author: McKAYi Circuit Judge.

text:
    David HANSEN, Plaintiff-Appellant, v. SKYWEST AIRLINES, Defendant-Appellee. United States Equal Employment Opportunity Commission, Amicus Curiae.
    No. 15-8112
    United States Court of Appeals, Tenth Circuit.
    Filed December 21, 2016

      Jeffrey C. Gosman of Gosman Law Office; Casper,-Wyoming, for-Plaintiff-Appellant.
    Chad A. Shultz (Leslie K Eason and Julia C. Glasgow with him on the briefs), of. Gordon & Rees, Atlanta, Georgia, for Defendant-Appellee.
    Philip M. Kovnat, Attorney (P. David Lopez, General Counsel; Jennifer S. Gold-stein, Associate General Counsel; Lorraine C. Davis, Assistant General Counsel; Elizabeth E. Theran, Attorney, with him on the briefs), Equal Employment Opportunity Commission Office of General Counsel, Washington, D.C., filed an amicus curiae brief for the United States Equal Employment Opportunity Commission.
    Before BRISCOE, McKAY, and MATHESON, Circuit Judges.
   McKAYi Circuit Judge.

Plaintiff David Hansen filed this suit against his former employer, Defendant SkyWest Airlines, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, for sex-based hostile work environment, disparate treatment, quid pro quo harassment, coworker harassment, retaliation, and for intentional infliction of emotional distress under state law. The district court granted summary judgment for SkyWest with respect to all of his claims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse in part and remand for further proceedings consistent with this opinion. We affirm the district court’s grant of summary judgment- on the disparate treatment claim, which Mr. Hansen did not contest on appeal.

FACTS

Mr. Hansen worked for Defendant Sky-West Airlines from 2003 until 2011, when he was fired. Mr. Hansen is gay. He claims he was sexually harassed by several of his supervisors and coworkers over the eight years he worked for SkyWest. Mr. Hansen and SkyWest hotly dispute the facts surrounding his time at SkyWest.but, because the.case was resolved against him on summary judgment, we present the facts in the light most favorable to Mr. Hansen.

Mr. Hansen spent his first four years with SkyWest as a customer-service agent at the Salt Lake City International Airport before transferring to the Jackson Hole Airport in Wyoming in December 2007. According to Mr. Hansen, the sexual harassment began in Salt Lake. Mr. Hansen alleges that “even early in [his] career at SkyWest” he had “supervisors and others” proposition him for sex and “toueh[ ] [him] in ways that were extremely unwelcome.” A435. Although there is not much factual detail for this four-year span, there is at least one specific incident of sexual harassment in the record: Mr. Hansen testified in a deposition that in 2004 a supervisor, Brian Johansen, who is also gay, “pushed himself against” Mr. Hansen and “comment[ed] about [his] srhell,” and then “followed up with an e-mail.” A341-42. Mr. Hansen did not recall what more was said, but he maintained that “it was sexual in nature and there was no doubting it was sexual in nature.” Id.

At some point'in 2004, Mr. Hansen’s psychotherapist- wrote an undated letter “to whom it may concern” about Mr. Hansen’s psychological wellbeing. According to this letter, Mr. Hansen presented with symptoms of Post-Traumatic Stress Disorder (PTSD). The letter warned that Mr. Hansen’s “condition could be triggered by employment issues such as discrimination, conflict, and a sense that he is being taken advantage of.” A400. Mr. Hansen delivered this letter to SkyWest’s human-resources department, and both Mr. Hansen and his therapist met with SkyWest’s human-resources department in Salt Lake City several times over the next “three or four years” to inform them that “any sexual touching or other sexual misconduct” might trigger his “PTSD like symptoms.” A436. Later, Mr. Hansen requested accommodations for his PTSD under the Family and Medical Leave Act, which SkyWest provided; Mr. Hansen could take a “timeout” at work when he felt threatened or was under considerable stress.

In December of 2007, Mr. Hansen transferred from Salt Lake to SkyWest’s Jackson, Wyoming, station where he worked as a “ticket counter/gate agent.” A436. According to Mr. Hansen, his coworker, John Robinson, and their supervisor, Lynn Ka-toa, both of whom are gay, began sexually harassing him soon after he transferred. Mr. Robinson and Mr. Katoa were also dating. Mr, Hansen claims Mr. Robinson “began to rub against [him] with his genitals” at work. A436. Mr. Hansen testified in his deposition that Mr. Robinson rubbed himself against Mr. Hansen several times and that, on one particular occasion,. Mr. Robinson declared, “I love it when Lynn [Katoa] gives it to me hard.” A321. Mr, Hansen also alleges that Mr. Katoa similarly rubbed his genitals across Mr. Hansen’s back and asked, “Oops. Did that.get you excited?” A311.

In April 2008, Mr. Hansen, Mr. Katoa, and Mr. Robinson were scheduled to travel to Denver to attend training. Mr, Katoa was responsible for arranging accommodations; he booked one room for the three men to share. Mr. Hansen told the. Jackson station manager he was uncomfortable sharing a room with Mr. Katoa and Mr. Robinson, and Mr. Hansen was permitted to have his own room. (Mr. Hansen also reported to the station manager that Mr. Robinson and Mr, Katoa were touching him in ways that he found unwelcome and had engaged him in unwelcome “sex talk.” A552.) Apparently, this arrangement upset Mr. Katoa, who complained to the station manager. Mr. Katoa and Mr. Robinson later “pushed” Mr. Hansen “into the corner of the supervisor’s office,” and demanded to know, ‘Why won’t you stay with us in the hotel room in Denver? I don’t understand it. There’s a problem. Why did you request a special accommodations not to stay in the hotel room with us? Are you afraid?” A315-16; A311-12.

Sometime in the. spring of 2008, Mr. Robinson was promoted and became Mr. Hansen’s supervisor. After he was promoted, Mr. Robinson “made it very clear” that Mr., Hansen had to “suck his dick” or Mr. Hansen would be out of a job. A339-40. Mr. Hansen claims that Mr. Robinson said: “If you. suck my dick, like I do Lynn Katoa’s, then you’ll be promoted to a supervisor or higher just like I was. That’s how I made this position.” A297. According to Mr, Hansen, Mr. Katoa had also alluded to Mr. Robinson’s promotion as a reward for performing sexual favors for,-Mr. Ka-toa.

Mr. Hansen further alleges that Mr. Robinson and Mr. Katoa harassed him several more times during the spring of 2008, including some demonstrations of hostility for. reporting sexual misconduct in the workplace. Sometime around May 2008, Mr. Katoa pressed, his shoulder against Mr. Hansen’s shoulder and said, “I understand that you’ve lodged a complaint with [the station manager] that I made you feel uncomfortable. What about this makes you feel uncomfortable?” A312. Later that month, Mr. Katoa again questioned Mr. Hansen about a complaint he had filed: he put his hand on Mr. Hansen’s back and said, “I’m upset. I’ve understood that you filed a grievance against [another employee] for her showing another supervisor’s penis on the phone. Why would you do that? Why don’t you just join us?” A313. Later, Mr. Robinson, in reference to the same grievance, pushed Mr. Hansen and said, “I know you were the one who filed the grievance.... You need to get along with us here and you need to let this roll off your back.” A322.

A few months later, in the summer of 2008, Mr. Robinson asked Mr. Hansen, “Doesn’t my butt look good?” and pretended to fall onto Mr. Hansen. A322-23. Mr. Hansen claims he told Mr. Robinson he felt uncomfortable and attempted to walk away, but that Mr. Robinson followed him and asked: “Why are you not helping us to push the gay agenda? ... You are gay. Why are you not going along with this?” A323. Mr. Hansen was “very upset” over this incident and he left to speak with a supervisor. Id. When Mr. Hansen returned, Mr.- Robinson said, “[The station manager]’s gonna be gone, and they’re gonna promote me because I’m doing exactly what I do, and that is provide—or get along with them. Do these things, and just watch.” Id.

In November 2008, Mr. Hansen returned home to Salt Lake City for Thanksgiving. There, Mr. Johansen, a SkyWest supervisor for Salt Lake, forced himself onto Mr. Hansen and tried to push Mr. Hansen to the ground. According to Mr. Hansen’s deposition, Mr. Johansen tried to lay on top of Mr. Hansen, and said, “Down bitch.” A333. In January 2009, Mr. Hansen alleges he was sexually harassed by Mr. Robinson and Mr. Katoa at the SkyWest Christmas party. Mr. Robinson and Mr. Katoa, who were both inebriated, invited Mr. Hansen to join them skinny-dipping in a hot tub. Mr: Hansen claims that Mr. Robinson grabbed him and insisted, “You’ve got to come to the hot tub with us. You got to get in naked. You got to come to the hot tub.” A328.

In April 2009, Mr. Robinson again rubbed his genitals against Mr. Hansen’s lower body—this time, in front of multiple witnesses. One witness testified in a deposition that she saw “John Robinson rubbing his front up against [Mr. Hansen’s] back... [a]t the ticket counter.” A619. Another witness recounted seeing Mr. Robinson “e[o]me up behind” Mr. Hansen and “rub[ ].... [h]is unit, junk, whatever you want to call it,” up against Mr. Hansen’s “butt.” A681. Mr. Hansen also claims Mr. Robinson stalked him around the workplace and, at one point, shoved Mr. Hansen into an unoccupied office and insisted that Mr. Hansen was “going to take his advances at that time.” A328. Mr. Hansen rejected Mr. Robinson and pushed past him to escape.

On April 17, 2009, Mr. Hansen reported Mr. Robinson and Mr. Katoa to Danny Luton, the new station manager. According to a witness, Mr. Luton “started to get verbally abusive” and asserted that Mr. Hansen was making it all up. A523. He told Mr. „Hansen that if “he was to write any grievances or say anything about the situation that he would make sure that [Mr. Hansen] had no job and that [Sky-West headquarters] would never see those grievances.” Id.

Mr. Hansen also reported to an HR official at SkyWest that he “had been sexually harassed and badgered by Robinson.” A737. Mr. Hansen’s complaint led to a meeting with two managers, Mr. Luton and David Hyllested, to discuss the April incidents. According to Mr. Hansen, Mr. Luton threatened to “fire [Mr. Hansen] on the spot,” or “paper up [his] file until he could fire [him],” and that he “would sue [Mr. Hansen] if [he] didn’t drop the complaint.” A737. No corrective action was taken to- address the alleged sexual harassment. Instead, Mr. Hansen was informed that he was under investigation for shoving another coworker. Mr. Hansen also learned that Mr. Robinson had reported Mr. Hansen for pushing him too. Mr. Hansen was sent home and not allowed to return to work until June 18, 2009.

Soon after Mr. Hansen returned to work, he submitted an intake questionnaire to the Wyoming Fair Employment Program (FEP), in which he complained about workplace sex discrimination and disability discrimination. According to Mr. Hansen, he was told by an employee of the Wyoming FEP that he “could not file a charge of discrimination based on sex because it was a sexual orientation claim.” A445. Based on this, Mr. Hansen filed a charge on June 26, 2009, with the Wyoming FEP alleging that from August 2007 through April 2009 he had experienced discrimination based on age and disability and that he was retaliated against for engaging in protected activity; the charge did not reference sexual harassment.

In October 2009, four months after Mr. Hansen filed this charge, Mr. Robinson transferred to Seattle. As the district court explained, Mr. Robinson “left Jackson because he and Lynn Katoa were no longer dating and he was still in love with Katoa and wanted to continue dating.” A746. It appears from the record that Mr. Hansen did not experience sexual harassment while Mr. Robinson was in Seattle. But the harassment then resumed when Mr. Robinson returned to Jackson around June of 2010. According to Mr. Hansen, he voiced his concerns to SkyWest human resources and the Jackson station manager about Mr. Robinson’s return.' Those concerns, apparently, went unaddressed, and Mr. Robinson was made Mr. Hansen’s “direct supervisor” in the fall. A450. Specifically, Mr. Hansen alleges that in October 2010, Mr. Robinson rubbed himself against Mr. Hansen in front of airline passengers and said, “I heard you bought a new home here. I would really like to come over and see your bedroom.” A759.

According to Mr. Hansen, he again voiced his concerns about Mr. Robinson to Mr. Hyllested, the new station manager. He also reminded Mr. Hyllested that he had a pending grievance against Mr. Robinson that had not been fully resolved. Mr. Hyllested told Mr. Hansen he thought Mr. Hansen was making it all up and that he did not want to hear about it. When Mr. Hyllested failed to address the situation, Mr. Hansen tried to escape Mr. Robinson by transferring to a different assignment in a different part of the airport, known as the “ramp area.” A450. But, Mr. Hansen could not avoid lewd talk. Mr. Hansen claims his coworkers at the ramp area “subjected [him] to explicit sexual commentary on a daily basis.” A450. In particular, Mr. Hansen asserts that his “coworkers engaged in discussions involving men and women having sex and defecating on each other during the sex act.” A450. When he reported this lewd commentary to Mr. Hyllested, Mr. Hyllested responded: “I am- not worried about what you report about them, I am worried about what they report about you. You need to quit worrying about them and get back to work.” A450. Around this same time, Mr. Katoa approached Mr. Hansen about a gym membership at a local gym, and he remarked to Mr. Hansen that he could “sexually be aggressive” or “sexually harass” Mr. Hansen there “since it wasn’t work.” A760. Mr. Hansen has also alleged a female supervisor told him that if he did not “pick up [her] supervisory shift,” she would “add to [his] sexual harassment problems.” A760-61. According to Mr. Hansen, he renewed his request for accommodations, specifically stating that his PTSD was triggered by recent incidents of sexual harassment.

In January 2011, Mr. Hansen got involved in an argument with a coworker over changing tickets for passengers. This led to a heated exchange and SkyWest ultimately terminated Mr. Hansen’s employment. The events leading up to Mr. Hansen’s termination were investigated by SkyWest officials, including Mr. Katoa. Mr. Hansen claims that, during the investigation, Mr. Katoa cornered Mr. Hansen, “rubbed his clothed genitals against him,” and “asked if he was afraid he was harassing Hansen.” A749. Mr. Hansen further alleges the investigation was inadequate. He claims the investigators, including Mr. Katoa, failed to interview witnesses who could have testified to Mr. Hansen’s version of events. Because, in Mr. Hansen’s opinion, the investigation was biased, he asked one' witness to email a statement detailing the events surrounding his termination, which she did; Mr. Hansen then forwarded it on to SkyWest. Mr. Hansen has also maintained that other demerits on his personnel record were fabricated by his coworkérs and by management.

After appealing his termination through SkyWest’s internal grievance process to no avail, he filed a second charge of discrimination to the Wyoming FEP in August 2011, claiming sex discrimination and retaliation under Title VII and Wyoming law. He alleged,-among other things, that he was subjected to “unwelcome sexual harassment” by his “supervisor, John Robinson” from May 1, 2008, to February 11, 2011, and that “[t]he acceptance or rejection of the harassment ... was an express[ ] or implied condition to the receipt of a job benefit or cause [of] a tangible job detriment.” A753. After he filed this second charge, he withdrew his 2009 charge, which was still pending; he had never amended his 2009 charge to add claims of sexual discrimination. Meanwhile, the Wyoming FEP investigated Mr. Hansen’s allegations and issued a finding of probable cause that Mr. Hansen had endured a hostile work environment at SkyWest. After receiving his right-to-sue notice from the EEOC, Mr. Hansen filed this lawsuit.

DISCUSSION

We review a grant of summary judgment de novo. Tademy v. Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008). “We will affirm the district court’s disposition only if our independent review of the record, viewing the facts in the light most favorable to the nonmoving party, reveals that there , is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 736 (10th Cir. 2014) (brackets and citation omitted). We also review de novo the district court’s application of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L;Ed.2d 190 (1991).

I. Hostile Work Environment

Under Title VII, a plaintiff must file a timely charge with the EEOC or a state agency before filing suit. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (citing 42 U.S.C. § 2000e-5(e)(14)). In states like Wyoming, which have prohibited discrimination under § 2000e-5, see Wyo. -Stat. Ann. § 27-9-105, the charge must be filed within 300 days “after the alleged unlawful employment practice occurred,” § 2000e-5(e)(1).

When it comes to discrete acts of discrimination or retaliation, the application of Title VII’s limitations period is straightforward: “A discrete retaliatory or discriminatory act ‘occurred’ on the day that it ‘happened.’” Morgan, 536 U.S. at 110, 122 S.Ct. 2061. But hostile work environment claims are different. “A hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117, 122 S.Ct. 2061. Thus, “[t]he ‘unlawful employment practice’ ... cannot be said to occur on any particular day.” Id. at 115, 122 S.Ct. 2061. Rather, it takes place over time, “and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. Consequently, “[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117, 122 S.Ct. 2061. The court’s task, then, “is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period.” Id. at 120, 122 S.Ct. 2061.

Although Morgan itself does not provide precise instruction on how to evaluate whether the offending acts were part of “the same actionable hostile work environment practice,” we have recognized several non-exclusive factors to guide the analysis. See Duncan v. Manager, Dep’t of Safety, City & Cty. of Denver, 397 F.3d 1300, 1309 (10th Cir. 2005). In Duncan, we considered whether the pre- and post-limitations period acts were “related by type, frequency, and perpetrator.” Id. We have also looked to -whether the acts .occurred when.the employee “was working in.the same place.” Tademy, 614 F.3d at 1144. These factors are not exhaustive: Morgan “does not limit the relevant criteria, or set out factors or prongs.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010);, see aiso Tademy, 614 F.3d at 1143 (rejecting a “strict ‘type, frequency, and perpetrator’ test”). “[Flexibility is useful in a context as fact-specific and sensitive as employment discrimination and as amorphous as hostile work environment.” McGullam, 609 F.3d at 77.

[8] Conversely, an employer will not be liable when there is “no relation” between the pre- and post-limitations acts, or if “for some other reason, such as certain intervening action by .the employer,” the later acts are no longer part of the same hostile work environment claim. Morgan, 536 U.S. at 118, 122 S.Ct. 2061.

Here, the district court misapplied Morgan. It held that Mr. Hansen could not include as part of his hostile work environment claim any act of sexual harassment occurring before October 13, 2010—300 days before his 2011 charge. But the district court did not properly evaluate whether the sexual harassment that went on before October 13, 2010, was related to the acts that occurred within the 300-day limitations period. Instead, the district court seems to have ' been persuaded by SkyWest’s argument that Mr. Hansen should be barred . from including any events that occurred more than 300 days before he filed his 2011 charge because “[allowing an employee to double file in this matter,” i.e., by filing one charge in 2009 for age and disability discrimination and then another in. 2011 for sex-based discrimination, “would violate the most basic res judicata principles.” A70. At the very least, the district court’s lengthy discussion of the 2009 charge suggests it factored into the court’s analysis. But the 2009 charge is immaterial to the Morgan “relatedness” inquiry; it simply has no bearing on whether the harassing acts were similar.

The district court also said that Mr. Robinson’s temporary transfer to Seattle was “problematic” for Mr. Hansen’s argument because the harassment abated for the six months Mr. Robinson was away. A758. But, as the Supreme Court has recognized, “it does not matter whether nothing occurred within the intervening ... days so long as each act is part of the whole.” Morgan, 536 U.S. at 118, 122 S.Ct. 2061. Furthermore, Mr. Robinson’s transfer was not the kind of “intervening action by the employer” that may sever an otherwise related series of acts. See id. Sky-West did not intervene to remedy the situation; Mr. Robinson left Jackson of his own volition because his relationship with Mr. Katoa had come, to-an end. See Vickers v. Powell, 498 F.3d 186, 199 (D.C. Cir. 2007) (holding that a “routine personnel action[]” that, was not, “intended to address” the hostile work environment does not “sever the earlier incidents from the more recent incidents”).

The district court also quoted Duncan out of context. We said in Duncan that “Title VII is not intended to allow employees to dredge up old grievances.” Duncan, 897 F.3d at 1308. True, “[u]nlitigated bygones are bygones,” id. but this case is not like Duncan. In Duncan, the plaintiff alleged she had suffered various types of sexual harassment over twenty years in seven different departments by several different coworkers. See id. at 1304-08. By contrast, Mr. Hansen has alleged the same type of sexual harassment (sexual propositions and unwelcome-physical contact) over a period of eight years total, and only four years in Jackson; he has identified two primary harassers (Mr. Robinson and Mr. Katoa); and most of the harassment occurred when Mr. Hansen was employed by SkyWest at the Jackson airport.

For instance, the district court improperly excluded from consideration the alleged April 2009 incident where Mr. Robinson rubbed himself against Mr. Hansen’s lower body. But this is clearly related to the' October 2010 incident, where Mr. Robinson again rubbed himself against Mr. Hansen. Because these two instances of harassment are related by type, perpetrator, and location, and because one occurred within 300 days of the 2011 charge, the district court was wrong not to consider them as part of the same actionable hostile work environment practice. Accordingly, Mr. Hansen has demonstrated a triable issue as to whether this and other incidents constituted “the same actionable hostile work environment practice.”

After excluding most of the alleged instances of sexual harassment as time-barred, the district court dismissed Mr. Hansen’s hostile work environment claim. It held that the incidents within the 300-day limitations period were “not sufficiently pervasive or severe to support” his claim. A778. We remand for the district court to consider in the first instance whether, taking into account all related acts of sexual harassment, a reasonable jury could conclude that Mr. Hansen’s “workplace was permeated with discriminatory intimidation, ridicule, - and insult, that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.” Tademy, 614 F.3d at 1144 (brackets and citation omitted).

II. Retaliation

Turning to Mr. Hansen’s retaliation claim, Title VII makes it unlawful to retaliate against an employee for opposing practices made unlawful by the statute. 42 U.S.C. § 2000e-3(a). “To prevail on a Title VII retaliation claim, a plaintiff- must establish that retaliation played a part in the employment decision[.]” Fye v. Okla, Corp. Comm’n, 516 F.3d 1217, 1224 (10th Cir. 2008). This burden may be satisfied in one of two ways. Under the direct or “mixed motives” approach, a plaintiff may offer direct evidence that retaliation played- a “motivating part” in the adverse employment decision. Id. at 1225. If the plaintiff can prove that retaliatory animus was a motivating factor, the burden then shifts to the employer to demonstrate that it would have taken the same action absent the retaliatory motive. Id.

Alternatively, in the absence of direct evidence, a plaintiff may proceed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, the plaintiff must first establish a prima facie case of retaliation by showing (1) “that he engaged in protected opposition to discrimination,” (2) “that a reasonable -employee would have found the challenged action materially adverse,” and (3) “that a causal connection exists between the protected activity and the materially adverse action.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 803 (10th Cir. 2007). “Once the plaintiff successfully asserts a prima facie retaliation case, the burden shifts to the defendant (i.e., employer) to come forward with a legitimate, non-retaliatory rationale for the adverse employment action. If the defendant does so, the plaintiff must show that the defendant’s proffered rationale is pretextual.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015) (internal quotation marks, ellipses, and citation omitted). As we have said, “[p]retext can be inferred from evidence revealing ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions’ in the employer’s explanation,” or it can be shown “by providing direct evidence discrediting the proffered rationale, or by showing that the plaintiff was treated differently from others similarly- situated.” Id. (internal quotation marks and citations omitted). Mr. Hansen has apparently elected to proceed under the McDonnell Douglas burden-shifting framework in this case. See A245.

The district court held that Mr. Hansen had failed to establish his prima facie case. Reasoning that any protected opposition to sex-based discrimination was “too remote in time” from his termination, the district court concluded “there are insufficient facts alleged to support the third element of the prima facie case, a causal connection between the protected action and the adverse acts.” A781. But the district court overlooked several, more recent instances where Mr. Hansen reported sexual harassment: He objected to Mr. Robinson’s return to Jackson based on his concerns about Mr. Robinson’s pattern of harassment; he reminded Mr. Hyllested that he had a pending grievance against Mr. Robinson; he reported to Mr. Hyllest-ed that he was subjected to unwanted, sexual commentary on a daily basis at the ramp area; and he renewed his request for accommodations and explicitly stated that his PTSD was triggered by recent incidents of sexual harassment. (SkyWest also failed to address these 2010 reports in its briefing.)

It is unclear why the district court ignored the 2010 reports. By its terms, Title VII prohibits retaliation against an employee who has “opposed any practice made an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). The Supreme Court has defined “oppose” in this context by lqoking to its ordinary meaning: “to resist or antagonize; to contend against; to confront; resist; withstand, ... to be hostile or adverse to, as in opinion.”. Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 276, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) (citations and ellipsis omitted). Under this broad definition, “[w]hen an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.” Id. (quotation marks, ellipsis, emphasis, and citation omitted); see also Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (“Protected opposition can range from filing formal charges to voicing informal complaints to superiors”). Even before Crawford, we had recognized that Title VII broadly protects an employee who reasonably believes he is opposing a practice made an unlawful practice by Title VII, whether or not an actual violation has occurred. See Crumpacker v. Kan. Dep’t of Human Res,, 338 F.3d 1163, 1172 (10th Cir. 2003).

Thus, as one example, when Mr. Hansen reported Mr. Robinson’s alleged misconduct to Mr. Hyllested in the fall of 2010, Mr. Hansen was engaging in protected opposition. The district court erred in not considering whether a jury could find that Mr. Hansen’s termination, which occurred in January 2011, was causally linked to this report and others made around the same time.

III. Intentional Infliction of Emotional Distress

Wyoming recognizes the tort of intentional infliction of emotional distress as defined in the Second Restatement of Torts. See Leithead v. Am. Colloid Co., 721 P.2d 1059, 1065 (Wyo. 1986) (citing Restatement (Second) of Torts § 46(1) (Am. Law Inst. 1965)). “To recover for intentional infliction of emotional distress, a plaintiff must prove that the defendant’s conduct was extreme and outrageous and that the defendant intentionally or recklessly caused the plaintiff to suffer severe emotional harm.” Kanzler v. Renner, 937 P.2d 1337, 1341 (Wyo. 1997). Conduct is “outrageous” when it goes “beyond all possible bounds of decency” and is “regarded as atrocious, and utterly intolerable in a civilized society.” Id. (quoting Restatement (Second) of Torts § 46 cmt. d).

Wyoming has also adopted the Second Restatement’s understanding of the roles that judges and juries play in determining “outrageousness”: “When presented with a motion for summary judgment, the court, as a matter of law, makes preliminary determinations regarding the outrageousness of the conduct and the severity of the emotional distress.” Id. This preliminary determination “is simply to decide whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Bevan v. Fix, 42 P.3d 1013, 1021 (Wyo. 2002). “If this threshold question can be answered either in the affirmative or by a finding that reasonable men and women may differ in deciding the issue, then the court must allow a jury to ultimately decide whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” Id.

The Wyoming Supreme Court has applied these principles in a number of employment' cases. See Cook v. Shoshone First Bank, 126 P.3d 886, 891-92 (Wyo. 2006) (collecting cases). It recognizes “that certain conduct in employment situations may be outrageous enough to provide the employee with a basis of recovery.” Worley v. Wyo. Bottling Co., 1 P.3d 615, 628 (Wyo. 2000) (citing Kanzler, 937 P.2d at 1341). And it has specifically addressed when “inappropriate sexual conduct in the workplace can, upon sufficient evidence, give rise to a claim of intentional infliction of emotional distress.” Kanzler, 937 P.2d at 1341-42. Indeed, the Wyoming Supreme Court has emphatically rejected sexual harassment in the workplace: “[O]ur society has ceased seeing sexual harassment in the work place as a playful inevitability that should be taken in good spirits and has awakened to the fact that sexual harassment has a corrosive effect on those who engage in it as well as those who are subjected to it ...” Id. at 1342 (quoting Retherford v. AT & T Commc’ns of Mountain States, Inc., 844 P.2d 949, 978 (Utah 1992)).

In Kanzler, the Wyoming Supreme Court surveyed caselaw on sexual misconduct in the workplace and the tort of intentional infliction of emotional distress, Id. at 1342-43. It “discern[ed]” four non-exclusive factors that help courts determine “whether particular conduct in the workplace is sufficiently outrageous to survive a preliminary motion”: (1) “Abuse of power”; (2) “Repeated incidents/pattern of harassment”; (3) “Unwelcome touching/offensive, non-negligible physical contact”; (4) “Retaliation for refusing or reporting sexually-motivated advances.” Id. at 1343. The court in Kanzler then found that two of these factors were met in the case before it: the plaintiff alleged “repeated incidents over a period of several weeks in which [the defendant] stared at her, followed her, and subjected her to sexually-motivated advances and physically intimidating behavior, each escalating in intensity and severity,” and she alleged she had experienced “unwelcome, non-negligible physical contact wherein [the defendant] touched and hugged her even after she repeatedly rebuffed his advances, and ultimately confined her in a closet and rubbed his crotch against her leg.” Id. Although only two of the four factors were present, the court concluded that these “conditions and circumstances” alleged by the plaintiff went beyond “mere insults” or “indignities,” and, consequently, that the plaintiffs claim should go to the jury. Id.

Viewing the evidence in the light most favorable to Mr. Hansen, a jury could And that all four Kanzler factors are present here. First, the record contains ample evidence of abuse of power. Mr. Hansen was sexually harassed by supervisors at SkyWest, including his direct supervisors, Mr. Robinson and Mr. Katoa, who threatened his continued employment if he did not submit to their advances. Although “liability does not attach upon the mere existence of an employment relationship,” the Wyoming Supreme Court has recognized that “the employer-employee relationship” is a “significant factor in determining outrageousness.” Worley, 1 P.3d at 629. “ ‘It is only natural that a defendant’s position of power over a plaintiff may. enhance his or her ability to do harm.’ ” Id. (citation omitted); see also Restatement (Second) of Torts § 46 cmt. e. In fact, it was the employer-employee relationship in Worley that pushed the misconduct over the top: the court concluded that the facts of the case were “not outrageous in and of themselves,” but “when considered in the context”- of the employment relationship, the. plaintiffs evidence was “sufficient” to preclude summary judgment. Worley, 1 P.3d at 630. Here, too, the employment context bolsters Mr.- Hansen’s claim.

Second, “[Repeated harassment may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability.” Kanzler, 937 P.2d at 1343 (citation and ellipsis omitted). Here, Mr. Hansen was sexually harassed over a considerable period of time. Most of it occurred during the four years Mr. Hansen worked in Jackson. The two primary harassers, Mr. Robinson and Mr. Katoa, repeatedly rubbed, against Mr. Hansen, threatened Mr. Hansen with continued sexual harassment, and demanded sexual favors for employment benefits.

Third, Mr. Hansen has provided evidence that he was the victim of unwelcome, non-negligible physical contact. Indeed, the physical contact at issue here is remarkably similar to that in Kanzler, where the defendant touched and hugged the plaintiff and, at one point, confined the plaintiff in a closet and rubbed his crotch against her leg. Mr. Hansen has alleged Mr. Robinson and Mr. Katoa repeatedly rubbed against him and both had, on multiple occasions, pushed Mr. Hansen into an unoccupied room to harass him in private.

Regarding the last Kanzler factor, and when we draw all inferences in Mr. Hansen’s favor, Mr. Hansen has also provided sufficient evidence to support a jury conclusion that he suffered retaliation for refusing and reporting sexually motivated advances.

Even if this were not enough, conduct that may not otherwise be outrageous may become so based on the actor’s knowledge that the victim is particularly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. See Restatement (Second) of Torts § 46, cmt. f. Mr. Hansen’s tormentors knew he suffered from PTSD, but they targeted him anyway.

In conclusion, viewing the evidence in the light most favorable to Mr. Hansen, reasonable persons could differ as to whether the conduct was extreme and outrageous. Consequently, the district court was wrong to dismiss Mr. Hansen’s claim for intentional infliction of emotional distress on this ground.

CONCLUSION

We REVERSE the district court’s grant- of summary judgment with respect to Mr. Hansen’s claims for sexual harassment, retaliation, and intentional infliction of emotional distress. We AFFIRM the district court’s grant of summary judgment regarding the disparate treatment claim’. We REMAND the case for further proceedings consistent with this opinion.

      , Some of the following narrative derives from Mr, Hansen's declaration, After thoroughly reviewing the record and the declaration, we disagree with SkyWest that the declaration is overly conclusory, unsupported, or contradicted by the record. Nor is the declaration defective simply because it is unsworn. See 28 U.S.C, § 1746.

      . We cite the Appendix contents as “A” followed by the page number.

      . ‘‘State law claims before a federal court on supplemental jurisdiction are governed by state law.” Time Warner Entm't Co. v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039, 1044 (10th Cir. 2004).

      . Defendant argues that the four-year statute of limitations for IIED claims limits our inquiry to events occurring between October 25, 2009, and October 25, 2013, when the original complaint was filed. Not so. Under Wyo. Stat. Ann. § 1-3-105, an action for the intentional infliction of -emotional distress must be brought within four years "after the cause of action accrues.” See VanLente v. Univ. of Wyo. Research Corp., 975 P.2d 594, 598 (Wyo. 1999). A cause of action for the intentional infliction of emotional distress accrues only after the plaintiff experiences "severe emotional distress.” See Lucky Gate Ranch, L.L.C. v. Baker & Associates, Inc., 208 P.3d 57, 65 (Wyo. 2009) ("A cause of action accrues for statute of limitation purposes when all elements of the cause of action are present, including damages.”). Because it has not yet been determined whether and when Mr. Hansen experienced severe emotional distress, our decision contemplates that the parties and the district court will address this issue on remand. We also do not address here how Wyoming law treats an employer’s liability for an IIED claim.

      . We do not express an opinion regarding quid piro quo harassment or coworker harassment. Although the district court should have addressed Mr. Hansen’s quid pro quo and coworker harassment claims, it will have an opportunity to do so on remand. On the evi-dentiary issue, we do not understand the district court’s initial exclusion of the Doak declaration to foreclose further consideration , on remand, including whether it contains any out-of-court statements which would be ex-cludable as hearsay.


source: Caselaw Access Project

author: HARTZ, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jasonn GONZALES, Defendant-Appellant.
    No. 16-2022
    United States Court of Appeals, Tenth Circuit.
    Filed December 29, 2016
    Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.
    James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
    Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
   HARTZ, Circuit Judge.

Defendant Jasonn Gonzales pleaded guilty in the United States District Court for the District of New Mexico to four counts of mail fraud, see 18 U.S.C. § 1341, one count of conspiracy to. commit mail fraud, see 18 U.S.C. §§ 1341 and 1349, and ope count of aggravated identity theft, see 18 U.S.C. § 1028A, arising out of his fraudulent scheme to obtain unemployment benefits from three state agencies. On appeal his sole argument is that the district court erred in calculating his sentencing-guidelines offense level by including as victims those persons whose identities had been stolen even though they suffered no financial loss. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

From January 2009 through May 2012, Defendant and Gerald Archuleta tricked unemployment agencies in Texas, Colorado, and New Mexico into sending them prepaid debit cards for unemployment benefits for unqualified people. They registered fake companies with the agencies and paid unemployment taxes for them, listing real people (with correct social security numbers and other personal information) as employees of the companies. They then submitted unemployment-benefit claims on behalf of those people. The unemployment agencies mailed the debit cards to post office boxes rented by the two men, who used the cards - for their personal benefit.

Law-enforcement officers searched Defendant’s home on May 22, 2012, and found substantial evidence of the scheme. For reasons not apparent in the record on appeal, Defendant was not indicted until almost two years later, on March 26, 2014. He pleaded guilty on August 18, 2014, to all charges without the benefit of a plea agreement.

When calculating Defendant’s offense level for thé mail-fraud and conspiracy charges, thé probation office’s presenterice report (PSR) started with a base level of 7. See USSG § 2Bl.l(a)(l) (2014) (guideline for theft offenses). It raised the level because of three special offense characteristics, adding 16 levels for an intended loss over $1 million, see id, § 2Bl.l(b)(l)(I), two levels for Defendant’s use of sophisticated means, see id. § 2Bl.l(b)(10)(C), and four levels because the number of victims exceeded 50, see id. § 2Bl.l(b)(2)(B). The PSR then added four levels because Defendant was an organizer or leader, see id. § 3Bl.l(a), and subtracted three levels for acceptance of responsibility, resulting in an offense level of 30. With Defendant’s criminal-history category of II, his guidelines sentencing range was 108 to 135 months’ imprisonment. For Defendant’s aggravated-identity-theft conviction,-the PSR added the mandatory consecutive two-year prison term. See 18 U.S.C. § 1028A; see also USSG § 2B1.6 (guideline for aggravated identity theft).

Defendant objected to the .number-of-victims enhancement on the ground that the only financial losses from the scheme were suffered by the three state agencies. The PSR counted 107 victims, however, because application note 4(E)(ii) to USSG § 2B1.1 defines victim to include “any individual whose means of identification was used unlawfully or without authority.” Defendant argued that the application note could not be used in calculating his sentence because he was also being sentenced for aggravated identity theft under 18 U.S.C. § 1028A, and for someone so sentenced-application note 2 to USSG § 2B1.6 prohibits applying any enhancement “for the transfer, possession; or use of a means of identification.” At sentencing on December 4, 2014, the district court overruled the objection, adopted the PSR’s guidelines calculation, and varied downward for an ultimate sentence of 111 months’ imprisonment.

II. DISCUSSION

Several guidelines provisions are central to our discussion. Section 2Bl.l(b)(2) states: “If the offense ... involved 50 or more victims, increase [the offense level] by 4 levels.” USSG § 2Bl.l(b)(2). Application note 4(E) to that section defines victim where, as here, the case “involve[s] means of identification.” The note incqrpo-rates the general definition in application note 1 but also ipcludes within the definition of victim “(ii) any individual whose means of identification was used unlawfully or without authority.” These are the provisions used by the district court.

Defendant’s arguments rest on an application note to the guidelines provision concerning his conviction for aggravated identity theft under 18 U.S.C. § 1028A. The guideline states: “If the defendant was convicted of violating 18 U.S.C. § 1028A, the guideline sentence is the term of imprisonment required by statute ' [two years].” Id. § 2B1.6; see 18 U.S.C. § 1028A. Application note 2 to that section provides:

If a sentence under this guideline is imposed in conjunction with a sentence for any underlying offense, do not apply any specific offense characteristic, for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense. A sentence under this guideline accounts for this factor for the underlying offense of conviction, including , any such enhancement that would- apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).

USSG § 2B1.6, cmt. n.2. (emphasis added)

Defendant contends that this provision forbids use of application note 4(E) to enhance his sentence. He argues that there -were only three victims of his scheme—the three state unemployment agencies—because they are the only ones who suffered monetary loss. The other “victims” counted by- the -PSR were counted- only' because they were “individual[s] whose means of identification was used unlawfully or without authority.” USSG § 2B1.1 cmt. n.4(E). But, the argument continues, counting them would be a prohibited application of a “special offense characteristic- for the transfer, possession, or use of means of identification.” Therefore, he says, the four-level 50-victim enhancement was improper.

Defendant focuses on the guidelines’ use of the word any in application note 2, arguing that the word requires, a broad reading, “proscribing] application of all [special offense characteristics] of whatever kind ‘for the use of a means of identification,’ ” Aplt. Op. Br. at 19. Noting that the express purpose of note 2 is to prevent double-punishing a defendant who improperly uses another person’s identifying information, he suggests that his conduct was double-punished because he received both the two-year consecutive term under § 1028A and the victim enhancement for the same conduct. He contends that the application note is unambiguous, but that even if it were unclear, the rule of lenity directs us to interpret it in his—the defendant’s—favor.

This argument, however, appears to be foreclosed by circuit precedent. In United States v. Manatau, 647 F.3d 1048, 1048-49 (10th Cir. 2011), the defendant pleaded guilty to bank fraud and aggravated identity theft arising from his stealing and using social security numbers, credit cards, and checks. In calculating the defendant’s offense level, the court counted the number of victims based on application note 4(C) to § 2B1.1 (2009), which at that time defined victim “[i]n a case in which undelivered United States mail was taken.” The definition included “any person who was the intended recipient, or addressee, of the undelivered United States mail.” USSG § 2B1.1 emt. n.4(C) (2009). Almost none of these “victims” sustained actual monetary harm.

Mr. Manatau contended on appeal that it was error to apply this enhancement, raising the same argument advanced by Defendant here—that the enhancement was forbidden by § 2B1.6 application note 2 because of his conviction under 18 U.S.C. § 1028A. We agreed with him that “the guidelines tell courts not to apply an enhancement based on a ‘specific offense characteristic for the transfer, possession, or use of a means of identification,’ where ... a defendant has been convicted of aggravated identity theft and bank fraud.” Manatau, 647 F.3d at 1057 n.4 (quoting USSG § 2B1.6 app. n.2). But we held that “the number of victims is not such an offense characteristic.” Id.

Defendant argues that Manatau is not controlling because “[n]owhere in the ... opinion or in the briefs in that case is there any mention of § 2Bl.l’s application note 4(E)(ii).” Aplt. Op. Br. at 21-22. He adds that “[i]t is not even apparent the district court in that case applied that note since the defendant’s offenses occurred before the note went into effect on November 1, 2009.” Id. at 22. Therefore, he says, this court has not yet addressed the implications of note 4(E)(ii).

Defendant is correct that note 4(E)(ii) was not in effect when Mr. Manatau was sentenced. But our broad language in Ma-natau did not restrict itself to any particular definition of victim in the number-of-victims enhancement. We said without qualification that “the number of victims” is not an offense characteristic encompassed by application note 2 to § 2B1.6.

Even if Manatau is not strictly controlling, we agree with it and apply it here. Defendant conflates the nature of the crime and the extent of the crime. Application note 2 states that a guidelines enhancement based on the nature of the crime—“the transfer, possession, or use of a means of identification”—cannot be applied to a defendant who is also being sentenced under 18 U.S.C. § 1028A. But it does not restrict an enhancement based on the extent of such a crime. In that circumstance there is no double counting. In particular, using the definition of victim applied in this case does not lead to any double counting. The aggravated-identity-theft statute, 18 U.S.C. § 1028A, imposes a mandatory two-year consecutive sentence if a person “during and in relation to any felony violation enumerated in [the statute], knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person.” The two-year mandatory sentence does not depend on the number of persons whose identities have been stolen. (Of course, a defendant may be convicted on multiple counts charging violations of § 1028A, but the sentences on those counts may run concurrently. See id. § 1028A(b)(4); USSG § 2B1.6, cmt. n.l(B).) Thus, the sentence imposed for aggravated identity theft does not necessarily reflect the number of victims. For example, Defendant’s sentence on the charge was going to be two years’ imprisonment no matter how many identities he stole. Yet it is reasonable to treat criminal conduct more seriously as the number of stolen identities increases, and application note 4(E)(ii) to USSG § 2B1.1 accomplishes .that. Certainly it was advantageous to Defendant that his multiple identity thefts were taken into account under the application note rather than his being charged with more than 100 counts of aggravated identity theft.

A proper occasion for using application note 2 to § 2B1.6 would be when the. sentencing court would otherwise apply USSG § 2Bl.l(b)(ll)(C), which increases the offense level if an offense involved “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification.” See United States v. Anderson, 532 Fed.Appx. 373, 378 (4th Cir. 2013) (offering this provision as an example of an enhancement prohibited by § 2B1.6, app. n.2); United States v. Lyles, 506 Fed.Appx. 440, 447 (6th Cir. 2012) (same). We are not aware of any other guideline that would come under application note 2; but the Sentencing Commission may well have decided to speak in general language that could cover future guidelines amendments.

Finally, we note that our fellow circuits agree with our reading of the guidelines. Every circuit to have ruled on this issue has allowed the enhancement, See United States v. Ford, 784 F.3d 1386, 1397-98 (11th Cir. 2015); Anderson, 532 Fed.Appx. 373; Lyles, 506 Fed.Appx. 440; United States v. Yummi, 408 Fed.Appx. 537, 541 (3d Cir. 2010). We join this consensus.

III. CONCLUSION

We AFFIRM the district court’s judgment and sentence.

      . Apparently, Defendant obtained at least some of the information from people he as- • sisted with tax returns and from personnel files of employees at- businesses where he worked as an accountant.

      . Throughout the opinion we refer to the November 1, 2014 version of the guidelines, which was the 'Version used for Mr. Gonzales’s sentencing. The parties do not dispute that this was the correct version to apply.

      . Application note 1 to § 2B1.1 defines victim ás “(A) any person who sustained any part of the actual loss determined under subsection (b)(1) [which refers to monetary harm]; or.(B) any individual who sustained bodily injury as a result of the offense.” Id. § 2B1.1 cmt. n.l,

      , Application note 4(E) states in full: "Cases ' Involving Means of Identification.—For purposes of subsection (b)(2), in a case involving means of identification- 'victim' means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.”


author: LAMBERTH, District Judge: JORDAN; Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Delton RUSHIN, Ronald Lach, Jr., Christopher Hall, Defendants-Appellants.
    No. 14-15622
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 12/21/2016

      Christine A. Monta, Dennis John Dim-sey, Mark L. Gross, Teresa Kwong, U.S. Department of Justice, Civil Rights Division, Appellate Section, Tona M. Boyd, Forrest Christian, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, Ayesha N. Khan, U.S. Department of ..Justice, Civil Rights Division, Bethesda, MD, Paul C. McCommon, III, Michael J. Moore, U.S. Attorney, Michael Taylor Solis, U.S. Attorney’s Office, Macon, GA, for Plaintiff-Appellee.
    John Philip Fox, Fox' & Smith, LLC, Debra Greta Gomez, Gomez Law Group, LLC, C. Brian Jarrará, C. Brian Jarrard, LLC, Macon, GA, for Defendants-Appellants.
    .Before CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, District Judge.

       Honorable Royce C, Lamberth, United States District Judge for the District of Columbia, sitting by designation.

   LAMBERTH, District Judge:

Appellants were correctional officers at Macon State Prison (MSP) in Oglethorpe, Georgia. Specifically, they were members of the Correctional Emergency Response Team (CERT), which is a specially trained group responsible for responding to and controlling disturbances at MSP. In 2013, appellants were indicted and charged with various civil-rights, conspiracy, and ob-struetion-of-justice violations stemming from alleged ahuses of prisoners and subsequent cover-ups. Appellants Delton Rushin and Christopher Hall were ultimately found guilty of one count of Conspiracy to Obstruct, 18 U.S.C. § 371, and two counts of Obstruction of Justice, 18 U.S.C. § 1519. Appellant Ronald Lach was convicted of Deprivation of Rights in violation of 18 U.S.C. § 242, Conspiracy to Obstruct in violation of 18 U.S.C. § 371, and Obstruction of Justice in violation of 18 U.S.C. § 1519. Rushin and Hall appeal on four grounds, (1) that the district judge should have recused himself from the case, (2) that a district court limitation on the cross-examination of cooperation witnesses violated defendants’ sixth amendment rights, (3) that the district court improperly excluded evidence of prior inmate violence, and (4) that the district court sentenced them improperly. Lach appealed only on the grounds that the district court judge should have recused himself. This Court has jurisdiction under 28 U.S.C. § 1291.

I.

Underlying this case are charges involving the beatings of several inmates at MSP. Specifically, the government alleged that appellants and others retaliated against certain inmates who hit officers. The CERT team would take the inmate to areas without cameras, often the gymnasium, and assault the still-handcuffed inmate. They would then take the inmate to the medical unit and lie about how the inmate’s injuries were sustained. The CERT team would then write false witness statements that concealed the team’s conduct while remaining consistent with one another. At trial the government presented four instances of this behavior.

1.. The Assault on Franklin Jones

In October 2010, inmate Franklin Jones assaulted an officer. The CERT team, including the appellants, responded to the incident. They escorted Jones to the gymnasium where, while he was still in handcuffs, they repeatedly beat.him. Jones was brought to the medical unit where he was treated for injuries that included a laceration on the back of his head, swelling in the bones around both eyes, and blood in his mouth and nostrils. Jones did not have those injuries before the CERT team escorted him to the gymnasium.

The CERT team then wrote reports on what occurred and omitted mention of assaulting Jones. At trial, two CERT team officers testified that they were taught to “write their statements to coincide with each other” and to write a report to make it appear “like nothing happened.” When Internal Affairs came to investigate, Hall told them to “just stick to what [they] had on the statement.”

2. The Assault on Jabaris Miller

A few days after the assault on Jones, inmate Jabaris Miller attacked an officer. The CERT team again responded, handcuffed Miller, escorted him behind the “ID” building, and assaulted him. As with the attack on Jones, two CERT team officers testified that they were told “exactly what to write” on their reports.

8. The Assault on Mario Westbrook

In December 2010, inmate Mario West-brook attacked a deputy warden. The CERT team responded and escorted West-brook from the building. The team took Westbrook to the gymnasium where they assaulted him. Westbrook was subsequently taken to the medical unit where he had abrasions, a laceration, and two black eyes. Westbrook did not have those injuries before being escorted to the gymnasium.

Rushin’s report on the incident does not discuss the assault and only states that he “assisted with escorting inmate West-brook” from “unit El to medical.”

4. The Assault on Terrance Dean

Shortly after the assault on Westbrook, inmate Terrance Dean assaulted an officer. The CERT team again responded and Dean was escorted to the gymnasium. Dean was told “this is what you get for hitting an officer” before the CERT team beat him. Dean was beaten until he was unresponsive. He was dragged to the medical unit, unable to walk or speak. He had a five-inch wide hematoma on his head, abrasions on his face and feet, a lacerated upper lip, his right eye was dilated and unresponsive to light, and the nurse believed it was possible he would die. Dean was ultimately transported to a hospital. When he later awoke he had severe neurological problems and ultimately had to spend six months in physical therapy to relearn how to walk.

The CERT team agreed to doctor their reports on the incident. Each of their statements omitted any mention of the CERT officers using force against Dean. CERT officers testified against appellants. One testified that Hall instructed him to look at other statements and “make [his] statement match theirs.” When one CERT officer went to meet with Internal Affairs investigators, Hall told him to “stick to what [he] wrote on the statement” and directed another to change his statements to make it consistent with other team member’s statements.

II.

Less than three weeks before the trial began, appellants moved for the district court judge to recuse himself under 28 U.S.C. § 144 and 28 U.S.C. § 455. The basis for that motion was that the Judge had, while in private practice, litigated against the Georgia Department of Corrections. Additionally, during a pretrial hearing the Judge and counsel for defendants engaged in, as appellants describe it, a “spirited debate.” Appellants maintain that the written transcript fails to convey the “tone of voice and emphasis, eye contact and body language”' that they believe constituted and revealed bias against them. The Judge did not recuse himself. Additionally, the Judge stated that he would cut counsel’s CJA voucher for time expended on the motion. Appellants now argue the judge should have recused himself and that he should not have cut counsel’s CJA voucher.

Before oral argument, this Court addressed the issue of recusal in this case, affirming the district court. United States v. Rushin et al., No. 14-15622, Doc. 85, 844 F.3d 933 (11th Cir. 2016). Defendant Lach had appealed only on the grounds that the judge should have recused himself. His appeal was fully resolved by that opinion, which found the judge did not err. The Court will not repeat the legal standards and analysis already articulated. They are equally applicable to Hall and Rushin’s appeal on the issue'Of recusal given that the underlying facts are identical. For the reasons and legal authorities stated in that opinion, we find that the judge did not abuse his discretion with respect to the motion to recuse.

One additional issue raised in this appeal is the judge’s decision to limit defendant Hall’s counsel’s CJA voucher. In general, “no appellate jurisdiction exists over an appeal of a district court’s award of sanctions against counsel where the notice of appeal fails to make clear that counsel intends to participate as an appellant rather than as an appellant’s attorney.” Bogle v. Orange Cty. Bd. of Cty. Comm’rs, 162 F.3d 653, 660-61 (11th Cir. 1998). However, if an award of fees is joint and several against counsel and the client, “it would be unjust to refuse to hear counsel’s appeal.” Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc., 877 F.2d 938, 939 n. 1 (11th Cir. 1989).

The notice of appeal fails to make clear that counsel intended to' participate as an appellant. Additionally, this is not a joint and several award of fees against a counsel and client. Accordingly, this matter is not properly before the Court.

m.

As noted above,, multiple members of the CERT team cooperated with the government and testified at trial. Those individuals had entered into plea agreements with the government, and defense counsel wished to cross-examine them - about their potential sentences had they not cooperated. For example, to elicit that a cooperating witness could have “cut a sweet deal for five years as opposed to. 20.” The government requested a limitation on defendants cross examining witnesses with rer gard to the specific numerical sentence that could have been imposed had they not cooperated, as this would speak to the potential sentences that could be received by the defendants and encourage jury nullification. The district court judge granted this motion, explaining that defendants were permitted to inquire into whether the cooperating witnesses entered into a plea agreement, if they faced a “more severe penalty” prior to cooperating, and if the witness received or expected to receive benefits in exchange for their testimony such as charges being dropped or- consideration of a sentence reduction. However, defendants were not permitted to inquire as to the statutory sentence range for charges against cooperating defendants.

At trial, defendants told the judge what testimony they would have elicited but for his order. They explained this would include the statutory ranges for the crimes the witnesses were charged with, which defense counsel admitted would include all the crimes -with which defendants were charged. Counsel then planned to elicit the statutory máximums and compare those to the plea agreements. They would then discuss mandatory mínimums, 5K motions, the sentencing guidelines, and requests for downward departure. Counsel would do a “short bit of guidelines calculations” with the witnesses to ultimately compare the plea and guidelines ranges.

Due to the Judge’s order, defense counsel did-not ask those'questions.'Nonetheless, counsel were able to and did' in fact discuss- the cooperating witnesses’ plea agreements and the benefits of cooperating with the government. Counsel also were able to speak to the magnitude of the plea’s impact for the cooperating witnesses. For example, one exchange between a witness and defense counsel included: “Q: Would you agree with me that that plea agreement is probably one of the most important documents you’ve ever signed in your life? A: Yes. Q: No question about it? A: No question about it.” Appellants maintain that despite the questions they asked, they should have been permitted to make the broader inquiry they requested.

The Court reviews limitations on the scope of cross-examination for “a clear abuse of discretion.” United States v. Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009). However, we address de novo the question of whether a defendant’s Sixth Amendment rights were violated. United States v, Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012).

We have previously explained that there are two requirements with regard to a defendant’s confrontation clause rights:

First, the jury, through the cross-examination that is permitted, must be exposed to facts sufficient for it to draw inferences relating to the reliability of that witness. And second, the cross-examination conducted by defense counsel must enable him .to make a record from which he could argue why the -witness might have been biased.

United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir. 1991). This is not unfettered however. There is “wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

We. have not spoken on- how limitations of the type in question here, prohibiting cross-examination on the potential sentences of cooperating witnesses, fits into the framework articulated in Van Dorn and Maxwell. However, other Circuits have done so. The First, Fourth, Seventh, Eighth, Ninth, and D.C. Circuits have all held that limitations like the one in question here are' acceptable. United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995), amended (Sept. 28, 1995) (holding the Sixth Amendment does not require the “precise number of years” a cooperating witness may face); United States v. Cropp, 127 F.3d 354, 358 (4th Cir. 1997) (affirming a limitation that defendant could ask whether a cooperating witness “faced a ‘severe penalty prior to cooperating, and whether they expected to receive a lesser , sentence as a result of the cooperation” but could not ask “about the specific penalties at stake”); United States v. Arocho, 305 F.3d 627, 636 (7th Cir. 2002) (“[T]he district court’s ruling restricting testimony about the specific sentencing guideline ranges and sentences did not impact the appellants’ Sixth Amendment rights.”); United States v. Walley, 567 F.3d 354, 360 (8th Cir. 2009) (“[W]e do not think that whatever marginal value might have been derived from presenting evidence that [a cooperating witness] faced a specific minimum sentence ... is sufficient on this record to demonstrate that the court’s ruling violated [defendant’s] rights under the Confrontation Clause.”); United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir.1987), rev’d in part on other grounds on rehearing, 856 F.2d 1391 (9th Cir. 1988) (“Defense counsel was afforded more than an adequate opportunity to expose ..; potential bias and motive in testifying. The amount of jail time ... faced is at best marginally relevant.”); United States v. Hall, 613 F.3d 249, 256 (D.C. Cir. 2010) (affirming a restriction on evidence regarding “potential sentences faced[] or avoided ... by pleading.”).

The widespread view that district courts may limit cross examination into potential sentences is constrained. For example, , in United States v. Larson the Ninth Circuit found a violation of defendant’s rights when the district court’s limitation prohibited questioning about a mandatory minimum life sentence. 495 F.3d 1094 (9th Cir. 2007). The Third Circuit “requires an examination of whether the magnitude of reduction would likely have changed the jury’s mind regarding [a witness’] motive for testifying.” United States v. Mussare, 405 F.3d 161, 170 (3d Cir. 2005); see also United States v. Cooks, 52 F.3d 101, 104 n. 13 (5th Cir. 1995) (finding error where the district court prohibited inquiry into a potential 99 and 40 year sentence.).

While the opinions of our sister circuits are not .binding on us, the logic in many of these cases upholding limitations similar to the one at issue is persuasive. While it is imperative that a defendant be able to address the reliability and potential bias of a cooperating witness, in this case the precise number of years the cooperating witnesses may have faced provides little, if any, value above those questions defense counsel were permitted to ask.

Here, defendants could inquire as to whether cooperating .witnesses otherwise .faced a more severe penalty or expected to receive a lesser sentence. Moreover, one such witness, when asked about his plea agreement, identified it as “one of the most important documents” in his life. Moreover, defense counsel specifically argued that these reduced sentences created an incentive for the cooperating witnesses tp “twist the truth in a way that- supports what the Government says transpired in this case.”

Given that counsel could and did address the possibility that cooperating witnesses had motive to twist their story or lie, “[a]ny probative value-of information about the precise number of’years [a cooperator faced] ... tvas slight.” Luciano-Mosquera, 63 F.3d at 1153. An alternative holding would be problematic. Due to the fact that the sentence range applicable to these witnesses would reveal.the sentence range.for defendants, the proposed additional examination could invite jury nullification. The risk of jury nullification is accentuated by the. fact that defendants were guards and the victims prisoners. We have previously explained that “[jury nullification] verdicts are lawless, , a denial of due process and constitute an exercise of erroneously seized power.” United States v. Funches, 135 F.3d 1405, 1409 (11th Cir. 1998) (quoting United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983)). We have also held that district courts may constrain counsel from making arguments that encourage nullification. United States v. Trujillo, 714 F.2d 102, 105 (11th Cir. 1983), and do not find this case materially different. Moreover, not only would holding in defendants’ favor limit the ability of district. court judges to prevent prejudicial information from reaching the jury, but would likely lead to confusing and convoluted “mini-trials” on the issue of sentencing alone.

For example, defendant wished to inquire about the sentencing guidelines, do guidelines calculations, discuss downward departures, and much more. The sentencing guidelines can be complex and at points confusing, even to members of the judiciary who have regular exposure to them. Attempting to explain such a Byzantine system to jurors, who will most often lack prior knowledge of the guidelines, would almost certainly be both time consuming and confusing, even if defense counsel had no desire to make it so. Arocho, 305 F.3d at 636-37 (“[T]o the extent the appellants wanted to . question [witnesses] as to the sentencing guideline provisions, that detailed inquiry could place in dispute many side, issues, and could also confuse the jury as to the real issue at hand.”).

This is not to say that the magnitude of a potential sentence could not ever shift this balance. However, this is not a case like Larson where discussion of a mandatory minimum life sentence was prohibited. Here, to the contrary, defendants were able to ask if the cooperators faced a “severe penalty” prior to cooperating, whether they expected to receive a lesser sentence as a result of their cooperation and whether the plea was one of the most important documents a cooperating witness had ever signed. Defense counsel were thus able to explore how the plea agreement could have impacted the witnesses’ testimony, including the impact the witnesses expected it to have on their sentences,- lives, and careers as well as the magnitude of that impact. Given the scope of the questioning that was allowed in this case, the risk of jury nullification, and the complications associated with the questions defense counsel wished to ask, the district court’s limitation on cross examination was not improper.

IV.

In addition to limiting cross examination regarding cooperation, the district court prohibited evidence regarding “poor working conditions, unrelated acts of violence, or other irrelevant conditions at [MSP].” Defendants argued that such conditions were probative of (1) why a defendant may not recall an incident or recall it in a manner inconsistent with others and (2) to show witness' bias and motivation given the duties of the CERT team.

In its order, the court explained that the government had argued that details of unrelated prison violence would encourage nullification. Moreover, the court noted that defendants had not articulated a legitimate reason this information was relevant. To the contrary, the court found that the defendants’ logic implied that due to the harsh conditions at MSP defendants were justified in beating handcuffed prisoners they had brought to camera-free locations. The court thus granted the government’s motion while noting that defendants were free to raise the issue with the court again if they believed the information was relevant given the circumstances. The court also noted that such information could indeed be relevant if defendants were going to argue that they were confusing various incidents of altercations between inmates and guards when speaking with investigative officers.

During a bench conference that occurred during the opening statements, defendants raised this issue again. At that point they argued that evidence of other instances wherein the CERT team responded to violence but did not assault the inmate would indicate that there was no conspiracy. The government argued that they were charging a conspiracy to assault and cover up the four specifically charged instances, not all instances in which an inmate assaulted a guard. The court maintained its prior ruling, instructing defense counsel they were free to argue there was no conspiracy but that they could not raise instances of unrelated inmate violence.

We review district court limitations on admission of evidence for abuse of discretion. United States v. Adair, 951 F.2d 316, 320 (11th Cir. 1992). However, as discussed above, we review constitutional challenges de novo. United States v. Undewood, 446 F.3d 1340, 1345 (11th Cir. 2006). We have explained that “it is axiomatic that a defendant’s right to present a full defense does not entitle him to place before the jury irrelevant or otherwise inadmissible evidence.” United States v. Ruggiero, 791 F.3d 1281, 1290 (11th Cir.) (quoting United States v. Anderson, 872 F.2d 1508, 1519 (11th Cir. 1989)). The Supreme Court has also stated that evidence can be excluded “if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). That said, “[a] criminal defendant’s right to present witnesses in his own defense during a criminal trial lies at the core of the fifth and fourteenth amendment guarantees of due process,” United States v. Ramos, 933 F.2d 968, 974 (11th Cir. 1991), and “[a] defendant’s right to a fair trial is violated when the evidence excluded is material in the sense of a crucial, critical, highly significant factor,” id.

In this case defendants were charged with assaulting four inmates and covering up those assaults. In determining if the district court’s exclusion of evidence was proper, we look to its probative value and any factors, such as confusion of issues or misleading the jury, that weigh against that probative value. Holmes, 547 U.S. at 326, 126 S.Ct. 1727. The evidence the district judge excluded had little, if any, probative value or significance. Specifically, the judge ordered that while evidence of unrelated acts of violence or conditions— which no one argues made the assaults in question more or less likely or more or less justified—could not generally be introduced, there were instances in which they could be introduced.

Indeed, in a footnote, the judge articulated that acts of unrelated violence may be relevant to arguments that defendants did not lie, but rather were confused as to what violent altercation was being discussed. If defendants wished to pursue this line of argumentation, the judge explained “such evidence of seemingly unrelated incidents could be relevant to the defense.” There is no indication appellants pursued this line of argumentation. Similarly, though defendants mentioned the possibility of witnesses having had prior negative interactions with the CERT team that could color their testimony, there is no indication any such instances were raised to the judge despite the judge ordering that “the Defendant shall advise the Court outside the presence of the jury” if circumstances arise in which seemingly unrelated acts of violence could be relevant.

The argument proffered during the bench conference, that the absence of other retaliatory beatings undermines the claims of conspiracy for these retaliatory beatings, does not sufficiently articulate the evidence’s probative value. As the government noted, it is akin to arguing that someone did not rob a bank because there remained other, unrobbed banks. Simply put, the existence of unbeaten inmates says nothing about who beat Franklin Jones, Jabaris Miller, Mario Westbrook, and Terrance Dean.

As noted by the judge, defendants’ basis for admitting evidence of unrelated acts of violence or prison conditions appeared to be jury nullification. The district court operated well within the bounds of established precedent by holding that was not a sufficient basis to admit otherwise irrelevant information. United States v. Funches, 135 F.3d 1405, 1409 (11th Cir. 1998) (“[T]he potential for nullification is no basis for admitting otherwise irrelevant evidence.”).

V.

Defendants Hall and Rushin were found guilty of Obstruction and Conspiracy to Obstruct charges but were found not guilty of the substantive civil rights related charges against them. They maintain that they were sentenced based on the conduct for which they were acquitted and that as a result, the length of their sentence quadrupled. The government maintains that sentencing for obstruction charges is necessarily linked to the nature of the underlying obstructed offense. Moreover, they maintain that Circuit precedent forecloses appellants’ arguments.

We have previously explained that “sentencing courts may consider both uncharged and acquitted conduct in determining the appropriate sentence.” United States v. Hasson, 333 F.3d 1264, 1279 n. 19 (11th Cir. 2003); see also U.S. v. Smith, 741 F.3d 1211 (11th Cir. 2013). Moreover, “[o]ne panel of this Circuit cannot overrule another panel’s decision.” Julius v. Johnson, 755 F.2d 1403, 1404 (11th Cir. 1985). Accordingly, we do not find error with the district court’s sentencing.

VI.

On each of the grounds of appellants’ appeal, we find no error on the part of the district judge. The record of this case reveals that defendants had adequate ability to make their arguments to the jury and that the minimal restrictions put in place regarding cross examination and admission of evidence were reasonable in light of the arguments made to the district judge. The judgment entered below is AFFIRMED for the reasons stated in this Court’s opinion previously docketed in this case and herein.

AFFIRMED

JORDAN; Circuit Judge,

concurring:

I concur in the Court’s opinion with the understanding that our holding in Part III is a narrow one which does not set out' any bright-line’ rules, and which is limited by the facts of this case, including the proffer made by defense counsel about the wide-ranging questions they wished to ask (such as questions about the application of the advisory Sentencing Guidelines).

The amount of prison time a government witness is hoping (or expecting) to avoid by cooperating can be very relevant to his motivation to do (and say) what pleases the government. The human condition strongly suggests that a person may not be willing (or likely) to lie under oath if he expects his benefit to be 8 years in prison rather than 9, but his incentive to dissemble and falsify may increase exponentially if he expects to servé a couple of years in prison instead of a couple of decades. See, e.g., Miriam Hechler Baer, Cooperation’s Cost, 88 Wash. U.L. Rev. 903, 936 (2011) (noting the motivation to lie where “a potentially massive reduction in sentence is at stake.”). In an appropriate case, therefore, it may be necessary to allow defense counsel to ask a cooperating witness how much of a break he expects to get (or has already received) in exchange for testifying "for the government. See Brown v. Powell, 975 F.2d 1, 6 (1st Cir. 1992) (Pollack, D.J., dissenting). And that may, in turn, require questions about statutory penalties, notwithstanding possible concerns about jury nullification. Because we “generally presume that jurors follow their instructions,” Penry v. Johnson, 532 U.S. 782, 799, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), we should not lightly assume that mere knowledge of available statutory pen-' alties will transform a jury from a deliberative group into a lawless body.

Assume, for example, that in a federal narcotics case a cooperating witness is indicted on drug trafficking charges and faces a mandatory minimum sentence of 20 years in prison due to (a) the amount of cocaine involved and (b) his prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(A). But he agrees to cooperate, provides the government with historical information, and testifies at trial against his co-defendants. In exchange, the government agrees to dismiss the indictmiént against him, and files a superseding information with a single count of using a communications facility to commit a drug trafficking' offense. See 21 U.S.C. § 843(b). That charge, given the witness’ prior felony drug conviction, is punishable by no more than 8 years in prison. See 21 U.S.C. § 843(d)(1). So, by the time the witness testifies, he has already received (no matter what happens to him at his sentencing) the benefit of shaving off 12 years in prison simply because of the government’s charging decisions. In that circumstance, there would be a strong Sixth Amendment claim that defense counsel should be able to ask about the mandatory minimum sentence the witness faced under the initial indictment and the maximum (and substantially lower) sentence he is now facing under the superseding information. See United States v. Larson, 495 F.3d 1094, 1104 (9th Cir. 2007) (en banc) (“Because the jury was sufficiently apprised of Poi-tra’s incentive to testify to the Government’s satisfaction—including the [five-year] mandatory minimum sentence Poitra faced in the absence of cooperation with the Government—there was no Sixth Amendment error.”); United States v. Mussare, 405 F.3d 161, 170 (3d Cir. 2005) (requiring “an examination of whether the magnitude of reduction would likely have changed the jury’s mind regarding [a witness’] motive for testifying”); United States v. Cooks, 52 F.3d 101, 103-04 & n.13 (5th Cir. 1995) (holding that it was error for district court to preclude questioning of cooperating witness as to the 99- and 40-year sentences he faced for charges in Texas and Louisiana).

The Court’s opinion, which cites these cases, does not foreclose such a Sixth Amendment claim. I therefore join it in full.

      . The background on the assaults provided below does not represent the full detail of what was alleged or argued at trial. The background details provided are to give context and color to the legal issues in this case. Further details on the assaults and falsified reports can be found in the parties’ briefs and the trial transcripts.

      . . At oral argument, appellants mentioned wishing to ask cooperating witnesses about a percentage reduction, e.g. "does cooperating mean you expect to get half the time? One quarter?” This sort of question does not appear in the section of the trial record where defense counsel articulated what they wished to ask and would have asked. We have limited our review to the issues raised before the district judge.

      . Appellants argue before this Court that the absence of prior assaults could show these assáults were carried out by junior members who subsequently claimed appellants encouraged them. This argument does not appear to have been made at trial or before the district judge. Accordingly, that argument is waived. OSI, Inc. v. United States, 285 F.3d 947 (11th Cir. 2002).


author: PER CURIAM:

text:
    Donald KIPNIS, Lawrence Kibler, Kenneth A. Welt As Chapter 7 Trustee of the Estate of Donald Kipnis, Plaintiffs-Appellants, v. BAYERISCHE HYPO-UND VEREINSBANK, AG, a corporation, a.k.a. Unicredit Bank AG, HVB U.S. Finance, Inc., n.k.a. Unicredt U.S. Finance, Inc. Defendants-Appellees.
    No. 14-11959
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 12/22/2016
    Michael Guerra Dickler, Scott F. Hes-sell, Sperling & Slater, CHICAGO, IL, Dennis G. Kainen, Weisberg Kainen Mark, PL, MIAMI, FL, for Plaintiffs-Appellants DONALD KIPNIS, LAWRENCE KI-BLER.
    Wifredo A. Ferrer, Kathleen Mary Sal-yer, U.S. Attorney’s Office, Dennis G. Kainen, Weisberg Kainen Mark, PL, MIAMI, FL, for Plaintiff-Appellant KENNETH A. WELT.
    Mark P. Ressler, Henry Brownstein, Michael Hanin, Ann Marie St. Peter-Griffith, Kasowitz Benson Torres & Friedman, LLP, MIAMI, FL, for Defendants-Appel-lees.
    Before HULL, BLACK and MELLOY, Circuit Judges.

       Honorable Michael J. Melloy, United States Circuit Judge for the Eighth Circuit, sitting by designation.

   PER CURIAM:

The facts of this case are more fully set out in this Court’s prior opinion. See Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 784 F.3d 771 (11th Cir. 2015). By way of brief review, the plaintiffs and defendants Bayerische Hypo-Und Vereinsbank, AG and HVB U.S. Finance, Inc. (collectively, “HVB”) participated in a tax-shelter scheme known as CARDS. Id. at 773-75. The CARDS transaction at issue took place from December 2000 until December 2001. Id. at 774-76.

In October 2007, after HVB publicly admitted fault for participating in CARDS schemes, the Internal Revenue Service (“IRS”) issued notices of tax deficiency to the plaintiffs. Id. at 776. On November 1, 2012, the United States Tax Court issued a decision against the plaintiffs, concluding, inter alia, that the CARDS transaction they had engaged in “lacked economic substance.” Id. at 776-77.

On November 4, 2013, the plaintiffs filed a diversity complaint against HVB in federal district court, raising various state-law claims and alleging that HVB and its co-conspirators defrauded them by promoting and selling CARDS transactions for their own financial gain. Id. at 773, 777. The district court dismissed the complaint as barred by Florida’s four- and five-year statutes of limitation. Id. at 777-78. On appeal, we certified the following question to the Florida Supreme Court:

UNDER FLORIDA LAW AND THE FACTS IN THIS CASE, DÓ' THE' CLAIMS OF THE PLAINTIFF TAXPAYERS RELATING TO THE CARDS TAX SHELTER ACCRUE AT THE TIME THE IRS ISSUES A NOTICE OF DEFICIENCY OR WHEN THE TAXPAYERS’ UNDERLYING DISPUTE WITH THE IRS IS CONCLUDED OR FINAL?

Id. at 783.

In response, the Florida Supreme Court held that “the plaintiff taxpayers’ claims accrued at the time their action in the tax court became final. That action became final ninety days after the tax court’s judgment, at the expiration of the time period for an appeal of that judgment.” Kipnis v. Bayerische Hypo-Und Vereinsbank, AG, 202 So.3d 859, 860 (Fla. 2016); see also id. at 866 (holding that the plaintiff taxpayers’ “claims accrued at the time them action in the tax court became final, following expiration of the ninety-day time- period for appealing the tax court’s judgment”).

In light of the Florida Supreme Court’s response, we conclude that the district court erred in dismissing the plaintiffs’ complaint as time-barred. Under the Florida Supreme Court’s interpretation, the applicable statutes of limitation did not begin to run until January 30, 2013, which is 90 days after the tax court’s November 1, 2012 judgment. Therefore, the plaintiffs’ complaint, filed on November 4, 2013, was timely. We reverse the district court’s judgment and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.