[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11540 ELEVENTH CIRCUIT
________________________ MAY 07, 2010
JOHN LEY
CLERK
D. C. Docket No. 06-14324-CV-JEM
MELANIE BECKFORD,
CHARLENE FONTNEAU,
TITA DE LA CRUZ,
LEE WASCHER,
LINDA JONES, et al.,
Plaintiffs-Appellees,
versus
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
____________________
No. 09-14903
_____________________
D. C. Docket No. 06-14324-CV-JEM
MELANIE BECKFORD,
CHARLENE FONTNEAU,
TITA DE LA CRUZ,
LEE WASCHER,
LINDA JONES, et al.,
Plaintiffs-Appellees,
versus
DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 7, 2010)
Before PRYOR and FAY, Circuit Judges, and QUIST,* District Judge.
PRYOR, Circuit Judge:
This appeal presents the question whether the Florida Department of
Corrections can be liable, under Title VII of the Civil Rights Act of 1964, for
failing to remedy a sexually hostile work environment that male inmates created
for female employees at Martin Correctional Institution. See 42 U.S.C.
§ 2000e–2(a)(1). Melanie Beckford and 13 other women, all former non-security
employees at Martin, complained that the Department failed to remedy sexually
offensive conduct of inmates, including the frequent use of gender-specific abusive
language and pervasive “gunning,” the notorious practice of inmates openly
*
Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
2
masturbating toward female staff. At trial, a jury heard evidence of this
harassment, considered the ability of the Department to mitigate the misconduct,
and held the Department liable. On appeal, the Department presents four
arguments: (1) the Department, as a matter of law, cannot be liable under Title VII
unless its staff actively encouraged or participated in the harassment; (2) the female
employees failed to prove that the inmates’ harassment was because of sex; (3) the
district court should have instructed the jury about the affirmative defense
recognized in Faragher v. City of Boca Raton, 524 U.S. 775, 807–08, 118 S. Ct.
2275, 2292–93 (1998); and (4) the district court should have severed the
employees’ claims under Federal Rule of Civil Procedure 42(b). We conclude that
the jury was entitled to find the Department liable under Title VII because it
unreasonably failed to remedy the sexual harassment by its inmates. We also reject
the other arguments of the Department and affirm.
I. BACKGROUND
Beckford and the 13 other former employees worked at Martin between
1999 and 2002. Beckford, Susan Black, Tita De la Cruz, Charlene Fontneau,
Linda Jones, Paula LaCroix, Joyce Meyer, Donna Pixley, Vesna Poirier, Michelle
Pollock, Lourdes Silvagnoli, and Lee Wascher worked as nurses; Sushma Parekh
worked as a physician; and Janet Smith worked as a classification officer. Each of
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the female employees worked in the “close management” housing dorms at Martin.
The nurses entered the close management dorms each day to pass medication to
inmates, answer sick calls, and respond to medical emergencies. The other former
employees entered the close management dorms at least several times each week to
perform similar duties or to discuss administrative matters with inmates.
According to James Upchurch, the director of security operations for the
Department, the close management dorms house inmates who “have demonstrated
by their behavior and the pattern of their behavior that they can’t be left in the
general population because they pose too great a threat” to other inmates and staff.
Martin houses close management inmates in several separate dorms. Each dorm
comprises four quads, which contain individual inmate cells. Each single cell
contains a bunk, sink, and toilet and has a solid door with a glass window. Each
cell door contains a slot through which prison staff pass medication and food.
Each close management dorm also contains a glass control room or bubble that sits
in the middle of the dorm and provides staff a view of the quads. From the
bubbles, staff can view each cell in a dorm.
While the women were employed at Martin, the close management inmates
abused staff, especially female staff. David Harris, who served as assistant warden
at Martin during the 1990s, testified that close management “inmates would throw
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urine, throw feces on [male security] staff.” Sergeant Brian McDew, who worked
as a corrections officer at Martin during the same period, testified that this behavior
toward male staff did not happen “very often, but it happen[ed].” According to the
testimony of the female employees, the inmates reacted especially poorly to the
presence of female staff in the close management dorms. When the inmates saw
female employees approaching one of the close management dorms, the inmates
called the employees names—including cunt, whore, slut, and bitch—through the
exterior cell windows and explained, in graphic detail, the sexual liberties that the
inmates would take with the employees, if given the opportunity.
The inmates often instructed each other to “lock and load” when they saw
female staff approaching one of the dorms. The inmates’ phrase “lock and load”
referred to the most notorious conduct to which they exposed the female staff:
gunning. That conduct involved exposing themselves and masturbating directly at
staff.
The female employees testified to similar experiences. They testified that
inmates gunned them from the inmates’ cells while the female employees were
waiting in the close management dorm bubbles before working in the quads. To
harass the women waiting in the bubbles, the inmates would stand, a nurse
testified, “at their windows, hanging off the door jambs, standing on the toilets, on
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rolled up mattresses” so that the female employees could see the inmates gunning
through the cell windows. The inmates often would ejaculate on the cell windows
and through the food slot or flap on the cell door, sometimes when female staff
were standing at the door. The inmates masturbated when the female employees
were completing paperwork in the dorms, and when the women saw inmates in the
isolation room in the medical building.
The inmates also gunned the female employees when the women responded
to medical emergencies in the close management dorms. Nurse Poirier testified
that “99.9 percent of the time the emergencies were bogus. It was just for me to
get down there for [the inmates] to have the entertainment for the evening.” Nurse
Fontneau explained that the inmates faked emergencies and they “call[ed] because
it was like hiring a call girl or a whore.” Nurse Pixley recalled an incident in
which a male nurse responded to an emergency in a close management dorm. She
testified that the male nurse “was back within five minutes because . . . the inmate
cussed him out and said that he didn’t need medical. . . . [The inmate] asked him
where is the female nurse.”
Each of the female employees testified about her own humiliating
experiences with gunning. Nurse Meyer, for example, recalled being abandoned
by a male security employee, Lieutenant Ferguson, while she was delivering
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medication in a close management dorm. When Nurse Meyer was alone, “the
inmates in the quad all started to scream and bang on the doors.” “[T]hey were
hanging onto the door frames above the door and they were on their toilet and they
were all masturbating.” Nurse Meyer estimated that “it was probably 15 inmates
that they were ejaculating and everything on the windows.” Lieutenant Ferguson
“totally ignored” Nurse Meyer’s calls for help, and when she confronted him later
about the episode, he said, “‘[Y]ou were looking for it. I saw you, you were
looking for it. You were asking for it.’” Nurse Meyer was scheduled to leave the
Department at the end of that day, but she quit on the spot.
Gunning was a frequent phenomenon. At trial, the female employees
estimated that when they were in the close management dorms, virtually “every
one of” the inmates gunned. Nurse Beckford testified that the inmates used a
“team effort” for gunning the female employees, and Nurse Jones described the
inmates’ behavior as a “chain reaction.” The employees also presented evidence
that virtually all the inmates participated in the misconduct and the inmates gunned
only female staff, not the all-male security staff.
The female employees attempted to limit their exposure to inmate gunning.
The employees tried to place screens in front of the windows of the isolation rooms
and suggested papering cell door windows, but security personnel did not permit
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those measures. The employees also suggested two-way mirrors for the nursing
stations, but management rejected that idea as too expensive. The employees
suggested that inmates be brought to the medical building so that the employees
would not have to visit the dorms or that inmates be brought to a separate room in
the close management dorms, but prison officials determined that staff shortages
prevented these measures. The employees also suggested the use of pink uniforms
to shame repeat gunners. Some of the employees wore baggy clothes; neck towels
to disguise sweat, which inmates enjoyed seeing; sunglasses to avoid eye contact
with inmates; and headphones to avoid the verbal harassment. It is unclear how
successful these last measures were, as they sometimes generated additional
harassment.
The female employees complained to prison management, including the
warden, about the conduct of the inmates. The employees testified that they filed
disciplinary reports regarding inmate harassment, including gunning. Several
female employees testified that management ordinarily ignored these complaints.
Captain Wiles, for example, once informed a complaining nurse that the inmates
were in “their living room and they could do whatever they wanted.” Male
employees encouraged the female employees to accept the gunning “as a
compliment.” Other female employees testified that prison officials sometimes
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punished inmates in response to the employees’ complaints of harassment. The
female employees also presented evidence that management discouraged the
nursing staff from filing disciplinary reports. In a formal memorandum circulated
to the staff, Dr. David Thomas, the director of health services, explained that “it is
far more appropriate for correctional officers and non-health services employees to
do discipline reports and other forms of punishment.”
The Department maintained a sexual harassment policy, but the female
employees testified that they understood the policy to cover only harassment by
other employees and outside vendors who transacted with the Department, not
inmates. At trial, the Equal Employment Opportunity investigator for the
Department, Debbie Dawson, agreed that the policy, as explained to the female
employees, did not cover harassment by inmates. Dawson also testified that, if the
policy had covered harassment by inmates, the employees had fully satisfied the
reporting requirements of the policy by complaining to prison management, the
Florida Commission on Human Relations, and the Equal Employment Opportunity
Commission.
Eventually, the warden met with several female employees to discuss the
harassment. After the meeting, the Department adopted a new “three minute rule,”
which permitted employees to refuse service to an inmate who gunned the
9
employees for more than three minutes. A nurse testified that, after the adoption of
the new rule, the gunning “got worse because the inmates knew they had three
minutes and they used to say ‘you can’t refuse me, you got to wait.’” Another
employee testified that the rule led the inmates to believe that “[t]hey ran the
facilities.”
In 2001, the former employees in this appeal and others sued the Department
in a Florida court. The female employees alleged that the Department violated
state law by creating a hostile work environment and successfully sought class
certification. In March 2006, the employees amended their complaint to add a
claim under Title VII.
The Department removed the case to the Northern District of Florida, which
later decertified the class and transferred the claims before us to the Southern
District of Florida. Before trial, the Department moved to sever the employees’
claims under either Federal Rule of Civil Procedure 21 or Rule 42(b), but the
district court denied that motion. The district court weighed the prejudice of a
single trial against the costs of severance and ruled that joinder of the claims was
warranted.
At trial, the Department asked the district court to instruct the jury on its
Faragher affirmative defense, but the district court refused. The district court
10
explained that “the Faragher defense seems to me to be much more involved with
supervisors and supervision and this is not that.” The district court instructed the
jury to determine, “by looking at all the circumstances,” whether the plaintiffs
proved, by a preponderance of the evidence, that the employment environment at
Martin was “hostile or abusive.” The district court further explained that “[i]f you
determine that a particular plaintiff was in fact subject to a hostile or abusive work
environment, you must then determine whether her employer created or permitted
that hostile and abusive work environment.” The district court explained that the
“Department of Corrections created or permitted a hostile or abusive work
environment only if the department . . . failed to take corrective action reasonabl[y]
calculated to address the inmate misconduct.” When determining whether the
corrective action was reasonable, the jury was instructed to consider “the
Department of Corrections’ ability to stop or mitigate the misconduct.” The
district court required the jury to answer a special interogatory for each verdict that
asked whether the employees proved that the “defendant failed to exercise
reasonable care to prevent and correct promptly any sexually harassing behavior in
the workplace.” The jury returned a verdict against the Department and awarded
each employee $45,000 in damages.
The Department moved for judgment notwithstanding the verdict and,
11
alternatively, for a new trial. The Department argued that it could not be liable for
harassment by inmates unless Department employees encouraged or participated in
the conduct and that the female employees had not proved employee
encouragement or participation. The Department also argued that none of the
harassment by inmates was based on sex and that the Department was entitled to
judgment as a matter of law on the Faragher defense. The Department again
contended that the district court should have instructed the jury on the Faragher
defense. The district court denied the motion.
II. STANDARDS OF REVIEW
Three standards of review govern this appeal. We review de novo the
decision to deny the Department judgment as a matter of law. Ross v. Rhodes
Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). We will render judgment
for the Department if “there is no legally sufficient evidentiary basis for a
reasonable jury to find for” the plaintiff employees. Cleveland v. Home Shopping
Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004); see also Fed. R. Civ. P. 50.
“We review a district court’s refusal to give a particular jury instruction for abuse
of discretion.” United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir. 2003)
(internal quotation marks omitted). The failure of a district court to give an
appropriate instruction is reversible error where the “requested instruction (1) was
12
correct; (2) was not substantially covered by the charge actually given; and (3)
dealt with some point in the trial so important that failure to give the requested
instruction seriously impaired the defendant’s ability to conduct his defense.” Id.
at 1222–23 (internal quotation marks omitted). “[W]e disturb a district court’s
decision not to order separate trials only upon a showing of abuse of discretion.”
Alexander v. Fulton County, 207 F.3d 1303, 1325 (11th Cir. 2000).
III. DISCUSSION
We divide our discussion in four parts. First, we explain that the jury was
entitled to find the Department liable for a hostile work environment because the
Department unreasonably failed to remedy the harassment. Second, we explain
that the jury was entitled to find that the harassment of female staff by inmates was
based on sex. Third, we explain that the Department was not entitled to have the
jury instructed about the Faragher defense. Fourth, we explain that the district
court did not abuse its discretion when it refused to sever the individual
employees’ claims under Rule 42(b).
A. The Department Can Be Liable for Sexual Harassment by Inmates.
The Department argues that, as a matter of law, a prison cannot be held
liable for sexual harassment by its inmates unless its employees participate in or
encourage the harassment. Although the Department acknowledges that ordinarily
13
employers can be held liable for unreasonably failing to remedy harassment of
employees by third parties, the Department argues that “[p]rison officials should be
treated different from other employers.” We disagree.
It is well established that employers may be liable for failing to remedy the
harassment of employees by third parties who create a hostile work environment.
In Watson v. Blue Circle, Inc., we held that an “employer may be found liable for
the harassing conduct of its customers if the employer fails to take immediate and
appropriate corrective action in response to a hostile work environment of which
the employer knew or reasonably should have known.” 324 F.3d 1252, 1258 n.2
(11th Cir. 2003). Uniformly, our sister circuits have applied the same rule that
employers may be held liable under Title VII for harassment by third parties when
that conduct creates a hostile work environment. See, e.g., Erickson v. Wis. Dep’t
of Corr., 469 F.3d 600, 605 (7th Cir. 2006); Galdamez v. Potter, 415 F.3d 1015,
1022 (9th Cir. 2005); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th
Cir. 2001); Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Slayton v.
Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000); Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir. 1998); Rodriguez-Hernandez v.
Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998); Crist v. Focus Homes, Inc., 122
F.3d 1107, 1108 (8th Cir. 1997); see also Noah D. Zatz, Managing the Macaw:
14
Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory
Intent, 109 Colum. L. Rev. 1357, 1372–73 (2009).
In defense of that rule, Judge Easterbrook wrote, “Because liability is direct
rather than derivative, it makes no difference whether the person whose acts are
complained of is an employee, an independent contractor, or for that matter a
customer. Ability to ‘control’ the actor plays no role.” Dunn v. Wash. County
Hosp., 429 F.3d 689, 691 (7th Cir. 2005). Judge Easterbrook explained that
employees are not pawns whose conduct uniquely subjects an employer to liability
for their harassment of another employee while the employer is absolved of any
liability for the conduct of third-party harassers: “Employees are not puppets on
strings; employers have an arsenal of incentives and sanctions (including
discharge) that can be applied to affect conduct. It is the use [of] (or failure to use)
these options that makes an employer responsible—and in this respect [third
parties] are no different from employees. ” Id. To illustrate this point, Judge
Easterbrook famously used the colorful analogy of managing a macaw:
Indeed, it makes no difference whether the actor is human. Suppose a
patient kept a macaw in his room, that the bird bit and scratched
women but not men, and that the Hospital did nothing. The Hospital
would be responsible for the decision to expose women to the
working conditions affected by the macaw, even though the bird (a)
was not an employee, and (b) could not be controlled by reasoning or
sanctions. It would be the Hospital’s responsibility to protect its
female employees by excluding the offending bird from its premises.
15
Id. A prison certainly has a larger arsenal of incentives and sanctions that would
allow it to manage more rational beings like inmates than a hospital would have at
its disposal to manage a macaw.
We refuse the invitation of the Department to treat inmates differently from
other third-party harassers and prisons differently from other employers under Title
VII. Several of our sister circuits have refused this invitation too and permitted
liability for sexual harassment by inmates. See Erickson, 469 F.3d at 605–06;
Freitag v. Ayers, 468 F.3d 528, 538–39 (9th Cir. 2006); Weston, 251 F.3d at 427;
Slayton, 206 F.3d at 677; see also Garrett v. Dep’t of Corr., 589 F. Supp. 2d 1289,
1297–98 (M.D. Fla. 2007). Like them, we reject the notion that “prisons are
uniquely exempt from liability for sexual harassment under Title VII.” Freitag,
468 F.3d at 539. We agree that “[n]othing in the law suggests that prison officials
may ignore sexually hostile conduct and refrain from taking corrective actions that
would safeguard the rights of the victims, whether they be [employees] or
inmates.” Id.
Contrary to the argument of the Department, Bell v. Wolfish, 441 U.S. 520,
99 S. Ct. 1861 (1979), and similar precedents do not require that we exempt
prisons from the requirements of Title VII. These authorities instead reconcile the
competing demands of officials to maintain control of prisons and respect the
16
constitutional rights of prisoners and pretrial detainees. Id. at 547–48, 99 S. Ct. at
1878–79. Bell and similar precedents about the deference owed to prison officials
in their control of inmates do not exempt prison officials from liability under Title
VII when the source of harassment or discrimination of employees is inmates.
Our general rule of reasonableness regarding employer liability for third-
party harassment under Title VII adequately respects the difficulties that prison
officials encounter in controlling inmate conduct. Title VII does not require, on
the one hand, that prisons prevent all manner of harassment at all cost and without
regard to important penological interests. We recognize that there are practical and
constitutional limits on what prisons can do to protect staff. Prisons cannot, for
example, eject unruly inmates like businesses can eject rude customers. Cf. Dunn,
429 F.3d at 691. The Eighth Amendment also limits the sanctions that prisons can
impose on abusive inmates, probably even inmates who create a sexually hostile
work environment for prison employees. Cf. Ricci v. DeStefano, 557 U.S. - - , 129
S. Ct. 2658, 2682 (2009) (Scalia, J., concurring). Although some harassment by
inmates cannot be reasonably avoided, the Department, on the other hand, cannot
refuse to adopt reasonable measures to curtail harassment by inmates.
The district court correctly applied the standard of reasonableness that
governs employers under Title VII. The district court instructed the jury that “[i]f
17
you determine that a particular plaintiff was in fact subject to a hostile or abusive
work environment, you must then determine whether her employer created or
permitted that hostile and abusive work environment.” The district court explained
that the “Department of Corrections created or permitted a hostile or abusive work
environment only if the department . . . failed to take corrective action reasonabl[y]
calculated to address the inmate misconduct.” The district court instructed that, in
considering whether the corrective action was reasonable, the jury should consider
“the Department of Corrections’ ability to stop or mitigate the misconduct.” The
district court also required the jury to answer a special interrogatory for each
verdict that asked whether “the defendant failed to exercise reasonable care to
prevent and correct promptly any sexually harassing behavior in the workplace.”
At oral argument, the Department conceded that sufficient evidence entitled
the jury to find that the Department unreasonably failed to remedy the harassment
by the inmates, and we agree. A reasonable jury could have found that prison
officials should have enforced the inmate dress policy, which required inmates to
wear pants when female staff were in the close management dorms. According to
an expert who testified at trial, enforcing this rule would have “discourage[d] th[e]
gunning masturbation.” A reasonable jury also could have found that security
personnel should have accompanied female staff while they were in the close
18
management dorms. A reasonable jury could have found that the Department
should have required security officers to write disciplinary reports or permitted the
female staff to report the misconduct of inmates. See Freitag, 468 F.3d at 541;
Garrett, 589 F. Supp. 2d at 1292. Moreover, a reasonable jury could have found
that prison administrators should have permitted the nurses to use screens at cell
windows and in the bubble to prevent harassment. Freitag, 468 F.3d at 540–41;
Garrett, 589 F. Supp. 2d at 1292–93. A reasonable jury also could have found that
the prison should have treated masturbation toward female staff as the Department
treated abuse of the all-male security staff and referred the incidents for outside
prosecution. Freitag, 468 F.3d at 541 & n.6. A reasonable jury also could have
found that the Department should have adopted a specific anti-gunning policy. Id.
at 541; Garrett, 589 F. Supp. 2d at 1298.
The Department could reasonably have done any or all of these things to
protect the employees at Martin. The Department instead sought a blanket
exemption from an established requirement of Title VII. That strategy was
misguided.
B. The Harassment of Employees by Inmates Was Based on Sex.
Our recent en banc opinion in Reeves v. C.H. Robinson Worldwide, Inc.,
forecloses the alternative argument of the Department that no reasonable jury could
19
have found that the conduct of the inmates was based on sex. 594 F.3d 798 (11th
Cir. 2010) (en banc). The Department contends that the “inmates in close
management confinement [were] equal opportunity harassers” and that the women
“chose to work in a correctional facility that houses close management inmates
[and] made a choice to work in an environment with the ‘worst of the worst,’” but
these arguments fail. That the close management inmates are typically crude and
even obscene does not mean that their harassment was indiscriminate. Id. at 810.
The employees presented evidence that the inmates called them cunts, whores,
bitches, and sluts, and we have ruled that these gender-specific and highly
offensive epithets evidence sex-based harassment under Title VII. Id. The female
employees also presented evidence that the inmates gunned only female staff,
Garrett, 589 F. Supp. 2d at 1292 n.3, and, not surprisingly, our sister circuits agree
that exhibitionist masturbation, especially gunning, is sex based and highly
offensive conduct. See, e.g., Freitag, 468 F.3d at 540; see also Garrett, 589 F.
Supp. 2d at 1298–99.
Title VII required the Department to adopt reasonable remedial measures to
protect its female employees from the sexually hostile environment that the
inmates created. The jury was entitled to find that the Department made almost no
effort to protect its employees from this sex-based harassment. This record entitled
20
the jury to find the Department liable under Title VII.
C. The District Court Did Not Err in Rejecting the Faragher Instruction.
The Department argues that the district court should have instructed the jury
about the affirmative defense that the Supreme Court articulated in Faragher, 524
U.S. at 807–08, 118 S. Ct. at 2292–93. According to the Department, the district
court should have instructed the jury that it could return a verdict in favor of the
Department if the jury found, by a preponderance of the evidence, that the
Department exercised reasonable care to prevent or promptly correct any sexual
harassment and the employees unreasonably failed to take advantage of any
preventive or corrective opportunities provided. This argument fails for two
reasons.
We agree with the district court that the Faragher defense was not available
to the Department. By its own terms, the Faragher defense is available to
employers who defend against complaints of “an actionable hostile environment
created by a supervisor with immediate (or successively higher) authority over the
[plaintiff] employee.” Id. at 807, 118 S. Ct. at 2293 (emphasis added). When, as
here, employees complain of harassment by someone other than a supervisor, the
Faragher defense does not apply. “One standard exists for harassment by
supervisors and another for harassment by coworkers” and third parties. Erickson,
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469 F.3d at 604. The district court did not abuse its discretion when it instructed
the jury consistent with our precedent, see Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1278 (11th Cir. 2002); see also Dunn, 429 F.3d at 691, and refused to
give the instruction that the Department requested.
Alternatively, the refusal of the district court to instruct the jury about the
Faragher defense did not prejudice the Department. If it had received its requested
instruction, the Department could have avoided liability if it had proved, by a
preponderance of the evidence, that it had taken reasonable preventive or
corrective measures to address the harassment by the inmates, see Faragher, 524
U.S. at 807, 118 S. Ct. at 2293, but we know that the jury would not have found for
the Department on that issue. The jury answered “yes” to special interrogatories
that asked whether the Department “failed to exercise reasonable care to prevent
and correct promptly any sexually harassing behavior in the workplace.” The
“affirmative answer[s] to the[se] . . . interrogator[ies] indicat[e], without doubt,”
how the jury would have found on a necessary element of the Faragher defense,
and render any error in refusing the instruction of the Department harmless. Bogle
v. McClure, 332 F.3d 1347, 1357–58 (11th Cir. 2003).
D. The District Court Did Not Abuse Its Discretion When It Refused to Sever the
Employees’ Claims Under Rule 42(b).
The Department concedes that Rule 20(a) permitted the district court to join
22
the individual employees’ claims, but argues that the district court should have
severed the claims under Rule 42(b) and ordered separate trials “to avoid
prejudice” to the Department. See Fed. R. Civ. P. 42(b). The Department
contends that it “suffered prejudice by the large number of claims, the sheer
volume of information, and the inflammatory nature of the allegations.” The
Department recognizes the “practical burdens that could result from conducting
fourteen separate trials as opposed to a single large trial,” but maintains that “such
burdens, if they manifest, cannot take precedence over the administration of justice
and the right of the [Department] to a fair trial.”
At least four considerations persuade us that, on “the peculiar facts and
circumstances of [this] case,” the district court did not abuse its discretion.
Alexander, 207 F.3d at 1325. First, this litigation involved 14 plaintiffs, and we
have affirmed refusals to sever that involved more plaintiffs. See id. (affirming
refusal to sever in employment discrimination action involving 18 plaintiffs).
Second, “in this case the potential for prejudice was minimized because of the core
similarities” in the female employees’ claims. Id. Each employee sought to prove
that inmates repeatedly gunned and verbally abused female employees, the
Department knew of this gunning and harassment, the Department reasonably
could have prevented or remedied this behavior, and the Department did not
23
respond to the harassment in ways that it reasonably could have. The defense of
the Department, as it was explained to the district court and presented at trial, did
not differ from claim to claim. Third, the district court was understandably
concerned about delaying this litigation, which had been wending its way through
state and federal court for more than five years, and “economy[ and] expedition”
are relevant considerations under Rule 42(b). Id. Fourth, the district court sensibly
considered that another district court had recently tried, successfully and in only
five days, a nearly identical set of actions involving 12 female prison employees.
The Department argues that “the volatile nature of the allegation[s] warranted
severance,” but severance would not have changed the highly incendiary nature of
the inmates’ conduct or the employees’ allegations. In the light of our precedents,
we cannot say that the district court abused its discretion in trying these claims
together.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
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