Connie Lynn MADRAY and Melody Holden, Plaintiffs-Appellants, v. PUBLIX SUPERMARKETS, INC., Defendants-Appellees.
No. 98-5802.
United States Court of Appeals, Eleventh Circuit.
April 13, 2000.
208 F.3d 1290
Amy W. Littrell, Alley & Alley/Ford & Harrison, LLP, James Morgan Craig, Alley & Alley, Chartered, Tampa, FL, Paul H. Field, Lane, Reese, Aulick, Summers & Field, Coral Gables, FL, for Plaintiffs-Appellees.
Before BIRCH and MARCUS, Circuit Judges, and ALAIMO *, Senior District Judge.
BIRCH, Circuit Judge:
Connie Lynn Madray and Melody Holden (collectively, “plaintiffs“) appeal the district court‘s order granting summary judgment to Publix Super Markets, Inc. (“Publix“) and dismissing their claims against Publix for hostile environment sexual harassment, in violation of Title VII of the 1964 Civil Rights Act,
I. BACKGROUND
Holden has worked in Publix store number 118 in Okeechobee, Florida since 1987. She continues to be employed as a scan price clerk in store 118. Madray worked at store 118 from 1990 until April 1997, when she moved to Georgia. She is now employed by Publix as a part-time stock clerk in Athens, Georgia. Ronald Selph became the manager of store 118 in 1994. As store manager, Selph was the highest ranking employee in store 118. Thus, he exercised supervisory authority over both Holden and Madray until he was transferred to store 61 as an assistant manager in September 1995.
From the commencement of his employment as manager of store 118, Selph made a practice of hugging and patting his employees. Selph explained that he engaged in this behavior in an effort to promote a family atmosphere at the store and increase productivity. The plaintiffs were not initially offended by Selph‘s behavior; however, over time, the plaintiffs contend that Selph‘s conduct escalated and became offensive.2
The plaintiffs first complained about Selph‘s harassing behavior to three mid-level managers at store 118. Holden testified that, at a party for a departing employee, she told Darlene Clark, a Second Assistant Manager, “[t]hat it made me sick for [Selph] to hug me and touch me and kiss me.” R3-82, Deposition of Melody Holden, at 58. However, Holden did not request that Clark take any action as a result of her comment. See id. at 59. Rather, Holden “hop[ed] that [Clark would] take it in her own hands and do it because she‘s in management.” Id. at 59.
About a month or two later, Holden testified that, while in a restaurant with several other employees of store 118, she told Second Assistant Manager Gary Priest that Selph had “grabbed me and ducked me over and kissed me on the neck.” Id. at 62. While Holden did not request that Priest undertake any action regarding her complaint, she did tell him that she did not know what do about Selph‘s behavior. See id. at 63. Holden stated that Priest was “shocked” by her account of Selph‘s behavior and “didn‘t know what to say either.” Id. at 62-63.
Holden also testified that approximately two to three weeks before she lodged a formal complaint against Selph, David Neff, the Bakery Manager, witnessed an incident of inappropriate behavior by Selph. According to Holden, Neff told Selph “That‘s sexual harassment,” but Selph responded that he did not care what Neff called it. Id. at 125-26. Holden stated that when she thanked Neff for trying to stop Selph‘s inappropriate behavior, she explained that she hoped he would stop since Neff had told him it was sexual harassment. Neff replied: “Well, if it doesn‘t, you let me know. And if it still continues, if you don‘t complain about it, then I have to as a manager.” Id. at 126. Holden responded that she would talk to Madray and make arrangements to see District Manager Richard Rhodes.
Approximately three or four days before Holden made her formal complaint, Priest actually witnessed Selph‘s inappropriate behavior towards Holden and made
Publix has promulgated a sexual harassment policy and disseminated it to employees in their employee handbook. The policy requires that the employees “bring [any complaints] to the attention of appropriate persons in Company Management. . . . [I]n order for the Company to deal with the problem, we must report such offensive conduct or situations to the Store Manager, District Manager, or Divisional Personnel Managers.” R2-67-Ex. 4 at 3. (emphasis in original).4
Additionally, Publix maintained an “Open Door Policy” which was also published in the employee handbook. This policy encouraged employees to talk to a manager about any “problems or misunderstandings.” Id. at 1-2. This policy
The plaintiffs filed suit against Publix and Selph, alleging hostile work environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964,
Publix moved for summary judgment, arguing that it was not liable for Selph‘s conduct because it had a well-disseminated anti-harassment policy in force and it responded immediately to the plaintiffs’ complaints. Selph also moved for summary judgment, adopting Publix‘s arguments and further asserting that the facts as set forth by the plaintiffs failed to satisfy the requirements for the state law claims of battery and invasion of privacy. The plaintiffs replied that Publix should be considered to have had notice of Selph‘s behavior beginning with Holden‘s initial complaint to Second Assistant Manager Darlene Clark, as much as six months prior to the initiation of District Manager Rhodes’ investigation. Therefore, the plaintiffs argued that Publix‘s response to the plaintiffs’ complaints could not be considered prompt.
The district court concluded that Publix was not liable for Selph‘s alleged harassment because Publix had exercised reasonable care to prevent sexual harassment by promulgating an anti-harassment policy, of which the plaintiffs were aware, and Publix responded promptly and effectively to stop the alleged harassment once the plaintiffs utilized the policy‘s established
II. DISCUSSION
We review the district court‘s order granting summary judgment de novo. See Williams v. Vitro Services Corp., 144 F.3d 1438, 1441 (11th Cir. 1998). A motion for summary judgment should be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
In 1998, the Supreme Court delivered two opinions which provided increased guidance on the circumstances under which an employer should be found vicariously liable for the hostile work environment created by a supervisory employee‘s sexual harassment. See Burlington Indus., 524 U.S. at 755-765, 118 S.Ct. at 2265-70; Faragher, 524 U.S. at 785-808, 118 S.Ct. at 2282-93. In these cases, the Supreme Court utilized common law agency principles to establish that “[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 807, 118 S.Ct. at 2292-93; see also Burlington Indus., 524 U.S. at 765, 118 S.Ct. at 2270. However, the Supreme Court also created an affirmative defense providing employers a safe harbor from vicarious liability when the victimized employee suffered no adverse tangible employment action. Id. at 807, 118 S.Ct. at 2293; see also Burlington Indus., 524 U.S. at 765, 118 S.Ct. at 2270. The employer must satisfy two elements to successfully interpose this defense: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
The district court concluded that Publix had fulfilled the requirements of the first element of the Faragher affirmative defense by promulgating the anti-harassment policy and then acting promptly to stop Selph‘s harassment once the plaintiffs complained to Rhodes. Next, the district court determined that the second element had been satisfied by the plaintiffs’ failure to contact any of the individuals identified for reporting offensive conduct or situations by Publix‘s “Statement Concerning Prohibited Harassment, Including Sexual Harassment.”
On appeal, the plaintiffs argue that Publix does not meet the requirements for the Faragher affirmative defense. First, the plaintiffs assert that Publix‘s “Statement Concerning Prohibited Harassment, Including Sexual Harassment” does not demonstrate that Publix “exercised reasonable care to prevent such harassment” because the policy is too narrow and identifies only one person in each store, the store manager, as available to address sexual harassment complaints. Additionally, the plaintiffs suggest that the failure of the mid-level managers to whom they complained to respond demonstrates that Publix failed to take reasonable care to prevent harassment in its stores. Second, the plaintiffs contend that Publix did not respond promptly to correct Selph‘s sexually harassing behavior. The plaintiffs assert that Publix should be considered to have had notice of Selph‘s harassing behavior when they first complained to Second Assistant Manager Darlene Clark months before District Manager Rhodes undertook his investigation and remedial action. Therefore, Rhodes’ actions cannot be considered a prompt corrective response. Finally, the plaintiffs argue that their decision to report Selph‘s harassing behavior to the mid-level managers within store 118, rather than the individuals delineated in Publix‘s sexual harassment policy, was not unreasonable given Publix‘s Open Door Policy which encouraged employees to talk to “anyone in management” regarding problems and further recommended that employees first discuss these problems with their “immediate Supervisor/ Manager/ Department Head.” R2-67-Ex.4 at 1-2. We will address each of these arguments in turn.8
A. Employer‘s Reasonable Care To Prevent Sexual Harassment
When crafting the first prong of the Faragher affirmative defense which requires, in part, that the employer exercise reasonable care to prevent sexual harassment, the Supreme Court sought to give effect to Title VII‘s deterrent purpose. See Faragher, 524 U.S. at 806, 118 S.Ct. at 2292 (“It would therefore implement clear statutory policy and complement the Government‘s Title VII enforcement efforts to recognize the employer‘s affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty.“); Burlington Indus., 524 U.S. at 764, 118 S.Ct. at 2270 (noting that making employer liability contingent “in part on an employer‘s effort to create [antiharassment policies and effective grievance] procedures, . . . would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context, and the EEOC‘s policy of encouraging the development of grievance procedures“) (citation omitted). Accordingly, the Supreme Court
We recognize that the wide variety of employment settings make it difficult to establish a uniform test for determining whether an employer‘s anti-harassment policy complaint procedures demonstrate the employer‘s reasonable care in preventing sexual harassment. The employer‘s size, location, geographic scope, organizational structure, and industry segment are just some of the characteristics that impact the analysis of whether the complaint procedures of an employer‘s anti-harassment policy adequately fulfill Title VII‘s deterrent purpose. Nonetheless, the Supreme Court did provide some guidance regarding the minimum requirement for an anti-harassment policy‘s complaint procedures to be considered effective. The Court noted that Title VII‘s deterrent purpose was clarified by a 1990 policy statement from the Equal Employment Opportunity Commission (EEOC) “enjoining employers to establish a complaint procedure ‘designed to encourage victims of harassment to come forward [without requiring] a victim to complain first to the offending supervisor.‘” Faragher, 524 U.S. at 806, 118 S.Ct. at 2292 (quoting EEOC Policy Guidance on Sexual Harassment, 8 FEP Manual 405:6699 (March 19, 1990)) (alteration in original); see also Burlington Indus., 524 U.S. at 764, 118 S.Ct. at 2270 (citing EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (March 19, 1990)). Publix‘s sexual harassment policy meets the standard established by the EEOC‘s 1990 policy statement by providing to employees alternative avenues for lodging a complaint other than a harassing supervisor. Although the store manager was the only designated company representative located within each store and, in this case, was the alleged harasser, Publix‘s policy also designated several additional individuals to whom an employee could complain regarding harassment.
These other designated, appropriate company representatives were accessible to Publix‘s store employees. District Manager Rhodes visited store 118 at least once each week and phone numbers, including a toll-free phone number, were provided for other appropriate company representatives to whom an employee could complain about a supervisor‘s sexual harassment. See Shaw v. AutoZone, Inc., 180 F.3d 806, 812 (7th Cir.1999) (concluding that a sexual harassment policy was reasonable when the offending supervisor‘s immediate supervisor “visited the store approximately every two to three weeks“), cert. denied, — U.S. —, 120 S.Ct. 790, 145 L.Ed.2d 666 (2000). Additionally, the Pub-
Moreover, the complaint procedures established by Publix‘s sexual harassment policy are similar to those in the policy we found to be reasonable in Coates v. Sundor Brands, 164 F.3d 1361, 1364 (11th Cir.1999) (per curiam). See id. at 1369 (concluding that the policy directing employees who have been sexually harassed to “immediately contact their line manager, Personnel Contact, or other manager with whom they feel comfortable” was a reasonable policy). Similarly, our sister circuits have found more narrowly drawn anti-harassment policies to satisfy the requirement that an employer exercise reasonable care to prevent sexual harassment. See Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir.1999) (finding that promulgation of a policy which identified only an employee‘s supervisors and the company‘s Human Resources Department as the appropriate vehicles for registering a sexual harassment complaint and dissemination of that policy to employees satisfied the requirement that an employer exercise reasonable care to prevent sexual harassment); see also Watkins v. Professional Security Bureau, Ltd., 201 F.3d 439 (4th Cir.1999) (per curiam) (concluding a policy was reasonable when employee was not placed in the position of having to report their supervisor‘s conduct to someone in the supervisors‘s chain of command); Ritchie v. Stamler Corp., No. 98-5750 (6th Cir. Jan. 12, 2000) (per curiam) (finding a policy which only allowed sexual harassment complaints to be made in writing to the president of the company reasonable).9
Therefore, because we find no inherent defect in the complaint procedures established by Publix‘s sexual harassment policy, nor any evidence that the policy was administered in bad faith, we conclude that Publix exercised reasonable care to prevent sexual harassment. Cf. Brown v. Perry, 184 F.3d 388, 396 (4th Cir.1999) (noting that where “there is no evidence that an employer adopted or administered an antiharassment policy in bad faith or that the policy was otherwise defective or dysfunctional, [its] existence . . . militates strongly in favor of a conclusion that the employer ‘exercised reasonable care to prevent’ and promptly correct sexual harassment“) (quoting Faragher, 524 U.S. at 807, 118 S.Ct. at 2293).
B. Employer‘s Reasonable Care To Correct Promptly Sexual Harassment
In applying the Faragher affirmative defense, we have noted that “the employer‘s notice of the harassment is of paramount importance [because] if the employer had notice of the harassment . . . then it is liable unless it took prompt corrective action.” Dees v. Johnson Controls World Services, 168 F.3d 417, 422 (11th Cir.1999). Therefore, we must determine when Publix had notice of Selph‘s harassing behavior in order to evaluate the alacrity of its response.
This inquiry is facilitated by the identification of the “appropriate Company representative” to whom employees should
The plaintiffs contend that Publix should be deemed to have been on notice prior to their meeting with District Manager Rhodes, an appropriate company representative, via their complaints to various mid-level managers, not designated as appropriate company representatives by the anti-harassment policy. However, as we have noted, once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then “it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances.” Farley v. American Cast Iron Pipe, 115 F.3d 1548, 1554 (11th Cir.1997). See also Young v. Bayer Corp., 123 F.3d 672, 674 (7th Cir.1997) (noting that when an employer has identified and appointed a recipient for sexual harassment complaints, “complainants can be expected to utilize it“). Therefore, we conclude that Publix cannot be considered to have been placed on notice of Selph‘s harassing behavior by the plaintiffs’ informal complaints to individuals not designat-
Moreover, even if we considered the mid-level managers to whom the plaintiffs complained agents of Publix placing it on notice of Selph‘s behavior, the context surrounding the plaintiffs’ comments to these individuals compels the conclusion that these mid-level managers could not reasonably have been expected to act to address the plaintiffs’ complaints. Cf. Coates, 164 F.3d at 1365 (concluding that an employer has not been given adequate notice of sexual harassment to require action when an employee provided to an appropriate company representative a harassing note she received from her supervisor, but did not indicate that the note “represented a problem about which she was concerned or that required [the manager‘s] immediate attention,” or “that the note was only the latest in an on-going pattern of sexually harassing behavior,” and “the primary purpose for seeking out [the manager] was to discuss not the harassment,” but other matters).
1. Conversation with Darlene Clark
Holden complained to Second Assistant Manager Clark at a restaurant during a party for a departing employee. She only told Clark that Selph‘s behavior “made me sick.” R3-82 at 58. Nothing Holden said to Clark disclosed the extent or precise nature of Selph‘s behavior towards Holden. Clark could not have been expected to take corrective action on the basis of this informal, general complaint.
2. Conversations with Gary Priest
Holden next complained to Second Assistant Manager Priest while eating dinner in a restaurant with several other employees. Here, she relayed a particular incident where she found Selph‘s behavior offensive. Holden did not indicate that this incident was part of an on-going pattern of sexually harassing behavior or that she wanted Priest to take action to stop Selph‘s inappropriate behavior. Again,
Additionally, Holden asserts that approximately three or four days before she lodged a formal complaint, Priest witnessed Selph‘s harassment of Holden. Again, the deposition testimony suggests that at that time Priest knew of only two occasions where Selph behaved inappropriately towards Holden—the one incident described by Holden during dinner and the incident he witnessed. Knowledge of these two isolated incidents is not sufficient to indicate Priest should have known Selph was engaging in a consistent pattern of harassment towards Holden or to create a reasonable expectancy that he would take corrective action against Selph. Moreover, when Priest witnessed the subsequent incident where Selph hugged Madray, Priest did take action, indicating that they needed to speak with District Manager Rhodes.
3. Discussion with David Neff
After Bakery Manager Neff witnessed Selph‘s harassment of Holden, Holden assured him that she would report Selph‘s behavior to Publix through District Manager Rhodes, one of the appropriate company representatives designated in Publix‘s sexual harassment policy. The communication between Neff and Holden demonstrates that Holden knew and understood Publix‘s established procedure for reporting sexual harassment and intended to lodge the formal complaint herself rather having Neff take action. Neff could not reasonably be expected to take corrective action when Holden insisted that she would contact District Manager Rhodes herself to inform him of Selph‘s behavior towards her.
Nothing in the plaintiffs’ complaints to mid-level managers prior to their meeting with Rhodes indicates that these managers’ failure to take prompt action to stop Selph‘s harassment was unreasonable. Neither plaintiff fully explained the full dimensions of their harassment by Selph
C. Employee‘s Reasonable Use of Preventative or Corrective Opportunities
“[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, demonstration of such failure will normally suffice to satisfy the employer‘s burden under the second element of the [affirmative] defense.” Faragher, 524 U.S. at 807-808, 118 S Ct. at 2293; see also Burlington Indus., 524 U.S. at 765, 118 S.Ct. at 2270. The plaintiffs admit that they knew the appropriate complaint procedures and understood whom they should contact according to Publix‘s sexual harassment policy. Their understanding of these procedures was illustrated by Holden‘s response to Bakery Manager Neff that she would contact District Manager Rhodes to lodge a complaint against Selph after Neff witnessed Selph‘s harassing behavior. Yet, despite knowing exactly who they should contact regarding sexual harassment, the plaintiffs chose to complain informally to managers that were not authorized to receive such complaints under the Publix sexual harassment policy.
The plaintiffs contend that they chose to complain to the mid-level managers within store 118 in accordance with Publix‘s Open Door Policy. Therefore,
As we have noted, “the problem of workplace discrimination . . . cannot be [corrected] without the cooperation of the victims.” Coates, 164 F.3d at 1366. Here, we conclude that the plaintiffs unreasonably delayed utilizing the complaint procedures established by Publix‘s sexual harassment policy and they concede that Publix responded promptly once they cooperated by providing the company notice via its established complaint procedures. Cf. Montero, 192 F.3d at 863 (finding an employee‘s delay in utilizing an employer‘s established complaint procedures equated to unreasonably failing to take advantage of the company‘s preventive and corrective opportunities). Therefore, we conclude that the second prong of the Faragher affirmative defense is satisfied with regard to Publix‘s vicarious liability before District Manager Rhodes was notified of Selph‘s behavior.
III. CONCLUSION
Publix promulgated an effective sexual harassment policy with appropriate complaint procedures, disseminated this information to its employees, and made a good-faith effort to enforce the policy; therefore, Publix satisfied the standards for exercising reasonable care to prevent sexual harassment. As a result, Publix cannot be charged with notice of the harassment via the plaintiffs’ earlier, informal complaints to mid-level managers within their store who were not designated to receive complaints of sexual harassment under Publix‘s anti-harassment policy. Publix responded promptly to correct the alleged harassment when it received effective notice by the plaintiffs’ complaints to a designated, appropriate company representative. Finally, the plaintiffs acted unreasonably in delaying their use of the complaint procedures established by Publix. Therefore, we conclude
BIRCH
CIRCUIT JUDGE
Notes
R2-67-Ex. 4 at 2-4.To help ensure that none of us ever feel we are being subjected to harassment, and in order to create a comfortable work environment, the Company prohibits any offensive physical, written or spoken conduct regarding any of these items, including conduct of a sexual nature.
If any of us believe that he or she is being subjected to any of these forms of harassment, or believes he or she is being discriminated against because other associates are receiving favored treatment in exchange for, (example—sexual favors), he or she must bring this to the attention of appropriate persons in Company Management. The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the appropriate Company representative. Consequently, in order for the Company to deal with the problem, we must report such offensive conduct or situations to the Store Manager, District Manager or Divisional Personnel Managers:
[list of individuals and telephone numbers by location]
. . . .
A record of the complaint and the findings will become a part of the complaint investigation record and the file will be maintained separately from the associate‘s personal file.
Any person electing to utilize this complaint resolution procedure will be treated courteously. The complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem, and registering the complaint will in no way be used against the associate nor will it have adverse impact on the individual‘s employment status.
R2-67-Ex. 4 at 1-2 (emphasis omitted).It is just a fact of life that occasionally there will be problems and misunderstandings among people. If something bothers you, or if you need clarification of a Publix policy or procedure, please talk to a manager about it. Always remember, as a Publix associate you can talk to anyone in management. Experience has shown, however, that many problems can best be worked out by following steps:
- Discuss you problem or raise your question directly with your immediate Supervisor/Manager/Department Head.
- If the matter is not resolved or you still have a question or concern, go to the next highest level of management (for example, Store Manager, District Manager, Regional Director of Retail Operations, or a Vice-President).
Just remember—you can discuss your problem with anyone in management all the way to the top level. Also, your Divisional Human Resources Department is available to assist you with any matter at any time, and you may contact the Employee Assistance Department in Lakeland for confidential counseling.