UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-60483
JENNIFER WAYMIRE,
Plaintiff-Appellant,
VERSUS
HARRIS COUNTY, TEXAS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
June 13, 1996
Before POLITZ, Chief Judge, and HILL1 and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Plaintiff-Appellant Jennifer Waymire appeals from a district
court grant of judgment as matter of law in favor of Defendant-
Appellee Harris County on her claim of sex discrimination. Finding
that Waymire failed to establish a hostile work environment claim
because the county took prompt remedial action, we affirm the
district court’s grant of judgment as a matter of law.
BACKGROUND
Jennifer Waymire, a jailer for Harris County (the “county”),
1
Circuit Judge of the Eleventh Circuit, sitting by
designation.
alleges that she was discriminated against because another jailer,
Eric Smith, had an inmate draw an obscene picture of her. Smith
then showed the picture to other jail employees.
On February 28, 1992, Eric Smith was working on the sixth
floor of the newly opened 701 Jail in Houston.2 Smith was
approached by an inmate who showed him several landscapes which he
had drawn on handkerchiefs. Smith, who had taken several art
classes in the past, asked the inmate if he could draw people. The
inmate replied that he could, so Smith challenged him to draw a
portrait in 15 minutes. The inmate asked what he should draw, and
Smith said to draw a female deputy. Then Smith said to draw an
inmate with a jumpsuit on, shooting craps on the dayroom table.
Smith further instructed that the portrait should have a caption,
“anything that’s funny.”
A short while later, the inmate returned with his ‘artwork.’
The drawing depicted a male inmate about to engage in sexual
intercourse with a female deputy. The inmate was standing behind
the deputy, jail jumpsuit at his feet, penis erect. The female
deputy was on her hands and knees on the dayroom table. The
caption above the inmate read, “Dam [sic] Baby, you have some good
pussy,” while the female deputy was saying “Hurry up and get that
Nut before the Sgt. come [sic].” In the picture, the deputy’s
uniform was on the floor and attached to the belt was a flashlight.
Smith took the picture from the inmate. He did not, however,
2
The jail was called the 701 jail because it was located at
701 North San Jacinto in Houston.
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report the inmate’s conduct, even though the obscene picture was
contraband. Rather than turning the picture over to proper jail
authorities, as regulations require, Smith took the picture home.
Smith violated jail policies by accepting the picture from the
inmate. Two days later Smith brought the picture back to work and
showed it to other jailers at roll call.
That day several jailers approached Waymire and told her about
the handkerchief. They thought that the drawing was of her,
because the deputy in the picture had a flashlight, and Waymire was
the only female deputy who wore a flashlight on her belt. She was
understandably upset about the drawing and asked Smith if she could
see it. He was initially reluctant to show it to her, but finally
relented. Waymire was disgusted by the picture.
Sergeant Mayberry, Smith’s and Waymire’s supervisor, was
present when Waymire saw the picture. He confiscated the drawing
and orally reprimanded Smith. Later, Sergeant Mayberry issued a
written reprimand to Smith. Sergeant Mayberry immediately began an
investigation of the incident. Within a week he wrote a report of
the incident and forwarded it to his immediate supervisor.
Within a month, the matter reached Chief Thomas, second in
command of the Sheriff’s Department, who decided to fire Smith.
Chief Thomas initially prepared a letter firing Smith, but changed
his mind. Instead, Chief Thomas decided to wait for the results of
an investigation by the county’s equal employment opportunity
compliance office. That report determined that Smith had not
harassed Waymire. Chief Thomas then instructed Captain Adams, the
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head of the 701 Jail, to reprimand Smith instead. Captain Adams
gave Smith a formal letter of reprimand, which was placed in his
permanent file. In the letter, Smith was warned that further
conduct of this nature could lead to his dismissal.
In late April 1992, Waymire filed a claim of discrimination
with the United States Equal Employment Opportunity Commission
(“EEOC”), alleging that she had been sexually harassed. In August
1992, six months after the picture incident, Waymire resigned from
the Sheriff’s Department.
In May 1993, Waymire filed suit against Harris County,
alleging that (1) she was discriminated against based on sex
because of a hostile work environment and (2) Harris County
retaliated against her for filing a complaint with the EEOC, both
in violation of Title VII of the Civil Rights Act of 1964, codified
at 42 U.S.C. § 2000e-2, et seq. Specifically, she alleges that:
(1) a lieutenant in the jail told her that he was going to make her
life hell and (2) she was often trapped in elevators with inmates,3
putting her in danger.
A jury found in favor of Waymire on her claim of sexual
harassment, awarding her $38,375. The jury also found that Waymire
was constructively discharged. The jury, however, rejected her
claim of retaliation. The county moved for judgment as a matter of
law at the close of Waymire’s case-in-chief, and renewed that
motion at the close of all evidence. After the verdict, the county
3
The elevators in the jail are not operated by the individual
in the elevator, but rather by other jailers.
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again moved for judgment as a matter of law pursuant to Rule 50 of
the Federal Rules of Civil Procedure. The district court granted
that motion and judgment was rendered in favor of the county.
Waymire filed a timely notice of appeal.
STANDARD OF REVIEW
In reviewing a district court’s grant of judgment as a matter
of law we apply the same standard of review as the district court.
Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 950 (5th
Cir. 1994). We must consider all the evidence presented in the
light most favorable to the non-movant, Waymire. Id. “The motion
is properly granted when the facts and inferences point so strongly
in favor of the movant that a rational jury could not arrive at a
contrary verdict.” London v. MAC Corp. of America, 44 F.3d 316,
318 (5th Cir. 1995). "If there is substantial evidence -- that is,
evidence of such quality and weight that reasonable and fair-minded
jurors might reach a different conclusion -- then the motion should
have been denied." Robertson, 32 F.3d. at 951.
DISCUSSION
To state a claim under Title VII for sex discrimination based
on a theory of a hostile work environment, a plaintiff must prove:
(1) that she belongs to a protected class; (2) that she was subject
to unwelcome harassment; (3) that the harassment was based on sex;
(4) that the harassment affected a term, condition or privilege of
employment; and (5) that the employer knew or should have known
about the harassment and failed to take prompt remedial action.
Weller v. Citation Oil & Gas Corp., 1996 WL 257572, *18 (5th Cir.
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June 3, 1996); Nash v. Electrospace System, Inc., 9 F.3d 401, 403
(5th Cir. 1993). The district court granted the county’s motion
for judgment as a matter of law because it determined that no
rational juror could find that elements four and five were met.
After a detailed review of the record, we agree with the district
court that no rational juror could find that the county failed to
take prompt remedial action. Because the county’s prompt remedial
action protects it from liability, we need not address whether the
harassment affected a term, condition or privilege of employment,
or whether Waymire was constructively discharged.
In the recent case of Carmon v. Lubrizol Corp., 17 F.3d 791,
795 (5th Cir. 1994), we found that an employer took prompt remedial
action because “[i]t took the allegation seriously, it conducted
prompt and thorough investigations, and it immediately implemented
remedial and disciplinary measures based on the results of such
investigations.” These actions, we said, are “what a company ought
to do when faced with allegations that an employee has been
subjected to sexual harassment. . . .” Id. (emphasis in original).
These actions are what the county did when it learned of the
drawing. As soon as Sergeant Mayberry discovered the picture, he
confiscated it and orally reprimanded Smith. Sergeant Mayberry
then filed a written report reprimanding Smith, and began an
investigation of the incident. Within a week of discovering the
drawing, Sergeant Mayberry: (1) interviewed Waymire regarding the
drawing; (2) interviewed the inmate who drew the picture; and (3)
obtained reports from nine deputies and jailers who knew of the
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drawing. Sergeant Mayberry then sent a six page report of the
incident to his supervisor, who forwarded the report to the
commander of the jail, Captain Adams. Within a month of the
incident the number two person in the Sheriff’s Department, Chief
Thomas, decided to fire Smith. Chief Thomas later delayed that
decision until the county’s equal employment opportunity compliance
officer completed her investigation of the incident. After that
investigation determined that Smith had not harassed Waymire, Chief
Thomas decided not to fire Smith, and instead Smith was issued a
formal letter of reprimand by Captain Adams. In the letter, issued
three months after the drawing was discovered, Smith was warned
that further violations could lead to termination.
Waymire argues that this response was not prompt remedial
action. Specifically, Waymire contends the county’s response was
deficient because: (1) Sergeant Mayberry did not wait for Waymire’s
written statement before writing his report; (2) in his report,
Sergeant Mayberry concluded that Waymire’s allegations were
“totally unfounded and with[out] substance, retaliatory fabricated
and vindictive in nature”; (3) it took over three months before the
county took final action on the incident; and (4) Captain Adams
merely reprimanded Smith instead of firing him. We will address
each of these objections in turn.
The fact that Sergeant Mayberry did not wait for Waymire’s
written statement does not effect the County’s prompt remedial
actions. Sergeant Mayberry had spoken at length with Waymire and
knew her views on the situation. He knew that Waymire was offended
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by the drawing and would only be satisfied if Smith were fired.
These sentiments were incorporated into his report. Therefore, the
absence of Waymire’s written statement did not affect the
investigation.
We are troubled by Sergeant Mayberry’s comments in the report
that Waymire’s actions were without substance, retaliatory,
fabricated and vindictive. However, the issue is not whether
Sergeant Mayberry took prompt remedial action, but whether the
county did so. The county seriously considered firing Smith, and
ultimately formally reprimanded him, placing a letter in his
permanent file. It is important to note, also, that even though
Sergeant Mayberry thought Waymire vindictive and her charges
without substance, he did twice reprimand Smith and filed the
report. Sergeant Mayberry may have expressed serious doubts about
Waymire’s claim, but he took it seriously enough to perform a
detailed investigation and write a lengthy report.
The fact that the county’s investigation took three months
does not cause it to fail the “promptness” requirement. The
investiga-tion originally moved quickly. Smith was reprimanded
twice on the day of discovery, and a report was issued within a
week. Within a month, the second in command of the Sheriff’s
Department made a preliminary decision. The only delay occurred
while the department waited for the report by the county’s equal
employment opportunity compliance officer. We have said before
that in analyzing the promptness of response it is important to
keep in mind the entity’s “lines of command [and] organization
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format.” Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309
(5th Cir. 1987). Considering the Sheriff’s Department’s and
county’s lines of command and organization format, the county’s
response, even with the three month delay, was prompt.
It is appropriate that the county reprimanded Smith rather
than firing him. As we have said, “Title VII does not require that
an employer use the most serious sanction available to punish an
offender, particularly where, as here this was the first documented
offense by [the] individual employee.” Landgraf v. USI Film
Products, 968 F.2d 427, 430 (5th Cir. 1992). When the incident
took place, Smith was a 21 year old who had been a jailer for less
than six months. By accepting the obscene drawing from the inmate,
taking it home, and showing it around, Smith exercised extremely
poor judgment. However, that one instance of poor judgment does
not require that Smith be fired. The county’s decision to
reprimand Smith was a prompt remedial measure. Waymire testified
that Smith never harassed her again, and the record does not show
that he ever harassed anyone else. Based on these facts, the
county’s actions were sufficient to remedy any hostile work
environment.
CONCLUSION
Let us make clear that we do not condone Smith’s actions. The
picture the inmate drew was vile, disgusting and obscene. The fact
that it shows an inmate engaging in sexual intercourse with a
jailer is reprehensible. Upon discovering the drawing, Smith’s
proper course of action would have been to report the inmate and
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turn in the drawing.
Smith, however, is not a defendant in this action. Title VII
places liability on employers, not employees. Therefore, it is the
county’s conduct which we are judging. As discussed above, the
county responded appropriately to the drawing and to Smith’s
conduct. Immediate action was taken and Smith was severely
reprimanded. While Smith did not receive the ultimate sanction,
dismissal, he was appropriately disciplined.
Because we conclude as a matter of law that the county, upon
learning of the drawing, took prompt remedial action, Waymire has
failed to establish an essential element of her hostile work
environment cause of action. Therefore, the district court’s
judgment as a matter of law in favor of the county is AFFIRMED.
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