Felicia A. Wilcox v. Corrections Corporation of America , 892 F.3d 1283 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-11919
D.C. Docket No. 1:11-cv-04365-ODE
FELICIA A. WILCOX,
Plaintiff - Appellant,
versus
CORRECTIONS CORPORATION OF AMERICA,
a.k.a. McRae Correctional Facility,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
(June 25, 2018)
Before TJOFLAT, ROSENBAUM, and BRANCH, Circuit Judges.
BRANCH, Circuit Judge:
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Felecia1 Wilcox sued her employer, Corrections Corporation of America, for
sexual harassment resulting in a hostile work environment under Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq. At trial, she testified that she had
complained to the company that her coworker had sexually harassed her, but the
company failed to take prompt remedial action. The jury found in Wilcox’s favor
and awarded damages, but the district court later granted judgment as a matter of
law for the company. Wilcox appeals and argues that the jury was entitled to find
that the company failed to act promptly on her complaints. Because we disagree,
we affirm.
I. BACKGROUND
In reviewing a judgment as a matter of law, we consider the facts in the light
most favorable to Wilcox. See Bogle v. Orange Cty. Bd. of Cty. Comm’rs, 162
F.3d 653, 656 (11th Cir. 1998). Wilcox worked as a corrections officer at McRae
Correctional Facility, a federal prison operated by Corrections Corporation of
America. On July 10, 2009, Wilcox’s coworker2 Larry Jackson slapped her on the
buttocks twice. Wilcox filed a formal complaint with the company that same day.
The company told Jackson not to associate with Wilcox or be anywhere around
her.
1
This appeal is captioned as “Felicia A. Wilcox” because her counsel have spelled her name that
way in court documents, but we note that Wilcox spells her own name “Felecia.”
2
Wilcox does not challenge on appeal the district court’s ruling that Jackson was her coworker,
not her supervisor.
2
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In the days following Wilcox’s complaint and the company’s admonition not
to associate with Wilcox, Jackson repeatedly rolled his eyes at Wilcox and once
punched a metal machine in her presence to intimidate her. On July 23, Wilcox
submitted a second complaint in which she reiterated that Jackson had hit her
buttocks on July 10, adding that she was afraid he would touch her again, that this
was not the first time that he had touched her, and that he had told her he could
touch her if he wanted to. Wilcox concedes, however, that Jackson never touched
her or made any inappropriate comments to her after her July 10 complaint.
The company brought in an outside investigator to look into these and other
complaints against Jackson. On August 27, the investigator interviewed Wilcox,
who told her about two additional times before July 10 that Jackson had sexually
harassed her. On one occasion, Jackson squeezed her thigh and stated that he could
touch her “juicy, fat thighs” if he wanted. On the other occasion, Jackson made a
sexually explicit remark. On September 9, the investigator submitted her report
finding that Jackson had sexually harassed Wilcox and other coworkers. On
September 14, the company fired Jackson.
Wilcox later filed a charge of discrimination with the Equal Employment
Opportunity Commission,3 and she filed this lawsuit against the company under
Title VII. The district court granted the company’s motion for summary judgment
3
It is undisputed that Wilcox received notice of her right to sue from the EEOC.
3
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on Wilcox’s sexual harassment claim, but we reversed because a triable issue of
fact existed about whether the harassment was severe or pervasive. 4 Wilcox v.
Corr. Corp. of Am., 603 F. App’x 862, 865–66 (11th Cir. 2015). On remand, a jury
trial was held. The jury returned a verdict for Wilcox of $4,000 in actual damages
and $100,000 in punitive damages. The company then renewed its motion for
judgment as a matter of law, which the district court granted, finding that the
company’s prompt remedial action in response to Wilcox’s complaints barred
liability as a matter of law. Wilcox again appeals.
II. STANDARD OF REVIEW
We review a district court’s grant of judgment as a matter of law de novo.
Bogle, 162 F.3d at 656. We view the evidence and draw all reasonable inferences
in Wilcox’s favor, id., and we may affirm only if we conclude that “a reasonable
jury would not have a legally sufficient evidentiary basis” to find for her, Fed. R.
Civ. P. 50(a)(1).
III. DISCUSSION
To prevail in a suit against her employer for a fellow employee’s sexual
harassment that resulted in a hostile work environment, a plaintiff must prove five
elements:
4
Our prior decision emphasized that Wilcox alleged that Jackson had hugged her on a daily basis
over a period of months. Wilcox, 603 F. App’x at 865.
4
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(1) The employee belongs to a protected group;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment complained of was based upon sex;
(4) the harassment complained of was “sufficiently severe or
pervasive to alter the terms and conditions of employment”; and
(5) a basis for holding the employer liable.
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (en
banc). With respect to the fifth element, the employer can be responsible for the
harassing conduct under a theory of either vicarious liability or direct liability.
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). When, as
here, the perpetrator of the harassment is not the plaintiff’s supervisor, the
employer will be held directly liable only if it knew or should have known of the
harassing conduct but failed to take prompt remedial action. Miller v. Kenworth of
Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Only the fifth element is at
issue in this appeal.5 Wilcox argues that the company should have known about
Jackson’s extensive harassment and that it failed to act promptly and appropriately.
We address the company’s knowledge and action in turn.
5
The fourth element, the severe or pervasive nature of the harassment, was a basis for our
decision in Wilcox’s earlier appeal, 603 F. App’x at 865, but it was waived in this appeal when
Wilcox failed to address it in her initial brief. See United States v. Levy, 379 F.3d 1241, 1244
(11th Cir. 2004) (we refuse to consider issues raised for the first time in an appellant’s reply
brief).
5
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A. Knowledge
An employee can demonstrate that an employer knew about the harassment
by showing that she complained to management about it. Henson v. City of
Dundee, 682 F.2d 897, 905 (11th Cir. 1982). The parties agree that the company
had actual knowledge on July 10—the date of Wilcox’s first complaint—that
Jackson had slapped Wilcox’s buttocks, and on September 9—the date of the
investigator’s report—that Jackson had sexually harassed Wilcox on two earlier
occasions.
An employee can also show that the company should have known about
harassment that was so pervasive as to create an inference of constructive
knowledge. Id. Wilcox argues that the company should have known about
additional harassment: Jackson’s practice of inappropriately hugging her and other
female employees, and Jackson’s intimidating looks and gestures after she
complained about him. We disagree. Wilcox testified that she never reported the
hugging, and the other evidence of hugging in the record does not support the
inference that the hugging was widespread or that others considered it offensive.
Wilcox also never reported Jackson’s intimidating conduct to the company, and the
record contains no evidence that the company should have known about it at the
time.
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Furthermore, an employer is insulated from sexual-harassment liability
based on constructive knowledge “when the employer has adopted an anti-
discrimination policy that is comprehensive, well-known to employees, vigorously
enforced, and provides alternate avenues of redress.” Farley v. Am. Cast Iron Pipe
Co., 115 F.3d 1548, 1554 (11th Cir. 1997). The parties agree that the company had
a comprehensive anti-discrimination policy that was well-known to Wilcox, but
Wilcox disputes how vigorously it was enforced in her case. We cannot conclude
that the company’s policy was not enforced here. Wilcox filed a complaint in
accordance with the policy’s procedures, and as a result, Jackson was admonished,
investigated, and terminated. With such a policy in place, the company cannot be
liable for Jackson’s harassment under a theory of constructive knowledge.
B. Action
To avoid liability for an employee’s harassment, an employer must take
prompt remedial action upon learning about the harassment. Henson, 682 F.2d at
905. Because that action “must be ‘reasonably likely to prevent the misconduct
from recurring,’” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754
(11th Cir. 1996) (quoting Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th
Cir. 1990)), we look to the effectiveness of the company’s action in preventing the
recurrence of the harassment it knew about. Here, the company’s action was
effective, and a reasonable jury would not have a legally sufficient evidentiary
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basis to find otherwise. Jackson never again touched Wilcox after her July 10
complaint, notwithstanding her fear that he would do so.
The remaining issue, then, is whether the company’s action was sufficiently
prompt. Our cases have not established a bright-line rule for promptness, but we
have held, for example, that an employer acted promptly enough when it agreed to
fire the harasser if the victim complained about him again, and eventually did so.
Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988).
Here, the company ordered Jackson not to be around Wilcox immediately after her
first complaint, and it fired Jackson two weeks after the investigator interviewed
Wilcox and learned of her other complaints against him. Wilcox argues that six
weeks between her first complaint and the investigator’s interview was too long,
but we disagree. It is undisputed that there were a lot of moving parts in the
company’s investigation, and each of those workings took time. Both of Wilcox’s
written complaints had to be examined internally and then referred out to the
company’s ethics office. Several other allegations against Jackson arose from other
employees and had to be investigated. Another investigator had to be brought in
from out of state, and she had to interview sixteen employees. Considering this
entire succession of activity that culminated in Jackson’s termination, we conclude
that the evidence could not allow the jury to find that the company failed to act
promptly.
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IV. CONCLUSION
Because the company took prompt remedial action against Jackson, no
reasonable jury could have found the company liable for his sexual harassment of
Wilcox. The judgment of the district court is AFFIRMED.
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