Wyatt v. Hunt Plywood Co Inc

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.”).
27
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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