Akouri v. State of Florida Dept. of Transp., No. 04-12004.

CourtU.S. Court of Appeals — Eleventh Circuit
Writing for the CourtFay
Citation408 F.3d 1338
PartiesGeorge AKOURI, Plaintiff-Appellant Cross-Appellee, v. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant-Appellee Cross-Appellant.
Decision Date07 June 2005
Docket NumberNo. 04-12004.
408 F.3d 1338
George AKOURI, Plaintiff-Appellant Cross-Appellee,
v.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Defendant-Appellee Cross-Appellant.
No. 04-12004.
United States Court of Appeals, Eleventh Circuit.
May 11, 2005.
As Amended Sua Sponte June 7, 2005.

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COPYRIGHT MATERIAL OMITTED

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Craig L. Berman, Berman Law Firm, P.A., Saint Petersburg, FL, for Akouri.

Charles Melvin Fahlbusch, Ft. Lauderdale, FL, for State of FL Dept. of Transp.

Appeals from the United States District Court for the Southern District of Florida.

Before MARCUS, FAY and SILER*, Circuit Judges.

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FAY, Circuit Judge:


Plaintiff George Akouri ("Akouri") appeals the district court's judgment notwithstanding the jury verdict, which reduced Akouri's $700,000 jury award for back-pay and compensatory damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") to nominal damages, and the district court's denial of his motion for new trial.1 Defendant State of Florida Department of Transportation (the "DOT") cross-appeals, contending that the district court erred in denying its motion for summary judgment and motion for judgment as a matter of law on the issue of discrimination. We find no error and affirm the district court.

Background

Akouri is a United States citizen who was born in Lebanon and has lived in the United States since 1984. He holds a bachelor's degree in civil engineering, a general contractor's license, and a Professional Engineer license. In 1995, Akouri began his employment with the DOT as a maintenance contract engineer and remained in that position until his termination in May 2001.

During his employment with the DOT, Akouri unsuccessfully applied for three promotions.2 According to Akouri's trial testimony, Blanchard told Akouri that he had not been promoted to the Atkins position because it supervised white employees, as opposed to black or Hispanic employees, and that they would not take orders from him, particularly if he had an accent. After being rejected the third time, in August 2000, Akouri filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging national origin discrimination. Akouri was later terminated from his employment with DOT for misuse of his government computer in May 2001. Akouri subsequently instituted the present action under Title VII.

The district court granted, in part, the DOT's motion for summary judgment as to the Denti position, but denied it as to the other two promotions and the retaliatory discharge claim. The case proceeded to jury trial on Akouri's surviving claims.

On the first day of trial, the district court informed the parties that it had three other cases waiting to be tried and asked Akouri's counsel when he expected to rest. Akouri's counsel responded that he expected to continue through the following afternoon and the court told him he would have until 3:30 P.M. There were no objections. The following afternoon, the court reminded counsel of the 3:30 P.M.

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timeframe, but counsel requested additional time. The court granted Akouri's counsel an additional hour and fifteen minutes within which to conclude his case, to which Akouri's counsel responded, "Okay, Your Honor, that's fine." At no point did Akouri's counsel object to the court's imposed time limitations.

At the close of all the evidence, the DOT made an ore tenus motion for judgment as a matter of law on two grounds regarding the Atkins position: (1) Akouri failed to establish a prima facie case, and (2) Akouri failed to establish that the DOT's reasons were pretextual. The Court reserved ruling on the DOT's motion. Then, at the charge conference, the DOT made an ore tenus motion to strike the interrogatories regarding damages because Akouri had not introduced any admissible evidence of damages at trial. The district court denied the motion to strike, but allowed the DOT to amend its motion for judgment as a matter of law regarding the evidence of damages. The matter was then submitted to the jury.

The jury returned a verdict in favor of the DOT on the retaliatory discharge claim and found no discrimination on the failure to promote claim for the Reynolds position. However, on the discriminatory failure to promote claim for the Atkins position, the jury returned a verdict in favor of Akouri, awarding $148,000 to compensate for net lost wages and benefits ("back-pay") and $552,000 to compensate for emotional pain and mental anguish ("compensatory damages"). According to the Jury Interrogatories, the jury did not believe that Akouri was denied the Atkins position for any reason other than his national origin.

The district court entered final judgment in accordance with the jury's verdict, and the DOT, thereafter, moved for judgment as a matter of law notwithstanding the verdict ("JNOV"). The DOT argued that: Akouri failed to prove a prima facie case of discrimination because the evidence did not show that Akouri was equally or better qualified than the selected applicant, Mr. Atkins; Akouri failed to prove that the DOT's stated reasons for not promoting him were pretextual; and Akouri failed to adduce any evidence to support the jury's damages awards, in particular, evidence of his actual salary while employed by the DOT and his emotional state after being denied the promotion.

The district court granted, in part, the DOT's JNOV as to damages and reduced Akouri's award to $1.00 in nominal damages on the basis that Akouri failed to prove any actual damages—either monetary or non-monetary. The court observed that, while the announcement describing the promotion provided the salary range Akouri would have received had he been promoted, Akouri presented no evidence of his actual salary such that the jury could calculate the difference in wages resulting from the discrimination. As to the compensatory damages, the court again found no evidence to support the damages, and, likewise, set aside the jury's award of $552,000.

The district court denied, in part, the JNOV with regard to the discriminatory failure to promote claim, having concluded that Akouri's testimony about Blanchard's comment to him shortly after the Atkins position had been filled was direct evidence of discrimination.

The DOT thereafter moved the district court to conditionally grant a new trial as to both liability and damages on the Atkins position claim in the event the JNOV was reversed or vacated on appeal, and Akouri moved for a new trial on the damages question. The district court conditionally granted the DOT's motion for new trial and denied Akouri's motion. Akouri now appeals and the DOT cross-appeals.

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Analysis
I.

Akouri argues that the district court erred in granting the DOT's motion for JNOV and overturning the jury's award of $148,000 in back-pay and $552,000 in compensatory damages.

A judgment as a matter of law is subject to de novo review. Thosteson v. United States, 331 F.3d 1294, 1298 (11th Cir.2003). A court may grant a motion for judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). The court should review all of the evidence in the record, draw all reasonable inferences in favor of the non-moving party, and disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Credence should also be given to "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id. (internal quotations omitted). However, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 150, 120 S.Ct. 2097.

A.

Akouri contends that the district court erred in setting aside the jury's award of $148,000 in back pay because the jury instructions expressly permitted an award of back-pay to the date of trial. Akouri also contends that by allowing such an instruction, the DOT waived any argument it had to challenge the sufficiency of the evidence as it related to back-pay damages. We find these arguments unpersuasive.

First, the fact that the jury instructions defined the period involved in the back-pay claim is irrelevant to our inquiry into whether Akouri adduced sufficient evidence to support the jury's back-pay award. Back pay is "the difference between the actual wages earned and the wages the individual would have earned in the position that, but for the discrimination, the individual would have attained." Gunby v. Pennsylvania Electric Co., 840 F.2d 1108, 1119-20 (3d Cir.1988). "[U]nrealistic exactitude is not required" as the back-pay calculation may be based on "just and reasonable inference" of the missing or imprecise figure. Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974).3

Akouri argues that the DOT did not request an instruction which would have obligated the jury to cut-off a back-pay award on the failure to promote claim on the date of his subsequent discharge if he did not prevail on the retaliatory discharge claim. Akouri's argument misses the point entirely. The issue before us is not the sufficiency of the evidence pertaining to Akouri's projected earnings, but rather, as observed by the district court in its well-reasoned order, Akouri's failure to provide any evidence whatsoever of his actual earnings while employed with the DOT.4 While the record contains evidence of a salary range indicating the amount

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Akouri would have earned had he received the promotion, the record is devoid of any evidence of his actual salary at the time he was employed by the DOT. Thus, there was no...

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