Plaintiff prevailed on her Sexual Harassment Claims against Appliance Direct. Her Manager was retaliating against her after she complained to Appliance Direct corporate of her manager’s indiscretions. Ms. Stebbins worked out of the Merritt Island store

Plaintiff prevailed on her Sexual Harassment Claims against Appliance Direct. Her Manager was retaliating against her after she complained to Appliance Direct corporate of her manager’s indiscretions. Ms. Stebbins worked out of the Merritt Island store

Appliance directPlaintiff prevailed on her Retaliation Claims against Appliance Direct. Her Manager was retaliating against her after she complained to Appliance Direct corporate of her manager’s indiscretions. Plaintiff worked out of the Merritt Island store. Plaintiff proved in open Court that she was fired because she complained about being sexually harassed.

Plaintiff was awarded by a Federal Jury her lost wages. Plaintiff is also entitled to her costs and attorney fees. Plaintiff has now secured a Judgment of $75,000.00. Appliance Direct is now claiming it does not have any money to pay and have threatened to go bankrupt. We are proceeding to collections, and garnishing assets.

Below is the winning brief, after Appliance Direct filed a motion for directed verdict.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

Plaintiff,

v. CASE NO. 6:08-cv-01029

APPLIANCE DIRECT, INC.,

Defendant.
__________________________/

PLAINTIFF’S OPPOSITION TO DEFENDANT’S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AND MOTION FOR NEW TRIAL

Comes now Plaintiff, by and through undersigned counsel, responds to Defendant’s renewed motion for Judgment as a Matter of Law pursuant to Rule 59, and states as follows:
I. Procedural Background
Plaintiff incorporates the procedural background as set forth in Defendant’s Rule 59 motion.
II. Rule 59 Standard
Our Eleventh Circuit sets the standard of review in Judgments as a Matter of Law motions as follows:
“It is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. Watts v. Great Atl. & Pac. Tea Co., 842 F.2d 307, 309-10 (11th Cir. 1988). A party’s motion for judgment as a matter of law can be granted at the close of evidence or, if timely renewed, after the jury has returned its verdict, as long as “there is no legally sufficient evidentiary basis for a reasonable jury to find that the discharge was retaliatory.” Because it is critical that a judge does not merely substitute his judgment for that of the jury, “new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great–not merely the greater–weight of the evidence.” (Emphasis Added). Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 at 1186 (11th Cir. 2001).

III. Summary of Response

Defendant, in its Motion, is asking this Court to substitute itself for the trier of fact in this case, the Jury, and to re-weigh the evidence. That is abundantly clear from reading the Defendant’s argument. Additionally, Defendant has totally ignored and failed to point out to this Court the extensive case law which states that the trier of fact must look at the “totality of the circumstances” in these cases.
“In sexual harassment cases, the courts must consider the
alleged conduct in context and cumulatively. Therefore, we
set forth all alleged harassing conduct so that we can look
at the totality of the circumstances.”

Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999)

Despite Defendant’s attempt to have this Court focus only on separate individual actions, it is clear that when the evidence in this case was considered cumulatively and in context, and when looking at the totality of the circumstances, a reasonable jury could and did conclude that the totality of the facts in this case established that Plaintiff was retaliated.
Moreover, Defendant’s argument that Plaintiff must have been legally correct in her assessment that the retaliatory conduct violated Title VII is wholly erroneous. Additionally, while the prima facie elements of retaliation have been cited correctly by Defendant, the pertinent analysis used to determine what constitutes “a reasonable good-faith belief that that opposed conduct violated Title VII” is incorrectly stated. Most importantly, Defendant fails and neglects to mention a case directly on point which strongly favors Plaintiff’s position. That is: Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001). Lipphard will be analyzed in detail below.

IV. Retaliation

In order to prevail on her retaliation claim, Plaintiff was required to “establish a prima facie case by showing: (1) statutorily protected expression, (2) adverse employment action, and (3) a causal link between the protected expression and the adverse action.” Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). One example of “statutorily protected expression” is “opposing any practice made an unlawful employment practice” by Title VII, such as sexual harassment. 42 U.S.C. § 2000e-3(a). The Jury found that Plaintiff had established a prima facie case of retaliation because she was fired after she reported to management and Human Resources that Mr. Roundy’s behavior constituted sexual harassment and retaliation.
By reporting to Human Resources and to other managers that Plaintiff had had a sexual relationship with her manager and that she ended the relationship and that now her manager was retaliating against her and being hateful clearly results in a finding that Plaintiff was engaged in protected activity. In O’Neal v. Ferguson Const. Co., 237 F.3d 1248, 1255 (10th Cir. 2001) determined that “informal complaints to supervisors constitutes protected activity” and in Conetta v. National Hair Care Centers, Inc., 236 F.3d 67, 76 (1st Cir. 2001) the Courts determined that “expressing opposition to harassment to management or anyone else is protected conduct that may support liability if it resulted in an adverse job action.”
A. Engaged in Statutorily Protected Expression

A plaintiff must show that she subjectively (that is, in good faith) believed that [her] employer was engaged in unlawful employment practices, but also, that [her] belief was objectively reasonable in light of the facts and record presented. Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).
Facts supporting engaged in statutorily protected expression

When Plaintiff was employed at the Merritt Island store, Mr. Roundy made advances towards Plaintiff, flirted with her, and began having a sexual relationship with her(Doc. 40, Pg. 21, L1-16 & Pg. 92-93, L24-1). Mr. Roundy was the store manager and Plaintiff’ direct supervisor (Doc. 40, Pg. 92 L 19-23).
The first time Plaintiff and Mr. Roundy broke up was Friday March 2, 2007. (Doc. 40, Pg. 21 L. 20-23). On Monday, March 5, 2007, Mr. Roundy writes Plaintiff up for allegedly not clocking in. However, he had never written her up before. (Doc. 40 Pg. 22, L 13-18). As a result, Plaintiff felt she was being retaliated as she had done nothing wrong (Doc. 40 Pg. 22-23, L 25 ¶ 1). Thereafter, on Wednesday, Plaintiff and Mr. Roundy got back together again and everything was fine (Doc. 40, Pg. 23 L 12-19). However, on April 29, 2007 Plaintiff caught Mr. Roundy cheating with another woman and ended the relationship (Doc. 40 Pg. 23-24 L 20 ¶ 2). After Plaintiff broke up with Mr. Roundy, Mr. Roundy was hateful (Doc. 40, Pg. 24 L17-19). Mr. Roundy would yell at Plaintiff for things that didn’t make sense (Doc. 40, Pg 24 L 21-22). Mr. Roundy would no longer talk to Plaintiff’ customers (Doc. 40, Pg. 24, L22). Mr. Roundy would try to get back together with Plaintiff (Doc. 40, Pg. 25, L 7-9). Mr. Roundy acknowledged that he knew Plaintiff felt threatened (Doc. 40, Pg. 98 L 19-24). Mr. Roundy kept saying he wanted to get back together with Plaintiff and that he wouldn’t cheat on her (Doc. 40, Pg. 25, L 7-12). Indeed, the way that Plaintiff was treated by Mr. Roundy affected her ability to perform her work (Doc. 40, Pg. 25, L15-18). Mr. Roundy would no longer do things that managers typically did for their employees (Doc 40, Pg. 25, L 20-21). Mr. Roundy would interrupt Plaintiff while she was working with her customers, and even take her away from her customers (Doc. 40, Pg. 25 L 22-23). Things got so bad, Plaintiff “cried at work; it was bad.” Plaintiff was “afraid to go into the store alone” (Doc. 40, Pg. 40, L 6-7). Every day Plaintiff would ask to be transferred. (Doc. 40, Pg. 26, L 1-4). However, despite there being a position open at another store, Plaintiff was not transferred (Doc. 40, Pg. 26, L 10-14 & Pg. 41, L 23-25). Mr. Roundy threatened Plaintiff by stating “if [you] go to corporate we would both be fired” (Doc. 40, Pg. 41, L 10-13).
On May 16, 2007, Plaintiff complained to Human Resources about the environment she had been experiencing since April 29, 2007 (Doc. 40, Pg. 26, L 15-18). Plaintiff told Human Resources that Mr. Roundy was harassing her and was trying to terminate her (Doc. 40, Pg. 26 L 20-23). Plaintiff told Human Resources that she and Mr. Roundy had had a relationship and that it ended and now he is retaliating against her (Doc. 40, Pg. 27, L 9-10). Plaintiff also told Human Resources that she was being sexually harassed and told them what was going on (Doc. 40, Pg. 27, L 20-25). Plaintiff informed Human Resources that she thought she was going to get fired when she hadn’t done anything wrong (Doc. 40, Pg. 28, L 10-11). When Plaintiff complained to Human Resources, Human Resources told her to report to back to her manager, Phil Roundy (Doc. 40, Pg. 31-32 L 25-2). On May 16th, Plaintiff again called Mr. Roundy, asking for a transfer and complained to Mr. Roundy that he and Mr. Barnaba were plotting to fire Plaintiff (Doc. 40, Pg. 38, L1-2). Most importantly, Plaintiff was asking for a transfer after she broke off the relationship because Mr. Roundy was sexually harassing her and asking Plaintiff to go back with him (resuming the relationship again) (Doc. 40, Pg. 67, L 18-25 & Pg. 68, L 1-4).
Plaintiff called the Corporate office, reported the harassment to other managers such as Paul Wynn, Mike Burgar, and Jason Sellers. (Doc. 40, Pg. 27, L 1-7). Plaintiff also told Mr. Burgar that Mr. Roundy was mad because she had broken off the relationship and that he was going to fire her (Doc. 40, Pg. 37, L 3-5).
Even Mr. Roundy informed Corporate that Plaintiff wanted to be transferred because she was being sexually harassed (Doc. 40, Pg. 97, L 12-15). Plaintiff complained to Mr. Roundy that she felt she was being retaliated and that he was making her feel uncomfortable and wanted to be out of the store (Doc. 40, Pg. 97-98 L 20-1).
Plaintiff also formed her subjective and objective beliefs that her rights where being violated based on the employee handbook she received from Defendant. (Doc. 40 Pg. 19, L 18-20). Plaintiff’ employee handbook, which was admitted into evidence, states, in pertinent part, as follows:
Sexual Harassment Policy:
Sexual Harassment is defined as:

“Making Submission to unwelcome sexual advances or requests for sexual favors a term or condition of employment”
“Basing an employment decision on submission or rejection (emphasis added) by an employee of unwelcome sexual favors, verbal or physical contact of a sexual nature;” or
“Creating an intimidating, hostile or offensive working environment or atmosphere.”
The policy also states: “It is also expressly prohibited for an associate to retaliate against associates who bring sexual harassment charges or assist in investigating charges. Retaliation is a violation of this policy; No associate will be discriminated because of bringing or assisting in the investigation of a complaint of sexual harassment.

Appliance Direct Handbook, Exhibit 1, Pg. 20
From these facts, it is unquestionable that Plaintiff had both a subjective belief that her employer was violating her rights, as well as a good faith reasonable belief that her rights were violated. The reasonableness of the employee’s subjective belief as to the unlawful nature of her employer’s actions are assessed in light of the totality of the circumstances. Buzzi v. Gomez, 62 F. Supp.2d 1344, 1354 (S.D. Fla. 1999). As the aforestated facts point out, Plaintiff, after breaking up with Mr. Roundy on two separate occasions, was retaliated. Plaintiff was unjustly written up, not transferred, and was subjected to hateful conduct by Mr. Roundy. Mr. Roundy would yell at Plaintiff for things that didn’t make sense and no longer interacted with her customers the way managers typically would. Mr. Roundy would try to get back together with Plaintiff and promised he wouldn’t cheat on her . The way that Plaintiff was treated by Mr. Roundy affected her ability to perform her work as Mr. Roundy would no longer do things that managers typically did for their employees. Mr. Roundy would interrupt Plaintiff and take her away from her customers. The work environment was so bad, Plaintiff cried at work and was afraid to go into the store alone.
A proper analysis of the law establishes Plaintiff’ claims. A plaintiff can prevail on a retaliation claim even if she is factually or legally incorrect so long as she held a reasonable good faith belief that the underlying conduct violated the statute. See: Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167, 187 (2005).
In attempting to determine whether the plaintiff acted upon a reasonable good faith belief, the Courts generally examine the following factors: (1) The plaintiff’s motivation in making the complaint; (2) the timing of the plaintiff’s complaint; (3) the plaintiff’s level of sophistication; (4). Plaintiff’s knowledge of the law; and (5). the level of factual support underlying the plaintiff’s belief. Of course, none of these factors are determinative and they must be viewed in context.
Plaintiff motivation for reporting the harassment was because after Plaintiff ended the relationship with her supervisor, her supervisor was hateful, would try to get back together with her, and when she refused, he hindered her ability to perform her job. This motivation is further shown as Plaintiff was simply requesting to be transferred to a different store which had an opening for her. See: Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004). The Mattson Court stated: “The purpose of requiring that Plaintiffs reasonably believe in good faith that they have suffered discrimination is clear. Title VII was designed to protect the rights of employees who in good faith protest the discrimination they believe they have suffered and to ensure that such employees remain free from reprisals or retaliatory conduct. Title VII was not designed to arm employees with a tactical coercive weapon under which employees can make baseless claims simply to advance their own retaliatory motives and strategies.” In the instant case, the evidence presented makes it clear: Plaintiff simply wanted to be removed from the hostile work environment that was created as a result of Plaintiff ending the sexual relationship with her manager.
Generally speaking, the Courts tend to find that a plaintiff held a reasonable good-faith belief of a violation when she complains shortly after the allegedly unlawful activity. See: Dey v. Colt Const. & Development Co., 28 F.3d 1446 (7th Cir. 1994). In the instant case, Plaintiff complained practically immediately, many times, to Corporate, as well as many managers, and Human Resources.
Additionally, Courts have held that in determining whether a plaintiff’s good-faith belief is reasonable, the plaintiff’s level of sophistication and knowledge must be examined. Hence, a layperson would be held to a lower standard than an attorney. See, e.g. Volberg v. Pataki, 917 F. Supp. 909, 916 (N.D. N.Y. 1996). “The reasonableness of [Plaintiff’s] belief that an unlawful employment practice occurred must be assessed according to an objective standard , one that makes allowance, moreover, for the limited knowledge possessed by most Title VII paintiffs about the factual and legal bases of their claims” Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994). Moreover, “a lay person should not be burdened with the ‘sometimes impossible task’ of correctly anticipating how a given court will interpret a particular statute” Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981). Plaintiff, in the instant case, was a layperson ; specifically, a saleswoman. Her highest salary ever achieved was that of a saleswoman while she worked for Defendant. (Doc. 40, Pg. 56, L 16-18). Her other jobs were waitressing, selling insurance and selling mattresses (Doc. 40, Pg 47, L 7-8 & Pg. 46, L 16-17). Once again, clearly, Plaintiff had a reasonable good faith belief that her complaints to management and human resources concerning the hateful conduct of Mr. Roundy once she broke off the relationship coupled with him trying to get back together with her is clearly enough to form the basis for the objective legal standard. Indeed, in Drinkwater v. Union Carbide, 904 F.2d 853, 866 (3rd Cir. 1990) the Court found that retaliation had taken place when Plaintiff complained to her employer that she was denied a job because of her knowledge of a consensual sexual relationship between a supervisor and a co-worker. Certainly, in the instant case, the facts are monumentally more significant to show Plaintiff reasonable belief of harassment.
The level of factual support for Plaintiff’s believe also significantly favors the Plaintiff. As afore-explained, this must be analyzed using the totality of the circumstances.
The major cases cited by the defense to sustain its propositions are Buttler v. Alabama Department of Transportation, 536 F.3d 1209 (11th Cir. 2008) and Harper v. Blockbuster Entertainment Corp., 139 F.3d 1985 (11th Cir. 1998). The comparison of this cases to the instant case is misplaced. Butler dealt with an instance of 2 racial epithets with no surrounding context. Harper was a grooming case which the law has always been found not to be a Title VII violation. Defendant fails to mention Anthony Chatman v. National Railroad, 2008 U.S. Dist. LEXIS 67485. The Chatman Court granted summary judgment as it pertained to the employee’s disparate treatment claim, but denied summary judgment as it pertained to the retaliation claim. The Court distinguished the Butler case by pointing out that Butler dealt with a single incident, and went on to state: “the law defendant cites in support of its motion is distinguishable because the alleged discrimination in those cases consisted mainly of extremely isolated incidents of questionable severity” (emphasis added). Id. . Indeed, as in the instant case, Plaintiff, under the context of having had a prior sexual relationship with her manager, and her manager’s retaliation and hateful conduct on numerous occasions, gives rise to Retaliation under the law.
Moreover, this Circuit has already addressed this issue in Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001). Remarkably, the Lipphardt case has an almost identical fact pattern. Lipphardt began having a consensual sexual relationship with her manager, Mr. Kuhn. At trial Lipphardt “contend[ed] that, after their relationship ended, she began having difficulties at work.” Id. at 1185. She reported her manager to a regional manager and requested a transfer” Id. The Lipphardt Court submitted a hostile work environment sexual harassment claim and retaliation claim to the Jury. The jury found for defendant in the sexual harassment claim and for the plaintiff in the retaliation claim. The trial Court, after renewal of the Rule 59 motion, overturned the verdict of the jury and granted Defendant’s motion. The 11th Circuit overruled the directed verdict and reinstated the verdict in favor of the Plaintiff, denying a new trial. The Lipphardt 11th Circuit Court stated:

“On a claim for retaliation, the standard is not whether there is a valid hostile work environment claim, but whether Lipphardt had a good faith reasonable belief that she was the victim of such harassment. Reasonable minds could disagree on this issue, which makes it an inappropriate candidate for judgment as a matter of law.” Id. Moreover, “the fact that Lipphardt had had a personal relationship with [her manager] was definitely a factor to be considered by the jury in its analysis of whether the discrimination was based on sex, as required by Title VII.” Id.

B. Adverse Employment Action

Defendant concedes adverse employment action, as it should, as plaintiff was terminated as a result of her complaints.

C. Causal link between the protected expression and the adverse action.

Defendant concedes that the causal link has been satisfied due to the existence of temporal proximity, as it should. In Neives v. Palm Beach County, 2000 WL 33310907, 4 (S. D. Fla) (causal connection may be established circumstantially by showing a close-time link between the adverse action and the protected activity; court finding approximately 1 month period between adverse action and protected activity sufficient to establish causal connection); Bigge v. Albertsons, Inc. 894 F.2d 1497, 1501 (11th Cir. 1990)(evidence that the protected activity and the adverse employment action were not totally unrelated satisfies the third element); See: Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998) (short time period of one month between discrimination complaint and adverse employment action belies any assertion that plaintiff failed to prove causation).
Surprisingly, Defendant contests that the decision maker did not know of Plaintiff complaints. This couldn’t be further from the truth as the decision makers were jointly Mr. Thew and Human Resources. Defendant informed Plaintiff that she could report complaints to Human Resources [Gevity] (Doc. 40, Pg. 18, L 21-25 & Pg. 19 L 1-4). Moreover, Mr. Thew and Human Resources made the decision together (Doc. 40, Pg. 70 L12-14). The decision together was made two days after Plaintiff complained to Human Resources. Plaintiff informed Human Resources on May 16th 2007 of the sexual harassment and retaliation, and on the May 18th 2007, Human Resources and Mr. Thew made the decision together to terminate her (Doc. 40, Pg. 70, L 12-14). Mr. Roundy also acknowledges to have played a role in Plaintiff termination (Doc. 40, Pg. 98 L. 16-18).
As has been aforestated, Plaintiff had a reasonable belief she was being sexually harassed by her former paramour, informed human resources that she had had a sexual relationship with her manager and now he was retaliating against her, and two days after, before her scheduled shift, she was terminated for two consecutive days no-call no show.

D. Reason for Termination offered by Defendant is Pretextual:

Since Plaintiff has met the prima facie elements of retaliation, Defendant must articulate a legitimate reason for terminating Plaintiff’ employment. In the instant case, Plaintiff was allegedly terminated exclusively because of a no call no show. (Doc. 40, Pg. 70, L 15-17). Specifically, the reason why Plaintiff was terminated was because of a no call no show on May 17th 2007, and May 18, 2007 and no other reason. (Doc. 40, Pg. 71, L 2-7). And the decision was made before 9:00 AM (Doc. 40, Pg. 71, L 8-10). The evidence shows this reason is false. On May 16th2007, Mr. Roundy told Plaintiff that she was not scheduled to return to work until Friday May 18th 2007 at 10AM (Doc. 40, Pg. 28, L 7-9). Mr. Roundy told this scheduled time to Plaintiff, and Mr. Roundy told this time to Corporate in a May 16th 2007 email. Moreover, Mr. Drako admits that Plaintiff schedule started after 8:00AM (Doc 41, Pg. 43, L 22-25). Additionally, Plaintiff had permission from Mr. Roundy not to return to work until 10 AM on the 18th (as evidenced through her testimony and Exhibit 2, the May 16th email). Additionally, on May 17th 2007, Plaintiff called the store several times on May 17th, and even showed up at the store on May 17th (Doc. 40, Pg. 41, L 19-22). Additional evidence of the pretextual nature is that the termination of Plaintiff was made on May 10th, 8 days before the alleged wrongful act of Plaintiff (Exhibit 2, May 10th Termination letter). In the termination paperwork, Plaintiff was evaluated as having good attendance (Doc. 40, Pg. 100 L 18-19).
Defendant states in its motion that the decision maker had no knowledge of Plaintiff complaints. However, the evidence shows otherwise. Plaintiff informed Human Resources on May 16th, 2007 and on May 18th, 2007 Human Resources and Mr. Thew made the decision together (Doc. 40, Pg. 70, L 12-14). Mr. Roundy also acknowledges to have played a role in Plaintiff termination (Doc. 40, Pg. 98 L. 16-18).

IV. Damages

Given that Plaintiff has successfully proven her prima facie case and rebutted Defendant’s affirmative defenses, an award of damages is just and proper. The jury was correct in returning a verdict in this instant action for Plaintiff’s retaliation claim in the amount of $20,000.00. Despite Defendant’s assertions, such an award is, in fact, supportable as a matter of law.
Plaintiff’s back pay averages are, in fact averages, not speculative. Plaintiff agrees with Defendant’s counsel in that back pay is the “the difference between actual wages earned and the wages the individual would have earned in the position, but for the discrimination, the individual would have attained.” Akouri v. State of Florida Department of Transportation, 408 F.3d 1338, 1343 (11th Cir. 2005). It is the district court’s duty, after a finding of discrimination has been made, to place the injured party in the position he or she would have been absent the discriminatory actions. Nord v. United States Steel Corp., 758 F.2d 1462, 1470 (11th Cir. 1985); Albemarle Paper Co. v. Moody, 422 U.S. 405. The Akouri Court, citing Pettway v. Amer. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974), stated that “unrealistic exactitude is not required,” as the back pay calculation may be based upon “just and reasonable inference.” Id.
During her trial in this instant action, Plaintiff testified that she was earning “anywhere from $4,500 to $5,000 a month.” [Doc. 40, p.42, 1.1-2]. Plaintiff goes on further to state that, “the second year I worked there I was on track to do about $50 to $60,000.” [Doc. 40, p.57,1.12-13]. Due to the fact that Plaintiff was in fact a commissioned sales person and not a salaried worker, a definitive response to how much she made on a monthly basis could not, and cannot be reached. However, Plaintiff’s response that she made between $4,500 and $5,000 per month, based upon her sales performance, is indeed an average range of where her salary fell between and not speculative as the Defendant contends. Despite the fact that Plaintiff had not been employed at the Merritt Island store location for more than one (1) year, a reasonable person could find that if Plaintiff’s monthly salary fell between the $4,500 and $5,000 average range, then her annual salary would subsequently be between $50 and $60,000. No speculation is needed to see this direct correlation between the two figures. Although Plaintiff’s position was commissioned based upon the amount of sales she made, the lowest figure of the average range that she testified to at trial accounted for what she would make during a “slow” sales month. In Defendant’s proffered case, Akouri v. State of Florida Dept. of Transportation, 308 F. 3d 1338, 1344 (11th Cir. 2005), the Court states that “it is elementary that a plaintiff must, at a minimum, show his earnings during his employment before the jury can begin a reasonable calculation of a back pay award.” The Court continues by stating that such a showing could be remedied by providing a pay stub or asking the plaintiff himself. Id. In the instant case, Plaintiff satisfied this elementary minimum by testifying as to what her average wages were during the time of her employment with Appliance Direct.
Moreover, any uncertainties in back pay are resolved in favor of the discrimination victim. See, Hudson v. Chertoff, 473 F. Supp. 2d 1292, 1298 (S.D. Fla., 2007). At no point during the proceedings did Defendant or Defendant’s counsel provide any evidence or testimony to rebut any of Plaintiff’s calculations nor the average salary range that Plaintiff had attested to earning. Therefore, Defendant’s renewed motion to deny Plaintiff the back pay damages she is justly due is unfounded and inappropriate.
Despite mitigating her damages, Plaintiff is entitled to back pay. Defendant contends that Plaintiff is not entitled to back pay because she was able to find “substantially- similar” employment soon after her termination. Surely, it is true that a plaintiff is supposed to reasonably mitigate his or her damages and the Plaintiff in this action did just that. However, Defendant fails to acknowledge that Plaintiff was in fact unemployed for “a couple of months” [Doc. 40, Pg. 45 L 14-17]. Plaintiff in fact needs to be compensated for the time frame she was not earning wages plus any lost wages which she did not fail to appropriate mitigate. Additionally, it is the Defendant’s burden to show that Plaintiff did not mitigate her damages and by how much. See: Hipp v. Liberty Natl. Life Ins., 29 F. Supp. 2d 1314, 1322 (M.D. Fla. 1998); E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d. 1364, 1378 (S.D. Fla. 1998).
The Jury heard numerous damage testimony. The Jury heard the following:
Q. Have you calculated how much money
you’re owed or how much money you’ve lost as a result of
being terminated from Appliance Direct?
A. Actually, I did. Somewhere around 64,000 dollars.
(Doc. 40 Pg. 42 L 9-12)
The Jury also heard:
Q. And how did you determine that? How did you do that?
A. At Appliance Direct I made anywhere from 4500 to 5,000
a month. Ever since then I’ve only made anywhere from 1200
to 2,000 a month.
(Doc. 40 Pg. 42-43 L 24-2)
The Jury also heard all the jobs she worked at, the dates she worked at those jobs and how much she approximately earned at those jobs. Additionally, the Jury heard how much Plaintiff was making per year and how much she made each year thereafter. The Jury heard that Plaintiff made between $8,500 to $10,000 after she left Appliance Direct in 2007. (Doc. 40, Pg. 58 L 15-18).
Courts routinely average wages in computing back pay. In E.E.O.C. v. Guardian Pools, Inc., 828 F.2d 1507, 1511-1512 (11th Cir. 1987) the Circuit Court calculated back pay using an average weekly earning method.
In the instant case, the Jury awarded Plaintiff $20,000 in back pay. This amount could have been ascertained in a variety of ways including the money Plaintiff would have made through the end of the year at Appliance Direct minus the monies she earned in 2007, as she testified to. In any event, the Jury heard enough evidence of Plaintiff income and lost wages to arrive at their decision to award Plaintiff $20,000.00.

V. CONCLUSION
This Circuit has already addressed the issue presented to this Court in this case. Indeed, “on a claim for retaliation, the standard is not whether there is a valid hostile work environment claim, but whether [a plaintiff] had a good faith reasonable belief that she was the victim of such harassment. Reasonable minds could disagree on this issue, which makes it an inappropriate candidate for judgment as a matter of law.” [Moreover,] the fact that [Plaintiff] had had a personal relationship with [her manager] was definitely a factor to be considered by the jury in its analysis of whether the discrimination was based on sex, as required by Title VII.” Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 at 1185 (11th Cir. 2001).
WHEREFORE for the reasons aforestated, Plaintiff requests for the Court

to deny Defendants Rule 59 motion in its entirety.

Date: November 14, 2009 ____________________________
Maurice Arcadier, Esquire
Attorney for Plaintiff

ARCADIER & ASSOCIATES, P.A.
_______________________
Maurice Arcadier, Esquire
Florida Bar No. 131180
Email: office@wamalaw.com
Attorneys for Plaintiff
2815 W. New Haven, #304
Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075

More Information: See our employment law page for more information
Attorney: Maurice Arcadier
Status: Judgment Awarded $75,000 total.
Date Filed: December 2008

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