[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 27, 2007
No. 06-16094 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00685-CV-T-E
LORENA MINIX,
BRENDA SIMS,
LINDA SIMS,
Plaintiffs-Appellants,
versus
JELD-WEN, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(June 27, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Lorena Minix, Linda Sims, and Brenda Sims sued their former employer,
Jeld-Wen, Inc., alleging claims for hostile-work-environment sexual harassment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
They alleged that their immediate supervisor, Richard Fetner, made repeated and
unwelcome sexual remarks to them and touched them inappropriately at various
times throughout their employment.1 Fetner’s last harassing act occurred on
August 1, 2004. Yet they did not report Fetner’s behavior to officials at Jeld-Wen,
Inc., until October 13, 2004. Upon investigation, Fetner promptly resigned, and
the plant where Minix and the Simses worked was shut down shortly thereafter.
Following discovery, the district court granted summary judgment to Jeld-
Wen, Inc., holding the company not vicariously liable for Fetner’s harassment.
The district court concluded that none of the plaintiffs suffered a tangible
employment action and that Jeld-Wen, Inc., successfully established both elements
of the vicarious-liability affirmative defense spelled out in Faragher v. City of
Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998), and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).2 Minix and the Simses appeal.
1
Minix’s EEOC charge says that she was harassed by Fetner as early as September 1,
2001, but that Fetner’s harassment ended by July 1, 2004. Linda Sims’s EEOC charge says that
she was harassed by Fetner between April 1, 2004, and August 1, 2004. Brenda Sims’s EEOC
charge says that she was harassed by Fetner between June 1, 2004, and August 1, 2004.
2
For purposes of summary judgment only, Jeld-Wen, Inc., conceded in the district court
(and concedes on appeal) that Fetner unlawfully harassed Minix and the Simses. Thus, in
2
On appeal, Minix and the Simses collectively argue:
First, that the Faragher/Ellerth affirmative defense to vicarious liability is
inapplicable because Jeld-Wen, Inc., is directly liable for Fetner’s harassment;
its direct liability stemming from either
(a) the fact that the company had actual notice about Fetner’s
harassment of their co-worker, Kathy Thornton, yet failed to
take remedial action, or
(b) the fact that the company had constructive notice of Fetner’s
harassing behavior toward multiple female employees, yet
failed to take remedial action.
Second, that Jeld-Wen, Inc., is vicariously liable for Fetner’s harassment and
not entitled to avail itself of the Faragher/Ellerth affirmative defense because
(a) Jeld-Wen, Inc., did not exercise reasonable care to prevent and
promptly correct Fetner’s behavior; and
(b) Minix and the Simses reasonably complied with the reporting
provisions of the company’s anti-harassment policy.
Linda Sims separately argues that, with respect to her claim, Jeld-Wen, Inc.,
resolving Jeld-Wen, Inc.’s summary-judgment motion, the district court focused exclusively on
the issue of liability. Likewise, Jeld-Wen, Inc.’s liability is the only issue before us in this
appeal.
3
cannot avail itself of the Faragher/Ellerth affirmative defense because the
harassment she suffered resulted in a tangible employment action.
We will address each argument in turn.
I. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying
the same standard that bound the district court and viewing the evidence and all
reasonable inferences in the light most favorable to the non-moving parties.
See Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). “Summary judgment
is appropriate when ‘there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law.’” Id. (quoting
Fed.R.Civ.P. 56(c)).
II. DIRECT LIABILITY
A. Actual Notice
Minix and the Simses first argue that Jeld-Wen, Inc., actually knew about
Fetner’s harassment, yet failed to take steps to remedy it. If that is true, then Jeld-
Wen, Inc., is directly liable for the harassment on the basis of its own negligence.
See Ellerth, 524 U.S. at 759, 118 S. Ct. at 2267 (“[A]n employer can be liable [for
a supervisor’s sexual harassment] where its own negligence is a cause of the
harassment. An employer is negligent with respect to sexual harassment if it knew
4
or should have known about the conduct and failed to stop it.”); see also Dees v.
Johnson Controls World Servs. Inc., 168 F.3d 417, 421 (11th Cir. 1999).
To support their argument, Minix and the Simses say that their co-worker, Kathy
Thornton, who worked under Fetner and who was also sexually harassed by him,
reported Fetner’s harassment to fellow employee Joe Mendoza as early as
September 2003. Because Mendoza was told of Fetner’s harassment, Minix and
the Simses reason that Jeld-Wen, Inc., itself had actual notice of it and should be
held liable for not preventing Fetner’s further harassment.
At all relevant times, Jeld-Wen, Inc., maintained a written anti-harassment
policy.3 That policy required that complaints of sexual harassment be reported to
3
Jeld-Wen, Inc.’s anti-harassment policy stated as follows:
JELD-WEN strives to provide a productive and comfortable working
environment free from harassment or discrimination including that which
may be construed to be offensive sexual conduct. This policy applies to
every aspect of the employment relationship throughout the organization
and to the dealings of employees with one another, as well as with vendors
and customers.
Harassment in any form will not be tolerated by the company. Any
employee who violates this policy is subject to discipline up to and
including discharge. In addition, any client, customer or vendor of the
company who engages in such conduct will be informed of our policy and
will be dealt with accordingly, with the aim of completely eliminating the
harassment.
Harassment includes, but is not limited to, the following behaviors, if such
behaviors create an intimidating, hostile or offensive environment:
• Verbal Harassment: Derogatory comments, jokes, slurs or
abusive language
5
the harassed employee’s “immediate Supervisor” or to the harassed employee’s
• Physical Harassment: Unwanted physical contact or
assault.
• Visual Harassment: Leering, making sexual gestures,
displaying derogatory or sexually suggestive objects,
pictures, posters, cartoons, drawings, or clothing printed
with derogatory material.
• Sexual Harassment: Unwelcome sexual advances, request
for sexual favors, offering employment benefits in
exchange for sexual favors, or any other verbal or physical
conduct of a sexual nature that is directed toward an
individual because of that person’s gender.
Employees will be made aware of this policy and are encouraged to not
tolerate harassment. Any employee who believes that he/she is being
subject to objectionable conduct should promptly notify either their
immediate Supervisor, their General or Corporate Manager, Vice
President or Subsidiary President, or the Legal Department at (541) 882-
3451. Any Supervisor, General or Corprorate Manager, Vice President or
Subsidiary President, who has questions concerning harassment
complaints shall contact the Legal Department. Additionally employees
are encouraged to report any conduct they may witness against someone
else, whether verbal, visual, physical, sexual, or otherwise, that they
believe constitutes harassment. They should follow the same steps of
contacting their immediate Supervisor, their General or Corporate
Manager, Vice President, Subsidiary President, or Legal Department.
Every complaint of harassment will be investigated promptly, thoroughly,
fairly, and objectively. A written investigative report will be completed
for each complaint. The investigator will take detailed statements from
the person making the complaint, the alleged harasser, the harassee, and
the witnesses. The complaint will be kept as confidential as possible:
information will be disseminated on a “need-to-know” basis only. Basic
results of the investigation will be reported to the individual registering
the complaint.
If the information collected during the investigation establishes that
harassment or other objectionable conduct did occur, disciplinary action
will be promptly taken against the harasser, up to and including
termination if appropriate. Employees will not be discriminated or
retaliated against for reporting harassment or participating in an
investigation.
6
“General or Corporate Manager, Vice President or Subsidiary President” or to a
member of the Jeld-Wen, Inc., “Legal Department.” Mendoza, however, was a
Group Manager — i.e., a foreman — of a six-employee department that did not
include Thornton. Thus Mendoza was not Thornton’s supervisor — immediate or
otherwise. Nor was Mendoza a “General or Corporate Manager, Vice President or
Subsidiary President,” or a member of the “Legal Department.” Accordingly,
Mendoza was not one of the persons specifically designated by Jeld-Wen, Inc.’s
anti-harassment policy to receive harassment complaints. This fact is dispositive
of Minix and the Simses’ “actual notice” argument.
We held in Coates v. Sundor Brands, Inc. that when an employer
promulgates an adequate and reasonable anti-harassment policy the employer
“itself answer[s] the question of when it [is] deemed to have notice of the
harassment sufficient to obligate it or its agents to take prompt and appropriate
remedial measures.” 164 F.3d 1361, 1364 (11th Cir. 1999). And we said
in Madray v. Publix Supermarkets, Inc. that once an anti-harassment policy has
been effectively disseminated to an employer’s employees “it is incumbent upon
the employees to utilize the procedural mechanisms established by the company
specifically to address the problems and grievances.” 208 F.3d 1290, 1298-99
(11th Cir. 2000) (citation omitted). We concluded in Madray that the employer did
7
not have actual notice of sexual harassment because the aggrieved employee
brought her complaints “to individuals not designated by [the employer] to receive
or process sexual harassment complaints.” Id. (emphasis added). In this case,
when Thornton complained about Fetner to Mendoza — who, again, was not her
immediate supervisor and did not hold a management position mentioned in the
anti-harassment policy — she, like the employee in Madray, complained to an
individual “not designated [by Jeld-Wen, Inc.] to receive or process sexual
harassment complaints.”4 Id. Accordingly, we conclude that Thornton’s complaint
to Mendoza did not put Jeld-Wen, Inc., on actual notice of Fetner’s sexual
harassment, and the company cannot be held directly liable on that ground. See id.
at 1294 n.3
B. Constructive Notice
Minix and the Simses next argue that Jeld-Wen, Inc., should be charged with
constructive notice of Fetner’s harassing behavior because “Fetner was harassing
six female employees simultaneously.” Appellants’ Br. at 17. As a general rule,
constructive notice of sexual harassment, when combined with a failure to act, is
4
We reject as without merit the argument made by Minix and the Simses that Jeld-Wen,
Inc.’s anti-harassment policy is ambiguous with respect to identifying those officials authorized
to receive harassment complaints; specifically, their argument that a jury could reasonably
conclude that Mendoza’s status as a manager — albeit a Group Manager — meant that he too
was designated by the policy to receive harassment complaints. Under the policy’s plain terms
the only managers designated to receive complaints are General Managers and Corporate
Managers. Mendoza was neither.
8
sufficient to impose direct liability on an employer based on the employer’s own
negligence “when the harassment was so severe and pervasive that management
reasonably should have known of it.” Watson v. Blue Circle, Inc., 324 F.3d 1252,
1259 (11th Cir. 2003). But in this case Minix and the Simses cannot rely on
constructive notice as a basis for holding Jeld-Wen, Inc., directly liable for Fetner’s
harassment. That is because, as noted above and as discussed below in the context
of the Faragher/Ellerth affirmative defense, Jeld-Wen, Inc., had in place at the time
of Fetner’s harassment an effectively disseminated written anti-harassment policy.
The presence of that written policy forecloses resort to constructive notice as a
means of establishing the notice required for direct liability. See Dees, 168 F.3d at
422 (stating that “in regard to the direct liability standard . . . the employer’s notice
of the harassment is of paramount importance” and that actual or constructive
notice “is required for direct liability”).
We held in Farley v. American Cast Iron Pipe Co. that “once a company has
developed and promulgated an effective and comprehensive anti-sexual harassment
policy, aggressively and thoroughly disseminated the information and procedures
contained in the policy to its staff, and demonstrated a commitment to adhering to
this policy, it has fulfilled its obligation to make reasonably diligent efforts to
‘know what is going on’ within the company.” 115 F.3d 1548, 1554 (11th Cir.
9
1997). In Farley we concluded as a matter of law that “an employer is insulated
from liability under Title VII for a hostile environment sexual harassment claim
premised on constructive knowledge of the harassment when the employer has
adopted an anti-discrimination policy that is comprehensive, well-known to
employees, vigorously enforced, and provides alternative means of redress.”
Id. (emphasis added).
Minix and the Simses argue that the Farley rule does not apply in this case.
For support, they cite on our decision in Watson v. Blue Circle, Inc., a hostile-
environment sexual harassment case in which we determined that the district court
erred when it relied on the Farley rule as a basis for granting summary judgment to
the employer. 324 F.3d 1252, 1259 (11th Cir. 2003). The district court erred,
we held, because there was a disputed issue of fact about whether “[the employer]
ha[d] an effective sexual harassment policy.” Id. (emphasis added). Our decision
in Watson turned on the questionable effectiveness of the employer’s anti-
harassment policy and is, for that reason, distinguishable from this case. See also
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1279-80 (11th Cir. 2002)
(refusing to apply the Farley rule where the anti-harassment policy at issue was not
“either comprehensive or effective”).
Our holdings in Watson and Miller were compelled by Farley’s recognition
10
that “[w]here there is no policy, or where there is an ineffective or incomplete
policy, the employer remains liable for conduct that is so severe and pervasive as
to confer constructive knowledge.” Farley, 115 F.3d at 1554 (emphasis added).
Here, in contrast to Watson and Miller, Jeld-Wen, Inc., had in place an anti-
harassment policy that was both comprehensive and vigorously enforced.
It was neither incomplete nor ineffective.5 Consequently, the Farley rule applies
and Minix and the Simses cannot establish liability against Jeld-Wen, Inc., on the
basis of the company’s constructive notice of Fetner’s harassment.
III. VICARIOUS LIABILITY
Direct liability to the side, Minix and the Simses argue that Jeld-Wen, Inc.,
is vicariously liable for Fetner’s harassment. Generally, “[a]n employer is subject
to vicarious liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate . . . authority over the
employee.” Ellerth, 524 U.S. at 765, 118 S. Ct. at 2270. If the harassing
supervisor takes a tangible employment action against the victimized employee,
the employer will be vicariously liable to the employee without the benefit of a
5
For the reasons stated by the district court in its summary-judgment order, we reject the
argument advanced by Minix and the Simses that Jeld-Wen, Inc.’s anti-harassment policy was
rendered ineffective by the fact that two company officials reached different conclusions about
whether particular conduct would suffice to constitute sexual harassment under the policy.
11
legal defense.6 See id. at 762-63, 118 S. Ct. at 2269; see also Dees, 168 F.3d at
422; see also Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th
Cir. 2001) (“[W]hen a supervisor engages in harassment which results in an
adverse ‘tangible employment action’ against the employee, the employer is
automatically held vicariously liable for the harassment.”).
But “[w]hen no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability or damages.” Ellerth, 524 U.S. at 765,
118 S. Ct. at 2270. The Faragher/Ellerth vicarious-liability defense “comprises
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.” Id. The
employer has the burden of proving each element by a preponderance of the
evidence. Id.
A. Reasonable Care to Prevent and Correct Harassment
To establish the first element of the Faragher/Ellerth affirmative defense,
Jeld-Wen, Inc., must show that it “exercised reasonable care to prevent and correct
6
Linda Sims argues below that Fetner subjected her to a tangible employment action,
thus making Jeld-Wen, Inc., automatically vicariously liable to her and rendering the
Faragher/Ellerth defense inapplicable. For the reasons stated below, we reject this argument.
12
promptly any sexually harassing behavior.” Ellerth, 524 U.S. at 765, 118 S. Ct. at
2270. Although “an employer’s showing that it has a sexual harassment policy
does not automatically satisfy” the first element of the Faragher/Ellerth defense,
Frederick, 246 F.3d at 1314, the presence of such a policy is nevertheless a highly
relevant factor, and we have consistently held that where an employer promulgates
a comprehensive anti-harassment policy — one that is effectively communicated to
employees and that contains reasonable complaint procedures — the employer has
satisfied its burden on the prevention prong of the first element.7 See Baldwin v.
Blue Cross/Blue Shield, 480 F.3d 1287, 1303 (11th Cir. 2007); Walton v. Johnson
& Johnson Servs., Inc., 347 F.3d 1272, 1287 (11th Cir. 2003); Madray, 208 F.3d at
1298-99.
At all relevant times, Jeld-Wen, Inc., maintained a comprehensive anti-
harassment policy that was effectively communicated to its employees, including
Minix and the Simses. In addition to having received a copy of the policy when
they were hired, Jeld-Wen, Inc.’s employees received extensive training about the
policy in the summer of 2003 in the wake of Minix’s complaint of sexual
7
“The first element of the Faragher/Ellerth affirmative defense requires that an employer
demonstrate that it took reasonable care both to prevent and correct harassment.” Frederick, 246
F.3d at 1314. Neither Minix nor the Simses argue that Jeld-Wen, Inc., failed to promptly remedy
Fetner’s harassment. We conclude, as discussed below, that Jeld-Wen, Inc., has satisfied the
remedial prong of the first element of the Faragher/Ellerth defense.
13
harassment against fellow employee Ronald Bowen.8 That training was conducted
by Rob Sturm, Senior Corporate Counsel in Jeld-Wen, Inc.’s in-house legal
department. Minix and the Simses attended the training session and were well
aware of the policy’s terms and its reporting provisions. There is no dispute about
the fact that the policy was effectively distributed to the company’s employees or
that Minix and the Simses understood its requirements.
The policy is very explicit about the manner in which perceived harassment
is to be reported. The policy expressly identifies five categories of workers (and
one entire corporate department) to whom sexual harassment complaints must be
brought. In relevant part, the policy states: “Any employee who believes that
he/she is being subject to objectionable conduct should promptly notify either their
immediate supervisor, their General or Corporate Manager, Vice President or
Subsidiary President, or the Legal Department.” The policy lists the telephone
number of the Legal Department.
Minix and the Simses say that Jeld-Wen, Inc.’s anti-harassment policy was
8
Upon investigation into Minix’s complaint against Bowen, Bowen promptly resigned
from Jeld-Wen, Inc. Following Minix’s complaint about Bowen, which Minix first made on
June 27, 2003, Bowen continued to work at the plant for about three weeks while the
investigation was being conducted, until his abrupt resignation on July 23, 2003. Despite the
fact that Minix’s problem with Bowen was resolved almost immediately, Minix maintains that
she was dissatisfied with the company’s response. In our view, however, Jeld-Wen, Inc.’s swift
response demonstrates that the company vigorously enforced its anti-harassment policy. Minix’s
complaint against Bowen forms no part of this case.
14
not effective (and therefore cannot be relied upon to establish the prevention prong
of the first element of the Faragher/Ellerth defense) because it was incapable of
being vigorously enforced. They insist that the policy’s major shortcoming — its
vagueness and indefiniteness — is evidenced by the fact that two corporate
officials held different views about whether certain conduct would violate the
policy. They also insist that Jeld-Wen, Inc., does not take sexual harassment
seriously, and this, they say, is evidenced by the fact that Fetner, upon his
resignation, received roughly $8,000 in severance pay to which he was not entitled
under company rules. We are not persuaded that either of these facts undermines
the effectiveness of the anti-harassment policy.
Any argument that the policy was rendered ineffective due to reasonable
disagreements about the scope of its coverage, or that the company did not take
harassment seriously, is fatally undermined by the thorough and comprehensive
investigations undertaken by Jeld-Wen, Inc., to determine the veracity of the
allegations against both Bowen (in 2003) and Fetner (in 2004). The investigations
that were conducted — the effectiveness of which cannot be doubted, given that
both resulted in the near-immediate resignations of the alleged harassers — clearly
demonstrate that Jeld-Wen, Inc., vigorously and systematically enforced its anti-
harassment policy in an effort to honor its pledge, stated in the policy itself, that
15
“[h]arassment in any form will not be tolerated by the company.”
We conclude that Jeld-Wen, Inc., has established the first element of the
Faragher/Ellerth defense — that it “exercised reasonable care to prevent and
correct promptly any sexually harassing behavior.” Ellerth, 524 U.S. at 765, 118
S. Ct. at 2270.
B. Compliance with the Anti-Harassment Policy
To establish the second element of the Faragher/Ellerth defense, Jeld-Wen,
Inc., must show that Minix and the Simses unreasonably failed to take advantage
of the anti-harassment policy’s complaint procedures or otherwise failed to avoid
harm. See Frederick, 246 F.3d at 1315. According to the EEOC charges filed by
the plaintiffs, the Simses were last harassed by Fetner on August 1, 2004, and
Minix was last harassed by Fetner on July 1, 2004. Yet they did not report
Fetner’s harassment to any company official specifically designated by the anti-
harassment policy until months later on October 13, 2004.9 That is the date on
which the plaintiffs met with Dan Hees, a Coordinating General Manager at Jeld-
Wen, Inc. Hees was one of the policy-designated officials authorized to receive
sexual harassment complaints.
The Court in Ellerth stated that, although it is not strictly necessary,
9
Before that date, they did not report Fetner’s harassment to anyone — a policy-
designated official or otherwise — at Jeld-Wen, Inc.
16
an employee’s “unreasonable failure to use any complaint procedure provided by
the employer . . . will normally suffice to satisfy the employer’s burden under the
second element of the defense.” 524 U.S. at 765, 118 S. Ct. at 2270 (emphasis
added). With that principle in mind, we have held that an employee unreasonably
fails to take advantage of her employer’s complaint procedures if she does
“not us[e] the procedures in place to promptly report any harassment.” Baldwin,
480 F.3d at 1306 (emphasis added). We explained that, absent an extreme
situation, a failure to promptly report the harassment “is sufficient to establish the
second element of the [Faragher/Ellerth] defense.” Id. at 1306, 1307.
In Baldwin, we emphasized that the harassed employee was under a “prompt
reporting duty” — a duty expressly imposed by her employer’s anti-harassment
policy and by “the prophylactic rules the Supreme Court built into Title VII in the
Faragher and Ellerth decisions.” Id. We held that the employee “waited too late to
complain” about the harassment she had been subjected to because “[h]er
complaint came three months and two weeks after the first proposition incident and
three months and one week after the second one.” Id. at 1307. The employee in
Baldwin failed to comply with her reporting duty, we noted, because her
complaints were “anything but prompt, early, or soon.” Id.
The same is true here. Title VII and the explicit terms of Jeld-Wen, Inc.’s
17
anti-harassment policy placed Minix and the Simses under a “prompt reporting
duty” just like the reporting duty we discussed in Baldwin. In fact, using identical
language, Jeld-Wen, Inc.’s policy says that an aggrieved employee “should
promptly notify” an appropriate company official about any “objectionable
conduct” she experiences. (Emphasis added.) Minix did not promptly notify any
appropriate company official about Fetner’s harassment. Her complaint to Dan
Hees, made on October 13, 2004, came roughly three years after she claims to have
been first harassed by Fetner. Nor did the Simses promptly notify any appropriate
company official about Fetner’s harassment. Their complaint to Hees, also made
on October 13, 2004, came six months and two weeks after Linda Sims claims to
have been first harassed by Fetner and four months and two weeks after Brenda
Sims claims to have been first harassed by him. Like the employee in Baldwin,
Minix and the Simses “wait[ed] too late to complain” and therefore unreasonably
failed to comply with the reporting requirement set forth in Jeld-Wen, Inc.’s anti-
harassment policy.10 We conclude that Jeld-Wen, Inc., has successfully established
the second element of the Faragher/Ellerth defense.
10
Minix, for her part, explains that her decision to wait so long to complain about
Fetner’s harassment was reasonable based on her dissatisfaction with the way Jeld-Wen, Inc.,
handled her complaint against Bowen in 2003. Jeld-Wen, Inc., however, launched an immediate
investigation into Minix’s complaint against Bowen, and he abruptly resigned mere weeks after
her complaint was made. Because Jeld-Wen, Inc.’s response to the Bowen complaint was
beyond reproach, we reject Minix’s reasonable-delay argument as wholly without merit. The
Simses offer no reason for their delay.
18
IV. TANGIBLE EMPLOYMENT ACTION
Finally, Linda Sims argues that Jeld-Wen, Inc., cannot avail itself of the
Faragher/Ellerth defense because she was subjected to a tangible employment
action. See supra at 11-12. In opposition to Jeld-Wen, Inc.’s motion for summary
judgment, Sims argued that when she rebuffed Fetner’s sexual advances, Fetner
ordered another employee to send Sims home from work, thus reducing the
number of hours she could work and the amount of money she could earn.11
This, she said, constituted a tangible employment action because it affected the
terms and conditions of her employment. The district court recognized that Sims’s
allegation amounted to a tangible employment action, but rejected this as a basis
for recovering against Jeld-Wen, Inc. The court held that Sims could not show a
causal connection between Fetner’s harassment and the fact that she was sent home
early from work — events that the district court determined occurred nearly two
months apart from each other.
We too reject Sims’s Title VII claim to the extent that it is premised on the
11
Jeld-Wen, Inc., says that Sims failed to make this argument in the district court and that
we should, for that reason, reject it on appeal. Although the argument was made in the district
court (albeit not forcefully), for the reasons discussed below, we reject it because Sims did not
allege a tangible employment action in either her EEOC charge or in her complaint; she made
the allegation for the first time in opposition to summary judgment — which, even if Title VII
did not contain an exhaustion requirement, would be too late. See Gilmour v. Gates, McDonald
and Co., 382 F.3d 1312, 1313 (11th Cir. 2004).
19
occurrence of a tangible employment action. We do so because Sims did not
allege facts in her EEOC charge from which it could be reasonably inferred that
Fetner took a tangible employment action against her.12 Instead, the facts alleged
in Sims’s EEOC charge demonstrate that she was alleging discrimination against
Jeld-Wen, Inc., solely under a hostile-environment theory. These are the only facts
alleged in Sims’s EEOC charge:
I began my employment during April of 2004 as a Router. Almost
from the beginning of my employment I have been subjected to sexual
harassment from the plant manager consisting of sexual comments
regarding my body parts, requests to go out on dates, touching my
body around the waist, placing his arms around me and pulling me
close to his body. He often referred to my buttocks as basketballs and
he would say he wanted to go dribbling. I rejected the harassment but
it continues. I believe I am being discriminated against because of my
sex, female, in violation of Title VII of the Civil Rights Act of 1964,
as amended.
As is clear from her EEOC charge, Sims did not allege that her refusal to submit to
Fetner’s sexual demands culminated in a tangible employment action — e.g.
a reduction in hours13 — the very allegation she is now pursuing judicially.
“The starting point of ascertaining the permissible scope of a judicial
complaint alleging employment discrimination is the administrative charge and
12
Nor did Sims make such an allegation in her judicial complaint. Rather, Sims made
this allegation for the first time in her brief in opposition to summary judgment.
13
See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.
2006).
20
investigation.” Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir.
2000). “No action alleging a violation of Title VII may be brought unless the
alleged discrimination has been made the subject of a timely-filed EEOC charge.”
Id. “EEOC regulations provide that charges should contain, among other things,
‘[a] clear and concise statement of the facts, including pertinent dates, constituting
the alleged unlawful employment practices.” Id. “A plaintiff’s judicial complaint
is limited by the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.” Id. (internal quotation
marks omitted.)
Although we have stated that “the scope of an EEOC complaint should not
be strictly interpreted,” we have also been careful to “caution[] that allegations of
new acts of discrimination are inappropriate.” Gregory v. Ga. Dep’t of Human
Resources, 355 F.3d 1277, 1279-80 (11th Cir. 2004). We will consider judicial
claims only if they “amplify, clarify, or more clearly focus the allegations in the
EEOC complaint.” Id. at 1279. We must ask, then, whether the claims pursued in
the judicial proceeding are “like or related to, or grew out of, the allegations
contained in [the employee’s] EEOC charge.” Id. at 1280.
An allegation of harassment premised on a supervisor’s tangible
employment action is not “like or related to” and does not “gr[o]w out of” an
21
allegation of harassment premised solely on the existence of a hostile working
environment. Those theories are wholly distinct and represent entirely different
ways of demonstrating a violation of Title VII. Consequently, Sims’s new
allegation that Fetner took a tangible employment action against her does not in
any way “amplify, clarify, or more clearly focus” any of the hostile-environment
allegations made in her EEOC charge. Rather, Sims’s tangible-employment-action
allegation is an “allegation[] of [a] new act[] of discrimination” that we have said is
“inappropriate” where, as here, it has not been alleged in a previous EEOC charge.
See Gregory, 355 F.3d at 1279-80; see also Cheek v. Western and Southern Life
Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994) (“When an EEOC charge alleges a
particular theory of discrimination, allegations of a different type of discrimination
in a subsequent complaint are not reasonably related to them unless the allegations
in the complaint can be reasonably inferred from the facts alleged in the charge.”).
To the extent that Sims attempted to rest her Title VII claim in the district
court on a tangible employment action by Fetner, the claim was not properly before
the court because allegations of such a claim were never made the subject of an
EEOC charge of discrimination — a prerequisite to suit.14
14
We may affirm the judgment of the district court for any reason supported by the
record. See United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir.
1993).
22
V. CONCLUSION
For the reasons stated above, we affirm the judgment of the district court.
AFFIRMED.
23