[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 14, 2000
THOMAS K. KAHN
No. 99-12410 CLERK
________________________
D. C. Docket No. 97-00366-CV-4
GABRIELLE BREDA,
Plaintiff-Appellant,
versus
WOLF CAMERA & VIDEO,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(August 14, 2000)
Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.
BLACK, Circuit Judge:
*
Honorable Cynthia Holcomb Hall, Senior U.S. Circuit Judge for the Ninth Circuit, sitting
by designation.
Appellant Gabrielle Breda brought this action against Appellee Wolf Camera
& Video, her former employer, after resigning from her position as a sales associate
at one of Appellee’s stores. Appellant alleges she was subjected to a hostile work
environment based on sex and disability, in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e, and Title I of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101.1 The district court granted
Appellee’s motion for summary judgment on Appellant’s claims. We conclude the
district court erred in granting summary judgment to Appellee on Appellant’s sex-
based hostile work environment claim, and accordingly reverse and remand.
I. BACKGROUND
Appellee is an Atlanta-based corporation that sells cameras, film, and camera
accessories, and provides photo-finishing and imaging services. On October 10, 1995,
Appellant was hired as a sales associate at Appellee’s store in the Oglethorpe Mall in
Savannah, Georgia. The Oglethorpe store is open every day during the same hours
as the shopping mall. A store manager directly supervises all employees, and a
district manager visits the store once every five or six weeks to oversee the store
manager.
1
We affirm without discussion the district court’s grant of summary judgment to Appellee on
Appellant’s disability harassment claim. See 11th Cir. R. 36-1.
2
The employees at the Oglethorpe store work in either sales or the photo-
processing lab. After she was hired, Appellant became one of three full-time sales
associates at the store, and, like the other sales associates, she worked approximately
40 hours per week with 2 days off each week.
Appellant alleges she was subjected to sexual harassment throughout her
employment with Appellee. On December 20, 1996, Appellant resigned from her
employment with Appellee because of this alleged harassment. She subsequently
instituted this action, claiming she was subjected to a hostile work environment in
violation of Title VII. The district court granted summary judgment to Appellee on
Appellant’s claim after concluding Appellant had not established a prima facie case
of hostile work environment sexual harassment because she had not demonstrated a
basis for holding Appellee liable for the harassment.
We review a district court’s grant of summary judgment de novo, applying the
same legal standards as the district court. See Harris v. H & W Contracting Co., 102
F.3d 516, 518 (11th Cir. 1996). We review the record and all inferences drawn
therefrom in the light most favorable to the non-moving party. See Welch v. Celotex
Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). We will affirm the district court if the
record demonstrates there is no genuine issue as to any material fact and the moving
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party is entitled to judgment as a matter of law. See Fernandez v. Banker Nat’l Life
Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990).
II. DISCUSSION
Appellant alleges she was subjected to a continuous pattern of sexual
harassment by one of her co-workers, Robert Morris, that commenced the day she
began working for Appellee.2 Appellant states she repeatedly complained of Morris'
conduct to Sharpley, the store manager. Sharpley, on the other hand, disputes the
number and timing of complaints made by Appellant and contends the complaints
reflected not sexual harassment, but only general animosity between co-workers.
To establish a prima facie case of hostile work environment sexual harassment,
the plaintiff must demonstrate a basis for holding the employer liable for the
harassment. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en
banc), cert. denied, 120 S. Ct. 1674 (2000).3 Employer liability in a case involving
2
Appellant also alleges another co-worker, Darryl Reynolds, engaged in sexually harassing
conduct toward her, including commenting on Appellant’s physical appearance and making lewd
statements. The focus of Appellant’s complaints, however, appears to be on Morris' conduct.
3
The other elements of a prima facie case of hostile work environment sexual harassment
require a plaintiff to establish: (1) she is a member of a protected group; (2) she was the subject
of unwelcome sexual harassment; (3) the harassment occurred because of her sex; and (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions of her
employment. See Mendoza, 195 F.3d at 1245. The district court granted summary judgment on
this claim because of its conclusion that Appellant had not established a basis for holding
Appellee liable for the harassment. Accordingly, we address only whether Appellant has
established the employer liability element. We express no opinion as to whether Appellant has
demonstrated the other elements of a hostile work environment sexual harassment claim.
4
sexual harassment by a co-worker exists when the employer knew (actual notice) or
should have known (constructive notice) of the harassment and failed to take remedial
action. See Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982).
Appellant contends the district court erred in concluding Appellant had not
established notice by Appellee through either of these methods. In addition, it was
argued that Appellee also had notice of the harassment under the agency concept of
apparent authority, which imputes a supervisor’s knowledge of harassment to the
employer when the employer held out the supervisor as possessing the authority to act
on complaints of harassment. See Restatement (Second) of Agency §§ 8, 27, 273.
Appellee’s internal management policy directs all store managers to refer complaints
of harassment to the district manager or Personnel Department. Thus, it was argued,
under the concept of apparent authority, Appellee had notice of the harassment
through Sharpley, who was obligated under Appellee’s own policy to respond to
complaints of harassment by reporting them further up the company hierarchy.
In this case, however, whether Sharpley had apparent authority sufficient to
render Appellee liable is irrelevant because Sharpley had actual authority to receive
complaints of harassment on behalf of the company. Appellee had a clear
employment policy stating: “Anyone who believes that he or she is being subjected
to harassment or who has witnessed such harassment must immediately notify his or
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her manager. If the problem is not immediately resolved, that associate should contact
the Personnel Department.” In Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th
Cir. 1999), we held that if an employer has a company policy specifically designating
the person or persons to whom an employee should report instances of suspected
sexual harassment, once the employee complains to the designated person or persons,
the employer is deemed to have actual notice of the harassment. See id. at 1364. With
such a policy, the employer “itself answered the question of when it would be deemed
to have notice of the harassment sufficient to obligate it or its agents to take prompt
and appropriate remedial measures.” Id.; see also Madray v. Publix Supermarkets,
Inc., 208 F.3d 1290, 1300 (11th Cir. 2000) (concluding the employer had established
when it had been given sufficient notice by specifically designating the company
representatives who should be contacted in cases of suspected harassment).
When an employer has a policy for reporting harassment that is clear and
published to its employees, and an employee follows that policy, the employer’s
notice of the harassment is established by the terms of the policy. Through its policy,
the employer has given the designated person explicit actual authority to handle the
complaints. Whether the designated person has apparent authority is not relevant to
the inquiry—his or her actual authority already has been established through the terms
of the employer’s policy.
6
Consequently, if a company has a clear and published policy that outlines the
procedures employees must follow in reporting cases of suspected harassment, courts
determining whether employer liability has been established need not delve into the
internal policies of the company to determine whether the person to whom the
complaints of harassment were made had the apparent authority to respond to such
complaints. Furthermore, employees of such companies who believe they are victims
of harassment need not be concerned with whether they pursued their complaints far
enough up the company ladder. The sole inquiry when the employer has a clear and
published policy is whether the complaining employee followed the procedures
established in the company’s policy.
In this case, by specifically designating store managers as the company
representatives to whom complaints of sexual harassment must be made, Appellee
itself has established that information provided to store managers constitutes actual
notice by Appellee. It is undisputed that Sharpley was the store manager of the
location at which Appellant was employed. It is also undisputed that Appellant
complained to Sharpley about Morris' alleged harassment on at least four or five
occasions. Appellant therefore followed the procedures outlined in Appellee’s
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policy.4 Consequently, we hold the district court erred in concluding Appellant’s
complaints to Sharpley were insufficient as a matter of law to provide actual notice
of the harassment to Appellee.5
Although we conclude Appellant’s complaints to Sharpley raised a genuine
issue of material fact concerning Appellee’s actual notice of the alleged harassment,
we find the record insufficient to determine whether Sharpley was adequately
informed that Appellant believed she was the victim of sexual harassment. There are
factual disputes as to the number and timing of complaints Appellant made to
Sharpley. In addition, there is disagreement over whether Appellant’s complaints
specifically indicated she was complaining of sexual harassment rather than general
workplace animosity between co-workers. Accordingly, we remand the hostile work
environment sexual harassment claim.
4
Appellee’s policy states an employee must complain of suspected harassment to his or her
store manager, and should contact the Personnel Department if the problem is not resolved.
Thus, while Appellee’s policy suggests that an employee pursue the matter with the Personnel
Department if the harassment continues, the only mandatory requirement of the policy is that the
store manager be informed of the harassment. We therefore reject Appellee’s argument that it
should not be deemed to have actual notice of the harassment because Appellant did not follow
the policy’s suggestion to complain beyond Sharpley; Appellee’s employees need not act in a
manner not required by Appellee’s own policy.
5
Appellant also argues the district court erred in determining Appellee did not have
constructive notice of the harassment because Appellee had a well-defined anti-harassment
policy that insulated it from liability based on a constructive notice theory. See Farley v.
American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997). We do not address this
issue because we conclude the district court erred in determining as a matter of law Appellee did
not have actual notice of the harassment.
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III. CONCLUSION
We conclude the district court erred in finding Appellant’s complaints of sexual
harassment to her store manager were insufficient as a matter of law to establish actual
notice of the harassment by Appellee. We therefore reverse the district court’s grant
of summary judgment on this claim, and remand to allow the district court to resolve
factual disputes regarding the timing, extent, and nature of Appellant’s complaints.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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