[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-15069 ELEVENTH CIRCUIT
AUG 30, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00448-CV-BH
CORA ARMSTRONG,
SADIE SIMS,
KINNIE SIMPSON,
Plaintiffs-Appellants,
versus
STANDARD FURNITURE,
THOMAS CASKEY,
EDDIE DENSON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 30, 2006)
Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.
PER CURIAM:
Appellants, Cora Armstrong, Sadie Sims, and Kinnie Simpson, challenge the
district court’s grant of summary judgment to Appellee Standard Furniture on their
Title VII claims for hostile work environment. They also appeal the district court’s
grant of summary judgment to Appellees Standard Furniture, Thomas Caskey, and
Eddie Denson on plaintiffs’ Alabama tort law claims. For the reasons set forth
below, we affirm the district court on the Title VII claim and the tort law claims
against Standard Furniture. We also affirm the district court’s grant of summary
judgment to Caskey on all tort law claims. We affirm the grant of summary
judgment to Denson on the plaintiffs’ claims of outrage. However, we reverse the
district court’s grant of summary judgment to Denson with respect to Armstrong’s
and Sims’s invasion of privacy claims and Armstrong’s assault-and-battery claim.
I.
The district court concluded that none of the plaintiffs could establish the
existence of a hostile work environment. We need not decide this issue, because,
even assuming arguendo that Standard Furniture was a hostile work environment,
the plaintiffs will not prevail. When a plaintiff has established a hostile work
environment based on a supervisor’s actions, the defendant employer can put forth
an affirmative defense to avoid liability. To prevail on its affirmative defense,
Standard Furniture must demonstrate: “(a) that it took reasonable steps both to
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prevent sexual harassment and to remedy the sexually harassing conduct promptly
once it was brought to the employer’s attention, and (b) that the victimized
employee unreasonably failed to avoid harm or utilize any remedial opportunities
made available by the employer.” Dees v. Johnson Controls World Servs., Inc., 168
F.3d 417, 422 (11th Cir. 1999).
The first prong of the test looks to whether the employer took reasonable
steps to prevent sexual harassment. Usually, although not necessarily, the employer
will show that it had an established anti-harassment policy. The parties do not
dispute that Standard Furniture had an anti-harassment policy. However, the
existence of a sexual harassment policy does not automatically satisfy an
employer’s burden. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314
(11th Cir. 2001); Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct.
2275, 2293, 141 L.E.2d 662 (denying an employer the affirmative defense where it
had entirely failed to disseminate its anti-harassment policy among its employees).
Standard Furniture also must prove that the policy was effectively published, that it
contained reasonable complaint procedures, and that it contained no other fatal
defect. Frederick, 246 F.3d at 1314. This Circuit has required an employer’s policy
to permit employees to bypass harassing supervisors. See Walton v. Johnson &
Johnson Servs., Inc., 347 F.3d 1272, 1287 (11th Cir. 2003); Madray v. Publix
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Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir. 2000).
All three plaintiffs admit that they had received copies of Standard
Furniture’s anti-harassment policy and knew how to report harassment. All the
plaintiffs attended EEO/Anti-Harassment classes on more than one occasion.
Nonetheless, they failed to avail themselves of Standard Furniture’s anti-
harassment policy. When the plaintiffs finally did report harassment, the
harassment ceased, which suggests a functioning anti-harassment policy.
A. Sadie Sims.
In July of 2003, Sims complained to her supervisor, Derrick Bishop about
harassment by Thomas Caskey. Bishop reported the charge to Josh Rudd, the
Human Resources Manager. Rudd then spoke to Sims about Caskey. Sims never
mentioned any harassment by Denson to Rudd. Sims acknowledged that she had no
problems with Caskey or Denson after her conversation with Rudd. Sims claims
that she did not report Denson’s harassment because she did not trust Rudd because
he allowed Denson to continue working despite allegations of harassment in a
previous lawsuit. Rudd, however, investigated Sims’s claims against Caskey and
she admits that all harassment ceased after his investigation. Therefore, Sims has
presented no evidence that creates an issue of material fact as to whether Standard
Furniture’s harassment policy was ineffective. Her failure to report harassment
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under the policy was unreasonable.
B. Cora Armstrong.
Armstrong never initiated contact with Rudd about harassment. Rather, Rudd
contacted her in July, 2003 when he was investigating Sadie Sims’s claims against
Caskey. Armstrong complained to Rudd about harassment by Caskey. Armstrong
admits that Caskey did not harass her after that time. Later, in May 2004, Rudd
asked Armstrong how things were going. Armstrong told Rudd that another
employee had told Armstrong that Denson had licked his lips suggestively while
looking at Armstrong. Armstrong did not complain to Rudd about any other aspect
of Denson’s behavior, although she now claims that his harassment of her was
extreme. Rudd followed up on the complaint about Denson by asking the other
employee, Simpson, about the incident in which Denson licked his lips. Simpson
reported that Denson had licked his lips because they were dry and that she saw no
sexual conduct in the act.
Armstrong never complained to Rudd, or any other supervisor at Standard
Furniture, about Denson’s harassment. Armstrong claims that she did not report
Denson’s harassment because she believed her employment would be terminated
for complaining. However, Armstrong has pointed to no evidence to support this
belief. She has pointed to no other employee who suffered an adverse employment
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action for reporting harassment. She asserts that Denson had the power to fire her,
but offers no evidence that she would be fired if she reported Denson’s behavior to
Rudd. This Circuit has held that “absent a credible threat of retaliation . . . [the
employee’s] subjective fears of reprisal do not excuse her failure to report [her
supervisor’s] alleged harassment.” Walton v. Johnson & Johnson Servs., Inc., 347
F.3d 1272, 1290-91 (11th Cir. 2003).
C. Kinnie Simpson.
Simpson has not claimed that she was harassed by anyone at Standard
Furniture. Rather, she claims to be a “witness” to support Armstrong’s claims of
harassment. Therefore, her Title VII claim fails. Moreover, even assuming
arguendo a hostile work environment, Simpson failed to take advantage of
Standard Furniture’s anti-harassment policy. She never complained to anyone
about harassment directed at her. Further, the evidence establishes that her failure
to report harassment was unreasonable. Rudd investigated all complaints made by
the other plaintiffs and they agree that harassment ceased after their complaints.
Simpson has pointed to nothing that would excuse her duty to report harassment
under Standard Furniture’s policy.
II.
The plaintiffs allege a variety of Alabama tort claims against Caskey,
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Denson, and Standard Furniture. We affirm the district court’s grant of summary
judgment to Standard Furniture and Caskey on all claims. We affirm the grant of
summary judgment to Denson with respect to the plaintiffs’ claims for outrage.1 We
reverse the grant of summary judgment with respect to Armstrong’s and Sims’s
invasion of privacy claims against Denson, and Armstrong’s claim for assault-and-
battery.
A. Invasion of Privacy
Plaintiffs Armstrong and Sims assert a claim for invasion of privacy against
Denson, Caskey, and Standard Furniture. Under Alabama law, there are four
wrongs that can constitute invasion of privacy: “(1) the intrusion upon the
plaintiff’s physical solitude or seclusion; (2) publicity which violates the ordinary
decencies; (3) putting the plaintiff in a false but not necessarily defamatory position
in the public eye; and (4) the appropriation of some element of the plaintiff’s
personality for a commercial use.” Phillips v. Smalley Maintenance Servs., Inc.,
435 So.2d 705, 708 (Ala. 1983). Sims and Armstrong assert that the defendants
intruded upon their physical solitude.
The district court held that Denson and Caskey did not intrude upon the
1
We conclude that none of the plaintiffs can establish that Denson or Caskey is liable for
the tort of outrage. Therefore, Standard Furniture also is not liable for outrage.
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plaintiffs’ solitude because they did not seek information about the plaintiffs’
personal lives. However, the Alabama Supreme Court has held that severe sexual
harassment can be an invasion of privacy. See Busby v. Truswal Sys. Corp., 551
So. 2d 322, 324 (Ala. 1989). Accepting Armstrong’s and Sims’s deposition
testimony as true, a jury could find that Denson invaded the plaintiffs’ privacy.
According to Armstrong, Denson regularly (1) made sexual comments in the
workplace; (2) stated “daily” that he wanted to have sex with Armstrong; (3)
groped Armstrong while she was working; and (4) regularly inquired whether
Armstrong was menstruating because he wanted some “cat.” Sims testified that
Denson would (1) constantly talk about sex; (2) regularly brush up against her; (3)
comment about her legs; and (4) come up to Sims “licking his tongue out” at her. A
jury could find that Denson intruded upon Armstrong’s and Sims’s sex lives in an
offensive manner and, therefore, invaded their right to privacy.
The plaintiffs, however, have not made out a case for invasion of privacy
against Caskey. Armstrong testified that Caskey: (1) once stated that he would
handcuff her to a bed; and (2) once commented on her underwear when it was
visible. Sims testified that Caskey: (1) asked Sims out after work; (2) asked Sims to
give him Spanish lessons; and (3) asked Sims to join a church volleyball team.
These claims do not rise to the level of an invasion of privacy.
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The plaintiffs also have not shown that Standard Furniture could be held
liable for Denson’s conduct. Under Alabama law, an employer is liable for the
intentional torts of its employees only if “(1) the employee’s acts are committed in
furtherance of the business of the employer; (2) the employee’s acts are within the
line and scope of his employment; or (3) the employer participated in, authorized,
or ratified the tortious acts.” Ex Parte Atmore Community Hosp. v. Hayes, 719
So.2d 1190, 1194 (Ala. 1998). Plaintiffs argue that Standard Furniture ratified
Denson’s conduct. An employer ratifies conduct when the employer “(1) had actual
knowledge of the tortious conduct of the offending employee and the tortious
conduct was directed at and visited upon the complaining employee; (2) that based
upon his knowledge, the employer knew or should have known that such conduct
constituted sexual harassment and/or a continuing tort; and (3) that the employer
failed to take ‘adequate’ steps to remedy the situation.” Potts v. BE & K Constr.
Co., 604 So.2d 398, 400 (Ala. 1992).
For the reasons we explained in our discussion of the Title VII claims, we
hold that Standard Furniture did not ratify any harassing conduct. Standard
Furniture had no knowledge of harassment by Denson. Once informed of the
charges against Caskey, Standard Furniture investigated the situation and all
harassment ceased. See Ex Parte Atmore Community Hosp., 719 So. 2d at 1195
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(“[W]here the specific tortious conducts stops after corrective action by the
employer, this Court has held that the corrective action is adequate as a matter of
law.”). Standard Furniture had a functioning, publicized anti-harassment policy of
which plaintiffs were aware. Plaintiffs failed to avail themselves of that policy and,
consequently, Standard Furniture is not liable for the alleged harassment by
Denson or Caskey.2
B. Assault-and-Battery
Armstrong asserts that Denson has committed assault-and-battery because
Denson groped her in the workplace in an unwelcome manner. In an assault-and-
battery action a plaintiff must prove “(1) that the defendant touched the plaintiff;
(2) that the defendant intended to touch the plaintiff; and (3) that the touching was
conducted in a harmful or offensive manner.” Harper v. Winston County, 892
So.2d 346, 353 (Ala. 2004). Armstrong testified that Denson groped her at work,
and that she considered this touching to be unwelcome. Although there is
contradictory evidence in the record, on summary judgment we will not make
credibility determinations. Accordingly, Armstrong has created an issue of material
fact as to whether Denson committed assault-and-battery.
2
For the same reasons, we conclude that the plaintiffs have failed to establish that
Standard Furniture is liable for negligent supervision or retention.
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However, for the same reasons discussed with respect to invasion of privacy,
we conclude that there is no basis for holding Standard Furniture liable for
Denson’s conduct. Armstrong failed to report Denson’s conduct, and Standard
Furniture had no other notice. Accordingly, we affirm the grant of summary
judgment to Standard Furniture on Armstrong’s claim for assault-and-battery.
Therefore, Armstrong and Sims may proceed with their invasion of privacy
claims against Denson personally. Armstrong also may proceed with her assault-
and-battery claim against Denson personally. The district court’s summary
judgment order is affirmed as to all other claims. For the foregoing reasons, the
district court’s order is
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.3
3
Appellants’ request for oral argument is denied.
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