[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
JULY 6, 2007
No. 06-12159 THOMAS K. KAHN
___________________________ CLERK
D.C. Docket No. 05-CV-80342-JIC
NURSE “BE”,
Plaintiff-Appellee,
versus
COLUMBIA PALMS WEST HOSPITAL LIMITED PARTNERSHIP
a foreign limited partnership,
d.b.a. Palms West Hospital,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(July 6, 2007)
Before TJOFLAT, FAY and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
SILER, Circuit Judge:
Columbia West Hospital Limited Partnership (“Palms West”) appeals the
decision of the district court, following a jury trial, finding it liable to one of its
former nurses, Bobbie Eicke O’Brien (“O’Brien”), for sexual harassment by Michael
Chaparro, M.D., a physician with hospital privileges at Palms West, in violation of
Title VII, 42 U.S.C. § 2000e et seq., and under Florida law. Palms West contends
that the district court erred by: 1) failing to preclude O’Brien’s hostile work
environment claim as a matter of law based on its Faragher/Ellerth1 affirmative
defense; 2) failing to conclude that Dr. Chaparro was not a “supervisor” as a matter
of law and erroneously instructing the jury on that term; 3) precluding Palms West
from establishing that O’Brien’s key witness was mentally ill; and 4) failing to grant
a new trial based on an impermissibly coercive Allen2 charge. Because Palms West
met its burden under Faragher/Ellerth, O’Brien failed to set forth a viable sexual
harassment claim as a matter of law. Accordingly, we REVERSE the district court’s
judgment and VACATE the award for fees and costs.
I. BACKGROUND
1
Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc, v. Ellerth, 524
U.S. 742 (1998).
2
Allen v. United States, 164 U.S. 492 (1986).
2
A. Facts Leading to O’Brien’s Sexual Harassment Claim
O’Brien worked as a nurse at Palms West from April 2002 until January 2004.
Dr. Chaparro was a pediatric neurosurgeon who was employed by Palms West
Pediatric Neurosurgery (“Palms Neurosurgery”). Dr. Chaparro had privileges to
practice medicine at Palms West, through Palms Neurosurgery, which contracted with
hospitals to supply specialty doctors.3 In fact, Palms West employed only two
physicians on its own. Physicians at Palms West direct the medical care that nurses
provide to patients, though the nursing staff was directly supervised by other nurses
and shift supervisors.
Beginning in late 2002 or early 2003, Dr. Chaparro began calling O’Brien’s
cellular telephone. The phone calls occurred late at night while O’Brien was at home.
During these calls, Dr. Chaparro would ask O’Brien to meet him for a late drink or
to go out for dinner. According to O’Brien, she always indicated that she was not
interested.
After receiving between three to five calls from Dr. Chaparro, O’Brien went
to her supervisor, Cindy Stowers, and asked that her phone number be removed from
3
Both Palms West and Palms Neurosurgery are affiliated with the Hospital Corporation of
American (“HCA”), and had implemented joint polices including the HCA Code of Conduct.
3
the staff directory. O’Brien did not want the matter reported to the administration for
fear of retaliation and would not identify the caller until Stowers promised that the
matter would not be reported. She described the calls as “harassing,” which Stowers
took to mean “annoying.” O’Brien indicated that the calls stopped after Stowers
removed her name from the directory, and after she changed her phone number.
Stowers never reported the phone calls to human resources.
Thereafter, O’Brien was transferred to the telemetry floor in May 2003, after
which Dr. Chaparro began making lewd and sexual comments whenever he saw her
and would “rub against her.” O’Brien contends that she always rejected Dr.
Chaparro’s advances.4 Dr. Chaparro’s conduct toward O’Brien culminated in an
incident occurring on November 11, 2003, in which Dr. Chaparro asked O’Brien to
retrieve a razor from a supply room. Dr. Chaparro entered the closet behind O’Brien
and began making sexual advances toward her. O’Brien rebuffed the advances and
fled.
O’Brien immediately described the encounter to another nurse, Donya
Quesada. During their conversation, Dr. Chaparro approached and brushed his
buttocks against O’Brien. Later that evening, O’Brien complained to nurse
4
Even so, O’Brien did not describe these incidents in a letter to her supervisor involving a
problem with a co-worker, sent in late October 2003.
4
supervisors David Knight and Rhonda Stoops. The complaint was forwarded to Katie
Kato, the human resource director at Palms West. O’Brien met with Kato and
described Dr. Chaparro’s history of harassment, beginning with the phone calls. Kato
believed that O’Brien’s complaint was credible. O’Brien and Dr. Chaparro had no
further contact after the November 11 incident.
Kato immediately undertook an investigation into the purported misconduct.
She also offered O’Brien the employee assistance program. Kato forwarded the
complaint to Heather Rohan, CEO of Palms West. The following day, November 13,
Kato informed Mike Patterson, Dr. Chaparro’s supervisor at Palms Neurosurgery,
about the complaint. Patterson contacted Dr. Chaparro to arrange for a meeting with
Kato on November 17.
Kato also granted O’Brien a leave of absence through November 22.
Thereafter, Kato made several phone calls to O’Brien updating her on the ongoing
investigation and advising her of available support offered by Palms West. K a t o
interviewed the two witnesses identified by O’Brien–Stowers and Quesada–and asked
them to describe their accounts of the phone calls and the November 11 incident.
Kato also removed O’Brien from caring for neurological patients and later switched
her to the day shift to avoid possible encounters with Dr. Chaparro. O’Brien was
5
scheduled to be moved from the telemetry unit to the emergency room to further
reduce contact.
During the November 17, 2003 meeting, Dr. Chaparro met with CEO Rohan
and then with Kato and Patterson. Kato explained the purpose of the meeting as a
sexual harassment investigation. Dr. Chaparro immediately described the incident
in the supply room, but explained that it had occurred in response to a long history
of mutual flirting between O’Brien and him. Dr. Chaparro also admitted to the phone
calls, but added that O’Brien had also called him. Dr. Chaparro further explained that
the November 11 incident was the first time that O’Brien had rebuffed his advances.
Kato noted that she also felt Dr. Chaparro was credible.
Following the November 17 meeting, Patterson, as Dr. Chaparro’s supervisor,
admonished Dr. Chaparro from having further contact with O’Brien. Patterson also
advised that should Dr. Chaparro encounter O’Brien during his rounds at Palms West,
any conversation was to remain strictly work related. Kato informed Dr. Chaparro
that the findings of the investigation would be presented to CEO Rohan. She also
advised that any further contact with O’Brien would be considered retaliation. Kato
then met with O’Brien and advised her what was communicated to Dr. Chaparro.
Neither Kato nor Palms West disciplined Dr. Chaparro since he was not a
hospital employee. Dr. Chaparro, however, was disciplined by Palms Neurosurgery.
6
Patterson delivered a disciplinary action form stating that Dr. Chaparro admitted
hugging and kissing O’Brien in the workplace. The form cautioned that any further
contact with O’Brien, other than strictly professional, would result in his immediate
termination. Kato presented her findings to the Physician Advisory Committee
(“Committee”). The Committee is not part of the hospital, but oversees ethics issues
and provides recommendations to the medical staff committee about doctors who
have privileges at Palms West. The Committee instructed Dr. Chaparro that even
consensual relationships are inappropriate at Palms West.
In her investigation summary, Kato indicated that she was unable to determine
whether the conduct leading to the closet incident was consensual. The summary
noted that there were many witnesses who observed O’Brien acting flirtatious with
Dr. Chaparro, but that O’Brien’s story also seemed credible. In any event, Kato’s
summary concluded that Dr. Chaparro’s behavior was inappropriate. The summary
also indicated that Dr. Chaparro had no contact with O’Brien after the November 11
supply room incident. Palms West took no further action against Dr. Chaparro.
B. Palms West’s Sexual Harassment Policy
Palms West has a written policy prohibiting sexual harassment in the work-
place. The policy provides for a prompt and thorough investigation of all potential
claims and further mandates that supervisors forward all reports of sexual harassment
7
to human resources. Employees are educated on the policy when they are hired and
receive the employee handbook and the code of conduct– which contain the policy.
The policy identifies what types of conduct constitute sexual harassment and explains
what to do if an employee experiences such conduct. Palms West employees are also
required to attend an annual refresher course where the sexual harassment policy is
discussed.5
C. Testimony About O’Brien’s Relationship With Dr. Chaparro
Four nurses (Stowers, Crawford, Smith, and Lewski), the telemetry unit
secretary, Gladys Teasley, and a physician, Dr. Michael Zappa, testified about
O’Brien’s sometimes inappropriate wardrobe and her openly flirtatious behavior with
physicians and other staff members. These witnesses also testified that they had
observed O’Brien and Dr. Chaparro flirt with each other and rub and hug one another.
Teasley observed O’Brien and Dr. Chaparro leave the unit together on two
occasions.6
Quesada testified on O’Brien’s behalf. She stated that O’Brien did not dress
inappropriately and that Dr. Chaparro would follow O’Brien around “like a puppy.”
5
O’Brien stated that she had received all the literature and training regarding Palms West’s
policy on sexual harassment, although, “she did not . . . pay attention to it.”
6
None of O’Brien’s performance reviews make any reference to her purported flirtatious
behavior or style of dress.
8
She also corroborated O’Brien’s account about Dr. Chaparro rubbing against her
following the November 11 supply room incident. Quesada indicated that Dr.
Chaparro stared her down on one occasion following the November 11 incident.
Dr. Chaparro described his relationship with O’Brien much differently than
O’Brien’s description. Dr. Chaparro indicated that he and O’Brien had been mutually
flirting for several years and that it was well known that the two had a “thing.” He
admitted to calling O’Brien, but stated that she had given him her cell number. He
stated that the two would hug each other frequently. He denied ever staring down
Quesada.
D. Facts Leading to O’Brien’s Resignation
O’Brien contends that following her complaint about the November 11
incident, Palms West began to impermissibly schedule her and reprimand her for
failing to show up for shifts for which she was not apprised. She also reported feeling
ignored by supervisors, both in her job capacity and in her request to transfer to the
day shift. O’Brien stated that in light of the investigative report, which she felt
downplayed Dr. Chaparro’s conduct, she resigned on December 31, 2003.7
E. O’Brien’s Lawsuit Against Dr. Chaparro and Palms West
7
O’Brien had already accepted a job with another hospital on December 19, 2003, before she
had reviewed the results of the investigative report on December 31.
9
O’Brien brought suit against Dr. Chaparro alleging assault, battery, and
intentional infliction of emotional distress. She later amended the complaint to
include claims against Palms West for a sexually hostile work environment and
retaliation. O’Brien alleged that the sexual harassment consisted of the five phone
calls she received from Dr. Chaparro in late 2002, Dr. Chaparro’s inappropriate
comments and touching which began in May 2003, and the November 11 supply
room incident. Ultimately, O’Brien and Dr. Chaparro settled; however, the hostile
environment and retaliation claims against Palms West went to a jury trial.
Pretrial, the district court granted O’Brien’s motion in limine to preclude the
admission of evidence relating to Quesada’s mental health. Palms West later moved
for summary judgment, arguing that O’Brien had failed to set forth a prima facie case
of sexual harassment or retaliation. It also moved for summary judgment on the issue
of whether Dr. Chaparro was O’Brien’s supervisor.8 The district court denied the
motion for summary judgment.9
8
Palm West argued that the district court should instruct the jury on the Faragher /Ellerth
elements for non-supervisory harassment, which sets a higher standard than for supervisor-based
harassment.
9
On the supervisor issue, the district court concluded that while “Dr. Chaparro has no direct
authority to fire [O’Brien] or directly change the terms of her employment, . . . he did direct her work
with regard to patient care, the sole purpose of her employment.” The district court further
concluded that even though “scheduling, vacation, floor assignments, etc.” are not determined by
physicians, it was not dispositive that “Dr. Chaparro does have some supervisory function over
[O’Brien].” Therefore, the district court sent the question of whether Dr. Chaparro was O’Brien’s
supervisor to the jury.
10
As there is no standard jury instruction in the Eleventh Circuit for whether a
supervisor relationship exists, the district court constructed an instruction using
relevant case law and administrative regulations. The district court refused to use
Palm West’s suggested traditional definition of supervisor because of the unique
situation presented by specialty doctors with hospital privileges who are not hospital
employees.
During deliberations, the jury delivered two verdicts that were inconsistent
with the jury instructions. Finally, the jury delivered a third verdict finding Palms
West liable for the retaliation claim. Following a request by Palms West to poll the
jury, Juror No. 2 indicated that it was not her verdict. Deliberations resumed and the
district court later delivered an Allen charge, after the jury indicated that it had
reached a decision but was deadlocked as to damages. Following the Allen charge,
the jury returned two hours later with a verdict in the amount of $10,000.00 in
damages against Palms West on the hostile environment claim, and finding no
liability on the retaliation claim.
Thereafter, Palms West renewed its motion for Judgment as a Matter of Law,
pursuant to Fed. R. Civ. P. 50(b), based on O’Brien’s failure to state a prima facie
hostile work environment claim, or in the alternative, for a new trial, pursuant to Rule
50(b) and Rule 59, based on the supervisor issue, the jury instruction explaining
11
“supervisor,” the Allen charge, and the ruling excluding Quesada’s mental health
history. The district court denied the motions and Palms West appealed.
II. STANDARD OF REVIEW
We review a Rule 50 motion de novo. Chambless v. Louisiana-Pacific Corp.,
481 F.3d 1345, 1348 (11th Cir. 2007). “‘In doing so, we draw all inferences in favor
of the non-moving party,’ and ‘affirm the jury verdict unless there is no legal basis
upon which the jury could have found for [the plaintiff].’” Nebula Glass Int’l, Inc.
v. Reichhold, Inc., 454 F.3d 1203, 1210 (11th Cir. 2006) (quoting Telcom Technical
Servs., Inc. v. Rolm Co., 388 F.3d 820, 830 (11th Cir. 2004)).
III. ANALYSIS
Title VII prohibits sex-based discrimination that alters the terms and conditions
of employment. 42 U.S.C. § 2000e-2(a)(1). An employee can establish a violation
against an employer in either of two ways: 1) through tangible employment
action–i.e., discharge, demotion, pay decrease, etc.; or 2) through creation of a hostile
work environment caused by sexual harassment that is sufficiently severe or
pervasive to alter the terms and conditions of the work. See Baldwin v. Blue
Cross/Blue Shield of Ala., 480 F.3d 1287, 1300 (11th Cir. 2007) (citing Hulsey v.
Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir. 2004)). Here, it is the latter
12
scenario that is at issue.10 Because O’Brien did not suffer tangible employment
action, Palms West may invoke the Faragher/Ellerth defense. See Ellerth, 524 U.S.
at 762-63; see also Faragher, 524 U.S. at 808.
An employer avoids liability under this defense if: 1) it “exercised reasonable
care to prevent and correct promptly any sexually harassing behavior”; and 2) the
employee “unreasonably failed to take advantage of any preventative or corrective
opportunities [it] provided.”11 Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
See also Baldwin, 480 F.3d at 1303. As an affirmative defense, the defendant bears
10
O’Brien suggests in her brief that Palms West took tangible employment action against her
based on a “constructive discharge” because of its response to her complaint against Dr. Chaparro.
However, the jury explicitly rejected this charge, finding that O’Brien did not suffer adverse
employment action in the form of a constructive discharge. Because O’Brien failed to cross-appeal
the jury’s finding, we are without opportunity to reconsider. See, e.g., United States v. Sanchez, 269
F.3d 1250, 1293 n.7 (11th Cir. 2001) (failure to cross-appeal deems issue waived and without merit).
Even if we were consider this claim, we find that there was no evidence in the record to support a
claim of sexual harassment based on tangible employment action.
11
The jury instruction closely tracked this language, stating:
Do you find that [Palms West] has shown by a preponderance of the
evidence that:
That [it] exercised reasonable care to prevent
harassing behavior in the workplace?
[if yes, proceed]
That [O’Brien] unreasonably failed to take advantage
of any preventative or corrective opportunities
provided by [Palms West] to avoid or correct the
harm? or
[O’Brien] took advantage of the preventative or
corrective opportunities by [Palms West] and [Palms
West] then responded by taking reasonable and
prompt corrective action?
13
the burden of establishing both of these elements. See id. (citing Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001)).
Going to the first element of the defense, the jury found that Palms West
“exercised reasonable care to prevent any sexually harassing behavior in the
workplace.” Because O’Brien did not cross-appeal this finding, we are only
concerned with whether she unreasonably failed to take advantage of Palms West’s
sexual harassment policy, and if not, whether Palms responded by taking reasonable
and prompt corrective action. See Sanchez, 269 F.3d at 1293 n.7.
The dispositive question under this part of the analysis is whether O’Brien
failed to put Palms West on notice when she reported the “harassing” phone calls to
Stowers, thereby failing to trigger Palms West’s duty to take reasonable and prompt
corrective actions until after all of the relevant sexually harassing conduct had
occurred. See Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1363-64 (11th Cir.
1999) (describing employee’s duty to follow employer’s harassment policy in order
to put employer on “notice”).
O’Brien contends that because she described the harassing phone calls to
Stowers, Palms West had a duty to follow its own sexual harassment policy
procedures. Citing to Coates, O’Brien maintains that this court need only look to
Palms West’s sexual harassment policy to determine “when it would be deemed to
14
have notice of the harassment sufficient to obligate it or its agents to take prompt and
appropriate remedial measures.” Id. at 1364. According to O’Brien, she reported the
phone calls to Stowers in early 2003, who, by the terms of Palm West’s policy, was
a designated representative for purposes of reporting sexual harassment. Therefore,
O’Brien maintains that Stowers was required, under the terms of Palms West’s sexual
harassment policy, to advise human resources of O’Brien’s complaint. Because
Stowers was a designated representative under the sexual harassment policy, O’Brien
argues that Palms West was on notice, and that Stowers’s failure to report the
complaint to human resources was dispositive of Palms West’s failure to comply with
its own policy. This, according to O’Brien, was all that she needed to show under
Coates to negate the Faragher/Ellerth affirmative defense.
O’Brien’s argument assumes that her conversation with Stowers was sufficient
to reasonably put Stowers on notice that the phone calls constituted sexual
harassment. According to Palms West, and as Stowers testified, even though O’Brien
referred to Dr. Chaparro’s phone calls as “harassing,” Stowers took this to mean
“annoying.” All that O’Brien indicated to Stowers during the conversation was that
Dr. Chaparro had phoned her late at night on as many as five occasions asking her to
meet him for a drink or to have dinner. There is no indication that O’Brien suggested
that any sexually explicit remarks or even sexual innuendos were made during these
15
phone calls. The only information that O’Brien relayed to Stowers was that Dr.
Chaparro had called five times asking her out on dates. O’Brien suggests that
whether this was enough to have put Palms West on notice about the harassment was
a factual question appropriately submitted to the jury.
In Coates, the plaintiff showed her plant supervisor a letter from a co-worker
that stated “From the Desk of Ernie Long, Hey Sweetheart $100 for 45 minutes of
hugging and kissing or $100 for stop loving Vickie guarantee.” Id. at 1365. We
found this note was not sufficient to reasonably place the plant supervisor on notice
of sexual harassment. Id. We noted that the letter was produced in the context of an
unrelated work conversation and that the plaintiff did not indicate that her “receipt
of the note represented a problem about which she was concerned or that required
[the supervisor’s] immediate attention.” Id. While genuine issues of fact regarding
the supervisor’s notice may be submitted to the jury, see Frederick, 246 F.3d at 1316,
here it appears that O’Brien’s conversation with Stowers did not put Palms West on
notice as a matter of law. See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290,
1300-01 (11th Cir. 2000) (relaying a particular incident that plaintiff found harassing
to supervisor was not enough to put employer on notice of sexual harassment or that
plaintiff wanted employer to take action).
16
At best, the phone calls, as described by O’Brien, amounted to co-worker
congeniality. At worst, they described a persistent but non-threatening suitor, which
still does not amount to harassment.12 See Oncale v. Sundower Offshore Servs., Inc.,
523 U.S. 75, 81 (1998) (noting that “intersexual flirtation” is not sexual harassment).
See also Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir. 2000) (“While
frequently calling an employee at home and making even innocuous inquiries may be
annoying or inappropriate behavior, it does not equal severe or pervasive sexual
harassment . . . .”). Even more, is the fact that O’Brien requested that Stowers not
report the incident and premised the complaint on Stowers’s promise of
confidentiality. We have held, albeit in an unpublished opinion, that “if [the plaintiff]
did not want [the harassing behavior] reported or acted upon, then [the employer]
would not have been placed on proper notice of the harassment . . . .” Olson v.
Lowe’s Home Ctrs., Inc., 130 F. App’x 380, 391 n.21 (11th Cir. 2005); see also
Baldwin, 480 F.3d at 1307 (“One of the primary obligations that the employee has
under [the rules promulgated by Faragher and Ellerth] is to take full advantage of the
12
O’Brien’s assertion (contained in a letter dated March 2, 2007 to the Court) that the opinion
in Valentine v. City of Chicago, 452 F.3d 670 (7th Cir. 2006), supports her claim is unavailing.
There, the Seventh Circuit noted that “aggravating” and “rude” behavior taken alone are not
sufficient to put an employer on notice of sexual harassment. Id. at 680. Dispositive to Valentine’s
finding that the employer was on notice was that the plaintiff had also complained of six instances
of unwanted touching by a co-worker. Id. This fact clearly distinguishes O’Brien’s conversation
with Stowers in which she only described Dr. Chaparro’s phone calls.
17
employer’s preventative measures.”) (emphasis added). We find Olson’s reasoning
persuasive in the context of this appeal given O’Brien’s insistence that the complaint
remain confidential and not be reported.13 Therefore, the substance of O’Brien’s
complaint coupled with the fact that she requested Stowers not to report it was
insufficient to place Palms West on notice of the sexual harassment.14
We reiterate that “[a]ll that is required of an investigation is reasonableness in
all of the circumstances . . . .” Id. at 1304. Here, Stowers fulfilled O’Brien’s request
to remove her phone number from the staff directory and to keep the matter
13
O’Brien’s citation to Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000), does not warrant
a different result. Malik advised “[p]rudent employers will compel harassing employees to cease all
such conduct and will not, even at the victim’s request, tolerate inappropriate conduct that may, if
not halted immediately, create a hostile environment.” Id. at 106 (emphasis added). However, the
plaintiff in Malik had complained about explicitly sexual comments, unlike O’Brien, who only
advised Stowers about several non-sexually related phone calls. Thus, there was no indication that
Dr. Chaparro posed a risk of creating a sexually hostile environment to O’Brien. Similarly O’Dell
v. Transworld Entm’t Corp., 153 F. Supp. 2d 378 (S.D.N.Y. 2001), and Mulvihill v. Top-Flite Golf
Co., 355 F.3d 15 (1st Cir. 2003), also cited by O’Brien, are inapposite as those decisions rely on
Malik for the same proposition. See also Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1186 (9th
Cir. 2005) (advising that “even if a more thorough investigation and disciplinary measures for the
harasser could in some circumstances be essential in spite of a harassed employee’s request to handle
the situation [by herself], there can be no such duty [where the employee does not apprise the
employer as to the sexual nature of the harassment ].”).
14
O’Brien contends that even if her conversation with Stowers did not put Palms West on
notice of Dr. Chaparro’s sexual harassment, this requirement should be excused because she was
“terrified” with what would happen to her job. We recently rejected this argument in Baldwin where
we stated “[t]he Faragher and Ellerth decisions present employees who are victims of harassment
with a hard choice: assist in the prevention of harassment by promptly reporting it to the employer,
or lose the opportunity to successfully prosecute a Title VII claim based on the harassment.” 480
F.3d at 1307 (citation omitted). See also Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272,
1290-91 (11th Cir. 2003) (“[A]bsent a credible threat of retaliation, . . . subjective fears of reprisal
do not excuse . . . failure to report . . . alleged harassment.”).
18
confidential. Thereafter, the phone calls stopped and O’Brien never reported any
further problems with Dr. Chaparro until many months later. We are unwilling to
conclude that Stowers’s response was unreasonable under this set of facts.
The next time O’Brien reported Dr. Chaparro’s behavior was following the
November 11, 2003 supply room incident, when she reported her complaint to
supervisors Knight and Stoop. Palms West was never apprised of any of Dr.
Chaparro’s behavior toward O’Brien (other than the phone calls) as she did not report
any of the sexual harassment until after all of the relevant conduct had occurred. In
Walton, the plaintiff waited five days after the last alleged incident to report
harassment that had began months earlier. 347 F.3d at 1290. We explained that had
the plaintiff reported the harassing incidents immediately after they occurred, most
of the harassment would have been avoided. Id. The same is true in O’Brien’s case,
as she never gave Palms West an opportunity to rectify Dr. Chaparro’s behavior until
after it had persisted for almost ten months. Therefore, Palms West cannot be held
accountable when it was not put on notice about the behavior. Id. (“[T]he victim of
the alleged harassment has an obligation to use reasonable care to avoid harm where
possible.”).
Finally, it is clear that once Palms West was put on notice of Dr. Chaparro’s
behavior on November 11, 2003, it responded by taking “reasonable and prompt
19
corrective action.” Per the terms of the sexual harassment policy, supervisors Knight
and Stoop immediately relayed O’Brien’s complaint to human resource director Kato,
who commenced an investigation the following day. Kato also forwarded the
complaint to Palms West CEO Rohan. Additionally, Kato contacted Patterson, Dr.
Chaparro’s supervisor, on November 13. Kato arranged a meeting with Patterson and
Dr. Chaparro on November 13. Meanwhile, O’Brien was granted a leave of absence
and was removed from neurosurgical patient care to avoid further contact with Dr.
Chaparro. During her meeting with Dr. Chaparro, Kato made clear that any further
interaction with O’Brien would be deemed inappropriate and considered retaliation.
Kato also passed her investigative report along to Dr. Chaparro’s superiors, who
delivered a disciplinary action form mandating that any further unprofessional contact
with O’Brien would result in “immediate termination.” Thereafter, O’Brien did not
report any further incidents with Dr. Chaparro. Accordingly, it is clear that Palms
West, which commenced its investigation within one day of the complaint, met its
duty by taking prompt and corrective action. See Walton, 347 F.3d at 1288 (noting
that the EEOC requires remedial measures “to stop the harassment” and “ensure that
the harassment does not recur,” and further noting that where “substantive measures
. . . are sufficient to address the harassing behavior, complaints about the process . .
. ring hollow”).
20
We need not reach the remainder of Palms West’s issues on appeal in light of
our resolution of the Faragher/Ellerth defense. See, e.g., Negron v. City of Miami
Beach, Fla., 113 F.3d 1563, 1571 (11th Cir. 1997).
IV. CONCLUSION
Accordingly, we REVERSE the district court’s denial of judgment as a matter
of law in favor of Palms West, and VACATE the jury award and the district court’s
award of costs and fees.
21