur. Soc., 438 So. 2d 58, 59 n. 2 
(Fla. Dist. Ct. App. 1983) (citations omitted).

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Mundy observed that, “although there are numerous Florida 
cases in which plaintiffs have made claims of intentional 
infliction of emotional distress against their former employers ... 
we find none, in which the plaintiff has prevailed.” Id. at 506. 
This is not only far short of a pronouncement that employees 
could never recover on this theory, it is also no longer true.

[*1583] Since Mundy was decided the law has undergone 
rather significant expansion by the Florida Supreme Court. First, 
in Metropolitan Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 
(Fla.1985) the supreme court clarified that intentional infliction 
of emotional distress was indeed a separate cause of action. 
Later, in Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 
2d 1099, 1103-04 (Fla.1989) the court held workers could sue 
their employers for sexual harassment under a theory of 
intentional infliction of emotional distress.19 Id. at 1104. Thus, 
in McCarson and Byrd, the Florida Supreme Court clarified the 
question in Mundy and provided an example from the state’s 
highest court that an employee could sue under this theory.20

Justice Barkett, writing for the majority in Byrd found that 
“public policy now requires that employers be held accountable 
in tort for the sexually harassing environments they permit to 
exist, whether the tort claim is premised on a remedial statute or 
on the common law.” Id. She based this conclusion on the 
extensive state and federal civil rights legislation, as well as

19The principal holding of the case was that the workers’ 
compensation exclusivity rule did not preclude the 
maintenance of a separate cause of action for job-related 
sexual harassment.

2{)Byrd also rendered Studstill obsolete because the 
substantive holding in Studstill was that sexual harassment 
suits were barred under Florida law by the workers’ 
compensation exclusivity rule. Id. 806 F.2d at 1007-08.

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Supreme Court precedent, which addressed sexual harassment 
or had been interpreted to encompass it. Id. at 1102-04.

Given that the recognition of sexual harassment as an injury 
to civil rights is of relatively recent vintage, (compared to racial 
harassment), I find it unlikely that under current Florida law 
Vance’s claims would be deemed too insubstantial to support her 
claim. Every factor cited by Justice Barkett which supported the 
finding in Byrd applies with equal, if not more, vigor to racial 
harassment, if only because the public policy condemning racism 
is of even longer standing.2'

Mary Ann Vance testified to a continuous and oppressive 
pattern of intimidation and harassment on the part of her fellow 
workers and supervisors at Southern Bell. That Southern Bell 
would allow such an atmosphere to develop, or having been 
apprised of it, fail to take the firmest possible steps to eradicate 
it, is by itself outrageous. But of all of the incidents, two stand 
out as particularly horrific — the nooses twice left at Vance’s 
work station. The noose in this context is a symbol not just of 
racial discrimination or of disapproval, but of terror. Those of 
us for whom a particular symbol is just that — a symbol — may 
have difficulty appreciating the very real, very significant fear 21

21This fact is relevant to the extent that the standard is 
supposed to be gauged by the standards of the average 
member of the community. Presumably, the longer the 
particular behavior has been societally condemned, the more 
likely that behavior is to provoke the outraged response.
Sadly, this assumption may be more of a projection of what we 
think the average member of the community “ought” to think 
rather than what he or she does think. “Outrageousness is not 
only highly subjective, but also an extremely mutable trait.... 
Most of the examples contained in the Restatement comments 
do not overwhelm the reader with their ‘atrociousness’ and 
‘utter intolerability’....” Williams v. Minneola, 575 So. 2d 683, 
692 (Fla. 5th Dist. Ct. App. 1991).

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that such symbols inspire in those to whom they are targeted.
No less than the swastika or the Klansman’s hood, the noose in 
this context is intended to arouse fear.22 If a jury would not cry 
“Outrageous!” upon hearing these facts (and I think these juries 
did through their verdicts), I cannot think of a set of facts for 
which it would.

For all of the foregoing reasons I believe we should remand 
this case for retrial on the state law claim, and therefore I 
respectfully DISSENT. Subject to my reservations expressed in 
Part I, I CONCUR in the majority’s resolution of Vance’s § 1981 
claim.

22It cannot be said, even today, that Black Americans are 
free to disregard threats of racial violence as idle ones.

A-28



APPENDIX II-A

Vance v. Southern Bell Telephone and Telegraph Co., 
863 F.2d 1503 (11th Cir. 1989)



Mary Ann VANCE, Plaintiff-Appellant 
v.

SOUTHERN BELL TELEPHONE AND TELEGRAPH
COMPANY,

a Georgia Corporation, Defendant-Appellee,
Joyce Foskey, et al., Defendants

VANCE v. SOUTHERN BELL TEL. & TEL. CO.

No. 87-3625

UNITED STATES COURT OF APPEALS FOR THE 
ELEVENTH CIRCUIT

863 F.2d 1503; 1989 U.S. App. LEXIS 561; 50 Fair Empl. 
Prac. Cas. (BNA) 742; 48 Empl. Prac. Dec. (CCH) P38,626

January 23, 1989

PRIOR HISTORY: Appeal from the United States District
Court for the Middle District of Florida.

COUNSEL: Charles Cook Howell, III, Michael S. O’Neal, 
Jacksonville, Florida, Gardner Davis, Scott Fortune, 
Jacksonville, Florida, Attorneys for Appellant.

Guy O. Farmer, II, Esquire, Jacksonville, Florida, Daniel J. 
Thompson, Esquire, General Attorney, Atlanta, Georgia, 
Attorneys for Appellee.

JUDGES: Hill and Fay, Circuit Judges, and Davis, * District 
Judge.

* Honorable Edward B. Davis, U.S. District Judge for the 
Southern District of Florida, sitting by designation.
OPINION BY: FAY

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OPINION: [*1505] FAY, Circuit Judge:

Plaintiff-appellant Mary Ann Vance appeals the district 
court’s order granting the defendant Southern Bell Telephone 
and Telegraph Company’s motion for judgment notwithstanding 
the verdict (“JNOV”) and in the alternative for a new trial.
Vance v. Southern Bell Tel. and Tel. Co., 672 F. Supp. 1408 
(M.D.Fla. 1987). A jury awarded Vance compensatory and 
punitive damages after a four day trial based on the plaintiff’s 
claim that her employer, Southern Bell, discriminated against 
her on the basis of race in violation of 42 U.S.C. § 1981 (1982). 
The district court judge found that reasonable jurors could not 
have arrived at a verdict for the plaintiff, and granted the 
defendant’s motion for JNOV. In addition, the court held that 
had it not granted the JNOV, it would have granted the 
defendant a new trial, because the relief provided by the juiy was 
contrary to [* 1506] the great weight of the evidence, and 
because the damages awarded were grossly excessive. On 
appeal, the plaintiff contends that the JNOV and the alternative 
grant of a new trial were improper, because the jury verdict was 
supported by substantial evidence. After a thorough review of 
the record, we reverse the order granting the defendant’s motion 
for JNOV. However, we affirm the district court’s alternative 
holding granting a new trial.

I. Background

Plaintiff Mary Ann Vance, a black woman, began working 
for Southern Bell in March, 1972, as a switchboard operator. 
Thereafter, she held various jobs at other Southern Bell 
locations throughout Jacksonville, Florida. Although Vance 
missed some time from work due to illness, she generally had a 
good employment record. In 1984, Vance bid for a job at 
Southern Bell’s Western Way facility in Jacksonville as a material 
services coordinator. The job provided higher pay, but was 
considered a step down in job classification because it entailed 
work in a warehouse. Prior to her transfer to Western Way,

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Vance had never complained of any racial discrimination at 
Southern Bell.

Vance began work at the Western Way facility on August 13, 
1984 in the CONECS department under the supervision of Paul 
Wagner, a first-level supervisor. About a week after Vance 
began work in this department, she found what appeared to be a 
noose hanging from the light fixture above her work station. At 
the time of this incident there were several “imports,” or 
temporary personnel working at Western Way. At trial, Vance 
testified that Clyde Oliver, a white co-worker, saw the noose and 
told one of the imports to take the noose down. When the 
defendant called Oliver as a witness, he denied ever having seen 
the noose. On rebuttal, Vance called a black co-worker, Roland 
Ball, who said that Vance had brought him to see the noose, that 
Oliver had seen it also, and that Ball took it down and discarded 
it. Two days later, the plaintiff again found the noose hanging 
from her light fixture. This time, she removed it herself and 
threw it in the trash. Neither Vance nor Ball reported the 
incidents to any Southern Bell official at that time.

Mrs. Vance first mentioned the noose incidents to 
management on January 9, 1985, over four months later, at a 
grievance hearing concerning a separate incident. At trial, there 
was greatly conflicting testimony as to what statements were 
made at this hearing. Vance mentioned the noose incidents to 
Nancy Murray, Southern Bell's Personnel Manager, and Murray 
then asked Bert Sellars, the manager of the Western Way 
warehouse, whether he knew anything about the noose. Both 
Vance and Levi McClendon, a black union steward who was 
present at the hearing, testified at trial that Sellars responded 
that Paul Wagner had done it “to increase productivity.”1 Notes

'The district court found it “obvious that the remark 
regarding an increase in productivity related to the fact that 
Mr. Wagner had made the device; not that he hung it over the

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taken by Nancy Murray at the meeting stated, “In CONECS she 
found a noose. Paul probably did . . (R.7-173) However, 
Sellars denied having made the statement, and Nancy Murray 
maintained that it was Vance, not Sellars, who mentioned 
Wagner’s name in connection with the noose. At trial, Wagner 
testified that he had constructed a device which looked like a 
noose made of hemp rope with a braided loop on one end, but 
that it had been designed to desheathe cable to increase 
productivity.

On September 9, 1984, Vance was transferred from the 
CONECS department to the Repair and Returns department 
where her first-level supervisor was Walter Stembridge. Vance 
alleged that during this time, Stembridge and some of Vance’s 
co-workers discriminated against her by purposefully denying 
her the training necessary to do her job. She testified that Joyce 
Foskey Blackwood, the “working leader” of the group who was 
responsible for training Vance, refused to answer Vance’s 
questions as to how to do her job. Vance also claimed that some 
of her work had been sabotaged by an unknown employee. 
[*1507] Stembridge, however, testified that Vance had received 
essentially the same training as everyone else. Twice Stembridge 
brought in outside people to train the entire section. Vance 
further testified that she wrote a letter to the warehouse 
manager, Bert Sellars, asking to be transferred, but she was not 
moved. Sellars admitted that he had heard of Vance’s complaints 
of inadequate training.

On September 18, 1984, Tommy Lee Sampson, a black 
manager of employment and selections, contacted Vance about 
an allegation that she had omitted information on an 
employment questionnaire concerning a traffic violation that had 
occurred three years earlier. Vance explained that she had 
misunderstood the form, believing that a traffic ticket did not

Plaintiff’s workbench.” Vance, 672 F. Supp. at 1410.

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count as a “conviction” which had to be reported. Although he 
testified that he was unable to determine whether or not Vance’s 
omission was intentional, Sampson suspended Vance for two 
days without pay. He eventually reduced the suspension to a 
warning entry on Vance’s record, but she was not reimbursed for 
the two days’ pay. Vance alleged that several other black 
employees were suspended for similar omissions, but that Clyde 
Oliver, a white employee, was treated differently because of his 
race. Oliver received a written warning for failing to report a 
conviction for stealing gasoline when he was sixteen years old. 
Sampson explained that he did not suspend Oliver for this 
omission because the crime had occurred about twenty years 
earlier.

On October 16, 1984, a grievance hearing was held 
concerning the discipline Vance received for the traffic ticket 
omission. At this hearing, Vance became upset and cried. Upon 
returning to her work station at the Repair and Returns 
department, Vance had an altercation with Joyce Foskey 
Blackwood. Once again, there is conflicting testimony as to what 
was said and done, but it is clear that Vance struck Blackwood 
during the argument. Bert Sellars and Walt Stembridge 
suspended both women for one and one-half days without pay. 
Vance testified that she told Sellars that there was a “black-white 
situation” between her and Blackwood, and that Sellars 
responded by saying, “I’m giving you a direct order. Do not 
repeat that again.” (R.7-298-99). Both Blackwood and Vance 
grieved their suspensions. After investigating the incident,
Sellars and Stembridge decided to rescind Blackwood’s 
suspension and give her back pay. Vance’s discipline was not 
rescinded. The defendant maintains that its investigations 
showed that Vance had struck Blackwood, but that Blackwood 
had not struck Vance, and that this was the reason for the 
disparate treatment. Vance testified that the investigation was 
biased because the investigators relied solely on the account of 
the incident given by Norma Brown, a good friend of Blackwood, 
who told the investigators that Vance had been at fault. Brown 
was the only eyewitness to the altercation. Vance told the

A-33



investigators that Blackwood had struck her first, and claims that 
the investigators discounted her story, despite the fact that 
Brown’s credibility should have been suspect because there had 
been bad blood between Vance and the two women.

On November 15,1984, Vance suffered an anxiety attack 
shortly following an incident in which Vance claimed that 
someone had sabotaged a pay phone which she was repairing. 
She testified that her body went numb from the waist down and 
she collapsed in the ladies room. Thereafter, Stembridge, a co­
worker Mary Smith, and a paramedic entered the ladies room to 
assist her. Vance said that Smith had spoken to Vance’s doctor, 
Dr. Rosin, who told Smith to have Vance brought to the 
emergency room at Baptist Hospital as soon as possible. Vance 
claims that Smith had relayed this information to her while 
Stembridge was with them in the restroom. Stembridge drove 
Smith and Vance to Memorial Hospital instead, which Vance 
claims was an act of racial harassment. Vance testified that she 
asked Stembridge several times in the car to take her to Baptist, 
but that Stembridge intentionally ignored her. Stembridge 
denied having heard Vance or anyone else ask him to go to 
Baptist instead of Memorial, and claimed that he took Vance to 
Memorial because he believed it was the facility that the 
company [*1508] normally utilized for emergency treatment of 
employees.

About a week before this anxiety attack, Dr. Rosin wrote a 
letter to Southern Bell concerning the '‘undue pressure and 
harassment on her job” which she had told him she was 
suffering. The plaintiff argued that Stembridge brought her to 
the wrong hospital, to avoid seeing Dr. Rosin and verifying his 
concerns. The district court ruled that this was an unreasonable 
inference, since it was not clear that Stembridge had ever seen 
the letter from Dr. Rosin.

After the anxiety attack, Vance was out on sick leave, with 
full pay, from November 15,1984 until January 10,1985. On

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January 9, 1985, Vance returned to the warehouse and attended 
the grievance hearing concerning her discipline stemming from 
the incident with Joyce Foskey Blackwood. It was at this meeting 
that Vance first mentioned the noose incidents to Southern Bell 
management. On behalf of Vance, the union requested that her 
suspension be rescinded as Blackwood’s had been, but Southern 
Bell denied this request because of its determination that Vance 
had thrown the first and only blow during the altercation. 
Southern Bell offered to reduce Vance’s suspension to one-half 
day if Vance would drop a complaint she had brought against the 
company with the Jacksonville EEOC (“JEOC”). Vance’s union 
representative was willing to accept the proposal, but Vance 
refused. Her discipline remained as initially given.

The plaintiff claims that Southern Bell's proposed 
settlement offer amounted to racial discrimination, in that she 
was asked to drop her JEOC complaint which was unrelated to 
the grievance hearing, and which itself included a charge of 
racial discrimination. At trial, Nancy Murray, the company’s 
staff manager of labor relations, testified that such settlement 
offers are routine, regardless of the substance of the JEOC 
complaint and the race of the party involved.

Vance also alleges that Southern Bell’s refusals to grant her 
requests for transfer to a different department at Western Way, 
and later for transfer to a different Southern Bell facility, were 
motivated by racial discrimination. After her anxiety attack, 
Vance began seeing Dr. Ruffett, a clinical psychologist, and Dr. 
Stamm, a psychiatrist. On November 19, 1984, Dr. Ruffett wrote 
a letter to Southern Bell stating that Vance should be assigned to 
a new department upon her return to work because of the stress 
she was experiencing on the job. The union stated this position 
to Southern Bell at the January 9, 1985 grievance hearing, but 
Nancy Murray informed Vance that the request had been 
denied. On March 14, 1985, Vance was transferred to the PICS

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department, and on July 26, 1985 she was transferred again to 
the Preterm department.

Thereafter, Vance submitted a number of letters to Southern 
Bell from Dr. Ruffett recommending that she be transferred to a 
position outside the Western Way facility for health reasons. On 
October 8, 1985, Vance delivered to Sellars an Employee 
Request for Lateral Inter-Company Movement, with a letter 
from Dr. Ruffett attached. Some days later, Vance stopped 
working at Western Way. She testified that this was in 
accordance with Dr. Ruffet’s instructions.

Vance was contacted by the company in March 1986 about a 
position as an operator outside of the Western Way facility. 
Although she had previously performed this job, she was 
required to take a test, which she failed. In March 1987, she was 
offered a position as a clerk at Western Way, but she turned it 
down. Vance alleges that she never received any other offers to 
return to work, although many positions throughout Jacksonville 
were available. Vance brought this action on March 27, 1986, 
under 42 U.S.C. §§ 1981, 1985(3) and 1986 (1982). On April 6, 
1987, before commencement of the trial, Vance dropped her 
claims against the originally named individual defendants. At 
the close of the plaintiff’s case, she moved to dismiss the counts 
alleging violations under 42 U.S.C. §§ 1985(3) and 1986. The 
jury trial proceeded against Southern Bell solely on the [*1509] 
basis of § 1981.2 The jury returned a verdict for the plaintiff

242 U.S.C. § 1981 (1982) provides:

All persons within the jurisdiction of the 
United States shall have the same right in every 
State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and 
to the full and equal benefit of all laws and 
proceedings for the security of persons and 
property as is enjoyed by white citizens, and

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awarding $ 42,000 for past lost wages and benefits, $ 500,000 for 
future lost wages, $ 500,000 for mental distress, emotional harm 
or humiliation, $ 3,700 for medical expenses, and $ 2.5 million in 
punitive damages.

II. Standard of Review

In considering a motion for JNOV, the court should view all 
of the evidence, together with all logical inferences flowing from 
the evidence, in the light most favorable to the non-moving 
party:

If the facts and inferences point so strongly and 
overwhelmingly in favor of one party that the Court 
believes that reasonable men could not arrive at a 
contrary verdict, granting of motions is proper. On 
the other hand, if there is substantial evidence 
opposed to the motions, that is, evidence of such 
quality and weight that reasonable and fair-minded 
men in the exercise of impartial judgment might 
reach different conclusions, the motions should be 
denied, and the case submitted to the jury. . .

Neff v. Kehoe, 708 F.2d 639, 641-42 (11th Cir. 1983) (quoting 
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)).

The plaintiff in a racial discrimination case can establish a 
violation of Title VII or § 1981 by showing that the work 
environment is “so heavily polluted with discrimination as to 
destroy completely the emotional and psychological stability of 
minority group workers.. . . ” Vaughn v. Pool Offshore Co., 683 
F.2d 922, 924 (5th Cir. 1982) (quoting Rogers v. EEOC, 454 F.2d

shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of 
every kind, and to no other.

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234, 238 (5th Cir. 1971), cert, denied, 406 U.S. 957, 92 S. Ct. 
2058, 32 L. Ed. 2d 343 (1972)).3 The plaintiff must prove that 
the discrimination is intentional. See Baldwin v. Birmingham Bd. 
of Educ., 648 F.2d 950, 954 (5th Cir. Unit B March 1981).

The Supreme Court established the framework for analyzing 
discrimination claims under § 1981 in McDonnell Douglas Corp. 
v Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 
Smith v. Papp Clinic, PA. , 808 F.2d 1449 (11th Cir. 1987). The

?We reject the defendant’s contention that the district 
court’s order for JNOV must be affirmed because racial 
harassment claims are not covered by § 1981. Appellee’s 
reliance on Patterson v. McLean Credit Union, 805 F.2d 1143 
(4th Cir.1986), cert, granted, 484 U.S. 814, 108 S. Ct. 65, 98 L. 
Ed. 2d 29 (1987) is misplaced. In Patterson, the court 
contrasted the language of Title VII, which prohibits 
discrimination with respect to the “terms, conditions or 
privileges of employment” with § 1981’s prohibition of 
discrimination in “the making and enforcement of contracts.” 
We need not reach the issue of whether § 1981 covers “pure” 
harassment claims, because Vance presented evidence that 
the harassment caused her to stop working at Western Way, 
thereby impairing her ability to make and enforce her 
employment contract.

Furthermore, we have held that the legal elements of a 
disparate treatment claim are identical under Title VII and § 
1981. Lincoln v. Board o f Regents ofUniv. Sys., 697 F.2d 928, 
935 n.6 (11th Cir.), cert, denied, 464 U.S. 826, 104 S. Ct. 97,
78 L. Ed. 2d 102 (1983); see also Hamilton v. Rodgers, 791 F.2d 
439, 442 (5th Cir.1986) (Showing a discriminatory and hostile 
work environment would establish a successful case under §§ 
1981 and 1983. “When these statutes are used as parallel 
causes of action with Title VII, they require the same proof to 
show liability.”).

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plaintiff has the initial burden to present a prima facie case of 
racial discrimination. The burden of production then shifts to the 
defendant to articulate some legitimate, nondiscriminatory 
reason for the alleged discriminatory behavior. Texas Dept, of 
Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S. Ct. 1089, 
1096, 67 L. Ed. 2d 207 (1981). Should the defendant produce a 
legitimate reason, the plaintiff must then prove by a 
preponderance of the evidence that the presumptively valid 
reason offered by the defendant was not the true reason, but 
rather was merely a pretext for discrimination. McDonnell 
Douglas, 411 U.S. at 804-05, 93 S. Ct. at 1825.

[*1510] III. Sufficiency of the Evidence

The first case which recognized a cause of action based upon 
a discriminatory work environment was Rogers v. EEOC, 454 
F.2d 234 (5th Cir. 1971), cert, denied, 406 U.S. 957, 92 S. Ct.
2058, 32 L. Ed. 2d 343 (1972). In that case the court held that a 
Hispanic employee could establish a violation of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by showing 
that her employer created “a working environment heavily 
charged with ethnic or racial discrimination.” Id. at 238. The 
court determined that an individual’s state of psychological well­
being is a term, condition, or privilege of employment within the 
meaning of Title VII. Since Rogers, several courts have adopted 
this position, finding that an employer violates Title VII “by 
creating or condoning an environment at the workplace which 
significantly and adversely affects an employee because of his 
race or ethnicity, regardless of any other tangible job detriment 
to the protected employee.” Henson v. City o f Dundee, 682 F.2d 
897, 901 (11th Cir. 1982); Sparks v. Pilot Freight Carriers, Inc., 830 
F.2d 1554, 1561 (11th Cir. 1987).

In Henson, this court applied the Rogers interpretation of 
Title VII in a sexual harassment case. However, we made it clear 
in Henson that not all workplace conduct that may be described

A-39



as harassment affects a “term, condition, or privilege” of 
employment within the meaning of Title VII:

[The harassment] must be sufficiently pervasive so 
as to alter the conditions of employment and create 
an abusive working environment. Whether sexual 
harassment at the workplace is sufficiently severe 
and persistent to affect seriously the psychological 
well being of employees is a question to be 
determined with regard to the totality of the 
circumstances.

Henson, 682 F.2d at 904. See also Meritor Savings Bank v. Vinson, 
477 U.S. 57, 66-67, 106 S. Ct. 2399, 2405-06, 91 L. Ed. 2d 49 
(1986) (citing Henson with approval).

In the order granting JNOV in this case, the district court 
ruled that the evidence concerning the noose incidents, viewed 
in the light most favorable to the plaintiff, established that a 
noose was hung over Vance’s work station on two occasions, but 
that the plaintiff had presented no evidence as to who hung the 
noose on either occasion. Regarding each of the other alleged 
incidents of discrimination, the trial court ruled that the plaintiff 
either failed to make out a prima facie case, or that the 
defendant provided a legitimate, nondiscriminatory reason for its 
conduct which the plaintiff failed to rebut. Thus, the court 
granted the motion for JNOV, stating that “two incidents are not 
enough to establish that the alleged harassment was a persistent, 
pervasive practice.” Vance, 672 F. Supp. at 1413.

We believe that the trial court incorrectly applied the 
“pervasiveness” standard outlined in Henson and Meritor.
Those cases held that an actionable harassment claim must 
establish by the totality of the circum-stances, the existence of a 
hostile or abusive working environment which is severe enough 
to affect the psychological stability of a minority employee. The 
prima facie showing in a hostile environment case is likely to

A-40



consist of evidence of many or very few acts or statements by the 
defendant which, taken together, constitute harassment. It is 
important to recognize that in assessing the credibility and 
weight of the evidence presented, the jury does not necessarily 
examine each alleged incident of harassment in a vacuum. What 
may appear to be a legitimate justification for a single incident 
of alleged harassment may look pretextual when viewed in the 
context of several other related incidents.

We stress also that the determination of whether the 
defendant’s conduct is sufficiently “severe and pervasive” to 
constitute racial harassment does not turn solely on the number 
of incidents alleged by the plaintiff. In a recent hostile 
environment harassment case, the Sixth Circuit explained that 
drawing a formal line between “isolated incidents” and a 
“pattern of harassment” is not helpful to the analysis:

[*1511] The plaintiff need not prove that the 
instances of alleged harassment were related in 
either time or type. Rather, all that the victim of 
racial harassment need show is that the alleged 
conduct constituted an unreasonably abusive or 
offensive work-related environment or adversely 
affected the reasonable employee’s ability to do his 
or her job.

Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir. 1988). 
Thus, in order to determine w'hether a hostile environment is 
severe enough to adversely affect a reasonable employee, the 
law requires that the finder of fact examine not only the 
frequency of the incidents, but the gravity of the incidents as 
well.

By contrast, the district court in the present case used a two- 
step analysis to determine whether the plaintiffs evidence was 
sufficient to withstand the defendant’s motion for JNOV. First, 
the district court examined each individual allegation of 
discrimination in turn, and found that the plaintiff had made out

A-41



a prima facie case of discrimination only as to the two noose 
incidents. Next, the court held that two incidents of 
discrimination are too few, as a matter of law, to establish a 
harassment claim under § 1981.

Both prongs of the analysis are incorrect. First, as we stated 
in Henson, the severity of the harassment is to be determined by 
the totality of the circumstances. Henson, 682 F.2d at 904. It was 
thus incorrect for the district court to require that the plaintiff 
establish a prima facie case of discrimination as to each 
individual allegation that the jury could properly consider. A 
hostile environment claim is a single cause of action rather than 
a sum total of a number of mutually distinct causes of action to 
be judged each on its own merits. Second, the totality of the 
circumstances necessarily includes the severity,4 as well as the 
number, of incidents of harassment. It is thus incorrect to apply 
mechanically an absolute numerical standard to the number of 
acts of harassment which must be committed by the defendant 
before a jury may reasonably find that a hostile environment 
exists.

We find that the trial court erred in ruling that no 
reasonable jury could have found that the plaintiff was the victim 
of racial harassment within the scope of § 1981. As the district 
court noted, the plaintiff produced substantial evidence that a 
noose was twice hung at her work station. The jury could also 
have found that Vance was discriminated against with respect to 
the discipline she received for failing to mention the traffic ticket 
on her transfer application, and for the altercation with her co­
worker Joyce Foskey Blackwood. Regarding the incident 
involving Vance’s transportation to the wrong hospital by her 
supervisor, Mr. Stembridge, the court found that it was

4It is hard to imagine an incident of this sort taking place 
in 1984. The grossness of hanging an object resembling a 
noose at the work station of a black female is self-evident.

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“inconclusive” as to whether he had heard Vance’s request to be 
brought to Baptist Hospital, and that even if he did, he offered a 
legitimate explanation for his action. Whether Stembridge 
actually heard Vance’s request, and if he did, whether his 
explanation for not honoring her request was legitimate or 
pretextual, are both questions for the trier of fact. Burdine, 450 
U.S. at 258, 101 S. Ct. at 1096. The plaintiff also produced 
evidence of instances of discrimination involving other 
employees at the Western Way facility, both before and during 
her tenure there.5 Viewing all the evidence in context, we 
believe that the plaintiff satisfied her burden of producing 
evidence sufficient to create a jury question on her § 1981 claim.

IV. Corporate Liability

As additional grounds for granting JNOV, the district court 
found that Southern [*1512] Bell could not be liable to Vance 
for damages even assuming that the alleged harassment 
constituted a violation of § 1981. The court held that because the 
evidence clearly showed that Vance failed to report the noose 
incidents to any “management personnel” despite the existence 
of adequate procedures for reporting grievances, Southern Bell 
could not be liable as a matter of law. We disagree.

Assuming that the plaintiff is able to show harassment 
sufficient to sustain a claim under Title VII or § 1981, there are

The discriminatory intent element can be proven “by 
direct or circumstantial evidence. The trier of fact should 
consider all the evidence. . . . ” United States Postal Se/v. Bd. of 
Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S. Ct. 1478, 
1481 n. 3, 75 L. Ed. 2d 403 (1983). Thus, the juiy properly 
could have considered evidence of discriminatory acts at the 
Western Way facility directed at employees other than the 
plaintiff, as tending to show the existence of racial animus in 
the present case.

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two theories under which a corporate defendant can be held 
liable for hostile environment harassment at the workplace.
First, where the hostile environment is created by one who is not 
the plaintiffs employer (i.e., a co-worker) the employer may be 
held liable through respondeat superior if the plaintiff can 
establish that the employer knew or should have known of the 
harassment and failed to take remedial action. Henson, 682 F.2d 
at 9 IQ.6 The plaintiff can prove that the employer knew of the 
harassment by showing either that she complained to higher 
management or that the harassment was pervasive enough to 
charge the employer with constructive knowledge.

Second, where the harasser is himself the plaintiff’s 
employer, or an agent of the employer, the employer is directly, 
rather than indirectly liable for the harassment. Sparks, 830 F.2d 
at 1558. Under this scenario “respondeat superior theory does 
not apply and plaintiff need not establish that she gave anyone 
notice of the harassment.” Id.; Horn v: Duke Homes, Div. of 
Windsor Mobile Homes, Inc., 755 F.2d 599, 604 (7th Cir. 1985). 
Thus, a jury could properly hold the company liable for damages 
under § 1981 by finding that the illegal acts were committed by 
someone deemed to be the plaintiffs employer. In such a case, 
“whether his superiors know or should have known what he did 
is irrelevant. . . .” Hunter v. Allis-Chalmers Coip., Engine Div., 797 
F.2d 1417, 1422 (7th Cir. 1986) (emphasis in original).

In order for this court to uphold the district court’s ruling 
that the plaintiff failed to prove Southern Bell’s liability for the 
acts committed by Wagner and others, the evidence must show 
that no reasonable jury could have found Southern Bell liable 
under either of the two theories outlined above. We must

6In Henson, we assumed that the supervisor alleged to 
have created the hostile environment was not the plaintiffs 
employer. Id. at 905 n. 9.

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therefore determine whether the evidence in this case is 
sufficient to create a jury question under either the theoiy of 
respondeat superior, or direct liability through an agent of 
Southern Bell,

A. Respondeat Superior

In its order granting JNOV, the district court ruled that even 
if the plaintiff had proved a violation of § 1981, Southern Bell 
could not be held liable for damages for hostile environment 
harassment. The court gave two reasons. First, assuming that 
the jury could have accepted the plaintiffs inference that 
Wagner hung the noose over her work station, she “failed to 
introduce any evidence that the Company knew of this,” and 
thus it could not be liable under Henson. Vance, 672 F. Supp. at 
1413. However, as previously noted, this court has held that an 
employer may be liable for the discriminatory acts of a non- 
management employee if “the harassment was so pervasive that 
an inference of constructive knowledge arises.” Huddleston v. 
Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir, 1988); 
Henson, 682 F.2d at 910.

We believe that given all the evidence, a reasonable jury 
could have found that higher management should have known 
that the plaintiff was subjected to racial harassment. The jury 
must be permitted to consider all the evidence before it when 
making the factual determination of whether higher 
management should have been aware of the alleged harassment. 
By examining only the noose incidents, and finding that it was 
unreasonable for the [*1513] jury to charge the company with 
constructive knowledge of them, the district court failed to 
consider that the jury may properly have based a finding 
regarding the company’s constructive knowledge on evidence 
other than that concerning the nooses. Just as the determination 
of whether conduct is sufficiently “severe and pervasive” to 
constitute actionable harassment requires evaluation of the 
totality of the circumstances, the factfinder here must examine 
the evidence in the same manner. Again the egregiousness, as

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well as the number of the incidents, is plainly relevant.

Second, the district court held that the failure of the plaintiff 
to give the company timely notice and the provision by Southern 
Bell of adequate grievance procedures insulated the company 
from liability.7 However, we conclude that in this case, the 
question was more properly one for the trier of fact. In Meritor, 
a sexual harassment case, the Supreme Court addressed the 
defendant’s argument that its grievance procedures, along with 
the plaintiff’s failure to provide the company with notice, 
protected the defendant from liability. The Court held first, that 
“absence of notice to an employer does not necessarily insulate 
that employer from liability.” Meritor, 477 U.S. at 72, 106 S. Ct. 
at 2408. Next, the Court ruled that the availability of avenues for 
redress of an employee’s grievances does not necessarily leave 
the employer free of liability:

7The district court stated:

Plaintiff testified that she did not immediately 
report the incident to any other supervisor even 
though other supervisors were available, and 
additionally, other supervisors were black. 
D efendant’s procedures for reporting a 
grievance were adequate to encourage alleged 
victims of harassment to come forward, even 
if the alleged harassment was perpetrated by 
a direct supervisor. Plaintiff’s failure to report 
the incident to any management personnel 
insulated the Company from liability in this 
case. See Meritor, 106 S. Ct. at 2409. Plaintiff’s 
silence prevented the Company from taking 
reasonable steps to prevent future harassment.. .

Vance, 672 F. Supp. at 1413.

A-46



We reject petitioner’s view that the mere existence 
of a grievance procedure and a policy against 
discrimination, coupled with respondent’s failure to 
invoke that procedure, must insulate petitioner from 
liability. While those facts are plainly relevant, the 
situation before us demonstrates why they are not 
necessarily dispositive. Petitioner’s general non­
discrimination policy did not address sexual 
harassment in particular, and thus did not alert 
employees to their employer’s interest in correcting 
that form of discrimination. App. 25. Moreover, the 
bank’s grievance procedure apparently required an 
employee to complain first to her supervisor, in this 
case Taylor. Since Taylor was the alleged 
perpetrator, it is not altogether surprising that 
respondent failed to invoke the procedure and 
report her grievance to him. Petitioner’s contention 
that respondent’s failure should insulate it from 
liability might be substantially stronger if its 
procedures were better calculated to encourage 
victims of harassment to come forward.

Id. at 72-73, 106 S. Ct. at 2408-09.

In several respects, the facts concerning notice and 
grievance procedures in this case are similar to those in Meritor. 
Vance testified that she did not report the noose incident 
because she was scared. Referring to the first noose incident, 
Vance testified:

I didn’t know who had [hung the noose]. I didn’t know 
anyone in that warehouse. I may have been talking to the 
person actually that did this thing. So that is why I didn’t 
say anything. (R.7-283).

When asked to explain why she did not bring the noose

A-47



to the attention of Wagner or Sellars after the second 
time it was hung at her workbench, the plaintiff 
testified:

I felt that something was terribly wrong at Western Way.
I didn’t know Mr. Sellars, I didn’t know Mr. Wagner.
But for something like this to be allowed, someone had 
to know something, but I was too afraid to ask. (R.7- 
286).

We believe that a jury reasonably could have found that the 
plaintiffs testimony was credible, and that Southern Bell’s 
grievance procedures did not rise to the [*1514] level 
necessary to insulate the company from liability under Meritor,8 
Thus we find that the district court erred in ruling that Southern 
Bell’s grievance procedures insulated the company from liability 
as a matter of law.

B. Direct Liability

In Meritor, the Supreme Court addressed the issue of when a 
corporate defendant will be liable under Title VII for the acts of 
specific employees. The Court declined to issue a definitive

sIn Henson, we rejected the argument that an employer may 
escape liability for harassment by taking subsequent remedial 
action. “Such action by the employer may, of course, mitigate 
damages, but it in no way affects an employer’s liability.”
Henson, 682 F.2d at 910 n. 19. In any event, the plaintiff 
produced substantial evidence that Southern Bell failed to 
investigate the noose incidents even after they were brought to its 
attention. Therefore, to the extent that the district court based its 
order granting JNOV on its conclusion that the “plaintiff’s 
silence prevented the Company from taking reasonable steps to 
prevent future harassment or to remedy past harassment,”
Vance, 672 F. Supp. at 1413, the court erred.

A-48



rule, but held that courts should look to common law agency 
principles for guidance in this area. Id. at 72, 106 S. Ct. at 2408. 
We have held that where a plaintiff’s alleged harasser acts as an 
agent of the employer, the harasser is the employer for purposes 
of Title VII. Huddleston, 845 F.2d at 904; Sparks, 830 F.2d at 
1557-59.9 “This liability is direct; the employer cannot find 
shelter in the claim that it neither had notice of, or approved of, 
the unlawful conduct.” Sparks, 830 F.2d at 1559; 29 C.F.R. § 
1606.8(c) (1988).

In Sparks we reversed a grant of summary judgment for the 
defendant in a sexual harassment action brought against the 
plaintiff’s employer under Title VII. The district court had ruled 
that under Henson the plaintiff could not prevail because she 
had failed to allege that higher management knew or should 
have known that she was being harassed by her manager. We 
ruled that the district court had misconstrued Henson:

In applying the respondeat superior requirement 
of Henson, . . .  the district court overlooked the 
fact that the Henson court’s decision to employ 
respondeat superior theory rested on its assumption 
that the plaintiff’s alleged harasser was her 
supervisor but not her “employer.” Henson, 682

942 U.S.C. § 2000e(b) (1982) provides in pertinent part:

(b) The term “employer” means a person 
engaged in an industry affecting commerce 
who has fifteen or more employees for each 
working day in each of twenty or more calendar 
weeks in the current or preceding calendar 
year, and any agent of such a person. . . . 
(emphasis added). We find that agency 
principles are similarly applicable where, as 
here, the harassment claim is brought under §
1981.

A-49



F.2d at 905, n. 9. Here, in contrast, Sparks alleges 
that Long was both her supervisor and her 
'‘employer,” as that term is defined under Title VII,

830 F.2d at 1557 (emphasis in original).

Similarly, the plaintiff in this case alleges that Wagner was 
an agent of the company for direct employer liability purposes. 
We must therefore ascertain whether the plaintiff produced 
substantial evidence at trial upon which the jury reasonably 
could have predicated a finding of direct liability through an 
agent of the company.10 Specifically, we must determine 
whether the individual parties alleged to have committed acts of 
harassment against the plaintiff could be considered agents of 
Southern Bell.

Several courts, including ours, have held that in so called 
“tangible job detriment” harassment cases, a supervisory 
employee acts as an agent of his employer under [ * 1515 ] Title 
VII when that employee uses the authority delegated to him by 
the employer to harass the plaintiff. In Sparks, a tangible job

10The district court correctly instructed the jury that the 
plaintiff could show the defendant’s knowledge of the alleged 
harassment in one of two ways: either that “someone in a 
position of authority knew or should have known” of the 
harassment, or “that a supervisor acting within his or her 
scope of employment with the defendant, as an agent of the 
defendant, intentionally harassed the plaintiff because of her 
race. . . .” (R. 10-161).

However, in its order granting the defendant’s motion for 
JNOV, the court apparently ignored the possibility that the 
jury based its verdict on an agency theory, and held that 
Vance’s failure to provide notice to higher management 
insulated Southern Bell from liability. This constitutes 
reversible error.

A-50



detriment case, we adopted the liability standard proposed by 
the EEOC in its amicus brief in Meritor11 which would hold an 
employer directly liable for the actions of a supervisor “where 
[the] supervisor exercises the authority actually delegated to him 
by his employer, by making or threatening to make decisions 
affecting the employment status of his subordinates.” Sparks, 
830 F.2d at 1559 (quoting Meritor, 477 U.S. at 70, 106 S. Ct. at 
2407).12 However, in that case, we found that the standard for 
determining an agency relationship in tangible job detriment 
cases was not necessarily applicable in other types of harassment 
cases:

We need not address the issue raised by the EEOC, 
and not resolved by the Supreme Court, in Vinson: 
what rule should govern the employer’s liability for 
sexual harassment by its supervisors where the 
sexual harassment claim rests “exclusively” on a 
“hostile environment” theory, in that the supervisor 
neither explicitly nor implicitly threatened to use 
his authority against the victim.

Id. at 1560 n. 9 (citation omitted).

We believe that an agency standard which looks solely to the 
degree of authority the harasser wields over the plaintiff is not 
particularly useful in a hostile environment case such as this one. 
As we stated in Henson, “the capacity of any person to create a

uIn Meritor, the Court stated the position proposed by the 
EEOC, but declined to rule on it. 477 EJ.S. at 72, 106 S. Ct. at 
2408.

12See also Miller v. Bank of America, 600 F.2d 211, 213 (9th 
Cir. 1979) (company held liable “where the action complained 
of was that of a supervisor, authorized to hire, fire, discipline 
or promote, or at least to participate in or recommend such 
actions, even though what the supervisor is said to have done 
violates company policy.”)

A-51



hostile or offensive environment is not necessarily enhanced or 
diminished by any degree of authority which the employer 
confers upon that individual.” Henson, 682 F.2d at 910. While 
the supervisor’s direct authority over the plaintiff must be 
considered as a relevant factor, we believe that courts should 
also examine any evidence bearing on the overall structure of the 
workplace, including the relative positions of the parties 
involved. We agree with the EEOC Guidelines, which state that 
it is necessary to examine the circumstances of the particular 
employment relationship and the job functions performed by the 
individual in determining whether an individual acts in either a 
supervisory or agency capacity. 29 C.F.R. § 1606.8(c) (1988).

In Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1986), the 
court found two supervisors to be agents of the fire department 
“despite their intermediate standing within the Department’s 
hierarchy,” based partly on their “authority over matters such as
car assignments and the staffing of shifts___” Id. at 442.
Similarly, the plaintiff in the present case presented evidence 
that as her supervisor, Wagner had the authority to suspend 
employees, place discipline reports in employee personnel files, 
handle union grievance proceedings, and make personnel 
changes in his department.

Thus we believe that the plaintiff produced evidence from 
which a reasonable jury could conclude that in creating a hostile 
work environment, Wagner acted as an agent of Southern Bell 
under the standard outlined above. The district court therefore 
erred by ruling otherwise.

V. Motion for New Trial

The district court also ruled that were it not for the fact that 
the defendant’s motion for JNOV is granted, the court would 
grant the defendant’s motion for a new trial. The court found 
that the verdict was contrary to the great weight of the evidence,

A-52



and that the relief awarded was grossly excessive so as to shock 
the conscience of the court. Vance, 672 F. Supp. at 1415.

In a motion for a new trial, the court is free to weigh the 
evidence. Kingv. Exxon Co., USA., 618 F.2d 1111, 1115 [*1516] 
(5th Cir.1980).13 The court’s decision on a motion for a new trial 
is given great deference and is reversible only for a clear abuse 
of discretion. Rabun v. Kimberly-Clark Corp., 678 F.2d 1053,
1060 (11th Cir.1982). We believe that the grant of a new trial was 
within the discretion of the trial court, and we affirm the court’s 
order.

The jury awarded the plaintiff $ 42,000.00 in back pay. 
However, the district court ruled that because Vance received 
her full salary for thirteen weeks, and half pay for seventeen 
weeks after she stopped work, she received only $4,262.75 less 
than she would have earned had she not stopped working.
Vance, 672 F. Supp. at 1415. Thus we believe that the court’s 
ruling that the award of back pay was grossly excessive was 
within its discretion.

The jury also awarded Vance $ 500,000.00 in front pay, for 
future lost wages. Front pay is available to a plaintiff who has 
been wrongfully discharged or forced to stop working, as a 
means of making her whole. See Nord v. United States Steel 
Corp., 758 F.2d 1462, 1473-74 (11th Cir. 1985). The plaintiff’s 
expert testified that reduced to present value, Vance’s maximum 
lost pay over the course of her remaining working life (27 years) 
would be $ 390,404.00. Although the plaintiff argues that the 
loss of future fringe benefits could bring this figure to 
$500,000.00, we believe that the trial judge's ruling that this 
amount is grossly excessive must be affirmed.

13For a discussion of the subtle differences between a 
motion for a JNOV and a new trial see Bazile v. Bisso Marine 
Co., 606 F.2d 101 (5th Cir. 1979).

A-53



The plaintiff was awarded $ 500,000.00 for mental distress, 
emotional harm or humiliation caused by racial discrimination. 
Although the plaintiff produced evidence that she did suffer 
from stress caused by the hostile environment at the workplace, 
the trial judge correctly noted that there were many other 
unpleasant factors in her life which almost certainly contributed 
to her mental distress. Vance, 672 F. Supp. at 1416. The court 
also noted that the plaintiff is presently fully capable of working 
and leading a normal life. Thus we believe that the trial judge’s 
ruling that these damages were grossly excessive must also be 
affirmed.

Finally, we find that it was within the discretion of the trial 
judge to rule that the award of $ 2.5 million in punitive damages 
was excessive. Even if the jury were properly able to conclude 
that the defendant acted with reckless or callous indifference in 
gross disregard of the plaintiff, Smith v. Wade, 461 U.S. 30, 56, 
103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632 (1983), the award is 
indeed high and rather shocking in view of the totality of the 
evidence in the case. This award seems to fit a pattern outside 
the realm of reasonableness in accordance with the instructions 
given to the jury. We therefore find that the size of each of the 
damage awards when considered in light of the evidence 
presented supports the district court’s grant of a new trial.

The district court’s order is AFFIRMED in part, 
REVERSED in part, and REMANDED for a new trial.

A-54



APPENDIX II-

Vance v. Southern Bell Telephone 
672 F. Supp. 1408 (M.D.

B

and Telegraph Co., 
Fla. 1987)



Mary Ann Vance, Plaintiff, 
v.

Southern Bell Telephone and Telegraph Company, Defendant 

Vance v. Southern Bell Tel. & Tel. Co.

No. 86-227-Civ-J-16

UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF FLORIDA, 

JACKSONVILLE DIVISION

672 F. Supp. 1408; 1987 U.S. Dist. LEXIS 10749; 44 Fair 
Empl. Prac. Cas. (BNA) 1079; 44 Empl. Prac. Dec. (CCH)

P37,313

August 11, 1987, Decided and Filed; Affirmed in part 
Reversed in part and Remanded January7 23, 1989

COUNSEL:

Scott Fortune for Plaintiff.

Guy O. Farmer, II of Smith & Hulsey for Defendant.

OPINION BY: MOORE

OPINION: [*1409] ORDER

John H. Moore II, United States District Judge

This cause is before the Court upon the Defendant’s, 
SOUTHERN BELL TELEPHONE AND TELEGRAPH 
COMPANY (Southern Bell), motions for judgment 
notwithstanding the verdict and for a new trial or to alter or 
amend the judgment.

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Plaintiff, a black woman, commenced this action on March 
27, 1986, pursuant to [*1410] 42 U.S.C. §§ 1981,1985(3) and 
1986, alleging that Southern Bell and numerous other named 
individuals discriminated against her because of her race and 
sex. Prior to the jury trial on April 6, 1987, the Plaintiff 
announced that she would not seek to hold the individual 
defendants liable. At the end of her case Plaintiff moved to 
dismiss the counts alleging violations under 42 U.S.C. §§ 1985(3) 
and 1986. The jury trial proceeded against the Defendant, 
SOUTHERN BELL, solely on the basis of 42 U.S.C. § 1981. On 
April 13, 1987, the jury returned its verdict in favor of the 
Plaintiff and established Plaintiff’s damages for past lost wages, 
future lost wages, mental distress, emotional harm or 
humiliation, past medical expenses and punitive damages. The 
Court entered judgment on April 14, 1987, and the Defendant 
timely filed its motion which is here under consideration.

Considering all of the evidence and reasonable inferences 
therefrom in the light most favorable to the Plaintiff, as this 
Court must do, the Court finds that Defendant’s motion for 
judgment notwithstanding the verdict should be granted.

Findings of Fact

The Plaintiff commenced work for the Defendant 
approximately in March, 1972. Although the Plaintiff had some 
attendance problems, she generally had a good record and was 
considered an acceptable employee of Southern Bell. She had 
worked in various capacities and at various locations; however, 
until 1984 she had not worked at the facility where she contends 
the discrimination occurred. The Plaintiff bid for a job at the 
Defendant’s Western Way facility as a material services 
coordinator. While such a move was a step up in salary, it was 
considered a step down in job classification.

Prior to her bid being accepted and her being transferred to 
the Western Way facility, the Plaintiff never experienced any

A-56



racial discrimination with Southern Bell, whose work force is 
made up of approximately 25 % minority members. On August 
13, 1984, the Plaintiff commenced work at the Western Way 
facility in the CONECS department under the supervision of 
Paul Wagner, a first-level supervisor.

One week after she commenced work in the CONECS 
department, Plaintiff alleges that when she reported to work she 
found a “noose” hanging from the light fixture above her work 
bench. In her opinion, this was an act of racial discrimination.
At the time of this alleged incident, there were several “imports” 
working at the Western Way facility. An “import” is an 
individual who is temporarily assigned at the facility, having 
come from another of Southern Bell’s facilities. The Plaintiff 
testified that Mr. Oliver, a white co-worker, told one of the 
“imports” to take the “noose” down. However, contrary to her 
testimony, one of the witnesses she called, a Mr. Ball, testified 
that he took the “noose” down on the first occasion. Mr. Ball 
also was a co-worker. Two days later, approximately August 22, 
1984, Plaintiff reported for work and again found the “noose” 
hanging from the light fixture. This time, she testified, she took 
the “noose” down and buried it in some trash. Neither she nor 
anyone else has seen the “noose” since then. She did not report 
either of these two incidents to anyone.

There is no evidence as to who allegedly hung the noose. At 
a grievance hearing conducted pursuant to the collective 
bargaining agreement on January 9, 1985, approximately 4-1/2 
months after the alleged noose incidents, the Plaintiff first 
mentioned the noose to management. At that hearing, Mr. 
Albert Sellars, the manager of the Western Way warehouse, 
stated that “Paul probably did it to increase productivity.” This 
statement undisputably referred to Mr. Paul Wagner. Mr.
Wagner testified that he made a similar device for the purpose of 
de-sheathing cable; however, that device was ultimately replaced 
by a more sophisticated arrangement involving a winch. It is 
obvious that the remark regarding an increase in productivity

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related to the fact that Mr. Wagner had made the device; not 
that he hung it over the Plaintiff’s workbench.

[*1411] On September 9, 1984, the Plaintiff received her 
first transfer and was transferred from the CONECS to the 
Repair and Returns department under the supervision of Walter 
Stembridge, another first-level supervisor. During her tenure 
under Mr. Stembridge, Plaintiff contends that she did not receive 
adequate training. No evidence was presented to show that 
anyone else received any more or less training then she did. In 
fact, evidence was presented that on two occasions outside 
trainers were called in to train the entire section, including 
Plaintiff, that Mr. Stembridge personally trained her on at least 
one occasion, and that Plaintiff was trained by Mr. Williams who 
was one of the most experienced people in the group.

On September 18, 1984, while Plaintiff was still working in 
the Repairs and Returns department, Mr. Tommy Lee Sampson, 
a black manager of Employment and Selections from Southern 
Bell’s main office, contacted the Plaintiff about an allegation 
that she falsely omitted information about a traffic violation on a 
transfer application. The Plaintiff was suspended by Mr.
Sampson for two days without pay as a result of this omission. 
Ultimately, Mr. Sampson reduced the disciplinary record to a 
warning entry, but refused to authorize reimbursement for the 
two days pay. The Plaintiff alleges that several black employees 
were disciplined in a similar manner, but that a white employee, 
Mr. Clyde Oliver, was not treated similarly. Mr. Oliver received 
a written warning for failing to report a conviction for stealing 
gasoline when he was 16 years of age. In determining the 
discipline to be imposed in each instance, Mr. Sampson 
explained that he took into consideration various matters such as 
prior infractions, when the subject infraction occurred, and the 
age of the individuals involved. At the time he was disciplined, 
Mr. Oliver was in his late 30’s and purportedly had an otherwise 
clean record. At the time the Plaintiff was disciplined, the 
violation that she falsely omitted from her application was about

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three years old, and her record at Southern Bell contained other 
past disciplinary problems.

A grievance hearing concerning the discipline imposed was 
conducted on October 16, 1984. Both Mr. Sampson and Plaintiff 
testified at trial that Plaintiff became upset and cried during this 
meeting. At the conclusion of the hearing, she returned to work 
in the Repairs and Returns area, whereupon an “altercation” 
ensured between Plaintiff and Ms. Joyce Foskey Blackwood. 
Their supervisor, Mr. Stembridge, immediately suspended both 
women without pay. Mr. Blackwood grieved her suspension, and 
after investigating the altercation, the company rescinded the 
suspension and paid Ms. Blackwood her wages. Plaintiff also 
grieved her suspension, but the company did not grant her 
grievance.

Plaintiff alleges that this unequal treatment was racially 
motivated. The evidence, however, was that independent 
investigations were conducted by Defendant’s security 
department, by the union, and by the supervisor. All three 
investigations resulted in a findings that Plaintiff struck Ms. 
Blackwood, and that Ms. Blackwood did not strike Plaintiff. 
Moreover, Plaintiff testified that she did, in fact, hit Ms. 
Blackwood.

On November 15, 1984, Plaintiff suffered an “anxiety 
attack” while at work. Plaintiff alleges that she, or another 
person, asked Mr. Stembridge to take her to Baptist Flospital, 
but that Mr. Stembridge instead took her to Memorial Hospital 
as an act of intentional racial discrimination. The evidence was 
inconclusive as to whether Mr. Stembridge heard Plaintiff ask to 
be taken to Baptist Hospital or whether he knew why Plaintiff 
wanted to go there. Plaintiff and her doctor, Dr. Alexander 
Rosin, testified that the doctor was to meet her at Baptist, and 
that Plaintiff had told him of the racial discrimination she had 
been suffering. About a week before the “anxiety attack,” Dr. 
Rosin sent a letter “To Whom It May Concern” at Southern Bell,

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stating that Plaintiff told him she was experiencing “undue 
pressure and harassment on her job,” and that “her statements 
sounded quite legitimate” to him. Again, the evidence was 
inconclusive as to whether Mr. Stembridge ever received this 
letter, [*1412] or whether Mr. Stembridge knew Dr. Rosin 
would be at Baptist Hospital.

As a result of Plaintiffs “anxiety attack,” she remained out 
on sick leave, with full pay, from November 15, 1984 until 
January 10, 1985. On January 9, 1985, Plaintiff and Defendant 
attended the grievance hearing concerning the discipline 
Plaintiff received after the altercation with Ms. Blackwood. The 
union initially requested that Plaintiff be disciplined in the same 
fashion as Ms. Blackwood. Defendant would not agree to this 
because the investigations indicated Plaintiff struck Ms. 
Blackwood. Defendant, however, tried to negotiate a settlement. 
One offer by Defendant was that Plaintiffs suspension would be 
reduced to 1/2 day if Plaintiff would drop her Jacksonville 
EEOC (JEOC) complaint against Defendant. Plaintiff refused 
the offer and her discipline remained as initially given.

Plaintiff claims that this attempt to settle her grievance is 
racial discrimination because the JEOC complaint was unrelated 
to the grievance hearing and the JEOC complaint contained a 
charge of racial discrimina-tion. The evidence given at trial, 
however, was that the attempted settlement was simply for 
negotiating Plaintiffs grievance. Ms. Nancy Murray, 
Defendant’s staff manager of labor relations, testified that such 
negotiations are attempted frequently, regardless of what the 
JEOC complaint is about, and regardless of the person’s race. 
Ms. Murray also testified that the union representative for 
Plaintiff accepted the proposal concerning Plaintiff, but that 
Plaintiff would not accept it.

Plaintiff also alleges that Defendant’s refusal to transfer her 
to different sections within the warehouse was the result of racial 
discrimination. However, Plaintiff produced no evidence that

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Defendant, in fact, refused to transfer Plaintiff. Plaintiff 
submitted letters from her doctor requesting a transfer, but she 
never submitted evidence that she complied with the procedures 
necessary for transfer under the working agreement with the 
union. Evidence was given that Defendant transferred other 
employees without the employees first complying with the 
technical procedures. Finally, Mr. Sellers testified that in March, 
1985 a position was available in another section, and Defendant 
transferred Plaintiff before transferring senior people who had 
submitted transfer requests. This was Plaintiff’s second transfer 
within approximately seven months.

There was testimony regarding other incidents, none of 
which involved the Plaintiff. In one, a black employee was 
rebuked by white employees to sit at a different table in the 
lunch room. She refused, and no further trouble ensured. 
Another involved the repetition of a racial slur which occurred at 
a different location approximately three hundred fifty miles 
away. A first-line supervisor at the Western Way facility was 
reprimanded for having repeated the story.

Additional Findings of Fact and Conclusions of Law

On motions for directed verdict and for judgment 
notwithstanding the verdict the Court should 
consider all of the evidence — not just that evidence 
which supports the non-mover’s case — but in the 
light and with all reasonable inferences most 
favorable to the party opposed to the motion. If the 
facts and inferences point so strongly and 
overwhelmingly in favor of one party that the Court 
believes that reasonable men could not arrive at a 
contrary verdict, granting of motions is proper. . .

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A mere scintilla of evidence is insufficient to present a
question for the jury. . . There must be a conflict in
substantial evidence to create a jury question.

Neff v. Kehoe, 708 F.2d 639, 641-42 (11th Cir. 1983) (quoting 
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)).

Claims of discrimination under § 1981 are analyzed within 
the framework established in McDonnell Douglas Coip. v. Green, 
411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Smith v. 
Papp Clinic, P.A., 808 F.2d 1449, 1451 (11th Cir. 1987). Under 
this framework, Plaintiff first must present a prima facie case of 
race discrimination. This is done by showing that Plaintiff 
[*1413] belongs to a racial minority and that the Defendant 
treated Plaintiff differently from non-minority employees 
similarly situated. Once presented, the burden of production 
shifts to the Defendant “to articulate some legitimate, 
nondiscriminatory reason” for its employment decisions. Texas 
Dept, of Community Affairs v: Burdine, 450 U.S. 248, 258, 67 L. 
Ed. 2d 207, 101 S. Ct. 1089 (1981). If the Defendant does proffer 
nondiscriminatory reasons for its actions, Plaintiff must prove, 
by a preponderance of the evidence, that Defendant’s proffered 
reasons are not the real reasons, but are a pretext for 
discrimination. This burden merges with the ultimate burden of 
persuading the jury that Plaintiff was “the victim of intentional 
discrimination.” Smith v. Papp Clinic, 808 F.2d at 1451.

Plaintiff alleged that the discrimination she suffered was in 
the form of harassment. Therefore, she additionally had to prove 
that the actions directed toward her were not isolated, trivial, or 
incidental, but were so numerous as to constitute persistent, 
widespread customs or practices. Plaintiff had to show that the 
alleged harassment denied her the same right to make and 
enforce her contract of employment as was enjoyed by white 
citizens. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. 
Ct. 2399, 2405-06, 91 L. Ed. 2d 49 (1986). Plaintiff also had to 
prove that the Defendant company knew or should have known

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of this harassment. Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 
1986). Plaintiff could have proved this by showing that she 
complained to higher management of the harassment, or that the 
harassment was pervasive, thus putting higher management on 
constructive notice. Henson v. City o f Dundee, 682 F.2d 897 905 
(11th Cir. 1982).

This Court finds that Plaintiff failed to offer proof that the 
Defendant intentionally discriminated against her because of her 
race. The evidence, viewed in the light most favorable to 
Plaintiff, concerning the noose incidents was that a noose was 
hung over Plaintiff’s desk on two different occasions. Two 
incidents are not enough to establish that the alleged harassment 
was a persistent, pervasive practice. Henson, 682 F.2d at 904; 
Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986).

The evidence also showed that Plaintiff’s supervisor, Paul 
Wagner, created a device to de-sheath cable and that that device 
resembled a noose. Accepting Plaintiff’s inference that Mr. 
Wagner hung the noose over Plaintiff’s desk, Plaintiff failed to 
introduce any evidence that the Company knew of this. Plaintiff 
testified that she did not immediately report the incident to any 
other supervisor even though other supervisors were available, 
and additionally, other supervisors were black, defendant’s 
procedures for reporting a grievance were adequate to 
encourage alleged victims of harassment to come forward, even 
if the alleged harassment was perpetrated by a direct supervisor. 
Plaintiff’s failure to report the incident to any management 
personnel insulated the Company from liability in this case. See 
Meritor, 106 S. Ct. at 2409. Plaintiff’s silence prevented the 
Company from taking reasonable steps to prevent future 
harassment or to remedy past harassment.

Plaintiff failed to establish a prima facie case of racial 
discrimination with respect to her claim that she received 
inadequate training. Plaintiff did not introduce evidence that 
Defendant treated her differently from non-minority employees

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similarly situated.

Plaintiff established a prima facie case of racial 
discrimination with respect to the discipline she received as a 
result of the false entry on an application; i.e., the omission of a 
traffic violation. However, Defendant successfully offered 
legitimate, non-discriminatory reasons for the discipline.
Plaintiff failed to introduce any evidence to prove that these 
reasons were a pretext for intentional discrimination. 
Furthermore, Plaintiff failed to explain how the black manager, 
Mr. Sampson, could racially discriminate against a black 
employee.

Plaintiff also established a prima facie case of racial 
discrimination with respect [*1414] to the discipline she 
received as a result of the altercation she had with Ms. 
Blackwood. Ms. Blackwood, a white woman, successfully grieved 
her suspension, but Plaintiff did not successfully grieve hers. 
Defendant articulated a legitimate, nondiscriminatory reason for 
the differences in the two women’s cases. Defendant offered 
evidence that investigations resulted in a finding that Plaintiff 
struck Ms. Blackwood.

Plaintiff attempted to rebut Defendant’s proffer of the 
nondiscriminatory reasons for the harsher discipline by 
presenting evidence that an altercation between a white man and 
a white woman resulted in a lesser discipline for them than that 
Plaintiff received. These people were involved in a “tug-of-war” 
over a cart. As a result of this altercation, both received warning 
entries in their records. The testimony concerning the tug-of-war 
altercation revealed that no one struck any blows, and that most 
of the employees who witnessed it thought the two people were 
playing. Moreover, the two people worked different shifts, so 
they did not have to be suspended immediately in order to “cool 
off,” as was the case with Plaintiff and Ms. Blackwood. Thus, the 
evidence showed that the two altercations were not similar. 
Moreover, this evidence did not prove that the reason for

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Plaintiff’s discipline was just a pretext for racial discrimination.

1 he evidence Plaintiff introduced concerning her “anxiety 
attack” did not establish by a preponderance of the evidence that 
the Defendant racially discriminated against Plaintiff. This claim 
of discrimination stems from the fact that her supervisor, Mr. 
Stembridge, took her to Memorial, and not Baptist, Hospital.
As stated earlier, the evidence was inconclusive as to whether 
Mr. Stembridge heard Plaintiff ask to be taken to Baptist 
Hospital. Assuming that he did hear her request, Defendant 
nonetheless offered testimony to legitimately explain the actions 
of Mr. Stembridge. Mr. Stembridge testified that he took 
Plaintiff to Memorial Plospital because he believed it was the 
closer hospital and also because it was the hospital normally 
used by Defendant for employees.

Plaintiff attempted to rebut this testimony by claiming Mr. 
Stembridge did not want to take her to see her doctor at Baptist 
because to do so would verify, for the doctor, her claim of racial 
discrimination. Plaintiff cites the letter Dr. Rosin sent to 
Southern Bell as evidence that Mr. Stembridge knew Dr. Rosin 
was aware of racial discrimination at the warehouse, and thus 
that Mr. Stembridge desired to avoid the doctor. The inference 
Plaintiff tried to establish simply is not reasonable. No evidence 
was introduced to show that Plaintiff ever complained to anyone 
at Southern Bell of racial discrimination prior to this incident.
No evidence was introduced to show that Mr. Stembridge ever 
saw or read Dr. Rosin’s letter. More important, however, is that 
Dr. Rosin’s letter does not mention racial discrimination. The 
letter stated only that Plaintiff told him about “undue pressure 
and harassment.” this “mere scintilla” of evidence is insufficient 
to create a conflict in substantial evidence. Neff v. Kehoe, 708 
F.2d at 642.

Plaintiff also failed to create a conflict in substantial 
evidence on her claim that Defendant racially discriminated 
against her in its attempt to settle her grievance of her

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“Blackwood altercation” discipline. This claim revolves around 
Defendant’s offer to reduce Plaintiff’s suspension to 1/2 day if 
she would drop an unrelated JEOC complaint against 
Defendant. Defendant offered evidence that negotiations such 
as this take place frequently, regardless of the party’s race or the 
content of the JEOC complaint. Plaintiff offered no evidence in 
rebuttal, and therefore, did not sustain her burden of proving 
intentional discrimination.

Finally, Plaintiff failed to establish a prima facie case on her 
claim that Defendant’s refusal to transfer her was the result of 
racial discrimination. The evidence indisputably showed that 
Plaintiff did not comply with the technical procedures necessary 
to effect the transfers she desired. Evidence also was given that 
Defendant transferred other employees without [*1415] the 
employees first complying with the technical procedures. The 
transferred employees were, like Plaintiff, black but were, unlike 
Plaintiff, in supervisory positions. A finding of intentional racial 
discrimination under § 1981 cannot be based on evidence that 
Defendant failed to treat Plaintiff, a black hourly employee, the 
same as it treated black supervisory employees.

In considering all of the evidence in the light and with all 
reasonable inferences most favorable to the Plaintiff, the Court 
concludes that the facts and inferences are strongly and 
overwhelmingly in favor of the Defendant. Therefore, the Court 
believes that reasonable men could not arrive at a verdict for 
Plaintiff. In addition to the above evidence, other evidence 
presented at trial indicates that Defendant made every possible 
concession to Plaintiff. Plaintiff began working at the Western 
Way facility in August, 1984. After three months, she took a 
disability leave, with full pay, for two months, until January,
1985. She returned to the warehouse for a month and then took 
another month off with full pay. In March, 1985, she went back 
to work at the facility and continued for seven months, or until 
October, 1985. On October 14, 1985, Plaintiff left the warehouse 
and, to date, has never returned. She received full pay for three

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months after leaving, and then received half pay for an 
additional nine months. From August, 1984 to October, 1986, 
Plaintiff was physically in the warehouse working for Defendant 
for a total of eleven (11) months. During that time Plaintiff 
received, from Defendant, her full salary for seventeen (17) 
months and half salary for nine (9) months. The Court finds that 
no conflict in substantial evidence exists and Defendant’s motion 
for judgment notwithstanding the verdict should be granted.

In the alternative, were the Court not to grant Defendant’s 
motion for judgment notwithstanding the verdict, Defendant’s 
motion for a new trial should be granted. The relief awarded by 
the jury to the Plaintiff is contrary to the great weight of the 
evidence. Moreover, the relief awarded is grossly excessive and 
is thus indicative of bias, passion, and prejudice so as to shock 
the conscience of the court. Jackson v. Magnolia Brokerage Co., 
742 F.2d 1305 (11th Cir. 1984), cert, denied, 472 U.S. 1008, 86 L. 
Ed. 2d 720, 105 S. Ct. 2704 
(1985).

The jury awarded Plaintiff $ 42,000.00 for past lost wages 
and fringe benefits (back pay). This amount is contrary to the 
great weight of the evidence. The evidence presented at trial was 
that Plaintiff’s salary was, and would have been, $ 501.50 a week. 
Had Plaintiff reported to work from October 15, 1985 (the day 
she left the Western Way warehouse) to May 1, 1986 (the day 
Plaintiff and all employees at the Western Way warehouse 
became employees of BellSouth Services) she would have 
received her full salary of $ 15,045.00. The evidence is 
undisputed that Plaintiff received her full salary for thirteen (13) 
weeks for a total of $ 6,519.50 and half-pay for the remaining 
seventeen (17) weeks, for a total of $ 4,262.75. Therefore, 
Plaintiff received $ 10,782.25 in salary, or just $ 4,262.75 less 
than she would have earned had she continued to work at the 
warehouse. Furthermore, Plaintiff received all of her fringe 
benefits through October, 1986. The award of $ 42,000.00 is

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Plaintiff also was awarded $ 500,000.00 for lost wages that 
she is reasonably certain to incur in the future, or front pay.
Front pay is awarded to an individual who was terminated, 
discharged or constructively discharged and is seeking 
reinstatement as part of the requested relief. O’Donnell v. 
Georgia Osteopathic Hospital, Inc., 748 F.2d 1543 (11th Cir.
1984). Front pay is appropriate to make a plaintiff whole where 
the plaintiff seeks reinstatement. This from of relief is used as 
short-term alternative. Nord v. United States Steel Corp., 758 F.2d 
1462 (11th Cir. 1985). In this case, Plaintiff was not discharged, 
was not constructively discharged, and was not seeking 
reinstatement. Therefore, front pay is not appropriate.

Even assuming that front pay is an appropriate remedy in 
this case, the [*1416] amount awarded to Plaintiff is excessive. 
Because it is a short-term alternative, front pay is computed on 
the basis of a few months or years in order to compensate the 
plaintiff for wages lost between discharge and reinstatement.
See, e.g., Goss v. Exxon Office Systems Co., 747 F.2d 885 (3rd Cir. 
1984) (four months front pay, longer period too speculative); 
McDowell v. Mississippi Power and Light, 641 F. Supp. 424 (S.D. 
Miss. 1986) (front pay for six to twelve months until plaintiff 
reaches correct level); Francoeur v. Corroon & Black Co., 552 F. 
Supp. 403 (S.D.N.Y. 1982) (front pay for one year in lieu of 
reinstatement). In the case sub judice, the front pay award was 
computed for Plaintiff’s remaining working life, or for twenty- 
seven (27) years. This award is unreasonable.

Finally, Plaintiff’s expert testified that an award of $
330.000. 00 would make her whole. The jury awarded Plaintiff $
500.000. 00. Thus, the award is shown to be excessive even by 
Plaintiff’s standards.

The jury awarded Plaintiff $ 500,000.00 to compensate her 
for the mental distress, emotional harm, or humiliation she

clearly excessive.

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suffered because of the alleged racial discrimination. This award 
is contrary to the great weight of the evidence. Plaintiff had the 
burden of proving that the alleged discrimination by the 
Defendant caused the stress that resulted in her alleged 
emotional harm or humiliation. Carey v. Piphus, 435 U.S. 247, 55 
L. Ed. 2d 252, 98 S. Ct. 1042 (1978). Plaintiff produced evidence 
that she did suffer from stress; however, the evidence she 
produced also showed that the majority of the stress she suffered 
was not created by Defendant. For example, Plaintiff was having 
trouble with her spouse because he had been named in a 
paternity suit by another woman. Moreover, Plaintiff had been in 
an automobile accident, had been having financial problems, 
had dietary problems, and had suffered with the illnesses and 
deaths of members of her family. In view of all of the evidence 
surrounding Plaintiff’s non-job related stress, she did not prove with 
sufficient certainty that the alleged discrimination by Defendant 
caused her emotional harm. Stallworth u Shuler, 111 F.2d 1431 
(11th Cir. 1985).

Even if compensatory damages were appropriate in this 
case, the award of $ 500,000.00 is excessive. Plaintiff did not 
claim, nor did she prove, that any of the alleged emotional harm 
she suffered resulted in any permanent disability. The evidence 
showed, in fact, that Plaintiff is fully capable of working and 
functioning normally. Therefore, the Court concludes that the 
jury award is the result of bias, passion, or prejudice, and cannot 
stand. Rodgers v. Fisher Body Division of General Motors Corp., 
739 F.2d 1102 (6th Cir. 1984), cert, denied, 470 U.S. 1054, 84 L. 
Ed. 2d 821, 105 S. Ct. 1759 (1985).

The award of $ 2,500,000.00 as punitive damages is contrary 
to the great weight of the evidence and is so grossly excessive as 
to shock the conscience of the Court. A finding of liability for 
intentional racial discrimination in a § 1981 action does not 
automatically entitle the Plaintiff to an award of punitive 
damages. Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. 
Ed. 2d 295, 95 S. Ct. 1716 (1975). Punitive damages are to be

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awarded only when the jury finds that the Defendant’s conduct 
was prompted by evil motives or involved reckless or callous 
indifference in gross disregard of the rights of Plaintiff. The 
award must be supported by the evidence and cannot be merely 
a windfall to the Plaintiff. Smith v. Wade, 461 U.S. 30, 75 L. Ed. 
2d 632,103 S. Ct. 1625 (1983).

In this case, Plaintiff failed to present any evidence that 
Defendant had an evil motive or showed reckless or callous 
indifference in gross disregard of her rights. Plaintiff also failed 
to show that punitive damages should be imposed to deter 
Defendant from future discriminatory conduct. The evidence 
presented to the jury was that almost twenty-five per cent of the 
Defendant’s employees are black. Moreover, the evidence 
showed that the Defendant imposed discipline against 
supervisors who used racial slurs in the warehouse, and that the 
Defendant immediately investigated any alleged discrimination. 
Therefore, the Court concludes that the award of punitive 
[*1417] damages is contrary to the great weight of the evidence.

The Court also concludes that the award of punitive 
damages is excessive. This conclusion is made after comparing 
this award with other punitive damage awards in which the 
defendant was found to have violated § 1981. See, e.g., Brown v. 
Freedman Baking Co., 810 F.2d 6 (1st cir. 1987) ($ 50,000.00 for 
each of three plaintiffs); Hunter v. Allis-Chalmers Corp., 797 F.2d 
1417 (7th Cir. 1986) ($ 25,000.00); Stallworth v. Shuler, 111 F.2d 
1431 (11th Cir. 1985) ($ 1,000.00); Ramsey v. American Filter Co., 
I l l  F.2d 1303 (7th Cir. 1985) ($ 150,000.00 reduced to $
20,000.00); Rodgers u Fisher Body Division o f General Motors, 739 
F.2d 1102 (6th Cir. 1984), cert, denied, 470 U.S. 1054, 84 L. Ed. 
2d 821, 105 S. Ct. 1759 (1985) (reversed and remanded for new 
trial because punitive damages of $ 500,000.00 excessive); 
Reeder-Baker v. Lincoln Nat. Corp., 649 F. Supp. 647 (N.D. Ind. 
1986) ($ 25,000.00). Thus, a new trial is warranted.

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In conclusion, this Court finds that each award of damages 
in this case is contrary to the great weight of the evidence, and is 
also grossly excessive. These awards cannot be anything but the 
result of bias, passion or prejudice on the part of the jury. Were 
it not for the fact that Defendant’s motion for judgment 
notwithstanding the verdict is being granted, this Court would 
grant Defendant’s motion for a new trial.

Accordingly, the Court now

ORDERS and ADJUDGES:

1. That Defendant’s motion for judgment 
notwithstanding the verdict be and the same is hereby 
GRANTED.

2. That the judgment entered herein on April 14, 1987 
be and the same is hereby VACATED.

3. That the Clerk of the Court is hereby ORDERED to 
enter judgment for Defendant, SOUTHERN BELL 
TELEPHONE AND TELEGRAPH COMPANY.

4. That Plaintiff’s motion for sanctions against 
Defendant, filed herein on June 1, 1987, be and the same is 
hereby DENIED.

5. That Plaintiff’s motion to tax costs, filed herein on June 4, 
1987, be an the same is hereby DENIED.

6. That Plaintiff’s motion for attorney’s fees, filed 
herein on June 8, 1987, be and the same is hereby DENIED.

DONE and ORDERED in Chambers at Jacksonville, 
Florida this 11 day of August, 1987.

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APPENDIX III-A

Order denying rehearing en banc



THE UNITED STATES COURT OF APPEARS 
FOR THE ELEVENTH CIRCUIT

No. 90-3559

MARY ANN VANCE,
Plaintiff-Appellee, 

Cross-Appellant,
versus,

SOUTHERN BELL TELEPHONE AND 
TELEGRAPH COMPANY, a Georgia 
corporation,

Defendant-Appellant,
Cross-Appellee,

JOYCE FOSKEY, ETAL.,
Defendants.

On Appeal from the United States District Court 
for the Middle District of Florida

ON PETITIONS! FOR REHEARING AND SI IGGESTION(S) 
OF REHEARING FN BANC

(Opinion February 5. 1993. 11th Cir., 19____, __F.2d__).

Before: TJOFLAT, Chief Judge, FAY and EDMONDSON, 
Circuit Judges.

PER CURIAM:

(X) The Petition(s) for Rehearing are DENIED and no member 
of this panel nor other Judge in regular active service on the Court 
having requested that the Court be polled on rehearing en banc 
(Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit 
Rule 35-5), the Suggestions(s) of Rehearing En Banc are DENIED.

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( ) The Petition(s) for Rehearing are DENIED and the Court 
having been polled at the request of one of the members of the 
Court and a majority of the Circuit Judges who are in regular active 
service not having voted in favor of it (Rule 35, Federal Rules of 
A ppellate Procedure; E leventh Circuit Rule 35-5), the 
Suggestion(s) of Rehearing En Banc are also DENIED.

( ) A member of the Court in active service having requested a 
poll on the reconsideration of this cause en banc, and a majority of 
the judges in active service not having voted in favor of it, Rehearing 
En Banc is DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE
ORD-42

(9/90)

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