Garner v. G. D. Searle Pharmaceuticals Co., 091514 FED11, 13-11218

Docket Nº:13-11218
Opinion Judge:PER CURIAM
Party Name:KATHY GARNER, LOULEE W. KARN, Plaintiffs - Appellees/Cross-Appellant, v. G. D. SEARLE PHARMACEUTICALS CO., Defendant-Appellant/Cross-Appellee.
Judge Panel:Before JORDAN, Circuit Judge, and RYSKAMP, and BERMAN, District Judges.
Case Date:September 15, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

KATHY GARNER, LOULEE W. KARN, Plaintiffs - Appellees/Cross-Appellant,

v.

G. D. SEARLE PHARMACEUTICALS CO., Defendant-Appellant/Cross-Appellee.

No. 13-11218

United States Court of Appeals, Eleventh Circuit

September 15, 2014

DO NOT PUBLISH

Appeals from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:90-cv-00688-MHT-CSC

Before JORDAN, Circuit Judge, and RYSKAMP, [*] and BERMAN, [**] District Judges.

PER CURIAM

In June of 1990, Kathy Garner and Loulee Karn filed this employment discrimination suit against G.D. Searle Pharmaceuticals Co. ("Searle") alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. Although the district court held a bench trial in 1993, it did not issue its opinion holding Searle liable until January of 2002. It then took more than a decade to resolve the damages issues, with a final judgment entered on February 15, 2013. This two-plaintiff employment discrimination suit thus took almost 23 years to reach a damages resolution.

In the interest of brevity, we will not repeat the district court's detailed factual findings here and will instead summarize its rulings. The district court ruled that (1) Joe Flanders, a District Manager at Searle, subjected Ms. Garner and Ms. Karn to sexual harassment "that was so severe and so pervasive that it created a hostile and abusive working environment in violation of Title VII"; (2) Searle constructively discharged Ms. Karn when she was forced to resign her position as a medical sales representative for Searle due to the sexual harassment; (3) Searle intentionally discriminated against Ms. Garner on the basis of her sex with regard to promotion, discipline, and discharge; (4) Searle retaliated against Ms. Garner for filing an EEOC charge by discharging her; and (5) Searle violated the Equal Pay Act by paying both Ms. Garner and Ms. Karn less than men for the same work. See D.E. 177 at 9, 57, 68-73. Based on after-acquired evidence, the district court limited Ms. Garner's backpay award, finding that Ms. Garner would have been discharged even in the absence of Searle's discrimination and retaliation based on her falsification of physician call reports. Id. at 75. Taking a kitchen sink approach to this appeal, the parties contest each of the rulings adverse to them.

Following review of the voluminous record, and with the benefit of oral argument, we affirm without further discussion the district court's rulings that Searle was liable for (1) Mr. Flanders' sexual harassment of Ms. Garner and Ms. Karn, (2) the constructive discharge of Ms. Karn, (3) the retaliation against Ms. Garner for filing an EEOC charge, and (4) the violation of the Equal Pay Act. The findings on which those rulings were based, in our view, were not clearly erroneous. See Lincoln v. Bd. of Regents of Univ. Sys. of Georgia, 697 F.2d 928, 940 (11th Cir. 1983) ("[T]his Court may reverse a finding of intentional discrimination only if the finding is clearly erroneous."). Because we conclude that Searle waived its exhaustion defense, we also affirm the district court's ruling that Searle intentionally discriminated against Ms. Garner on the basis of her sex with regard to promotion, discipline, and discharge. But we reverse the district court's decision allowing Searle to raise its after-acquired evidence after trial, and remand for further proceedings consistent with this opinion.

I

Searle may have had a strong argument that Ms. Garner failed to exhaust administrative remedies with respect to her promotion and discipline claims because she failed to file a timely EEOC charge alleging such discrimination. See Griffin v. Dugger, 823 F.2d 1476, 1492–93 (11th Cir. 1987) (charge for discriminatory objective testing would not support claim for subjective discriminatory discipline or promotion). See also Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628 (2007) ("The EEOC charging period is triggered when a discrete unlawful practice takes place."), superseded on other grounds by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5. But Searle waived its exhaustion defense by failing to include it in the pretrial order. See Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989) (holding that the defendant waived a defense by not raising it in a pretrial order). See also Rockwell Int'l Corp. v. United States, 549 U.S. 457, 474 (2007) ("[A] final pretrial order . . . supersede[s] all prior pleadings and control[s] the subsequent course of the action.") (internal quotation marks omitted).

Searle does not dispute that it failed to raise an exhaustion defense in the pretrial order and admits that "[c]laims not raised in the pretrial order will usually not be allowed." Appellant's Br. at 45. Searle nonetheless argues that it could still avail itself of this affirmative defense because the issue was "actually tried." Appellant's Response and Reply Br. at 24-25. See also Fed. R. Civ. P. 15(b)(2) ("When an issue not raised by the pleadings is tried by the parties' express or implied...

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