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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11181
Non-Argument Calendar
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D.C. Docket No. 0:16-cv-60844-DPG
GEORGINA CID,
Plaintiff-Appellee,
versus
CITY OF MIRAMAR, FLORIDA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 27, 2020)
Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Georgina Cid sued her employer, the City of Miramar, for national origin
discrimination and retaliation under state and federal law. She won. The jury
awarded her $300,000. After the verdict, the City renewed its motion for judgment
as a matter of law, the district court denied that motion, and the City appealed.
I.
Cid, who was born in Cuba, was hired by the City through a temp agency in
2014. 1 She reported directly to Kathleen Woods-Richardson, the city manager, as
an administrative assistant. After a month, in November 2014, Woods-Richardson
hired her as a full-time, permanent executive administrator. Woods-Richardson
testified at trial that Cid was “always agreeable” and “pleasant to work with,” but
the work became too much, and Cid’s performance suffered. Woods-Richardson
never addressed those alleged performance issues with her. Cid denied that she
had performance problems.
About four months after Cid was hired as a full-time employee, in March
2015, the City held an election, the mayor and some commissioners were replaced,
and the commission became majority Jamaican. One month later Woods-
Richardson demoted Cid. She said Cid was being demoted because “the
commission had changed” and she needed someone who could “communicate
1
When reviewing the district court’s denial of a renewed motion for judgment as a matter
of law, we consider all evidence in the light most favorable to the nonmoving party. EEOC v.
Exel, Inc.,
884 F.3d 1326, 1329 (11th Cir. 2018). That’s Cid in this case.
2
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better” with the new commissioners and mayor. Cid took that to mean that the
commissioners and mayor spoke a language that she did not. 2 Cid was reassigned
to work for Vernon Hargray, assistant city manager, and Michael Moore, the chief
operating officer, and her pay was reduced by $5,000 a year. She was replaced by
Julie Richards, who was Cuban and Jamaican. Richards, unlike Cid, did not have a
college degree.
A month after her demotion, in May 2015, Cid complained to Sam Hines,
the City’s director of human resources. She told him that she was being
discriminated against because of her national origin. She said that she was
demoted because she was Cuban-American and that her new managers were
treating her differently than they treated other employees. Hines told Cid to try
speaking with Moore and Hargray to make sure that she understood their
expectations.
Cid tried to do that. She sent Moore and Hargray calendar invites to discuss
“expectations.” She also called Moore and told him that she had spoken with
human resources, but she did not mention to either of them that she had
complained about national origin discrimination. They both declined her invite.
2
In fact, Cid originally claimed that the new commissioners and mayor were Haitian, and
that Woods-Richardson wanted someone who spoke Creole. But the new commissioners were
not Haitian and did not speak Creole.
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After complaining to HR, Cid’s relationship with Moore deteriorated. He
was hostile and rude to her. He allegedly felt that her performance was subpar but
never documented it.
In September, Cid attended a grant-writing seminar with Moore’s
permission. She marked herself as out of the office all day on the office calendar.
The seminar ended at 4pm. Cid asked the other City employees in attendance
whether they were returning to work or going home after the meeting. The other
employees said they were going home, so after speaking with the presenter Cid
went home too.
Moore was frustrated that Cid did not come back to the office after the
seminar; he had another employee check to see when it ended. The next day he
asked Cid why she didn’t return to work. According to Moore, she claimed that
she spoke with the presenter for forty-five minutes and then went home because it
was so late. Cid denies that and asserts that what she told Moore was that she had
spoken to the presenter for only five minutes. Whatever Cid told Moore during
that conversation, both of them raised their voices.
Moore checked the security camera footage from the training room and saw
that Cid had not spoken to the presenter for forty-five minutes. He called Hines to
his office and they discussed what to do. After speaking with Hines and the legal
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department, Moore decided to fire her for dishonesty and insubordination. Hines
“reviewed and approved” the decision.
Cid sued, the case went to trial, and the jury found the City liable for
national origin discrimination and retaliation in violation of Title VII of the Civil
Rights Act, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and the Florida Civil Rights
Act, Fla. Stat. § 760.10. After the verdict, the City renewed its motion for
judgment as a matter of law.3 The court denied that motion, and the City appeals.
The City contends that there was no legally sufficient evidentiary basis for a
reasonable jury to find in Cid’s favor on either of her claims. Cid, in turn,
contends that we do not have jurisdiction to review the district court’s denial of the
City’s renewed motion for judgment as a matter of law. We first address our
jurisdiction then turn to the merits.
II.
Cid contends that we lack jurisdiction to review the district court’s denial of
the City’s renewed motion for judgment as a matter of law because it was a post-
judgment decision that was not included in the City’s notice of appeal. The City’s
notice of appeal in its entirety states:
Notice is hereby given that Defendant, City of Miramar, hereby appeals
to the United States Court of Appeals for the Eleventh Circuit from the
Final Judgment of the United States District Court for the Southern
District of Florida entered in this action on July 11, 2018, entering
3
It also moved for a new trial but did not appeal the court’s denial of that motion.
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judgment in favor of Plaintiff, Georgina Cid, and against Defendant, as
well as from all other adverse prior orders and judgments encompassed
therein. See ECF No. 139. Defendant’s Renewed Motion for Judgment
as a Matter of Law or Alternative Motion for New Trial was denied on
March 2, 2019. See ECF No. 168.
Doc. 172. Cid argues that the notice of appeal does not encompass the denial of
the City’s renewed judgment of a matter of law (even though it expressly mentions
that denial) because the notice refers to adverse “prior” orders. The denial of the
renewed judgment of a matter of law, Cid asserts, cannot be a “prior” order
because it was entered after the final judgment, not before it.
A notice of appeal “must . . . designate the judgment, order, or part thereof
being appealed.” Fed. R. App. P. 3(c)(1)(B). As a general rule, we do not have
jurisdiction to review a judgment or order that is not specified in the notice of
appeal. Osterneck v. E.T. Barwick Indus., Inc.,
825 F.2d 1521, 1528 (11th Cir.
1987). But “[a]n appeal must not be dismissed for informality of form or title of
the notice of appeal, or for failure to name a party whose intent to appeal is
otherwise clear from the notice.” Fed. R. App. P. 3(c)(4). We usually construe a
notice of appeal liberally, and we may construe it to include an order that is not
specified in the notice if “the overriding intent to appeal [that order] is readily
apparent on the face of the notice.
Osterneck, 825 F.2d at 1528.
Immediately after stating that the City was appealing the final judgment and
“all other adverse prior orders and judgments,” its notice of appeal states that the
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City’s renewed motion for judgment as a matter of law was denied. It is obvious
from the face of the notice that the City intended to appeal that denial. And we
have jurisdiction to review it.
III.
We review de novo the district court’s denial of a motion for judgment as a
matter of law. EEOC v. Exel, Inc.,
884 F.3d 1326, 1329 (11th Cir. 2018).
“Judgment as a matter of law is appropriate ‘only if the facts and inferences point
overwhelmingly in favor of one party, such that reasonable people could not arrive
at a contrary verdict.’”
Id. (quoting Goldsmith v. Bagby Elevator Co., Inc.,
513
F.3d 1261, 1275 (11th Cir. 2008)). We review the entire record, considering the
evidence and making all reasonable inferences in the light most favorable to the
nonmoving party.
Id. But “[w]e will not second-guess the jury or substitute our
judgment for its judgment if its verdict is supported by sufficient evidence.”
Id.
(citing Lambert v. Fulton Cty.,
253 F.3d 588, 594 (11th Cir. 2001)).
A.
Both Title VII and the Florida state law prohibit employers from
discriminating against an employee on the basis of national origin. 42 U.S.C. §
2000e–2(a)(1); Fla. Stat. § 760.10(1)(a). Claims under the Florida law are
analyzed under the same framework as claims brought under Title VII. Jones v.
United Space Alliance, L.L.C.,
494 F.3d 1306, 1310 (11th Cir. 2007).
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A plaintiff can prove discrimination under Title VII by showing that her
national origin “was a motivating factor for any employment practice, even though
other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis
added). She can prove an intentional discrimination claim using direct or
circumstantial evidence. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253,
1264 (11th Cir. 2010). The City contends that the jury lacked a legally sufficient
evidentiary basis to find that the City demoted Cid because of her national origin in
violation of Title VII and Florida state law.
At trial, Cid established the following. She was hired as a permanent
employee because she did such a good job as a temp. Her manager described her
as always agreeable and easy to work with. She received no write-ups or other
discipline. The City held an election and as a result the commission became
majority Jamaican. Cid, who is not Jamaican, was demoted only one month later.
She was told that the demotion was because of the change in the commission, that
the City needed someone who was a better fit and who could communicate better
with the commissioners. She was replaced by someone who was Jamaican and
Cuban, and who was born and raised in Jamaica. Her replacement did not have a
college degree; Cid did.
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City employees testified at trial that Cid was demoted because of her
(undocumented) poor performance. But the jury observed those witnesses and was
free to disregard or discount their testimony, as it apparently did.
Taking all of the evidence together, the jury could have found that Cid was a
high performing employee who was demoted, without warning, a month after a
majority-Jamaican commission was elected. The City wanted to find someone
who could “communicate” better with the commission, so they hired someone who
was less objectively qualified, but who was the same ethnicity as the new
commissioners. That is sufficient evidence for a reasonable factfinder to infer that
Cid’s national origin was a motivating factor in her demotion.
The City argues that the court should still have granted its renewed motion
for judgment as a matter of law because the jury instructions required more of Cid
than Title VII requires, and jury instructions trump the governing law. The jury
instruction — which was suggested by the City, agreed to by Cid, and adopted by
the court — states that Cid had to show that national origin was the motivating
factor in her termination, instead of a motivating factor as required under Title VII.
The jury instruction also states that Cid was claiming that she was discriminated
against based on being Cuban American and that she was not claiming that she was
demoted for being “not Jamaican.” The City asserts that the evidence at trial was
enough to prove only that Cid was demoted for being “not Jamaican,” not that she
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was demoted because she was Cuban American. It also asserts that because Cid
did not object to the jury instruction in the district court and does not object to it
now, we must rely on the instruction on appeal, not on the law.
That is not what Rule 50 says. It allows a court to grant a motion for
judgment as a matter of law if, under “controlling law,” the reasonable jury could
not have found for the plaintiff. We have not defined “controlling law” in that
context, but the Fifth Circuit has. It held that, when reviewing the denial of a
motion for judgment as a matter of law, a court is “not restricted to the law as
stated in the jury instructions.” Arsement v. Spinnaker Exploration Co.,
400 F.3d
238, 249 (5th Cir. 2005). Instead, the question is whether a reasonable jury could
have found the existence of the elements required for liability under the applicable
statute.
Id. If a reasonable jury could have found the City liable under the jury
instruction, it could have found the City liable under Title VII.
B.
The City also contends that there was insufficient evidence for a reasonable
jury to find that Cid was fired in retaliation for complaining to human resources
about being demoted based on her national origin. Both Title VII and Florida state
law prohibit employers from retaliating against an employee because that
individual “opposed” an unlawful employment practice. 42 U.S.C. § 2000e-3(a);
Fla. Stat. § 760.10(7).
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To establish a claim of retaliation, an employee must prove that she engaged
in protected conduct, she suffered an adverse employment action, and her
participation in the protected activity was the but-for cause of the adverse action.
Trask v. Sec’y, Dep’t of Veterans Affairs,
822 F.3d 1179, 1193–94 (11th Cir.
2016). To show but-for causation, the plaintiff must establish that the employer
was “actually aware” of her participation in protected activity. Clover v. Total
Sys. Servs., Inc.,
176 F.3d 1346, 1353 (11th Cir. 1999).
Here, Cid engaged in protected activity by complaining to human resources
about national origin discrimination. She suffered an adverse action: she was fired.
The only question remaining is whether her complaint was the but-for cause of her
termination.
The City contends that Moore — Cid’s manager — was the decisionmaker,
and that there are insufficient facts for a jury to find that he knew about Cid’s
protected conduct, so she did not prove but-for causation. The City relies on our
decision in
Clover, 176 F.3d at 1354, arguing that it addressed similar facts. In that
case, the decisionmaker knew that human resources was conducting an
investigation.
Id. He met with the human resources investigator sometime after
the plaintiff had met with the investigator.
Id. We held that was not enough
evidence for a factfinder to infer that the decisionmaker knew the plaintiff had
engaged in protected conduct by participating in the investigation.
Id. at 1355. We
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refused to speculate, in the absence of any evidence, that the human resources
investigator had told the decisionmaker about the plaintiff’s protected activity.
Id.
at 1355–56.
So too here. There is no evidence that Moore knew that Cid complained to
human resources about national origin discrimination. Cid told Moore that she
spoke to human resources, but she did not say that it was about national origin
discrimination; nor did she tell Moore that she had engaged in any other protected
activity. And even though Moore spoke with Hines before Cid’s termination, both
Moore and Hines testified that Hines did not inform Moore that Cid had
complained about national origin discrimination. There are not enough facts for a
reasonable factfinder to conclude that Moore knew about Cid’s protected activity.
But that is not the end of our inquiry. Cid contends that she still established
that she was retaliated against because Hines was also a decisionmaker. In Clover
we held that the human resources investigator was not a decisionmaker because he
had the power only to “review and evaluate” a termination decision, not the
“authority to overrule” it.
Id. at 1356. We also noted that the human resources
investigator “made no recommendation” to the decisionmaker about whether to
terminate the plaintiff.
Id.
At trial, Moore testified that he, as Cid’s manager, made the decision to fire
her. But Moore also testified that all terminations had to be approved by human
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resources. And Hines testified that he, as the human resources director, reviewed
and approved Cid’s termination. He said that it was his job “to make sure that all
terminations are rightful terminations, that they are not done for any other reason.”
He testified that he “review[ed] all of the circumstances” and agreed to terminate
Cid.
These facts, taken together, are enough for a reasonable jury to determine
that Hines was a decisionmaker.4 Both Moore and Hines said that human
resources had to approve the termination, which permits the reasonable inference
that Hines exercised authority over the termination decision, which he testified that
he approved.
IV.
The jury found that the City demoted Cid based on her national origin and
then fired her in retaliation for complaining about the discriminatory demotion.
Because sufficient evidence supports those findings, we will not second-guess the
jury or substitute our own judgment for its verdict. See
EEOC, 884 F.3d at 1329.
AFFIRMED.
4
The City also argues that the jury could not have found that Hines was a decisionmaker
because the court instructed it that Moore was the decisionmaker. The record does not support
that argument. When instructing the jury, the court stated: “The City denies Ms. Cid’s retaliation
claim and asserts that its decisionmaker (J. Michael Moore) had no knowledge of her alleged
complaint.” The instruction did not require the jury to find that Moore was the decisionmaker; it
stated the City’s position that he was.
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