Felicia A. Wilcox v. Corrections Corporation of America , 603 F. App'x 862 ( 2015 )

Case: 14-11258 Date Filed: 03/11/2015 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11258
Non-Argument Calendar
________________________
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
________________________
(March 11, 2015)
Before TJOFLAT, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Case: 14-11258 Date Filed: 03/11/2015 Page: 2 of 12
Felicia A. Wilcox appeals the district court’s grant of summary judgment for
defendant Corrections Corporation of America (CCA) in her suit alleging sexual
harassment and retaliation under Title VII of the Civil Rights Act. After careful
review, we reverse the district court’s grant of summary judgment on the sexual
harassment claim and affirm its grant of summary judgment on the retaliation
claim.
I.
Wilcox is an African-American woman who was employed as a corrections
officer at McRae Correctional Facility from April 5, 2004 until she was fired on
July 28, 2010. In December 2008, CCA fired Wilcox’s husband, who had also
been employed at McRae Correctional Facility, after an investigation into
allegations of sexual harassment made by other employees.
In July 2009, Wilcox verbally complained to McRae’s warden and human
resources department that, after her husband was fired, she had been subject to
sexual harassment by her direct supervisor. In describing the harassment in her
deposition and affidavit, Wilcox stated that her supervisor (1) hugged and
“caressed [her] down [her] back” on a daily basis for a period of months; (2)
touched her thighs and told her that he could touch her “fat juicy thighs if he
wanted to”; (3) hit her twice on the buttocks in the presence of other employees;
and (4) told her that he had a female friend with a clitoris as long as his penis.
2
Case: 14-11258 Date Filed: 03/11/2015 Page: 3 of 12
CCA fired Wilcox’s supervisor in September 2009 following allegations of sexual
harassment made by other female employees. 1
Wilcox also made a number of internal and external complaints of racial
discrimination and retaliatory conduct by other McRae employees. In June 2009,
she complained that an assistant warden walked through a security checkpoint,
retrieved his personal items from plastic basket, and threw the basket at her.
Wilcox stated that she believed that the incident was racially motivated. After an
investigation, CCA concluded that “no information was found to support a finding
that [the assistant warden’s actions] were hostile or intended as a form of
harassment.”
In July 2009, Wilcox complained that McRae’s chief security officer
addressed her and other African-American employees as “kid.” CCA investigated
this complaint and concluded that “no information was obtained to conclude that
[the chief security officer’s] use of the work [sic] ‘kid’ is limited to a specific race
of employees . . . .”
In September 2009, Wilcox complained that a housing manager required her
to sign in when she entered McRae’s Special Housing Unit. At her deposition, she
stated that she believed that the manager’s conduct was retaliation for bringing a
1
Between July and September 2009, Wilcox and her supervisor continued to work together. At
his deposition, McRae’s warden stated that he gave very little weight to Wilcox’s allegations.
3
Case: 14-11258 Date Filed: 03/11/2015 Page: 4 of 12
sexual harassment complaint against her supervisor because other employees had
not been required to sign in.
Next, in December 2009, Wilcox complained that a McRae employee
looked through and removed cookies and butter from a food cart that she was
transporting. She described the incident as a search and stated that she believed
that the search was in retaliation for bringing a sexual harassment complaint
against her supervisor. After investigation, CCA determined that this incident was
not intended to be retaliatory.
On December 13, 2009, Wilcox submitted an unverified Intake
Questionnaire to the Equal Employment Opportunity Commission, in which she
alleged that she had been forced to work with her supervisor even after she
complained of sexual harassment; that the assistant warden had created a hostile
work environment by throwing a basket at her; that the chief security officer
referred to her as “kid”; and that she had been harassed in retaliation for
complaining about sexual harassment. Three days later, the EEOC sent a “Notice
of Charge of Discrimination” to CCA. This notice stated that Wilcox had alleged
sexual harassment beginning on July 10, 2009. Wilcox later filed a verified
“Charge of Discrimination” with the EEOC on March 15, 2010, in which she
stated that “[t]his perfects my original correspondence which was timely received
by the Commission on December 16, 2009.”
4
Case: 14-11258 Date Filed: 03/11/2015 Page: 5 of 12
Finally, in May 2010, Wilcox complained that a maintenance employee
taunted her with a stick in a threatening manner. After reviewing the surveillance
footage and interviewing nearby employees, CCA concluded that Wilcox’s
allegations could not be substantiated. Shortly after this incident, CCA fired
Wilcox because of “a pattern of repeated unfounded claims against other staff
members.”
As relevant here, Wilcox’s complaint alleged that her supervisor’s sexual
harassment resulted in hostile work environment and that she was fired in
retaliation for lodging complaints of race and gender discrimination. The district
court granted CCA’s motion for summary judgment on the sexual harassment
claim because it found that the harassment described by Wilcox was not
sufficiently severe or pervasive. It also granted CCA’s motion for summary
judgment on the retaliation claim because Wilcox had not shown that CCA’s
proffered legitimate non-discriminatory reason for her termination—making false
and exaggerated complaints in violation of CCA’s Code of Conduct—was
pretextual. This appeal followed.
II.
We first address Wilcox’s sexual harassment claim. We review de novo a
district court’s grant of summary judgment, considering only the evidence
available to the district court. Holloman v. Mail-Well Corp., 443 F.3d 832, 836
5
Case: 14-11258 Date Filed: 03/11/2015 Page: 6 of 12
(11th Cir. 2006). “Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no genuine issue of
material fact and compels judgment as a matter of law in favor of the moving
party.” Id. at 836–37. “A mere scintilla of evidence supporting [Wilcox’s]
position will not suffice; there must be enough of a showing that the jury could
reasonably find for [her].” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)
(quotation marks omitted).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits
sexual harassment that results in a hostile work environment. Mendoza v. Borden,
Inc., 195 F.3d 1238, 1244–45 (11th Cir. 1999) (en banc). In order to prove a
hostile work environment, an employee must show:
(1) that he or she belongs to a protected group; (2) that the employee
has been subject to unwelcome sexual harassment, such as sexual
advances, requests for sexual favors, and other conduct of a sexual
nature; (3) that the harassment must have been based on the sex of the
employee; (4) that the harassment was sufficiently severe or pervasive
to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; 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) (quoting Mendoza, 195 F.3d at 1245).
With respect to the fourth element, the harassment must be both subjectively
and objectively severe or pervasive. See id. at 809. “Harassment is subjectively
severe and pervasive if the complaining employee perceives the harassment as
6
Case: 14-11258 Date Filed: 03/11/2015 Page: 7 of 12
severe and pervasive, and harassment is objectively severe and pervasive if a
reasonable person in the plaintiff’s position would adjudge the harassment severe
and pervasive.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 509 (11th Cir. 2000).
In evaluating whether harassment is objectively severe or pervasive, we
consider its frequency; its severity; whether it was physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interfered
with an employee’s work performance. Hulsey v. Pride Rests., LLC, 367 F.3d
1238, 1247–48 (11th Cir. 2004). “[W]e employ a totality of the circumstances
approach, instead of requiring proof of each factor individually.” Id. at 1248.
We have previously observed that there is no “magic number” of instances
of harassment that is necessary to meet the severe-or-pervasive standard. See
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)
(quotation omitted). In this case, however, Wilcox did not state that she was
merely subject to the occasional off-color comment. Instead, her deposition and
affidavit describe harassment that a reasonable jury could conclude was severe or
pervasive, including daily unwanted physical contact over a period of months, two
additional attempts to touch her thighs and buttocks, and two expressly sexual
comments. She also stated that the harassment was humiliating and interfered with
her job performance. See Hulsey, 367 F.3d at 1248 (“We have said that sexual
7
Case: 14-11258 Date Filed: 03/11/2015 Page: 8 of 12
harassment is subjectively severe and pervasive if the complaining employee
perceived it to be at the time. [The plaintiff’s] deposition testimony indicates that
she did.” (citation omitted)).
Indeed, the conduct described here is similar to conduct that we have
previously held to be severe or pervasive harassment. See, e.g., Miller, 277 F.3d at
1276 (holding that daily taunts, including the use of ethnic slurs and derogatory
names in an intimidating manner, over the course of one month were sufficiently
severe or pervasive); Johnson, 234 F.3d at 509 (holding that “roughly fifteen
separate instances of harassment over the course of four months,” including
unwanted physical contact and sexually explicit comments, were sufficiently
severe or pervasive). Thus, when viewing the evidence in the light most favorable
to Wilcox, we find that she has introduced sufficient evidence for a reasonable jury
to conclude that her harassment was severe or pervasive.
III.
CCA argues that we may alternatively affirm the district court’s grant of
summary judgment on Wilcox’s sexual harassment claim because it is time barred.
Prior to pursuing a Title VII claim in federal court, an employee must exhaust her
administrative remedies, a process that includes filing a “charge of discrimination”
in writing and under oath with the EEOC within 180 days of the last discriminatory
8
Case: 14-11258 Date Filed: 03/11/2015 Page: 9 of 12
act.2 Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (quotation
omitted); see also 29 C.F.R. § 1601.9 (“A charge shall be in writing and signed and
shall be verified.”). Although Wilcox’s unverified Intake Questionnaire was filed
on December 13, 2009—within 180 days of the alleged harassment—her verified
Charge of Discrimination was not filed until March 15, 2010, more than 180 days
after her supervisor was fired. Because Wilcox’s Intake Questionnaire was not
verified, CCA contends that it cannot serve as a charge of discrimination for the
purposes of meeting the statute of limitations.
However, as the district court correctly pointed out, EEOC regulations
permit an employee to amend a charge of discrimination to cure technical defects,
“including failure to verify the charge,” and provide that “[s]uch amendments . . .
will relate back to the date the charge was first received.” 29 C.F.R. § 1601.12(b);
see also Edelman v. Lynchburg Coll., 535 U.S. 106, 115, 122 S. Ct. 1145, 1150
(2002). In addition, the EEOC treated Wilcox’s December 13, 2009 Intake
Questionnaire as a charge of discrimination because it sent a “Notice of Charge of
Discrimination” to CCA which specified that Wilcox had alleged sexual
harassment beginning on July 10, 2009. See Edelman v. Lynchburg Coll., 300
F.3d 400, 404–05 (4th Cir. 2002) (holding, following remand from the Supreme
2
EEOC regulations provide that a charge of discrimination “is sufficient when the Commission
receives . . . a written statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of.” 29 C.F.R. § 1601.12(b).
9
Case: 14-11258 Date Filed: 03/11/2015 Page: 10 of 12
Court, that verified charge related back to unverified letter where verified charge
concerned the same circumstances as the unverified letter and there was no
evidence that the unverified letter was substantively deficient). Thus, we find that
Wilcox’s sexual harassment claim was not time barred and reverse the district
court’s grant of summary judgment on this claim.
IV.
We next consider Wilcox’s retaliation claim. “Title VII also prohibits
retaliation against an employee because she has opposed any practice made an
unlawful employment practice by Title VII, or because she has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing thereunder.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)
(alterations adopted and quotation omitted).
For retaliation claims that rely on circumstantial evidence—like Wilcox’s—
we apply the burden-shifting analysis from McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010). Under the McDonnell Douglas framework, a plaintiff
may first establish a prima facie case of retaliation by showing that: “(1) [s]he
engaged in a statutorily protected activity; (2) [s]he suffered an adverse
employment action; and (3) [s]he established a causal link between the protected
activity and the adverse action.” See Bryant v. Jones, 575 F.3d 1281, 1307–08
10
Case: 14-11258 Date Filed: 03/11/2015 Page: 11 of 12
(11th Cir. 2009). If a plaintiff establishes a prima facie case, “the burden of
production shifts to the defendant to . . . articulat[e] a legitimate, non-
discriminatory reason for the adverse employment action.” Id. at 1308. If the
defendant meets the burden of production, the plaintiff may demonstrate that the
defendant’s proffered reason was pretextual. Id.
To show pretext, “[t]he plaintiff must meet the reason proffered head on and
rebut it.” Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007).
She must “present concrete evidence in the form of specific facts which show[]
that the defendant’s proffered reason [is] mere pretext.” Bryant, 575 F.3d at 1308
(quotation omitted).
Notwithstanding the protections of Title VII, employers are permitted to fire
employees for lying in the course of internal investigations into harassment and
discrimination. See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th
Cir. 2000) (“And, at least when the circumstances give the employer good reason
to believe that the fictitious version was the result of a knowingly false statement
by one of its employees, the law will not protect the employee's job.”). In this
case, Wilcox argues that she was fired because she filed internal complaints of
harassment and discrimination. CCA has introduced evidence demonstrating that
it did not terminate Wilcox’s employment because she filed complaints, but
because a number of her complaints were found to be false and exaggerated. For
11
Case: 14-11258 Date Filed: 03/11/2015 Page: 12 of 12
example, in May 2010, after Wilcox alleged that a maintenance employee
threatened her with a stick, CCA reviewed surveillance footage and interviewed
twelve witnesses before concluding that her allegations could not be substantiated.
Similarly, CCA investigated Wilcox’s allegations that a supervisor referred to her
and other African-American employees as “kid” before finding no evidence the
supervisor’s use of the word was discriminatory.
Wilcox has not rebutted CCA’s proffered legitimate, non-discriminatory
reason for termination. Thus, we affirm the district court’s grant of summary
judgment on her retaliation claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
12