Janis Blackmon v. Wal-Mart Stores East, L.P.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 23, 2009
No. 09-11953 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 08-80685-CV-JIC

JANIS BLACKMON,

Plaintiff-Appellant,

versus

WAL-MART STORES EAST, L.P.,
d.b.a. Wal-Mart,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(December 23, 2009)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Janis Blackmon appeals an adverse summary judgment in favor of her
former employer, Wal-Mart, on her sexual harassment and retaliation claims under

Title VII, 42 U.S.C. §§ 2000e-2(a), 3(a), and the Florida Civil Rights Act, Fla. Stat.

§ 760.10. On appeal, Blackmon argues that the district court erred in concluding

that comments of a sexual nature made by a co-worker Manuel Pereiro,

culminating in a single incident of physical touching, were not severe or pervasive

enough to amount to a hostile work environment. Blackmon also challenges the

district court’s determination that Wal-Mart is not liable for any alleged hostile

work environment because it took prompt remedial action upon learning of the

harassment. Finally, Blackmon argues that she was unlawfully retaliated against

and terminated for complaining about Pereiro’s conduct and that Wal-Mart’s

justification for her termination, excessive absenteeism, was mere pretext.

We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Skrtich

v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). “Summary judgment is

appropriate only when the evidence before the court demonstrates that ‘there is no

genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law.’” Id. (quoting Fed.R.Civ.P. 56(c)). “There is no genuine issue of

material fact if the nonmoving party fails to make a showing sufficient to establish

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the existence of an element essential to that party’s case and on which the party

will bear the burden of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538

(11th Cir. 1989). “Genuine disputes are those in which the evidence is such that a

reasonable jury could return a verdict for the non-movant.” Mize v. Jefferson City

Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).

The Florida Civil Rights Act of 1992 (“FCRA”) protects employees from

gender discrimination in the workplace. Fla. Stat. § 760.10(1)(a). Because the

FCRA is patterned after Title VII, “federal case law on Title VII applies to FCRA

claims.” Guess v. City of Miramar, 889 So.2d 840, 846 n.2 (Fla. 4th Dist. Ct.

App. 2005). Under Title VII, a plaintiff can establish gender discrimination

through sexual harassment by the creation of a hostile work environment, by

showing:

(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.

Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir.

2006).

Whether harassing conduct is sufficiently severe or pervasive to alter the

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terms and conditions of a plaintiff’s employment includes an objective and a

subjective component. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114

S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). The plaintiff must subjectively perceive

the environment to be abusive, and the conduct must be severe or pervasive enough

to create an objectively hostile or abusive work environment. Id. at 21, 114 S.Ct.

at 370. The U.S. Supreme Court has noted that “[w]hether an environment is

‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances,”

such as (1) the frequency of the discriminatory conduct; (2) its severity;

(3) whether the conduct was physically threatening or humiliating; and (4) whether

it unreasonably interfered with the employee’s work performance. Id. at 23, 114

S.Ct. at 371.

“An employer is subject to vicarious liability to a victimized employee for

an actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee.” Faragher, 524 U.S. at 807. The

employer is strictly liable for the hostile environment if the supervisor takes

tangible employment action against the victim. See id. at 807. However, when an

employee has established a claim for vicarious liability where no tangible

employment action was taken, a defending employer may raise as an affirmative

defense to liability or damages: “(a) that the employer exercised reasonable care to

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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.

Finally, when the perpetrator of the harassment is merely a co-employee of the

victim, the employer is liable only “if it knew or should have known of the

harassing conduct but failed to take prompt remedial action.” Miller, 277 F.3d at

1278. “When an employer has a clear and published policy that outlines the

procedures an employee must follow to report suspected harassment and the

complaining employee follows those procedures, actual notice is established.”

Watson v. Blue Circle, Inc., 324 F.3d 1252, 1259 (11th Cir. 2003).

We turn first to Wal-Mart’s liability for Pereiro’s conduct. In our view, the

record is clear that Wal-Mart responded promptly to Blackmon’s complaints

regarding Pereiro’s behavior.1 Blackmon testified that between December 2005

and July 19, 2006, Pereiro approached her at her cash register and made harassing

comments such as “Come on Janis, you are going to give in,” and “Babe, I’m

going to get what I want.” Pereiro also stated four or five times “You know I want

to screw you, don’t you?” On July 19, 2006, Pereiro approached Blackmon’s cash

1
There is no dispute that Wal-Mart has in place a clear and published anti-harassment
policy.

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right hand and grabbed or cupped both of Blackmon’s breasts. Both Wal-Mart’s

security camera and witnesses confirm that Pereiro touched Blackmon’s breast but,

because it appeared the two had engaged in horseplay before the touching, it was

not clear whether the touching was an accident. It is undisputed, however, that

Wal-Mart promptly investigated the incident, and Pereiro was fired on July 31,

2006, less than two weeks later. After he was terminated, Pereiro came back to the

store on at least four occasions, during which he threatened Blackmon that she

would be fired. When Blackmon complained to assistant manager Debbie Cole,

Cole told Blackmon to walk away from her register when Pereiro came into the

store.

Blackmon argues that Wal-Mart’s remedial measures were inadequate

because (1) Wal-Mart had actual notice of Pereiro’s behavior before the July 19

incident and (2) Wal-Mart refused to ban Pereiro from the store after he was

terminated. We disagree.

Although Blackmon did not report all of Pereiro’s behavior to management,

she did complain to Debbie Cole, an assistant manager designated by Wal-Mart to

receive such complaints, each time Pereiro said “You know I want to screw you,

don’t you?”. Blackmon does not dispute that Cole, in turn, reprimanded Pereiro

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after each of Blackmon’s complaints.2 Therefore, there is no genuine dispute as to

the fact that Wal-Mart took prompt remedial action upon learning of the

harassment. It reprimanded Pereiro several times and, within two weeks of the

touching incident, it terminated his employment. Blackmon’s argument that Wal-

Mart should have banned Pereiro from the store is unavailing in light of these facts.

Wal-Mart’s termination of Pereiro was a prompt and adequate remedy.

Having determined that Wal-Mart is not liable for Pereiro’s conduct, we find

it unnecessary to address the remaining elements of hostile work environment

sexual harassment. We affirm the district court’s grant of summary judgment as to

this issue.

II.

The FCRA, like Title VII, 42 U.S.C. § 2000e-3(a), includes a separate

anti-retaliation provision, stating that:

It is an unlawful employment practice for an employer
. . . to discriminate against any person because that
person has opposed any practice which is an unlawful
employment practice under this section, or because that
person has made a charge, testified, assisted, or

2
Blackmon also apparently complained to a Customer Service Manager (“CSM”) named
Brenda about some of Pereiro’s other conduct. However, as the district court concluded, the
evidence is clear that a CSM is not a supervisor and was not designated under Wal-Mart’s anti-
harassment policy to receive complaints. Blackmon has made no argument on appeal
challenging this determination and it is therefore waived. We further note that Pereiro was a
CSM and therefore the district court did not err in concluding that he also was not Blackmon’s
supervisor.

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participated in any manner in an investigation,
proceeding, or hearing under this section.

Fla. Stat. § 760.10(7). Federal case law on Title VII applies to FCRA retaliation

claims. Guess, 889 So.2d at 846 n.2.

To establish a prima facie case of retaliation, Title VII requires the plaintiff

to establish that: (1) she engaged in a statutorily protected activity; (2) she suffered

a materially adverse action; and (3) there was a causal relation between the

protected activity and the adverse action. Goldsmith v. Bagby Elevator Co., Inc.,

513 F.3d 1261, 1277 (11th Cir. 2008). “After the plaintiff has established the

elements of a claim, the employer has an opportunity to articulate a legitimate,

nonretaliatory reason for the challenged employment action as an affirmative

defense to liability.” Id. Once the employer makes this showing, “the plaintiff has

a full and fair opportunity to demonstrate that the [employer’s] proffered reason

was merely a pretext to mask discriminatory action.” Bryant v. Jones, 575 F.3d

1281, 1308 (11th Cir. 2009).

To show pretext, the plaintiff must present evidence sufficient “to permit a

reasonable factfinder to conclude that the reasons given by the employer were not

the real reasons for the adverse [action].” Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997). Conclusory allegations, without more, are

insufficient to show pretext when extensive evidence supports the employer’s

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legitimate nonretaliatory reason. Mayfield v. Patterson Pump Co., 101 F.3d 1371,

1376 (11th Cir. 1996). Instead, the plaintiff must meet the proffered reason “head

on and rebut it.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).

Blackmon failed to provide any evidence that would indicate that Wal-Mart

inconsistently applied its policies to her or otherwise retaliated against her for

complaining about Pereiro. Wal-Mart has, in essence, a “four strikes” policy,

pursuant to which an employee who commits an infraction one time receives an

verbal “coaching” from a supervisor, twice, a written coaching, and three times, a

coaching known as a “Decision-Day” coaching. Any fourth infraction committed

after a Decision Day coaching results in termination.

It is undisputed that Blackmon was terminated for excessive absenteeism

after a Decision-Day coaching. Blackmon argues that, pursuant to Wal-Mart

policy, an employee must receive a warning before that employee may be

terminated for poor attendance. This is an incorrect statement of Wal-Mart’s

policy. Rather, under Wal-Mart’s rules, a coaching received—for any reason,

including absenteeism—after a Decision-Day coaching results in termination.

Thus, although Blackmon is correct that Wal-Mart does not terminate for excessive

absenteeism alone, it is undisputed that Blackmon’s excessive absenteeism

occurred after three earlier infractions and a Decision-Day coaching. Thus,

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Blackmon’s termination was consistent with Wal-Mart’s “four strikes” policy and

she cannot demonstrate that Wal-Mart’s justification was a pretext for retaliation.

AFFIRMED.