IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-30361
_______________________________
ALISHA WYATT,
Plaintiff-Appellant,
versus
HUNT PLYWOOD COMPANY, INC.; ET AL,
Defendants,
HUNT PLYWOOD COMPANY, INC. and FEDERAL INSURANCE COMPANY
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________________________________
July 5, 2002
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Alisha Wyatt appeals the district court’s
grant of summary judgment in favor of Defendants-Appellees Hunt
Plywood Co. and Federal Ins. Co. (collectively “Hunt”) on her Title
VII sex discrimination claim, her state law tort claims, and her
motion for a jury trial. Concluding that (1) as to one aspect of
Wyatt’s sexual harassment claim based on the behavior of a Hunt
supervisor, factual questions exist regarding Hunt’s affirmative
defense under the Ellerth/Faragher test,1 and (2) Wyatt did not
waive her right to a federal jury trial, we reverse, in part, the
grant of summary judgment in favor of Hunt and remand with
instructions.
I. FACTUAL BACKGROUND AND PROCEEDINGS
Plaintiff-Appellant Wyatt was an employee of Hunt from March
1994 until she quit her job in May 1995. Her immediate supervisor
was John Thompson and her next higher supervisor was Donald Gorum,
both of whom allegedly harassed Wyatt sexually.2 When Wyatt was
hired, she received a copy of Hunt’s employee relations manual
which contained Hunt’s sexual harassment policy. In relevant part,
that policy directs: “Employees who feel that they have been
harassed are urged to contact their supervisor, a member of the
Personnel Department, Mr. Gary Crawford, or me [Alex T. Hunt,
Executive Vice President].”3 Wyatt admits that she had knowledge
of the policy and was aware that she could report harassment to any
one or more of the individuals listed.
1
See Faragher v. City of Boca Raton, 524 U.S. 775, 807
(1999); Burlington Indus. v. Ellerth, 524 U.S. 742 (1999).
2
Thompson was a “lead man” whose duties apparently included
the smooth operation of a certain portion of the work floor. The
district court, in its Ruling and Judgment, referred to Thompson as
Wyatt’s “co-employee,” but as discussed in greater detail below,
Hunt has already admitted the fact of Thompson’s status as Wyatt’s
immediate supervisor.
3
Documents Filed with Hunt’s Motion for Summary Judgment,
Defendant’s Ex. 3.
2
Wyatt alleges that, almost immediately after she began working
at Hunt, Thompson commenced harassing her sexually, referring to
her in vulgar terms and continually asking her to have sex with
him. Wyatt asserts that she promptly complained of Thompson’s
conduct to Gorum, her and Thompson’s next higher supervisor; but
that despite her complaints and Gorum’s informal discussions with
Thompson, the harassment persisted. The discrete facts of
Thompson’s harassment and Wyatt’s reporting them to Gorum are not
in dispute.
Wyatt further alleges, and Hunt concedes, that instead of
remedying the problem, Gorum himself eventually subjected Wyatt to
sexual advances and harassment, beginning in late June or early
July 1994. Wyatt concedes, however, that she never reported
Gorum’s conduct to anyone higher up the management chain during her
time at Hunt.
Thompson’s harassment of Wyatt reached its zenith on November
12, 1994, when he sneaked up behind her and pulled down her sweat
pants while she was actively working on the line, and in the plain
view of other employees. Wyatt immediately complained to Gorum,
who promptly discussed the incident with Wyatt and agreed to write
an incident report. Nevertheless, in an effort to down-play
Thompson’s actions, Gorum declined to indicate in the report that
Thompson had pulled Wyatt’s pants down.
Wyatt did not report to work on the day following the pants
incident, but did on the day after that, when she met with Buddy
3
Rachal, the superintendent to whom Gorum reported. After hearing
Wyatt’s version of the story, Rachal promptly reported the matter
to Larry Manthei, Hunt’s Plant Manager. Manthei commenced an
investigation, suspended Thompson and Gorum, and informed Wyatt
that any further harassing actions were to be reported to Rachal.
Just three days after the pants incident, Hunt completed its
investigation, fired Thompson for inappropriate conduct, and fired
Gorum for misrepresenting facts to management and mishandling the
situation as a supervisor.
Wyatt alleges that, following these firings, she was
ostracized and criticized by her co-workers. She advised
supervisors of this development and, over the next few months, Hunt
management personnel met with Wyatt’s co-workers, individually and
in groups, informing them that Wyatt was not to be criticized or
otherwise treated unfairly for reporting Gorum and Thompson.
Wyatt’s employment with Hunt continued until she quit in May
1995. She then filed suit against Hunt in state court, asserting
state law tort claims for assault, battery, and intentional
infliction of emotional distress.
In her state court petition, Wyatt requested a jury trial, but
failed to post the required bond before the specified deadline.
This led Hunt to file a motion to strike Wyatt’s jury demand.
Wyatt did not directly respond; instead, she filed a motion to
amend her original petition to add a Title VII claim and to name
Federal Insurance Company (Hunt’s liability insurance carrier) as
4
an additional defendant. In considering both parties’ motions, the
state court expressly informed Wyatt that she had forfeited her
right to a jury trial by not posting the required bond, expressly
admonishing her that she could not use her amended petition, which
did not allege any new facts, to breathe life into her erstwhile
jury trial demand.
After Wyatt added the federal claim, Hunt removed the case to
federal district court. Some nine weeks after removal, Wyatt
filed a motion for a jury trial. Without addressing the timeliness
of her federal jury demand, the court denied the motion on grounds
that she had waived her right to a jury trial by her acts in the
state court proceedings. Wyatt then filed (1) a mandamus petition
requesting that we order the district court to grant her a jury
trial, (2) a notice of appeal from the district court’s denial of
jury trial, and (3) a second motion for jury trial in district
court. We first denied her mandamus petition and then dismissed
her appeal for want of prosecution. The district court denied her
second motion for a jury trial.
Hunt filed a motion for summary judgment in district court
seeking dismissal of Wyatt’s claims. Wyatt opposed Hunt’s motion
and filed her own motion for partial summary judgment as to
liability. The district court granted Hunt’s summary judgment and
dismissed Wyatt’s action with prejudice, after which Wyatt timely
filed a notice of appeal.
5
II. ANALYSIS
A. Standard of Review
We review the district court’s rulings on summary judgment
motions de novo, employing the same analysis as the district
court.4 A motion for summary judgment is properly granted only if
there is no genuine issue as to any material fact.5 An issue is
material if its resolution could affect the outcome of the action.6
In deciding whether a fact issue has been created, we must view the
facts and the inferences to be drawn from them in the light most
favorable to the nonmoving party.7
The standard for summary judgment mirrors that for judgment as
a matter of law.8 Thus, we must review all of the evidence in the
record but make no credibility determinations or weigh any
evidence.9 In reviewing the evidence, we must disregard everything
favorable to the moving party that the jury is not required to
believe, and should give credence to the evidence favoring the
nonmoving party as well as that evidence supporting the moving
4
Fed. R. Civ. P. 56.
5
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
7
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525
(5th Cir. 1999).
8
Celotex Corp., 477 U.S. at 323.
9
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150 (2000).
6
party that is uncontradicted and unimpeached.10
B. Supervisor Sexual Harassment After Ellerth and Faragher
For the sake of clarity, we reiterate our established
methodology for analyzing supervisor sexual harassment cases under
Title VII.11 First we determine whether the complaining employee
suffered a “tangible employment action.”12 If he has, the claim is
classified as a “quid pro quo” case; if he has not, the claim is
classified as a “hostile environment” case.13 In a quid pro quo
suit, proof that a tangible employment action resulted from a
supervisor’s sexual harassment renders the employer vicariously
liable, and no affirmative defense can be asserted. In a hostile
environment case, however, the next inquiry is whether the
supervisor’s actions constituted severe or pervasive sexual
harassment: If the conduct was not severe or pervasive, the
employer cannot be held liable vicariously for the supervisor’s
actions; if the conduct was severe and pervasive, the employer is
vicariously liable unless the employer can establish both prongs of
the conjunctive Ellerth/Faragher affirmative defense —— the only
affirmative defense to vicarious liability now available in a
10
Id. at 151.
11
See Casiano v. AT & T Corp., 213 F.3d 278 and attached
appendix (5th Cir. 2000) (attached appendix providing a “roadmap”
for analysis of supervisor sexual harassment claims).
12
Id.
13
Id. at 283.
7
supervisor sexual harassment hostile work environment case.14 To
establish this defense, the employer must show that (1) the
employer exercised reasonable care to prevent and correct promptly
any sexual harassment, and (2) the complaining employee
unreasonably failed to take advantage of any preventative or
corrective opportunities provided by the employer.
C. Application of the Ellerth/Faragher Test
Wyatt seeks to recover from Hunt, not for any direct sex
discrimination by Hunt, but for its vicarious liability for the
sexual harassment visited on her by supervisors. The supervisor
sexual harassment allegedly experienced by Wyatt in this case is
properly classified as a hostile work environment claim.15 To state
a prima facie hostile work environment claim, Wyatt must prove that
the she was subjected to severe and pervasive harassment by a
supervisor based on her sex.16 The district court assumed, and Hunt
14
Id. at 284.
15
As stated, the Ellerth/Faragher affirmative defense,
discussed below, cannot be advanced when the employer has taken a
tangible employment action. These cases classify such an action
as “quid pro quo” harassment. Although Wyatt argues that she was
“constructively discharged” from Hunt, the district court noted ——
and we agree —— that Wyatt’s allegations in this regard are nothing
more than “vague protestations.” Despite her recitation of case
law, she does not advance a coherent claim of constructive
discharge or other tangible employment actions by Hunt. Therefore,
under Ellerth/Faragher, her claim is based solely on supervisor
sexual harassment without a related tangible employment action,
thereby constituting a “hostile work environment” claim against
Hunt for vicarious liability only.
16
Casiano, 213 F.3d at 284.
8
conceded for purposes of its summary judgment motion, that
Thompson’s and Gorum’s conduct was sufficiently severe and
pervasive to constitute an actionable hostile workplace
environment. Having so conceded, Hunt could nevertheless avoid
vicarious liability by establishing, pursuant to Ellerth/Faragher,
that (1) it exercised reasonable care to prevent and promptly
remedy the harassment and (2) Wyatt unreasonably failed to use the
preventative and remedial opportunities provided by the Hunt.17
Here, the district court concluded that Hunt had satisfied
both prongs of the Ellerth/Faragher defense and thus was not
vicariously liable to Wyatt for the actions of Gorum or Thompson.
In concluding that Hunt satisfied the first prong, the court
recited the undisputed facts that Hunt maintained a sexual
harassment policy which it promulgated to all employees, including
Wyatt, and that she knew that the policy instructed employees to
report harassing incidents and to whom the report should be made.
In addition, Hunt held regular meetings with its supervisory staff
to train them on preventing sexual harassment. Also, as soon as
Rachal and Manthei learned of the November 12th incident and
Thompson’s previous behavior, an investigation was immediately
initiated and within three days (one or two days after Rachal and
Manthei were so informed) both Gorum and Thompson were fired.
The court concluded that Hunt satisfied the second prong of
17
Id.
9
the Ellerth/Faragher affirmative defense as well. Wyatt concedes
that, prior to the November 12th incident, she complained only to
Gorum about Thompson’s untoward behavior between its onset and the
time Gorum started to harass her —— approximately March through
June, 1994 —— and that she never reported Gorum’s allegedly
harassing conduct to anyone. The court noted that Hunt’s policy
did not restrict Wyatt to reporting Thompson’s behavior only to
Gorum and that Wyatt could have reported Thompson’s harassment to
other supervisors listed in the sexual harassment policy,
especially once it became clear to Wyatt that Gorum was ineffectual
in changing Thompson’s behavior toward her. Hunt asserted, and the
district court agreed, that Gorum’s informal rules and unwritten
customary practices, which purportedly forbade employees to bypass
his authority, were not reasonable excuses for Wyatt’s failure to
inform higher management personnel. The district court was
convinced that under these conceded or undisputed facts —— Wyatt’s
failure to report Thompson’s behavior to anyone but Gorum and her
failure to report Gorum’s behavior to anyone at all —— no
reasonable jury could help but find that Wyatt unreasonably failed
to use Hunt’s preventative and remedial opportunities for reporting
and obtaining redress for her supervisor’s sexual harassment.
10
1. Supervisor or Co-Employee?
a. Thompson
As the Ellerth/Faragher affirmative defense to vicarious
liability is available to employers only when the harassing
employee who creates the actionable environment is a supervisor,
this analysis begins with an assessment of Thompson’s job position
vis-à-vis Wyatt. An employer’s responsibility for sexual
harassment by a fellow employee of equal rank is adjudged by a
legal standard different from that established by the Court in
Ellerth and Faragher, which applies to supervisors only.
Wyatt consistently maintained that Thompson was her immediate
supervisor, not her fellow employee of equal rank in the chain of
command. Hunt acknowledges that it conceded this fact arguendo for
purposes of its summary judgment motion in district court.
Apparently as a stray remark, without comment or analysis, the
district court referred to Thompson as Wyatt’s co-employee, but
proceeded —— correctly, we think —— to apply the supervisor test of
Ellerth/Faragher anyway. On appeal, Hunt now equivocates, claiming
that despite granting arguendo that Thompson was a supervisor, the
district court concluded that Thompson was a co-employee, providing
an alternative basis for affirmance.
Our review of the concessions and undisputed facts and
allegations in the record convinces us that Thompson was Wyatt’s
supervisor —— a fact that, for all purposes of this case, Hunt has
judicially admitted as much and cannot now avoid it by classifying
11
that admission as mere supposition for purposes of summary
judgment. As an preliminary matter, we emphasize that the facts
proffered by the parties regarding the supervisor/co-employee
determination were not contradicted in the district court: Wyatt
pointed to Thompson’s authority to direct her daily activities and
the representations made to her when she began employment; Hunt
emphasized Thompson’s low wage-earning compensation and his
inability directly to hire or fire those in Wyatt’s position. We
need not resolve this difference in viewpoint, however, to reach
our conclusion that Thompson was Wyatt’s supervisor. Instead, we
base our decision on (1) Thompson’s deposition testimony and (2)
Hunt’s verified answer to Wyatt’s complaint.
When, in his deposition, Thompson was asked by Wyatt’s
attorney about his employment position, Thompson described himself
as a supervisor. Specifically, he testified that he supervised
Wyatt’s daily activities, and that, in turn, he was under the
immediate supervision of Gorum.
More legally determinative than Thompson’s self-description as
Wyatt’s supervisor, however, is Hunt’s unqualified admission of
that fact in its answer to Wyatt’s complaint. In paragraph 4,
Wyatt’s state court petition alleged that her “immediate supervisor
was John Thompson. Mr. Thompson was supervised by Donald Gorum who
also supervised petitioner [Wyatt].” Hunt’s verified answer to
Wyatt’s petition states that “[w]ith respect to the allegations of
Paragraph 4 of the Petition, Hunt admits that from the time she was
12
employed until approximately November 14, 1994, [Wyatt’s] immediate
supervisor was John Thompson and Mr. Thompson’s supervisor was
Donald Gorum.” With this unequivocal judicial admission in the
record, Hunt’s contention that it merely conceded Thompson’s
supervisory status arguendo rings hollow.18 We therefore proceed
from the premise that Thompson was Wyatt’s immediate supervisor,
thereby justifying the application of the Ellerth/Faragher test for
vicarious liability, holding that Hunt is estopped from claiming
otherwise.19
b. Gorum
None question that Gorum was a supervisor. Neither is it
contested that he supervised both Wyatt and Thompson.
18
Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474, 476 (5th
Cir. 2001):
A judicial admission is a formal concession in the
pleadings or stipulations by a party or counsel that is
binding on the party making them. Although a judicial
admission is not itself evidence, it has the effect of
withdrawing a fact from contention.... “A judicial
admission is conclusive, unless the court allows it to be
withdrawn....” (internal citations omitted).
See also American Automobile Assoc. v. AAA Legal Clinic of
Jefferson Crooke, 930 F.2d 1117, 1120 (5th cir. 1991):
In form and substance a Rule 36 admission is comparable
to an admission in pleadings or a stipulation drafted by
counsel for use at trial.... An admission that is not
withdrawn or amended cannot be rebutted by contrary
testimony or ignored by the district court simply because
it finds the evidence presented by the party against whom
the admission operates more credible. (internal
quotations and citations omitted).
19
In light of Hunt’s admission, we disregard the district
court’s conclusional statement that Thompson was Wyatt’s co-
employee.
13
2. Distinct Periods of Harassment
Having concluded that both Thompson and Gorum were Wyatt’s
supervisors for purposes of determining Hunt’s vicarious liability,
and before turning to the merits of Wyatt’s harassment claims and
Hunt’s affirmative defense, we parse Wyatt’s career path at Hunt,
which comprised three discrete periods. Wyatt began her employment
in March of 1994. Her uncontradicted allegation that Thompson
began harassing her almost immediately establishes the commencement
of the initial period of supervisor harassment. Despite Gorum’s
alleged talks with Thompson, the harassment by Thompson appears to
have continued unabated until late June or early July, when Gorum
himself became a harasser, continually propositioning Wyatt for sex
and making lewd comments. Wyatt’s admission that she did not
thereafter report either Thompson’s behavior or this behavior by
Gorum to his supervisors or others listed in the sexual harassment
policy manual establishes late June or early July as the end of the
first discrete period of harassment. It also establishes July 1,
1994 as the approximate start date of the second discrete period of
supervisor harassment. Then, as recounted in detail above, Wyatt’s
pants were pulled down on November 12th, after which Gorum’s
supervisors became aware of the situation and terminated both
Thompson and Gorum within three days thereafter. Thus November 15
marks the end of the second period of supervisor harassment and the
initiation of the third discrete period of Wyatt’s employment,
during which no supervisor sexual harassment is alleged.
14
Thus, the facts of this case neatly divide Wyatt’s employment
with Hunt into three distinct periods for purposes of our analysis
of her sexual harassment claims: (1) March 1994 to late June/early
July 1994, during which Thompson’s alleged sexual harassment of
Wyatt took place and was reported by her to Gorum; (2) late
June/early July to November 15th, during which period both Thompson
and Gorum allegedly harassed her sexually, and she made no further
reports to Hunt management personnel until the pants incident,
which she reported, resulting in prompt and effective response by
Hunt; and (3) November 16 1994 until she quit in May 1995, at no
time during which does she claim to have been sexually harassed by
Thompson or Gorum, who had been fired, or by other Hunt supervisors
(although Wyatt’s co-workers shunned her doing that final period
for having ratted on Thompson and Gorum).
3. Hunt’s Affirmative Defense Under Ellerth and Faragher
Keeping the three distinct periods of Wyatt’s continuous
employment at Hunt in mind, we now address Hunt’s affirmative
defense to vicarious liability for its supervisors’ actions.
First, we fully agree with the district court’s grant of summary
judgment in favor of Hunt for the second and third periods of
Wyatt’s employment, as to both Thompson and Gorum. After it became
clear to Wyatt that Gorum was not only ineffective in dealing with
Thompson’s harassment, but that he (Gorum) himself was a sexual
harasser, Wyatt’s failure to report either Thompson’s or Gorum’s
behavior to one or more among the other individuals listed in the
15
sexual harassment policy was unreasonable.
Hunt’s policy made clear that several persons in addition to
the employee’s immediate and next higher supervisors were available
to receive and pursue sexual harassment claims. When Gorum’s
harassment began, Wyatt’s reasonable (not to mention obvious)
course of action would have been to report Thompson’s and Gorum’s
conduct to one of those individuals with authority higher than
Gorum’s. Wyatt’s reliance on Gorum’s unofficial and informal
admonitions not to “go over his head” do not excuse her failure to
disclose harassment to a higher authority at Hunt. Her failure to
act was not reasonable, especially when Gorum was one of the
persons who was creating the actionable hostile environment. When
Hunt’s higher management personnel became aware of Thompson’s
sexually harassing conduct and Gorum’s misrepresentation of it,
Thompson and Gorum were suspended, investigated, and fired
promptly. As Hunt’s sexual harassment policy and its
implementation of the policy are more than adequate, Hunt is
entitled to summary judgment dismissing Wyatt’s claims for any
sexual harassment by Thompson or Gorum that may have occurred
between early July and mid-November 1994.
Similarly, under the Ellerth/Faragher test, Hunt cannot be
held vicariously liable for any supervisor sexual harassment after
November 15th, as none of Wyatt’s allegations relative to that
third period of her employment implicates sexual harassment, much
less harassment by supervisors. Wyatt’s complaints about shunning
16
or ostracism by fellow workers during that third period do not
implicate sexual harassment. In addition, as soon as higher
management became aware of the pants incident, Hunt immediately
responded to its supervisors’ sexual harassment by suspending
Thompson and Gorum, commencing an investigation, firing them, and
counseling employees against mistreating Wyatt. Thus, when the
facts are viewed in the light most favorable to Wyatt, Hunt cannot
be held vicariously liable to her for occurrences during the third
period because she cannot establish either that (1) actual sexual
harassment by supervisors continued during the third period, or (2)
Hunt unreasonably and dilatorily responded once higher management
personnel became aware of the supervisor sexual harassment, because
none occurred.
More problematic, however, is the initial four-month period of
Wyatt’s employment, from March until early July, 1994. During this
time, Wyatt’s immediate supervisor, Thompson, harassed her; and she
responded by promptly and appropriately reporting Thompson’s
behavior to Gorum, his immediate supervisor and her successively
higher supervisor. In doing so she complied reasonably with Hunt’s
policy and procedures. Yet, if any remedial action were taken by
Gorum, it was wholly ineffectual: Thompson’s harassment of Wyatt
continued unabated.
Under the Ellerth/Faragher rubric, the one affirmative defense
open to Hunt for Wyatt’s first period of employment fails because
her actions were reasonable: After promptly reporting Thompson’s
17
conduct to Gorum, who assured Wyatt that he would handle the
situation, nothing in Hunt’s harassment policy and procedures
required Wyatt to take additional steps, at least not during the
relatively short duration of that first period. Therefore, for the
period that began with Wyatt’s first report to Gorum of Thompson’s
harassment and ended when Gorum himself began harassing Wyatt, Hunt
cannot establish the second prong of the conjunctive
Ellerth/Faragher affirmative defense: Hunt cannot show that Wyatt
unreasonably failed to use the preventative and remedial
opportunities provided by the employer.20
Our plenary review convinces us that Hunt is not entitled to
summary judgment of dismissal as to this one aspect of Wyatt’s
complaint, i.e., her claim that Hunt is vicariously liable for
sexual harassment by her supervisor, Thompson, during the period of
March through July, 1994. We must therefore reverse the district
court’s grant of Hunt’s summary judgment to the extent it dismissed
this portion of Wyatt’s action, even though we affirm as to all
other aspects of the district court’s ruling.
In partially reversing and remanding for further proceedings,
however, we note that Wyatt’s burden on remand remains substantial.
She must establish a prima facie claim of hostile work environment
supervisor sexual harassment for this initial period of her
20
See Faragher, 524 U.S. at 807.
18
employment.21 As we noted in our detailed recounting of the
Ellerth/Faragher analysis, Wyatt will have to show that Thompson’s
conduct was sufficiently severe and pervasive to be actionable
sexual harassment.22 Hunt is estopped to deny Thompson’s supervisor
status because of its unequivocal and unconditional admission in
its pleadings, but Hunt has conceded that Thompson’s actions were
sufficiently severe and pervasive only for purposes of its summary
judgment motion and this appeal. That concession, in conjunction
with our conclusion regarding the viability of Hunt’s affirmative
defense to Wyatt’s first period of employment, gain Wyatt only the
opportunity, on remand to the district court, to prove the severity
and pervasiveness of Thompson’s conduct during Wyatt’s employment
at Hunt between March to July of 1994. If, but only if, she can
bear that burden will she be entitled to recover from Hunt such
damages as she may then be able to prove.
C. Dismissal of State Law Tort Claims
Wyatt also asserts various state law tort claims against Hunt
premised on the Louisiana state law version of vicarious
(respondeat superior) liability. The Louisiana Supreme Court has
clarified that an employer is vicariously liable for an employee’s
tort if the “employee was acting within the course and scope of his
21
See Casiano, 213 F.3d 278.
22
Id.
19
employment.”23 In considering whether an employer can be held
liable for a supervisor’s actions in committing a tort against a
fellow employee, the Louisiana Supreme Court considers the
following four factors:
(1) whether the tortious act as primarily employment rooted;
(2) whether the [tortious act] was reasonably incidental to the
performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.24
Not all four factors must be found to favor the employee for
liability to attach, but an employer cannot be held liable if only
the last two factors are met.25
Here, the district court concluded that Hunt could not be held
vicariously liable for Thompson’s and Gorum’s actions. It is
apparent that Thompson’s actions were not related to his duties but
instead were rooted in personal motives unrelated to employment.
The most that can be said is that his behavior occurred on Hunt’s
premises during work hours, but alone this is not enough to produce
state law vicarious liability. Similarly, given Wyatt’s
allegations that Gorum (1) acted inappropriately towards her, (2)
mishandled her complaints about Thompson, and (3) misrepresented
the facts to higher management or hid them from management, Gorum’s
conduct cannot be understood as advancing Hunt’s legitimate
23
Baumeister v. Plunkett, 673 So.2d 994, 996-97 (La. 1996).
24
Id. (quoting LeBrane v. Lewis, 293 So.2d 216, 218 (La.
1974)).
25
Id.
20
business interests. Thus, the district court’s conclusion that
Thompson and Gorum were acting out of personal motives unrelated to
their employment, thereby exonerating Hunt from state law vicarious
liability for their supervisory employees’ actions, was correct and
is affirmed.
D. Denial of Jury Trial
The last question before us is whether Wyatt is entitled to a
jury trial in federal court despite having forfeited her demand for
a jury trial in state court by failing to meet the bond requirement
attendant on such demands in state court. The district court ruled
that Wyatt’s waiver of her right to a jury trial in state court,
caused by her failure to post a bond as required by state (but not
federal) law, vitiated her entitlement to a jury trial in federal
court following removal. We, however, can find no authority for
the proposition that a litigant in a removed action loses her right
to a federal jury trial by any act or omission in connection with
a state requirement that is not applicable in federal court.
To the contrary, Federal Rule of Civil Procedure 81(c) speaks
in broad terms, stating that “[i]f at the time of removal all
necessary pleadings have been served, a party entitled to trial by
jury under Rule 38 shall be accorded it, if the party’s demand
therefor is served ... within 10 days after service on the party of
the notice of filing the petition.” In addition, federal appellate
case law supports the view that a party need not file a new jury
21
demand in federal court if one that would have satisfied the
federal requirements was filed in state court.26
Here, the demand for a jury trial contained in Wyatt’s
complaint would have satisfied Federal Rule 38(b).27 Further,
although Hunt answered the complaint before removal to federal
court, Federal Insurance Company, the added defendant, did not
answer until April 17, 2000, two months after removal. Wyatt
reasserted her demand for a jury trial in a motion filed in federal
court on April 26, 2000, thus bringing her within the ambit of
Rule 38(b) regardless of our conclusion that her jury trial demand
was automatically carried with her case when it was removed to
federal court. We are therefore constrained to reverse the
26
See Mondor v. United States District Court for the Central
District of California, 910 F.2d 585, 586-87 (9th Cir. 1990):
[T]he majority of federal courts addressing the issue
held that a new jury demand need not be filed after
removal where one had been filed in state court because
the previously filed demand became a part of the federal
court record.
...
We therefore hold that, where a pre-removal jury demand
would satisfy federal but not state requirements, that
demand is incorporated into the federal record upon
removal, and is deemed to satisfy Rule 38(b).
see also Wright & Miller, Federal Practice and Procedure, § 2319
anc accompany notes (citing Mondor v. U.S.; also citing Bush v.
Allstate Ins. Co, 425 F.2d 393, 395-96 (5th Cir. 1970) for the
proposition that “even if a party has waived his right to jury
trial in state court by a failure to demand it as required by state
procedure, he has a new opportunity to demand the right on removal
to a federal court.”).
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Fed. R. Civ. P. 38(b) requires that a party make the demand
in writing and serve it on the opposing party within 10 days of the
last pleading directed to the issue on which jury trial is
requested.
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district court’s denial of Wyatt’s demand for a jury trial.
III. SUMMARY
We affirm the district court’s dismissal of Wyatt’s state law
vicarious liability claims, but we reverse the court’s denial of
her request for a federal jury trial. We affirm the district
court’s grant of summary judgment on Hunt’s vicarious liability for
the actionable environment created by its supervisors to the extent
that judgment dismissed Wyatt’s federal claims grounded in Gorum’s
conduct, as well as those grounded in Thompson’s conduct after late
June, 1994. We reverse and remand, however, for further
proceedings addressing, inter alia, the severity and pervasiveness
of the sexual harassment of Wyatt by Hunt’s supervisor, Thompson,
for the portion of Wyatt’s employment spanning the period of March
1994 through June 1994. If the results of such further proceedings
lead to trial, Wyatt must be afforded a jury trial.
AFFIRMED in part; REVERSED and REMANDED in part, with instructions.
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