Lindsey Morgan Cramer v. Bojangles' Restaurants, Inc.

Case: 12-11750 Date Filed: 11/20/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-11750
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00159-RWS

LINDSEY MORGAN CRAMER,

Plaintiff-Appellant,

versus

BOJANGLES’ RESTAURANTS, INC.,

llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Georgia
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(November 20, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
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Lindsey Cramer appeals the summary judgment in favor of her former

employer, Bojangles’ Restaurants, Inc., and against her complaint of sexual

harassment in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C.

§ 2000e-2(a)(1), and of violations of Georgia law. Cramer argues that she

established a prima facie case of sexual harassment by a co-worker; she was

constructively discharged; and Bojangles ratified the tortious conduct of Cramer’s

co-worker and was negligent in supervising and retaining the co-worker. We

affirm.

Cramer failed to prove that Bojangles knew that Cramer had been sexually

harassed by a co-worker or failed to take prompt remedial action after learning of

the harassment. See Nurse “Be” v. Columbia Palms W. Hosp. Ltd., 490 F.3d

1302, 1309 (11th Cir. 2007); Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,

1278 (11th Cir. 2002). Bojangles had an antidiscrimination policy that required its

employees to report any alleged sexual harassment to the Area Director, the

Regional Vice President, or the Human Resources Department through its

harassment hotline. Although Cramer signed a copy of the harassment policy, she

failed to use the channels provided in the policy to complain about the graphic and

lewd sexual statements that her co-worker, Fernando Funez, allegedly made on

five occasions. See Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300

(11th Cir. 2000); Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364, 1366 (11th

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Cir. 1999). Instead, Cramer complained to her immediate supervisor, Sajad

Akhtar, about Funez’s “nasty” statements. When Cramer took the advice of an

assistant manager and used the harassment hotline to report a sixth incident in

which Funez allegedly touched Cramer’s genital area, Bojangles took “reasonable

and prompt corrective action” to end the harassment. Nurse “Be”, 490 F.3d at

1309. Within three hours of Cramer’s call, the Area Director attempted

unsuccessfully to contact Cramer. In the next two weeks, Bojangles suspended

Funez, investigated Cramer’s complaint, and fired Funez.

Cramer also failed to prove that she was constructively discharged. An

employee suffers a constructive discharge when her working conditions are so

intolerable that a reasonable person would feel compelled to resign. Kilgore v.

Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996). Nevertheless,

“[a] constructive discharge will generally not be found if the employer is not given

sufficient time to remedy the situation.” Id. Cramer failed to notify Bojangles of

Funez’s improper statements, and she resigned before reporting the alleged sexual

harassment through the Bojangles harassment hotline. After she resigned, Cramer

would not participate in Bojangles’s investigation and never responded to

Bojangles’s unconditional offer of reemployment. Cramer refused to give

Bojangles an opportunity to correct the situation.

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Cramer also cannot prevail on her claims under Georgia law. Cramer

alleged that Bojangles ratified the assault, battery, false imprisonment, and

invasion of privacy committed by Funez, but Cramer failed to present any

“evidence that [Funez’s] conduct was done in furtherance of [Bojangles’s]

business and within the scope of [his] employment.” Hankerson v. Hammett, 647

S.E.2d 319, 323 (Ga. Ct. App. 2007) (internal quotation marks omitted). Although

Cramer alleged that Bojangles was negligent in supervising or retaining Funez,

Cramer failed to “establish that [Bojangles] reasonably knew or should have

known of [Funez’s] ‘tendencies’ to engage in [sexual harassment].” Munroe v.

Universal Health Servs., Inc., 596 S.E.2d 604, 606 (Ga. 2004). And Cramer could

not recover for the alleged “physiological and psychological effects” of the sexual

harassment because “[a] claim for emotional distress caused by negligence must be

supported by evidence that the plaintiff suffered an impact resulting in physical

injury.” Travis Pruitt & Assocs., P.C. v. Hooper, 625 S.E.2d 445, 450 (Ga. Ct.

App. 2005). Because Cramer did not have a viable claim under state law and

presented no evidence that Bojangles acted in bad faith or was stubbornly litigious,

Cramer could not recover punitive damages or recoup her expenses of litigation.

See Benefit Support, Inc. v. Hall Cnty., 637 S.E.2d 763, 771 (Ga. Ct. App. 2006);

Tower Fin. Servs., Inc. v. Smith, 423 S.E.2d 257, 264 (Ga. Ct. App.1992).

We AFFIRM the summary judgment in favor of Bojangles’ Restaurants.

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