[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15483 ELEVENTH CIRCUIT
NOVEMBER 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01654-CV-2-SLB
RODERICK D. SPEIGNER,
Plaintiff-Appellant,
versus
SHOAL CREEK DRUMMOND MINE,
Defendant-Appellee,
DAVID CAIN,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 3, 2010)
Before PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Roderick Speigner appeals from the district court’s grant of summary
judgment in favor of his employer, Shoal Creek Drummond Mine (“Drummond”),
on Speigner’s claims against Drummond under Title VII and Alabama tort law.
These claims stem from Speigner’s allegation that his supervisor, David Cain,
sexually harassed him at work.1 Speigner argues that the district court erred in
granting summary judgment in Drummond’s favor on his Title VII claims and each
of his state tort law claims. After thorough review, we affirm.
I.
Speigner first argues that the district court erred in granting Drummond’s
summary judgment motion on Speigner’s Title VII claims for sexual harassment
and hostile work environment. We review de novo the district court’s grant of
summary judgment. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002);
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir.
1999). “Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” 196
F.3d at 1358 (citing Fed. R. Civ. P. 56(c)). “In making this determination, we . . .
1
Speigner also sued Cain, but the district court granted Cain’s motion to quash based on
improper service of process and then dismissed Speigner’s claims against Cain because the time
for service had passed under Fed. R. Civ. P. 4(m).
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draw[] all reasonable inferences in the light most favorable to the nonmoving
party.” Id.
The district court held that Drummond was entitled to summary judgment on
Speigner’s Title VII claims based on the Faragher defense. See Faragher v. City of
Boca Raton, 524 U.S. 775, 807–08, 118 S. Ct. 2275, 2292–93 (1998). When an
employer undertakes a tangible adverse employment action against an employee
complaining of a hostile work environment created by an immediate supervisor,
the employer is subject to vicarious liability. Id. “When no tangible employment
action is taken, [however], a defending employer may raise an affirmative defense
to liability.” Id. To establish this defense, the employer must prove by a
preponderance of the evidence: “(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 advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.” Id.
Speigner has waived his argument that Drummond is precluded from raising
the Faragher defense to Speigner’s Title VII claims because he was subjected to a
tangible adverse employment action. This Court “has repeatedly held that ‘an
issue not raised in the district court and raised for the first time in an appeal will
not be considered by this court.’” Access Now, Inc., v. Southwest Airlines Co.,
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385 F.3d 1324, 1331 (11th Cir. 2004) (citation omitted); see also Walton v.
Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1283 n.10 (11th Cir. 2003)
(declining to address argument regarding alleged tangible adverse employment
action “because it was not raised below”). Speigner neglected to allege any
tangible adverse employment action in his complaint. He also failed to argue that
an adverse employment action precluded Drummond from invoking the Faragher
defense in responding to Drummond’s summary judgment motion, in which
Drummond expressly relied on this defense. We decline to address this fact-bound
issue that the district court never had a chance to examine. See 385 F.3d at 1331;
347 F.3d at 1283 n.10.
Speigner also argues that issues of material fact prevent Drummond from
prevailing on the merits of its Faragher defense. First, Speigner argues that a
reasonable jury could find that Drummond failed to exercise reasonable care to
prevent and promptly correct Cain’s behavior. “The Supreme Court [in Faragher]
implied that employers could meet the initial burden in determining whether they
had exercised reasonable care to prevent sexual harassment by promulgating an
anti-harassment policy.” Madray v. Publix Supermarkets, Inc., 208 F.3d 1290,
1297–98 (11th Cir. 2000) (citation omitted). The employer must show “that its
sexual harassment policy was effectively published, that it contained reasonable
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complaint procedures, and that it contained no other fatal defect.” Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001).
We conclude that Drummond exercised reasonable care to prevent and
promptly correct Cain’s behavior. See Madray, 208 F.3d at 1298–1300. Speigner
admits that Drummond has an anti-harassment policy which expressly proscribes
sexual harassment, including, but not limited to, the very acts Cain committed:
“unwelcome sexual advances,” “verbal or physical conduct of a sexual nature,”
“sexually oriented jokes,” and “unwelcome touching.” The written policy allows
the complaining employee to report the harassment to company officials other than
the employee’s supervisor in the event that the supervisor is the harasser. See
Madray, 208 F.3d at 1298 (discussing importance of policy which encourages
victims to come forward without requiring victim to complain first to the offending
supervisor). Speigner signed an acknowledgment form when he began his
employment stating that Drummond had informed him of this policy. In sworn
declarations, Drummond’s general mine manager explained that the anti-
harassment policy is widely disseminated and Cain reported that he received
periodic training on the policy. Drummond also promptly ameliorated the situation
as soon as Speigner informed the general mine manager, Richard Painter, of the
harassment. Painter met with Cain, interviewed him, and counseled him to avoid
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harassing conduct in the future. Painter then moved Speigner off of Cain’s crew to
one with a different supervisor, without any change in Speigner’s pay or hours.
We also reject Speigner’s argument that genuine issues of material fact exist
as to whether he unreasonably failed to take advantage of Drummond’s preventive
or corrective opportunities. To preclude a finding that an employee failed to take
advantage of preventive or corrective measures “an employee must comply with
the reporting rules and procedures her employer has established.” Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1306 (11th Cir. 2007). Speigner admits
that he never followed Drummond’s sexual harassment complaint procedures.
Speigner made an oral complaint to the union steward but never reported the
harassment to the officials identified in Drummond’s published sexual harassment
reporting procedures. Also, Speigner’s argument that he asked the union steward
not to process the grievance because he feared retaliation does not help his case.
“Subjective fears of reprisal . . . standing alone, do not excuse an employee’s
failure to report a supervisor’s harassment.” Walton, 347 F.3d at 1291. For these
reasons, we conclude that the district court did not err in granting summary
judgment in favor of Drummond on Speigner’s Title VII claims.
II.
Speigner also asks this Court to reverse the district court’s grant of summary
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judgment on his state law claims of assault and battery, invasion of privacy, and
intentional infliction of emotional distress because a genuine issue of fact remains
as to whether Drummond ratified Cain’s conduct.
Alabama law provides that an employer is liable for the intentional torts of
its agents only if the plaintiff offers evidence that: “(1) the agent’s wrongful acts
were in the line and scope of his employment; or (2) that the acts were in
furtherance of the business of the employer; or (3) that the employer participated
in, authorized, or ratified the wrongful acts.” Potts v. BE & K Constr. Co., 604 So.
2d 398, 400 (Ala. 1992) (quotation marks, alterations, and citation omitted). To
prove that the employer ratified the wrongful acts:
a complaining employee must show that the employer (1) had actual
knowledge of the tortious conduct of the offending employee and that
the tortious conduct was directed at and visited upon the complaining
employee; (2) that based on this knowledge, the employer knew, or
should have known, that such conduct constituted sexual harassment
and/or a continuing tort; and (3) that the employer failed to take
‘adequate’ steps to remedy the situation.
Id.
No reasonable jury could find that Drummond ratified Cain’s sexually
harassing conduct. Speigner has failed to prove that Drummond had actual
knowledge of Cain’s tortious conduct at any time before he reported the conduct to
the general mine manager. As soon as Drummond, through its mine manager,
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learned of the alleged harassment, Drummond took adequate steps to remedy the
situation by investigating the claim, counseling Cain to avoid such conduct in the
future, and arranging for Speigner to work under a different supervisor. We
conclude that the district court committed no error in granting Drummond’s
summary judgment motion on the state law claims of assault and battery, invasion
of privacy, and intentional infliction of emotional distress.2
III.
Speigner also argues that this Court should reverse the district court’s grant
of summary judgment on his state law claims of negligent or malicious retention,
training, and supervision because he has established facts sufficient to create a jury
question as to whether Drummond should have known about the harassment. To
recover on negligent supervision and training claims against an employer, “[a]
plaintiff must establish ‘by affirmative proof’ that the employer actually knew of
2
We decline to consider Speigner’s argument raised for the first time in his reply brief
that under Alabama law Drummond had imputed knowledge of Cain’s conduct because the
union steward was acting as Drummond’s agent when Speigner reported the harassment. “This
Court . . . repeatedly has refused to consider issues raised for the first time in an appellant’s reply
brief” and issues raised for the first time at the appellate level. United States v. Levy, 379 F.3d
1241, 1244 (11th Cir. 2004); see Walton, 347 F.3d at 1283 n.10. Speigner did not articulate the
theory that the union representative constituted Drummond’s agent in his initial brief and cites
the authority for this proposition for the first time in his reply brief. Rather, Speigner argued in
his initial brief that his report to the union steward was sufficient to raise an issue of material fact
as to whether Drummond had knowledge of the harassment because the steward told Speigner
that union representatives were addressing the issue with Drummond’s management personnel.
In his complaint and summary judgment response, Speigner never referred to the union steward
as Drummond’s agent or argued that Drummond had “imputed knowledge” of the harassment.
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the incompetence [of the employee], or that the employer reasonably should have
known of it.” Southland Bank v. A & A Drywall Supply Co., 21 So. 3d 1196,
1215–16 (Ala. 2008) (citation omitted) (explaining that claims for negligent
supervision and training are treated as one claim subject to the same standard); see
also Pritchett v. ICN Med. Alliance, Inc., 938 So. 2d 933, 940 (Ala. 2006) (same).
The plaintiff meets this burden by either showing “specific acts of incompetency
and bringing them home to the knowledge of the master, or by showing them to be
of such nature, character, and frequency that the master, in the exercise of due care,
must have had them brought to his notice.” Lane v. Cent. Bank of Ala., N.A., 425
So. 2d 1098, 1100 (Ala. 1983) (citation omitted); see also Armstrong Bus. Servs.,
Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001).
Likewise, a claim for wanton supervision requires the plaintiff to establish
by affirmative proof that the employer actually knew of the employee’s
incompetence or reasonably should have known of it.3 See AmSouth Bank, 817
So. 2d at 683. “‘Wanton supervision’ requires that the employer wantonly
disregard its agent’s incompetence.” Id. at 682. Wanton conduct constitutes “the
conscious doing of some act or the omission of some duty, while knowing of the
3
We treat Speigner’s claim for malicious retention, training, and supervision as one for
wanton retention, training, and supervision, which is a recognized tort under Alabama law. See,
e.g., Pritchett, 938 So. 2d at 941–42.
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existing conditions and being conscious that, from doing or omitting to do an act,
injury will likely or probably result.” Pritchett, 938 So. 2d at 941 (citation
omitted); see also Ala. Code § 6-11-20(b)(3).
We conclude that no reasonable jury could find that Drummond negligently
or wantonly trained, supervised, or retained Cain. Cain received periodic training
on the company’s anti-harassment policies. The employees Speigner identified as
witnesses all denied that they ever saw Cain sexually harassing or acting
inappropriately toward Speigner. Cain denied Speigner’s allegations when
Drummond investigated, and Drummond had received no other complaints of
sexual harassment against Cain. Although Speigner reported Cain’s conduct to the
union steward, he dropped his grievance. He waited to inform Drummond’s
general mine manager until after the last alleged incident of harassment had
occurred. The district court did not err in granting summary judgment on
Speigner’s negligent or malicious retention, training, and supervision claims.
For these reasons, we AFFIRM.
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