United States Court of Appeals,
Eleventh Circuit.
No. 94-9220.
Phyllis WATKINS, Plaintiff-Appellant,
v.
Ralph T. BOWDEN, Jr., Individually and in his official capacity
as DeKalb County Solicitor; DeKalb County, Georgia, Defendants-
Appellees.
Feb. 18, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-cv-1737-ODE), Orinda D. Evans,
Judge.
Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD,
Senior Circuit Judge.
PER CURIAM:
In this appeal, we affirm the district court's entry of
judgment for appellees Ralph Bowden and DeKalb County, Georgia, on
appellant Phyllis Watkins's constitutional claims brought pursuant
to 42 U.S.C. § 1983.
FACTS
On January 15, 1990, Phyllis Watkins, an African-American
female, began work as an assistant solicitor (assistant) in the
1
Office of the Solicitor of DeKalb County (the office). Ralph
Bowden, solicitor of the county, had hired Watkins the preceding
week. Bowden informed Watkins, the only African-American lawyer in
the office, that she was subject to a six month probationary period
and that he expected a two-year commitment from her. Watkins's
employment lasted until March 15, 1990; the parties sharply
1
Assistants process and prosecute individuals charged with
misdemeanors in DeKalb County (the county).
dispute the events surrounding her tenure. During a jury trial,
witnesses testified to the following factual scenarios.
Phyllis Watkins
Watkins testified that she experienced a series of occurrences
during her second week of work that she "found ... to be a little
strange and/or offensive." The office receptionist questioned her
if "black people have to wash their hair every day." One of the
office's investigators inquired whether Watkins's hair was real and
whether she had to comb it daily. Assistant Lisa Heiszek asked
Watkins if her ancestors were from Nigeria because she "could hear
Nigerian in [Watkins's] voice."2 Ann Elmore, an assistant and the
office's "trial specialist," asked Watkins "why was it that when
black people and Japanese people have babies together, the babies
are considered black, but when white people and Japanese people
have babies together, the babies are considered white?"
On another occasion, Watkins overheard two assistants, Andy
Rogers and Andrew Fernandez, her trial partner, laughing at the
prospect of buying a house near Carver High School, which is
located in a neighborhood of Atlanta populated predominantly by
African-Americans.3 Watkins also overheard Rogers, Fernandez, and
another assistant, Neal Bevans, discussing the film "Mandingo";
Fernandez stated that if "[y]ou watch that movie, ... you are just
going to go, "Oh my God.' " Watkins testified that she perceived
2
Watkins was born and raised in Georgia, and her family has
lived there for generations.
3
Fernandez testified that he did not have any recollection
of this conversation and did not know the location of the school.
Fernandez's comment as a statement on "a stereotype of black men,
that black men are supposed to have big genitals." 4 Watkins also
heard her secretary, Robin Clements, telling a joke comparing Jesse
Jackson to Buckwheat, the television character. Watkins told
Clements not to "tell black jokes in here," and Clements
apologized.5
Watkins testified that she discussed these occurrences at the
end of her second work week with Cliff Howard, the chief assistant
solicitor of the office. According to Watkins, she informed Howard
that the sexual and racial context of her colleagues' comments
offended her. She testified that Howard told her that he would
talk to Bowden about their conversation and speak to the
responsible individuals. Watkins also testified that during this
meeting Howard told her that one of his relatives was associated
with the Ku Klux Klan.
After this initial meeting with Howard, Watkins continued to
endure offensive incidents. While at lunch with four male
colleagues, assistants Rogers, Gary Bergman, and Brad Malkin, and
investigator David Newbern, "[t]he conversation turned to the size
of Jewish men's penises, that they were small, and after a few
minutes of this, they all turned to me, and I believe Gary Bergman
asked me if it was true what they said about black men." The men
laughed at this question; Watkins explained that she was offended
by the comments and "shocked that somebody would ask me that
4
Fernandez denied that this incident took place.
5
Clements's testimony corroborated Watkins's account of the
incident.
question." 6 On another day, upon Watkins's return to the office
following a weekend vacation with her husband, Rogers asked her, in
front of Howard and assistant Judy Emken, "Well, what was sex like
with your husband? I'm sure they had to put you in a building that
was all the way to the end because there was just a whole lot of
yelling and screaming going on." Howard laughed at Rogers's
remark.7
Regarding Emken, Watkins recounted that "there were constant
jokes about her hair, that she was a fake blond[e], that she was
dumb. Also, [other assistants] asked her questions all the time
about her boyfriend, and her relationship[s] with her boyfriend."
Howard informed Watkins that he had engaged in a sexual
relationship with Emken. Watkins also testified that colleagues
repeatedly made derogatory remarks regarding the competence of
Judge Linda Hunter, an African-American female, who, at the
relevant time, served as a state trial judge and presided over
matters the office handled.
Later, Watkins assisted Fernandez on a case involving a
Nigerian defendant. According to Watkins, after a witness provided
testimony favorable to the defendant, Fernandez said, "I wish they
would all go back."8 On another day, when Watkins told Fernandez
that she volunteered at a rape crisis center, Fernandez responded,
6
Rogers testified that the statements occurred, but that
Watkins responded to the questions in an "excited" manner and was
"very willing to engage in this topic of conversation."
7
Rogers testified that he "would not ask a question like
that."
8
Fernandez denied that he made this statement.
"Well, where can I go to get raped?"9
Watkins testified that following these incidents she again
reported her concerns and dissatisfaction to Howard. According to
Watkins, Howard expressed that "these were his friends, that I was
taking all of this stuff out of context, and that once I got to
know them better, that I would see they were only trying to get to
know me as a person."
Watkins testified that after five weeks on the job she
continued to hear comments she considered offensive. She
maintained that the comments regarding Emken and Judge Hunter "were
almost daily nonstop." Moreover, upon entering Malkin's office one
day, the assistant told Watkins that the black trash can on his
desk was a phallic symbol. When Watkins reported this incident to
Howard, Howard laughed about it. Watkins also testified that
Bevans would "constantly" mimic, to the amusement of colleagues,
what he perceived as the speech patterns of African-Americans. In
addition, Watkins related that one day Howard came up behind her,
placed his face a few inches from her head, and smelled her hair.
He stated that Watkins's "hair smells good. It smells like
coconut." Watkins further testified that Fernandez and Howard once
invited her to accompany them to a strip club.
As a result of these episodes, Watkins suffered from
depression and anxiety; she received medical treatment for her
depression in 1991. Watkins testified that she articulated her
frustrations about the office to assistant Deborah Blum and former
9
Fernandez testified, "I never made that statement. I would
never make that kind of statement."
assistant Greg Adams.10 She also received counselling from her
minister, Dr. Earl Moore. Watkins acknowledged that she sought out
Dr. Moore's advice in part because of his affiliations with the
Southern Christian Leadership Conference (SCLC) and the Concerned
Black Clergy; she believed Dr. Moore could advise her well on what
course of action to take concerning the office's environment. Two
weeks before her termination, Watkins met with Dr. Moore because
"the situation in the solicitor's office had gotten so bad, and I
felt this situation was greater or bigger than just my employment."
Watkins had concerns that future female and minority group member
assistants would face the same atmosphere in the office. Dr. Moore
and Watkins agreed on a plan of action—Dr. Moore gave Watkins a
list of civil rights leaders to contact and stated that he would
also contact community leaders and arrange for Watkins to meet with
them. Watkins testified that she did not follow through with the
plan because she "was fired before [she] was able to get to the
people."11
On March 15, 1990, all the assistants and Bowden attended a
Decatur-DeKalb Bar Association luncheon. The luncheon speaker made
several "jokes about females and ... black people" which Watkins
found inappropriate, including, for example, that "women lawyers
10
Watkins also testified that she did not receive "the
training that was promised" and thus was not given the
opportunity to develop as a prosecutor.
11
Watkins recounted that after she was fired she contacted
two officials of the National Association for the Advancement of
Colored People (NAACP), a Georgia congressman's office, the SCLC,
and Manuel Maloff, Chairman of the DeKalb County Commission. She
also filed a complaint with the Equal Employment Opportunity
Commission (EEOC).
are to the practice of law as women drivers are to the traffic
flow."12 After the luncheon, Watkins told Bowden that she found the
comments offensive and asked what he felt about the speaker's
presentation. According to Watkins, Bowden "thought the speech was
offensive because black people were in the audience."13 Later that
afternoon, Bowden informed Watkins that she was being terminated.
According to Watkins, Bowden stated that he was firing her because
she (1) did not know the Federal Rules of Evidence; (2) did not
get along with Elmore; (3) dressed inappropriately for court; (4)
could not take criticism well; and (5) could not operate under
pressure. Watkins testified that she told Bowden, "I knew why I
was being terminated, because I constantly complained about the
behavior of my colleagues in the office." In response, Bowden told
Watkins that she should have ignored the behavior and comments of
others and focused on developing her prosecutorial skills. Watkins
asked Bowden for the opportunity to work another month, but he
refused, stating that she would "never be able to function as a
prosecutor." Bowden, however, gave Watkins the opportunity to
resign, which she did.
David Newbern
Newbern testified that "[w]ithin the office ... there was a
very probing nature into everybody's sexual relationships. There
were many sexual jokes that were told within the office, and also
12
Several witnesses testified that they also found the
speaker's comments insulting.
13
Watkins had the "impression that what ... Mr. Bowden was
saying was that if no blacks had attended this meeting, that it
would have been okay to say these ridiculous things."
there were many occasions of ... racial jokes." Newbern's
testimony corroborated Watkins's version of events at the lunch
with Rogers, Bergman, and Malkin; Newbern stated that with
"Watkins being very new in the office at that time, she didn't
respond" to the offensive statements. Newbern also confirmed
Watkins's allegations concerning their colleagues' repeated
derogatory comments about Judge Hunter. He testified that
employees contended Judge Hunter "was incompetent to be in the
position of judge, and often they thought she got that position
because she is a black female.... [I]n general there seemed to be
anger towards Linda Hunter." Newbern also explained that he heard
"an assistant solicitor mimicking defendants who had been in court,
and plaintiffs who had been in court; in particular, blacks who
were from a lower income group, and this was fairly commonplace
that joking of this nature went on." In response to the mimicking,
"[g]enerally people laughed, kind of played along."
Gwendolyn Steel-Hill
Steel-Hill, an African-American female and one of the office's
investigators, testified that colleagues told sexual and racial
jokes during the period of Watkins's employ. "The sexual jokes
were about male sex organs, women who weren't getting any. The
racial jokes tended to be mimicking or making fun of blacks." She
confirmed that comments were made in the presence of Watkins about
"black men having larger sexual organs than white men" and about
Emken's sexual activity. Steel-Hill observed Watkins crying in the
office on three occasions. She believed, and told Watkins, "that
there were people in the office that would like to see her fail."
Steel-Hill heard colleagues joke about the smell and texture of
Watkins's hair; she also heard Howard ask Watkins whether her hair
was real.
Dr. Earl Moore
Dr. Moore testified that approximately three weeks after
Watkins had started work in the office, he noticed a "look of
sadness on her face" and inquired if she had any problems. In
response, Watkins admitted to her difficulties on the job. The two
engaged in prayer together, and their meeting ended. A few weeks
later, Dr. Moore noticed that Watkins "was looking distressed," and
he asked about conditions at the office. The two conferred about
the situation; Dr. Moore informed Watkins that she "need[ed] some
advocates." "I suggested to her that she go to the NAACP, the
SCLC, and I told her that I would take it to the Concerned Black
Clergy, and I suggested that she go to the EEOC...." Dr. Moore
testified that Watkins "indicated that she intended to" carry out
this plan. Dr. Moore never contacted Bowden.
Ralph Bowden
Bowden testified that he expects Howard to communicate with
him and that the two "have a policy of keeping each other well
informed on everything that's going on in the office of any
significance." Indeed, Bowden and Howard meet regularly to discuss
matters that occur in the office. Though the office has no written
policies concerning sexual or racial harassment, Bowden believes
that Howard "certainly" would tell him about any harassment issues.
He stated that if Watkins heard any statements that offended her,
and articulated that to Howard, "then he certainly ought to come
tell me about that." Bowden stated that he has an "open door"
policy and that assistants are free to come to him with problems or
concerns. He noticed that Watkins appeared sad and depressed in
the office. He denied, however, knowing about any of the comments
or incidents that Watkins allegedly endured. He stated that if
those comments had been made he would have wanted to know about
them. Bowden also remarked that if the comments occurred, and
Watkins told Howard about them, he "absolutely" would have expected
Howard to communicate this to him.
As to the training provided in the office, Bowden stated:
We don't train our assistants. The process of going from
being a new lawyer to becoming an assistant solicitor maybe
contains 10 or 15 percent of what we would call training;
that is, sitting down with somebody and showing them how to
fill out a form, showing them how to use the accusation form
book. We don't really have a training program.... We give
you an opportunity to learn how to be an assistant solicitor,
and you do that by observing and doing.
Around March 1, 1990, Bowden received a telephone call from
Judge Jack McLaughlin (before whom Watkins had appeared), who
stated that Watkins needed supervision and was not ready to be left
alone in the courtroom.14 Around the same time, Elmore told Bowden
that they had a "very serious problem" in Watkins. Elmore relayed
to Bowden that Watkins had (1) walked out of the courtroom on one
occasion in a pouting and sullen mood; (2) failed to keep
appointments with her; and (3) continually made the same mistakes
and thus was failing to progress as a prosecutor. Bowden testified
that before terminating Watkins, "I think I talked to every
assistant in that office, everyone who had been there for more than
14
Judge McLaughlin corroborated Bowden's testimony regarding
this conversation.
a year. So, I had an office full of experienced prosecutors, and
I talked to every one of them about the problem, yes." Bowden
maintained that no one, including Howard, told him that Watkins had
complained about sexist and racial comments made in the office.
Instead, all the assistants commented on "fundamental problems"
having to do with Watkins's performance as a prosecutor. Bowden
did not speak to Watkins concerning her performance before
terminating her employment. He denied that Watkins discussed at
the termination meeting any of the occurrences about which she
testified. Bowden reported that Watkins responded to her
termination with a sense of relief. He granted her request that
she be permitted to resign.
Cliff Howard
Howard testified that pursuant to office structure assistants
go to him with day-to-day problems; if he is not available, they
go directly to Bowden. He expressed that his "job is to make a
decision about what problems to go talk to Ralph about, and which
ones not to go talk to [him] about." He testified that if there
were complaints about sexual or racial harassment, "I would bring
that to Ralph's attention." Howard confirmed that Watkins came to
him after two or three weeks on the job and had concerns about (1)
colleagues' comments about her hair; (2) Rogers's and Fernandez's
remarks about living near Carver High School; and (3) the
conversation surrounding the film "Mandingo." Howard did not
relate Watkins's concerns to Bowden. He testified that
approximately two weeks after this initial meeting, Watkins
approached him and told him, "No one here is a racist. I really
like all the people I work with."
Howard explained that he did not take any action after Watkins
later complained to him about Bevans mimicking African-Americans
because "when we had the discussion about that's how Neal deals
with situations, he mimics everybody, he has mimicked everybody in
the office, she seemed to be satisfied with that statement." He
also testified that Watkins approached him about Emken and was
concerned about the "hard time" Emken was given. Howard told
Watkins that Emken had made no indication that she viewed any
behavior toward her as a problem. After this second meeting,
Howard "didn't think [the situation] rose to the level of something
I needed to bring to Mr. Bowden's attention." Howard denied that
he told Watkins about his relationship with Emken and that a family
member of his was involved in the Ku Klux Klan. He also denied
that he ever asked Watkins to accompany him to a strip club.
Howard had no recollection of Rogers's comments concerning
Watkins's vacation weekend. He further denied coming up behind
Watkins and smelling her hair. He also reported that he never
observed Watkins looking upset in the office.
After Bowden informed Howard that Judge McLaughlin had called
about Watkins's performance, Howard talked to "several assistants
[who] had worked with Phyllis." Howard testified that he and
Bowden had "between 10 and 35 discussions" about the decision to
terminate Watkins prior to her firing. Howard never mentioned any
of Watkins's complaints to Bowden during these discussions.
Rather, the two men discussed Watkins's "ability to perform the
job."
PROCEDURAL HISTORY
In July 1991, Watkins instituted this lawsuit against Bowden
and the county (collectively, "appellees") in the United States
District Court for the Northern District of Georgia, alleging an
array of federal constitutional claims and one state tort law cause
of action. Appellees subsequently moved for summary judgment; in
February 1993, the district court granted appellees' motion in part
and denied it in part. Four of Watkins's claims against appellees,
all brought pursuant to 42 U.S.C. § 1983, survived the court's
order: (1) a retaliatory discharge claim under the First Amendment
based on her complaints of sexual and racial harassment; (2) a
retaliatory discharge claim under the First Amendment based on her
complaint about the speech given at the bar luncheon; (3) a
retaliatory discharge claim under the Equal Protection Clause based
on her complaints of sexual and racial harassment; and (4) a
hostile work environment sexual and racial harassment claim under
the Equal Protection Clause. On appeal, this court found that
Watkins "failed to establish that defendant Bowden violated
clearly-established First Amendment law" and thus "reverse[d] the
judgment of the district court only insofar as it failed to grant
summary judgment to Bowden on plaintiff's First Amendment
claim[s]." Watkins v. Bowden, 28 F.3d 118 (table), No. 93-8779,
slip op. at 2 (11th Cir. June 30, 1994) (unpublished opinion).
Watkins tried her claims before a jury in September 1994. At
the close of Watkins's case, the district court granted directed
verdicts for appellees on all of her claims except the hostile work
environment sexual and racial harassment allegation against the
county. As to that claim, the court instructed the jury, in
relevant part, that:
Whether the harassment was sufficiently severe as to
alter the conditions of the plaintiff's employment is viewed
from the standpoint of a reasonable African American or woman;
that is, whether a reasonable African American or woman would
find such harassment sufficiently severe so as to alter the
conditions of employment and create an abusive working
environment.
In addition to showing that an abusive working
environment existed from an objective standpoint, the
plaintiff must also prove that she actually perceived the
environment as hostile and abusive as well.
After the jury retired with instructions not to begin
deliberations, counsel for the county objected to the above
instruction, arguing that Harris v. Forklift Systems, Inc., 510
U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), mandated that the
court instruct the jury to assess the alleged harassment from the
perspective of a "reasonable person." Counsel persuaded the court
of their position; accordingly, the court called the jury back
into the courtroom and stated:
Members of the jury, it has been called to my attention
that I gave you one inaccurate instruction. I instructed you
that in determining whether an abusive or hostile work
environment existed, that you would use an objective test
looking through the eyes of a reasonable African American or
woman. That was not correct.
The correct test is you look to see whether, objectively
speaking, a hostile working environment existed looking
through the eyes of a reasonable person.
In addition to that, as I previously told you, you also
look to see whether the evidence shows that the plaintiff
actually perceived the environment as abusive and hostile as
well.
The jury returned a verdict for the county. This appeal followed.
CONTENTIONS
Watkins first contends that the district court erred in
granting a directed verdict for the county on her claim of
retaliation under the First Amendment for her complaints of sexual
and racial harassment because those complaints affect a matter of
public concern and the evidence gives rise to an inference that
Bowden (and thus the county) knew or had notice of those
complaints. Watkins also insists that the court erred in granting
the county a directed verdict on her retaliation claim under the
First Amendment for her complaint regarding the bar luncheon
speaker because the evidence justifies an inference that Bowden
terminated her with a retaliatory motive. Next, Watkins asserts
that the court erred in granting appellees' motion for a directed
verdict on her claim of retaliation under the Equal Protection
Clause because, again, the evidence gives rise to a reasonable
inference that Bowden had knowledge or notice of her complaints of
sexual and racial harassment. Lastly, Watkins argues that the
court's corrective jury instruction employing a "reasonable person"
standard for evaluating whether a hostile work environment existed
was erroneous and highly prejudicial.15
Appellees respond to Watkins's contentions as follows.
First, the court properly granted appellees judgment as a matter of
law on Watkins's retaliation claims because she did not present
sufficient evidence from which a reasonable jury could infer that
Bowden had knowledge of her complaints. Without knowledge of
Watkins's complaints, Bowden could not have formed the required
15
This contention only affects Watkins's claim against the
county. Watkins did not appeal the district court's grant of a
directed verdict for Bowden on her hostile work environment
claim.
retaliatory motive. Moreover, the court correctly held that
Watkins's complaints regarding allegedly offensive conduct in the
work place did not amount to a matter of public concern sufficient
to trigger the protection of the First Amendment. As for Watkins's
claim that Bowden terminated her in retaliation for her complaint
concerning the bar luncheon speaker, the court properly held that
Watkins presented insufficient evidence from which a reasonable
jury could conclude that Bowden harbored the required unlawful
retaliatory motive. In addition, as a matter of law Watkins cannot
state a "generic" retaliation claim under the Equal Protection
Clause. Finally, the court properly instructed the jury on the
objective component of the standard for evaluating hostile work
environment claims; indeed, Harris compels the "reasonable person"
instruction.16
16
Watkins presses two other issues that we reject in summary
fashion. First, she argues that the district court erred in
refusing to admit Steel-Hill's proffered testimony concerning
alleged retaliation against her in 1992 and the proffered
testimony of Yvonne Twyman-Williams, an African-American female
who served as an assistant in the office from January 1992 to
April 1993. Twyman-Williams intended to testify about the
office's atmosphere and alleged retaliation against her during
her tenure. The district court possesses broad discretion in
determining the admissibility of evidence, and this court will
not disturb its rulings absent a clear showing of an abuse of
discretion. Lanham v. Whitfield, 805 F.2d 970, 972 (11th
Cir.1986). The district court reasoned that both witnesses'
proffered testimony was (1) too far removed in time from the
period that Watkins worked in the office, and (2) not
sufficiently similar to Watkins's allegations to merit admission
under Federal Rule of Evidence 404(b). The record confirms that
the district court's ruling did not constitute an abuse of
discretion.
Second, Watkins contends that the district court's
questioning of Newbern indicated to the jury that the court
believed that the assistants were merely "joking around"
when they engaged in sexual or racial banter, and,
therefore, the court overstepped its bounds of discretion
DISCUSSION
A. First Amendment Retaliation Claims
The district court relied on two grounds in directing a
verdict for the county on Watkins's First Amendment retaliation
claim based on her complaints of sexual and racial harassment.
First, the court found that no evidence of substance existed that
Bowden knew of Watkins's complaints. Second, the court did not
find that "the complaints that Mrs. Watkins related to Mr. Howard
r[o]se to the level of First Amendment concern." We first address
the district court's second holding, because if Watkins's
complaints did not affect a matter of public concern, her First
Amendment claims must fail.
A state may not demote or discharge a public employee in
retaliation for protected speech. This circuit has developed
a four-part test to determine whether an employee suffered
such retaliation. First, a court must determine whether the
employee's speech may be fairly characterized as constituting
speech on a matter of public concern. If so, the district
court must weigh the employee's first amendment interests
against the interest of the state, as an employer, in
promoting the efficiency of the public services it performs
through its employees. Should the employee prevail on the
balancing test, the fact-finder determines whether the
employee's speech played a substantial part in the
government's decision to demote or discharge the employee.
Finally, if the employee shows that the speech was a
substantial motivating factor in the employment decision, the
and assumed an advocate's role. A trial judge retains the
authority to question witnesses but can abuse that authority
by assuming the role of an advocate. Hanson v. Waller, 888
F.2d 806, 812 (11th Cir.1989). Counsel for Watkins,
however, never objected, even out of the presence of the
jury, to the questions the court posed to Newbern. "[W]here
a party fails to object in a timely manner, i.e., at the
next available time when the jury is not present, objection
to the alleged error will be deemed waived unless it
constitutes plain error." Hanson, 888 F.2d at 813. The
record does not reveal that the court strayed from
neutrality; thus, the court did not err (much less plainly
err) in its questioning of Newbern.
state must prove by a preponderance of the evidence that it
would have reached the same decision even in the absence of
the protected conduct.
Morgan v. Ford, 6 F.3d 750, 753-54 (11th Cir.1993) (quotation
marks, citations, brackets, and ellipsis omitted), cert. denied, --
- U.S. ----, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994). "The
threshold question of whether an employee's speech may be fairly
characterized as constituting speech on a matter of public concern
is a question of law, subject to de novo review by this court."
Deremo v. Watkins, 939 F.2d 908, 910 (11th Cir.1991).
For an employee's speech to rise to the level of public
concern, it must relate to a matter of political, social, or other
concern to the community. Therefore, this court must determine
whether the purpose of Watkins's speech was to raise issues of
public concern or to further her own private interest. Morgan, 6
F.3d at 754. In making this determination, we consider the
content, form, and context of the employee's statements, the
employee's attempts to make the concerns public, and the employee's
motivation in speaking. See Morgan, 6 F.3d at 754; Deremo, 939
F.2d at 910-11.
We are convinced that Watkins's speech did not constitute
speech on a matter of public concern. Watkins lodged her
complaints to Howard privately and informally, and those complaints
focused primarily on how her colleagues "behaved toward her and how
that conduct affected her work." Morgan, 6 F.3d at 755. Moreover,
Watkins's discussions with Blum, Adams, and Dr. Moore did not draw
the public at large or its concerns into the picture. Morgan, 6
F.3d at 755. Indeed, Dr. Moore's testimony revealed that he
initiated their discussions about the office's environment.
Furthermore, Watkins's expression of concern over her colleagues'
treatment of Emken was made in her capacity as employee, rather
than in her "role as citizen." Kurtz v. Vickrey, 855 F.2d 723, 727
(11th Cir.1988).
Watkins's complaints have a far more private and informal
flavor than the employee's speech at issue in Morgan. In that
case, the plaintiff, Jacqueline Morgan, a correctional officer at
the Augusta Correctional Medical Institute (ACMI), (1) served as a
witness for a colleague who had pursued a sexual harassment
complaint against Morgan's immediate supervisor, John Ford; (2)
told the Superintendent of ACMI of Ford's harassing behavior toward
her; (3) pressed charges against Ford with the Georgia Department
of Corrections Internal Affairs Division; and (4) filed a sexual
harassment charge against Ford with the Georgia Office of Fair
Employment Practices. Morgan, 6 F.3d at 752-53. This court
sustained the district court's entry of summary judgment against
Morgan on her section 1983 claim, finding that "the main thrust of
her speech took the form of a private employee grievance." Morgan,
6 F.3d at 755. Morgan's complaints did not rise to the level of
public concern; consequently, Watkins's speech certainly falls
below that mark.
Watkins's other First Amendment claim, which alleges that
Bowden (and thus the county) terminated her in retaliation for her
complaint about the bar luncheon speaker, fails for the same
reason.17 Watkins's informal and private comment to Bowden that she
found the speaker's comments offensive, without more, does not
constitute speech affecting a matter of public concern.18 Thus, we
affirm the district court's order granting directed verdicts for
the county on Watkins's First Amendment claims.
B. Equal Protection Retaliation Claim
The district court held that "[w]ith respect to the claim that
Mrs. Watkins was fired in retaliation for complaints regarding
sexual and racial harassment, again, I think there is just not any
evidence of substance that Mr. Bowden knew about her performance."
Watkins argues that the district court erred in granting appellees'
motion for a directed verdict on her claim of retaliation under the
17
The district judge denied Watkins relief on this claim on
other grounds, finding that "I just don't think there is evidence
in the record to support th[e] claim." "[T]his court may affirm
the district court where the judgment entered is correct on any
legal ground regardless of the grounds addressed, adopted or
rejected by the district court." Bonanni Ship Supply, Inc. v.
United States, 959 F.2d 1558, 1561 (11th Cir.1992).
18
Though Watkins splits her First Amendment allegations into
two claims, we note that even if we considered all of her
assertions under one First Amendment challenge, we would reach
the same conclusion—her speech did not affect a matter of public
concern. See Morgan, 6 F.3d at 751-55; see also Cooper v.
Smith, 89 F.3d 761, 765 (11th Cir.1996) (reporting corruption in
police department to state bureau of investigation involved issue
of public concern); Martinez v. City of Opa-Locka, Fla., 971
F.2d 708, 710, 712 (11th Cir.1992) (providing testimony before
city commission concerning purchasing practices of city affected
matter of public concern); Stough v. Gallagher, 967 F.2d 1523,
1524, 1528 (11th Cir.1992) (giving campaign speech at "political
forum" on behalf of candidate for sheriff addressed topic of
public concern); Stewart v. Baldwin County Bd. of Educ., 908
F.2d 1499, 1506 (11th Cir.1990) (expressing public "opposition to
the Superintendent's position on the upcoming tax referendum
clearly implicates a matter of public concern"); Williams v.
Roberts, 904 F.2d 634, 638 (11th Cir.1990) (publishing editorials
criticizing county's budget and employment actions implicated
matter of public concern).
Equal Protection Clause because the evidence adduced at trial gives
rise to a reasonable inference that Bowden knew of her complaints
of sexual and racial harassment. Appellees counter that the
district court's assessment of the evidence was accurate and, in
any event, that Watkins "did not contend, and did not prove, that
she, as a female (or African-American) who raised complaints of
sexual (or racial) harassment, was treated differently from any
male (or white) who raised similar claims." Appellees assert that
"[t]he equal protection clause prohibits only such class-based
distinctions; it does not, as ... other federal non-discrimination
statutes do, prohibit generic "retaliation.' Therefore, [Watkins]
failed to prove a violation of the equal protection clause."
We review the district court's granting of a directed verdict
motion under the de novo standard. Sherrin v. Northwestern Nat'l
Life Ins. Co., 2 F.3d 373, 377 (11th Cir.1993). In so doing, we
use the same standard the district court employed in determining
whether to grant the motion. See Sherrin, 2 F.3d at 377; Lamb v.
Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir.1993). Again,
"[o]ur review of an order granting a directed verdict is not
confined to the grounds relied on by the district court. We will
affirm if the district court can be sustained on any grounds."
Weeks v. Remington Arms Co., Inc., 733 F.2d 1485, 1490 n. 6 (11th
Cir.1984).
Watkins asserts that two elements of her "prima facie case of
retaliation under the Equal Protection Clause" are that she
"engaged in protected conduct or statements," and that her
"termination was based, at least in part, on her membership in a
protected classification." To the extent Watkins contends that she
was dismissed because of her expressive activity, that claim arises
under the First Amendment. See, e.g., Thompson v. City of
Starkville, 901 F.2d 456, 468 (5th Cir.1990) (dismissing
plaintiff's equal protection claim in retaliation case because it
"amounts to no more than a restatement of his first amendment
claim"); Vukadinovich v. Bartels, 853 F.2d 1387, 1391-92 (7th
Cir.1988) (finding that plaintiff's equal protection retaliation
claim, based on allegation that "he was treated differently because
he exercised his right to free speech," "is best characterized as
a mere rewording of [his] First Amendment-retaliation claim").
Moreover, to the extent Watkins links her alleged retaliatory
dismissal to her gender or race, that allegation constitutes part
of her equal protection discrimination (i.e., hostile work
environment sexual and racial harassment) claim. See, e.g.,
Beardsley v. Webb, 30 F.3d 524, 529-30 (4th Cir.1994). A pure or
generic retaliation claim, however, simply does not implicate the
Equal Protection Clause. See Ratliff v. DeKalb County, 62 F.3d
338, 340 (11th Cir.1995) (reversing denial of qualified immunity on
equal protection retaliation claim because "[t]he right to be free
from retaliation [for making complaints of discrimination] is
clearly established as a first amendment right and as a statutory
right under Title VII; but no clearly established right exists
under the equal protection clause to be free from retaliation");
Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287,
1296 n. 8 (7th Cir.1996) (Equal Protection Clause "does not
establish a general right to be free from retaliation"); Bernheim
v. Litt, 79 F.3d 318, 323 (2d Cir.1996) ("[W]e know of no court
that has recognized a claim under the equal protection clause for
retaliation following complaints of racial discrimination."); Gray
v. Lacke, 885 F.2d 399, 414 (7th Cir.1989) ("Gray's right to be
free from retaliation for protesting sexual harassment and sex
discrimination is a right created by Title VII, not the equal
protection clause."), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476,
108 L.Ed.2d 613 (1990); Long v. Laramie County Community College
Dist., 840 F.2d 743, 752 (10th Cir.), cert. denied, 488 U.S. 825,
109 S.Ct. 73, 102 L.Ed.2d 50 (1988). Consequently, we affirm the
district court's grant of a directed verdict for appellees on
Watkins's equal protection retaliation claim.
C. Jury Instruction on the Hostile Work Environment Sexual and
Racial Harassment Claim Against the County
In order to prevail on her hostile work environment sexual
and racial harassment claim under the Equal Protection Clause,
Watkins had to show that (1) she belonged to the protected groups
at issue; (2) she was subjected to unwelcome sexual and racial
harassment; (3) the harassment was based upon her gender and race;
(4) the harassment affected the conditions of her employment; (5)
the defendant (the county, as represented by Bowden) acted under
color of law; and (6) the defendant acted with discriminatory
purpose or intent. See Cross v. Alabama, 49 F.3d 1490, 1504, 1507-
08 (11th Cir.1995).
The jury instruction at issue involved the fourth element
above. As to that element, a plaintiff must show that the
harassment was sufficiently severe or pervasive to alter the
conditions of her employment and create an abusive working
environment. See Harris, 510 U.S. at ----, 114 S.Ct. at 370;
Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th
Cir.1995); Cross, 49 F.3d at 1507.19 In Harris, the Supreme Court
further defined this element, granting "certiorari ... to resolve
a conflict among the Circuits on whether conduct, to be actionable
as abusive work environment harassment ..., must seriously affect
an employee's psychological well-being or lead the plaintiff to
suffer injury." Harris, 510 U.S. at ----, 114 S.Ct. at 370
(quotation marks and brackets omitted).20 In deciding this issue,
the Court elaborated on the objective and subjective components of
the hostile work environment inquiry:
Conduct that is not severe or pervasive enough to create an
objectively hostile or abusive work environment—an environment
that a reasonable person would find hostile or abusive—is
beyond Title VII's purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the
conduct has not actually altered the conditions of the
victim's employment, and there is no Title VII violation.
Harris, 510 U.S. at ----, 114 S.Ct. at 370 (emphasis added).21
19
This requirement exists for plaintiffs whether they bring
a hostile work environment claim pursuant to 42 U.S.C. § 1983
(like Watkins) or Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2. See Cross, 49 F.3d at 1507-08.
20
The Court held that "[s]o long as the environment would
reasonably be perceived, and is perceived, as hostile or abusive
..., there is no need for it also to be psychologically
injurious." Harris, 510 U.S. at ----, 114 S.Ct. at 371.
21
Justice Ginsburg, in her concurring opinion, added:
[T]he adjudicator's inquiry should center, dominantly,
on whether the discriminatory conduct has unreasonably
interfered with the plaintiff's work performance....
It suffices to prove that a reasonable person subjected
to the discriminatory conduct would find, as the
plaintiff did, that the harassment so altered working
conditions as to "ma[k]e it more difficult to do the
job."
Despite Harris, Watkins contends that the district court erred
in instructing that the jury "look to see whether, objectively
speaking, a hostile working environment existed looking through the
eyes of a reasonable person." She argues that the court's
original, more contextual standard, which asked the jury to assess
the working environment from the standpoint of a "reasonable
African American or woman," was a correct statement of the law and
that the substituted instruction caused her prejudicial harm.
"In reviewing the district court's jury instructions, this
court will look to see whether the charges, considered as a whole,
sufficiently instruct the jury so that the jurors understand the
issues involved and are not misled." Pesaplastic, C.A. v.
Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir.1985); see
also Cross, 49 F.3d at 1505. "If the instructions, taken together,
properly express the law applicable to the case, no reversible
error has occurred, even if an isolated clause may be inaccurate,
ambiguous, incomplete, or otherwise subject to criticism." Busby
v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991).
Given Harris, we cannot conclude that the district court's
corrective instruction did not properly express the law applicable
to this case.22 Moreover, the district court clearly identified the
Harris, 510 U.S. at ----, 114 S.Ct. at 372 (Ginsburg,
J., concurring) (emphasis added) (quoting Davis v.
Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988),
cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104
L.Ed.2d 1028 (1989)) (second alteration in original).
22
We are aware that several circuits have applied the more
contextual standard in hostile work environment actions even
after Harris. See, e.g., King v. Frazier, 77 F.3d 1361, 1363
(Fed.Cir.) (objective inquiry "require[s] that sexual harassment
be judged from the perspective of the one being harassed"), cert.
superseded instruction, concisely articulated the corrective
instruction, and then restated the subjective component of the
hostile work environment inquiry. Therefore, the court's
instructions gave the jurors sufficient guidance and did not
mislead or confuse them. Accordingly, no reversible error
occurred, and we affirm the judgment for the county on Watkins's
hostile work environment sexual and racial harassment claim.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
denied, --- U.S. ----, 117 S.Ct. 62, 136 L.Ed.2d 24 (1996);
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st
Cir.1995) ("[T]he court must consider not only the actual effect
of the harassment on the plaintiff, but also the effect such
conduct would have on a reasonable person in the plaintiff's
position."), cert. denied, --- U.S. ----, 116 S.Ct. 1044, 134
L.Ed.2d 191 (1996); Fuller v. City of Oakland, 47 F.3d 1522,
1527 (9th Cir.1995) ("Whether the workplace is objectively
hostile must be determined from the perspective of a reasonable
person with the same fundamental characteristics."); West v.
Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995) (inquiring
whether "the discrimination would have detrimentally affected a
reasonable person of the same protected class in that position");
Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir.1994)
("We thus consider not only the actual effect of the harasser's
conduct on his victim, but also the effect similar conduct would
have had on a reasonable person in the plaintiff's position.").
But see Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th
Cir.1996) (though court had previously adopted "reasonable woman"
standard, "[g]iven the Supreme Court's use of the "reasonable
person' standard [in Harris ], we cannot find that the district
court abused its discretion in using that standard in its jury
instruction"); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d
Cir.1995) (applying reasonable person standard); Amirmokri v.
Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995)
(same); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th
Cir.1995) (same); DeAngelis v. El Paso Mun. Police Officers
Ass'n, 51 F.3d 591, 594 (5th Cir.) ("The test is an objective
one, not a standard of offense to a "reasonable woman.' "), cert.
denied, --- U.S. ----, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995);
Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir.1994)
(applying reasonable person standard).
AFFIRMED.