Jennifer Waymire v. Harris County, Texas

                    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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