[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10023 February 9, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00770-CV-BH-C
ELIZABETH J. HOWARD,
Plaintiff-Appellant,
versus
CITY OF ROBERTSDALE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(February 9, 2006)
Before ANDERSON, BLACK and CARNES, Circuit Judges.
BLACK, Circuit Judge:
Appellant Elizabeth J. Howard appeals the district court’s grant of summary
judgment in favor of her employer, the City of Robertsdale. Howard alleges she
was sexually harassed by Robertsdale’s police chief, Alan Lassiter, while working
as his secretary in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, and 42 U.S.C. § 1983. Although Robertsdale admits
sexual harassment occurred, the city contends it is nonetheless entitled to summary
judgment because no basis exists on which to hold it liable for Lassiter’s conduct.
The district court granted summary judgment for Robertsdale, concluding it was
neither directly nor vicariously liable under Title VII, and had no policy or custom
of sexual harassment to support a § 1983 claim. We affirm.
I. BACKGROUND
In reviewing a grant of summary judgment, we must view the facts in the
light most favorable to the nonmoving party. Breda v. Wolf Camera & Video, 222
F.3d 886, 888 (11th Cir. 2000). We thus recite the facts of this case in the light
most favorable to Howard.
At all relevant times, Lassiter worked as Robertsdale’s police chief and
reported to the city’s part-time mayor, Charles Murphy. In May 1999, Howard
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was hired as Lassiter’s secretary1 and, within a few months, Lassiter began
physically harassing her on a regular basis. According to Howard, the behavior
occurred in private, and other city personnel were not aware of it. Robertsdale
concedes, however, that physical harassment occurred.
Although Lassiter never physically harassed Howard in public, he made
sexual jokes and comments in front of other employees on a regular basis. For
example, when Howard left for lunch, Lassiter would often announce she was
going home to get a “nooner.” He also made offensive comments to other female
employees about their bodies and sex lives. Howard claims everybody in the
Police Department knew of this inappropriate behavior, but nobody confronted
Lassiter or reported him. Although the Mayor was not aware of the behavior, he
suspected Howard and Lassiter were involved in a sexual relationship for two
reasons. First, he thought Lassiter had an ulterior motive for rehiring Howard
because she had been a poor employee during her first tenure at the Police
Department. Second, he had received complaints about Lassiter refusing to allow
Howard to perform certain tasks that required her to interact with male state
troopers.
1
Howard previously worked for the Robertsdale Police Department for a few years in the
1990s. During that time, Lassiter was a lieutenant, and Howard suffered no sexual harassment.
3
Howard endured Lassiter’s conduct for nearly three years without reporting
it, though she admits she was aware of Robertsdale’s sexual harassment policy
during that time. The policy states: “All employees are responsible for helping to
assure that we avoid harassment. If you feel you have experienced or witnessed
harassment, you are to notify immediately (preferably within 24 hours) your
immediate supervisor, personnel department, and/or the Mayor.” As Howard
contends, however, both she and other police personnel were “scared to death of
[Lassiter],” and she feared retaliation. She also asserts Lassiter countermanded the
policy by prohibiting his employees from going over his head to the Mayor.
In April 2002, Howard approached Chief Dispatcher Katina Griffin to
complain about Lassiter’s behavior, but Griffin did not report the behavior to
higher authority. As Howard contends, Griffin occasionally served as her
supervisor because she performed dispatching duties from “time to time.”
On May 27, 2002, Howard and her husband finally complained to the
Mayor. The Mayor immediately placed Howard on paid leave and quickly hired a
private investigator to look into Howard’s claims. He received the results of the
investigation on August 23, 2002, and placed Lassiter on administrative leave five
days later. Lassiter was officially terminated on October 24, 2002, for “lewd and
immoral conduct” and “the sexual harassment of a female subordinate.”
4
Howard filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) in October 2002. After seeking a right to sue
letter, she filed a judicial complaint against Robertsdale, alleging a hostile work
environment in violation of Title VII and § 1983. Robertsdale filed a motion for
summary judgment and, in her September 3, 2004, response, Howard for the first
time asserted two tangible employment actions that Lassiter had allegedly taken
against her. After finding these tangible employment actions barred from
consideration, as Howard had failed to raise them in her EEOC charge, the district
court granted summary judgment for Robertsdale. This appeal followed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. Dees v.
Johnson Controls World Servs., Inc., 168 F.3d 417, 421 (11th Cir. 1999). After
viewing the evidence and all factual inferences in the light most favorable to the
non-moving party, we must determine if genuine issues of material fact exist. Id.
III. DISCUSSION
A. Title VII Claim
Howard first argues the district court erred in granting Robertsdale summary
judgment on her Title VII claim. Under Title VII, an employee must show the
following five elements to establish a prima facie case of sexual harassment:
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(1) that she belongs to a protected group; (2) that she has been
subjected to unwelcome sexual harassment; (3) that the harassment
was based on her sex; (4) that the harassment was sufficiently severe
or pervasive to alter the terms and conditions of employment and
create a discriminatorily abusive working environment; and (5) that a
basis for holding the employer liable exists.
Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004) (citations
omitted). Robertsdale concedes the first four elements, but disputes the fifth,
arguing there is no basis on which to hold it liable for Lassiter’s conduct.
There are two grounds on which an employer can be held liable for a
supervisor’s harassing conduct. Dees, 168 F.3d at 421-22 (citing Faragher v. City
of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998)). “First, an employer can be held
directly liable for a supervisor’s harassment when the employer either intended, or
negligently permitted, the tortious conduct to occur. . . . Second, an employer can
be held vicariously liable for a supervisor's sexual harassment. . . .” Id. Howard
bases her appeal on both theories, so we will discuss each in turn.
1. Vicarious Liability
In two companion cases, Ellerth, 524 U.S. at 764-65, 118 S. Ct. at 2270, and
Faragher, 524 U.S. at 808-09, 118 S. Ct. at 2293, the Supreme Court set forth the
framework for evaluating vicarious liability in sexual harassment cases. An
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employer is strictly liable for sexual harassment committed by a supervisor when
the harassment culminates in a “tangible employment action.” Id.; see also
Hulsey, 367 F.3d at 1246. Where no tangible employment action is taken, as in a
hostile work environment situation, the employer is entitled to an affirmative
defense. Id. As this is a hostile work environment case,2 Robertsdale can avoid
vicarious liability for Lassiter’s harassment if it can establish the affirmative
defense.3
2
Howard urges us to impose strict liability on Robertsdale based on two tangible
employment actions she asserted in her response to Robertsdale’s motion for summary judgment.
She has made it clear, however, that her sexual harassment claim rests solely on a hostile work
environment theory. While her complaint pleads in detail a hostile work environment, it fails to
offer even the slightest hint she suffered tangible employment actions. Even after Robertsdale
asserted a failure to mitigate defense, Howard never amended her complaint to plead any tangible
employment actions, and she continues to insist she is not relying on a tangible employment
action theory as a basis for relief. Notwithstanding her failure to allege or argue a tangible
employment action theory, she seeks to use newly asserted tangible employment actions to
impose strict liability on Robertsdale with respect to her hostile work environment theory.
Howard fails to provide any authority supporting this argument. We therefore conclude this is
solely a hostile work environment case and analyze it accordingly under the Ellerth-Faragher
framework. See Hulsey, 367 F.3d at 1246 (stating the Ellerth-Faragher defense “applies only to
employer liability based upon a hostile work environment theory . . . . [and] has no effect upon
employer liability based upon a tangible employment action theory”).
3
We agree with the district court that Robertsdale did not waive the Ellerth-Faragher
defense by not referring to it by name in its Answer. Robertsdale raised a general “failure to
mitigate damages” defense, which we conclude was sufficient to assert the Ellerth-Faragher
defense. As the Supreme Court has held, “[f]ollowing Ellerth and Faragher, the plaintiff who
alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the
burden to allege and prove that the plaintiff failed in that regard.” Suders, 542 U.S. at 152, 124
S. Ct. at 2357. Thus, the Ellerth-Faragher defense is clearly a mitigation defense, and Howard
had ample “notice of the affirmative defense and a chance to rebut it,” as required by Fed. R. Civ.
Pro. 8(c). Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989).
7
The Ellerth-Faragher defense contains two necessary elements: “(a) that the
employer exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.” Faragher, 524 U.S. at 807, 118 S. Ct. at 2293; see
also Frederick, 246 F.3d at 1313. The employer bears the burden of
demonstrating both elements by a preponderance of the evidence. Id.
An employer can generally satisfy its reasonable care requirement by, first,
promulgating a comprehensive anti-harassment policy and, second, promptly
responding to the employee’s complaint. Madray v. Publix Supermarkets, Inc.,
208 F.3d 1290, 1297-1300 (11th Cir. 2000). In determining whether an anti-
harassment policy is sufficiently reasonable, we look to whether the employer
made it well-known to employees, vigorously enforced it, and included alternate
avenues of redress. Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th
Cir. 1997). As to the employee’s reasonableness requirement, an employer can
generally satisfy its burden by showing the employee failed to follow its complaint
procedures. Frederick, 246 F.3d at 1314. In some circumstances, however, an
employee’s noncompliance may be reasonable. See id. (finding questions of
material fact precluded summary judgment where the employee claimed she never
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received a version of the employer’s sexual harassment policy, was unsure how to
lodge a complaint, and was told by a supervisor not to pursue her complaint).
There is no question Robertsdale had a comprehensive anti-harassment
policy in place when the harassment occurred. The city disseminated the policy to
all employees, and Howard admits she knew of the policy during her three years
working under Lassiter. The policy also provided multiple avenues of redress.
Although Howard clearly could not take advantage of the first avenue of redress,
as her immediate supervisor was the offending supervisor, she could have gone to
either the Mayor or the City Council.4 Howard fails to explain why she never
complained to the City Council, and contends she never complained to the Mayor
because Lassiter prohibited his employees from going to the Mayor. Howard’s
own actions, however, contradict this assertion. Howard did go to the Mayor, and
she fails to explain any change in circumstances suddenly enabling her to go over
Lassiter’s head. Finally, there is no question the Mayor promptly responded once
Howard lodged her complaint, as he immediately placed her on paid leave, quickly
hired an investigator, and placed Lassiter on administrative leave only five days
after receiving the results of the investigation.
4
Robertsdale’s anti-harassment policy refers to its “personnel department,” but it appears
this means the City Council.
9
The sole issue thus becomes whether Howard’s nearly three-year delay in
reporting Lassiter’s harassment was unreasonable as a matter of law.5 Howard
asserts her delay was reasonable because both she and other police personnel were
scared of Lassiter’s violent nature, and she feared retaliation. We have held
“absent a credible threat of retaliation . . . subjective fears of reprisal do not excuse
[the] failure to report . . . alleged harassment.” Walter v. Johnson & Johnson
Servs., Inc., 347 F.3d 1272, 1290-91 (11th Cir. 2003) (citations omitted). Other
courts have agreed that conclusory allegations of feared repercussions are
insufficient to overcome an employer’s showing of unreasonableness. See Barrett
v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001) (“A
generalized fear of retaliation does not excuse a failure to report sexual
harassment.”); Leopold v. Baccarat, Inc., 239 F.3d 243, 246 (2d Cir. 2001) (“A
credible fear [of retaliation] must be based on more than the employee’s subjective
5
We reject Howard’s argument that she complied with Robertsdale’s policy by
complaining to Chief Dispatcher Katina Griffin in April 2002. An employee cannot satisfy the
reasonableness requirement by making informal complaints to individuals not authorized to
receive such complaints. Madray, 208 F.3d at 1301-02. Robertsdale’s policy requires
employees to report harassment to either the Mayor, the City Council, or an immediate
supervisor. Howard claims Griffin occasionally acted as her supervisor because she occasionally
performed dispatching duties, but the record does not support this assertion. Howard only
performed dispatching duties “from time to time,” so it is clear Griffin did not qualify as her
immediate supervisor in the context of the policy. In her deposition, Howard also mentioned
Lassiter as her only immediate supervisor. Moreover, even if Howard’s complaint to Griffin
could be considered in compliance with the policy, she still failed to report the harassment for
nearly three years after it began.
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belief.”); Shaw v. Autozone, Inc., 180 F.3d 806, 813 (7th Cir. 1999) (“[A]n
employee’s subjective fears of confrontation, unpleasantness or retaliation do not
alleviate the employee’s duty under Ellerth to alert the employer to the allegedly
hostile environment.”); Fierro v. Saks Fifth Ave., 13 F. Supp. 2d 481, 492
(S.D.N.Y. 1998) (“[T]o allow an employee to circumvent the reasonable complaint
requirements of Faragher and [Ellerth] by making conclusory allegations of
feared repercussions, would effectively eviscerate [the] affirmative defense. . . .”).
We hold Howard’s conclusory allegations of feared repercussions fail, as a
matter of law, to overcome the unreasonableness of her delay in reporting
Lassiter’s harassment. Howard demonstrated only a generalized fear of retaliation,
and the record offers no objective evidence to substantiate her fear. Nor does
Howard explain why, after nearly three years of enduring Lassiter’s harassment,
she suddenly overcame her fear and developed the courage to complain to the
Mayor. As we have repeatedly stated, “the problem of workplace discrimination
. . . cannot be [corrected] without the cooperation of the victims, notwithstanding
that it may be difficult for them to make such efforts.” Coates v. Sundor Brands,
Inc., 164 F.3d 1361, 1366 (11th Cir. 1999). We recognize Howard may have been
reluctant to report Lassiter’s harassment, as victims of supervisory harassment
often are. On this record, however, we conclude there is no genuine issue of
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material fact to support a finding that Howard’s delay in notifying Robertsdale of
the harassment was reasonable.
Accordingly, the district court did not err in concluding Robertsdale had
established the Ellerth-Faragher defense by a preponderance of the evidence, and
the city is not liable under Title VII based on a vicarious liability theory.
2. Direct Liability
We must next decide whether the district court erred in concluding
Robertsdale was not directly liable to Howard for Lassiter’s conduct. Direct
liability arises when the employer either knew or should have known of
supervisory harassment but failed to take remedial action. Dees, 168 F.3d at 421-
22. There is no evidence Robertsdale had actual knowledge of the harassment
until Howard complained to the Mayor in May 2002. Although Howard argues
the Mayor suspected a romantic relationship between Lassiter and herself, she fails
to cite any authority saying suspicion of a consensual relationship between a
supervisor and subordinate constitutes knowledge of sexual harassment. We
refuse to impose direct liability on Robertsdale simply because the Mayor believed
that Howard and Lassiter were romantically involved.6
6
The Mayor knew only that Lassiter had rehired Howard even though she was a poor
employee, and that Lassiter was refusing to allow her to interact with male state troopers. Thus,
there is no evidence indicating the Mayor had reason to believe that Lassiter was, in fact,
sexually harassing Howard.
12
The only issue thus becomes whether Robertsdale had constructive
knowledge of Lassiter’s misconduct. Constructive knowledge is a question of
fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir. 1997). It arises
when sexual harassment is so pervasive in a workplace as to give the employer
notice of the misconduct. Id. In Allen, for example, genuine issues of material
fact precluded summary judgment on the issue of constructive knowledge where
“an atmosphere of inappropriate sexual behavior may have permeated” the
workplace. Id. There, the plaintiff produced evidence “that employees, including
supervisors, engaged in sexual intercourse at the plant, that sexually graphic jokes
were often told throughout the plant, that vulgar and sexually demeaning language
was engaged in, that employees groped one another’s breasts and genitalia, [and]
that employees exhibited their genitalia and buttocks.” Id. at 645.
There is no similar evidence in this case. Even Howard says the unwelcome
advances and offensive touching occurred behind closed doors, and she is not
aware of any employees that knew of the physical harassment. She instead points
to Lassiter’s “open and notorious” sexual comments and jokes as the basis for
Robertsdale’s constructive knowledge, specifically the frequent remarks he made
about female employees’ bodies and sex lives. Although his comments were
inappropriate, those comments, standing alone, do not rise to the level of
13
discrimination under Title VII and cannot serve as a basis for constructive
knowledge.
We have repeatedly recognized Title VII is not a general civility code and
that “[s]exual harassment constitutes sex discrimination only when the harassment
alters the terms or conditions of employment.” Mendoza v. Borden, Inc., 195 F.3d
1238, 1245 (11th Cir. 1999) (en banc). To rise to the level of discrimination,
“[t]he employee must subjectively perceive the harassment as sufficiently severe
and pervasive to alter the terms or conditions of employment, and this subjective
perception must be objectively reasonable.” Id. at 1246 (quotations omitted).
“The objective component of this analysis [considers four factors]: (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the employee’s job
performance.” Id.
Mere “sex talk,” without more, does not rise to the level of objectively
severe and pervasive harassment. See, e.g., Adusumilli v. City of Chicago, 164
F.3d 353, 357 (7th Cir. 1998) (holding the plaintiff failed to make out a prima
facie case of sexual harassment where her coworkers teased her and made sexual
jokes aimed at her); Black v. Zaring Homes, Inc., 104 F.3d 822, 823-84 (6th Cir.
14
1997) (holding male employee’s comments and jokes in female plaintiff’s
presence were not sufficiently severe or pervasive to constitute an objectively
hostile work environment). Accordingly, Robertsdale cannot be charged with
constructive knowledge of sex discrimination because the behavior its employees
allegedly knew of—sexual comments and jokes—was not discrimination in the
first place.7 The district court, therefore, did not err in granting summary
judgment for Robertsdale on the issue of direct liability.
B. § 1983 Claim
Howard also contends the district court erred in granting Robertsdale
summary judgment on her § 1983 claim. The same five elements necessary to
establish a sexual harassment claim under Title VII are required to establish a
sexual harassment claim under § 1983. Cross v. Alabama, 49 F.3d 1490, 1508
(11th Cir. 1994). As Robertsdale concedes the first four of these elements, our
sole inquiry is, again, whether a basis exists for holding the city liable for
Lassiter’s conduct.
7
Furthermore, “where an employer has promulgated an effective and comprehensive anti-
harassment policy that is aggressively and thoroughly disseminated to its employees, an
employee’s failure to utilize the policy’s grievance process will prevent constructive knowledge
of such harassment from adhering to the employer.” Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1279 (11th Cir. 2002) (citation and quotation omitted). Thus, even if Robertsdale
could be charged with constructive knowledge, its comprehensive anti-harassment policy,
combined with Howard’s unreasonable delay in reporting the harassment, would insulate the city
from liability.
15
“The law is clear that a municipality cannot be held liable for the actions of
its employees under § 1983 based on a theory of respondeat superior.” Griffin v.
City of Opa-Locka, 261 F.3d 1295, 1307 (11th Cir. 2001) (citing Monell v. Dep’t
of Social Servs., 436 U.S. 658, 663, 98 S. Ct. 2018, 2022 (1978)). Instead,
liability arises when a municipal “custom” or “policy,” either formal or informal,
condones employee misconduct. Id. at 1307. We have recognized two situations
giving rise to an informal custom or policy. Id. at 1308. The first is when a
practice “is so permanent and well settled as to constitute a ‘custom or usage’ with
the force of law.” Id. (finding “without any question that sexual harassment was
the on-going, accepted practice at the City and that the City Commission, Mayor,
and other high ranking City officials knew of, ignored, and tolerated the
harassment”). The second is when a municipality tacitly authorizes employee
misconduct or displays deliberate indifference towards it. Id.
Robertsdale certainly did not have a formal custom or policy condoning
sexual misconduct. There is also no evidence the city had an informal custom or
policy condoning sexual misconduct. Unlike Griffin, there is no evidence that
sexual harassment was a widespread practice in Robertsdale or that Robertsdale
had any knowledge of the harassment until Howard complained to the Mayor. The
record instead reveals a comprehensive sexual harassment policy, of which all
16
employees were aware, and an immediate response by the Mayor after Howard
lodged her complaint. Furthermore, Robertsdale’s policy, combined with the
Mayor’s prompt response to Howard’s complaint, precludes a finding that the city
displayed deliberate indifference to the rights of its employees. Id. at 1313.
Accordingly, the district court did not err in granting Robertsdale summary
judgment on Howard’s § 1983 claim.
IV. CONCLUSION
The district court did not err in granting Robertsdale’s motion for summary
judgment because no basis exists, under either Title VII or § 1983, on which to
hold the city liable for Lassiter’s harassing conduct. Accordingly, we affirm the
district court’s decision.
AFFIRMED.
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