United States Court of Appeals,
Eleventh Circuit.
No. 94-7018.
Marcy KILGORE, Pam Medders, Vicki Ellis, Plaintiffs-Appellants,
v.
THOMPSON & BROCK MANAGEMENT, INC.; Eddie Schultz, in his official
capacity as a Supervisor of Pizza Hut, Defendants-Appellees.
Sept. 5, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 90-HM-2173-J), E.B. Haltom, Jr.,
Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*, Senior
Circuit Judge.
FARRIS, Senior Circuit Judge:
Marcy Kilgore, Pam Medders, and Vicki Ellis sued their
employer, Thompson & Brock Management, Inc., charging sexual
harassment in violation of Title VII, as well as the torts of
outrage and invasion of privacy under Alabama law. They appeal the
district court's grant of summary judgment in favor of the company.
We AFFIRM.
I. Hostile Work Environment
Thompson and Brock Management, Inc. had a contract to manage
the Pizza Hut in Jasper, Alabama. Kilgore, Medders, and Ellis
claim to have been sexually harassed by Eddie Schultz, the delivery
driver for the Jasper Pizza Hut. "An employer is indirectly liable
for hostile work environment sexual harassment if the employer knew
or should have known of the harassment and failed to take prompt
*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the
Ninth Circuit, sitting by designation.
remedial action." Faragher v. City of Boca Raton, 76 F.3d 1155,
1167. "The employee can show that the employer had knowledge of
the harassment by proving that she complained to higher management
of the problem or by demonstrating that the harassment was so
pervasive that an inference of constructive knowledge arises."
Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th
Cir.1988).
Ellis and Kilgore first complained to Sherry Schultz, the
manager of the Jasper Pizza Hut. They contend that this
constituted a complaint to the "higher management" of Thompson and
Brock. The record refutes the argument. Although Sherry Schultz
had managerial responsibilities at the Pizza Hut facility itself,
she was not part of "higher management" at Thompson and Brock.
Thompson and Brock did not have knowledge of the alleged sexual
harassment until Medders and Ellis called Thompson and Brock's
office and left a message for Vice President Rommie Brock on
November 17, 1989.1
Thompson and Brock can only be liable under Title VII for
Eddie Schultz's alleged misconduct if it failed to take prompt
remedial action after receiving notice of the alleged sexual
harassment.2 The "remedial action" must be "reasonably likely to
prevent the misconduct from recurring." Guess v. Bethlehem Steel
1
It is unfortunate, but not fatal, that the plaintiffs
elected not to follow established written procedures for
notification of Thompson and Brock.
2
An employer can also be held directly liable under Title
VII for a hostile work environment in the rare case where "a
supervisor or other employee act[s] within the scope of his
employment in creating a hostile work environment." Faragher, 76
F.3d at 1166. This case does not present that situation.
Corp., 913 F.2d 463, 465 (7th Cir.1990). The district court did
not err in holding that Thompson and Brock took prompt remedial
action under the facts and circumstances of this record.
After receiving notice on Friday, November 19, 1989, Thompson
and Brock began an investigation of the alleged sexual harassment.
Diane Ingraham (operations manager of Thompson and Brock) and
Rommie Brock arranged a meeting with the plaintiffs for Tuesday,
November 23, 1989. After arriving in Jasper, Ingraham and Brock
were told that the plaintiffs would not meet with them and were
represented by counsel. Thompson and Brock continued its
investigation by interviewing Eddie Schultz, Sherry Schultz, and
other female employees at the Jasper Pizza Hut. Eddie and Sherry
Schultz denied the sexual harassment complaints. Thompson and
Brock failed to find any support for the sexual harassment
allegations: 1) the female employees interviewed stated that they
had not seen Eddie Schultz engaging in any sexually harassing
behavior, 2) Eddie and Sherry Schultz denied the allegations, and
3) the plaintiffs had all voluntarily resigned and refused to meet
with Thompson and Brock officials. Notification by telephone on
Friday followed by scheduled investigatory interviews on the
following Tuesday establish that Thompson and Brock responded to
the allegations with prompt remedial action. They are therefore
not liable for the alleged misconduct of Eddie Schultz.
II. Constructive Discharge
The plaintiffs also appeal the district court's grant of
summary judgment in favor of the company on their constructive
discharge claim. "To prove constructive discharge, the employees
must demonstrate that their working conditions were so intolerable
that a reasonable person in their position would be compelled to
resign." Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311,
1317 (11th Cir.1989). A constructive discharge will generally not
be found if the employer is not given sufficient time to remedy the
situation. None of the plaintiffs returned to work after
complaining to the company's corporate management. Summary
judgment on the constructive discharge claim was appropriate; the
plaintiffs did not allow sufficient time for Thompson and Brock to
correct the situation.
III. State Law Claims—Outrage and Invasion of Privacy
The district court did not err in writing that it would be
appropriate to dismiss for lack of jurisdiction over the pendant
state law claims of outrage and invasion of privacy after granting
summary judgment on the Title VII claims. See Carnegie-Mellon
Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d
720 (1988) (exercise of pendant jurisdiction is at the district
court's discretion). But, the district court went on to grant
summary judgment for defendants on the state claims; and going on
was no abuse of discretion. In addition, the state law claims lack
any support in the record.
In Alabama, the tort of outrage only applies "in the most
egregious circumstances." Thomas v. BSE Indus. Contractors, Inc.,
624 So.2d 1041, 1044 (Ala.1993). The conduct complained of must be
"so outrageous as to be regarded as atrocious and utterly
intolerable in a civilized society." American Rd. Serv. Co. v.
Inmon, 394 So.2d 361, 365 (Ala.1981).
Thompson and Brock can be held directly liable for invasion
of privacy only if the company authorized or participated in
Schultz's actions or ratified his conduct after learning of the
action. Potts v. BE & K Constr. Co., 604 So.2d 398, 400
(Ala.1992). It can be held vicariously liable only if Schultz's
acts "were done in the line and scope of employment" for Thompson
and Brock's benefit. Id. The record fails to include sufficient
facts under either theory to withstand summary judgment.
AFFIRMED.