Erica Banks v. City of Atlanta, Georgia

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 30, 2022
• Docket: 21-14122
• Status: Unpublished

Opinion

USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 1 of 10

[DO NOT PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-14122 Non-Argument Calendar ____________________

ERICA BANKS, ANDREA TONEY, DEMETRIA WIDEMAN, JESSICA WASHINGTON, Plaintiffs-Appellants, versus CITY OF ATLANTA, GEORGIA, CHARLES EWING, in his Individual Capacity,

Defendants-Appellees. USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 2 of 10

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Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:19-cv-03946-WMR ____________________

Before LUCK, LAGOA and DUBINA, Circuit Judges. PER CURIAM: Erica Banks, Andrea Toney, Demetria Wideman, and Jessica Washington (collectively, the “Plaintiffs”) appeal from the district court’s order granting summary judgment to their employer, the City of Atlanta (the “City”), on their claims of sexual harassment and gender discrimination pursuant to Title VII and 42 U.S.C. § 1983. On appeal, the Plaintiffs argue that the district court erred in granting summary judgment to the City because a jury question existed as to whether the City had notice of employee Charles Ewing’s alleged sexual harassment before the Plaintiffs initiated their formal complaints but failed to take prompt remedial action. Having read the parties’ briefs and reviewed the record, we affirm the district court’s order granting summary judgment to the City.1 I.

1 Ewing did not file a motion for summary judgment on the Plaintiffs’ 42 U.S.C. § 1983 and battery claims against him. USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 3 of 10

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We review de novo a district court’s grant of summary judg- ment. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, pre- sents no genuine dispute of material fact and compels judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986). A factual dispute is genuine if it has a real basis in the record and the evidence is such that a reasonable jury could rule in favor of the nonmovant. Ellis v. England, 432 F.3d 1321, 1325-26 (11th Cir. 2005). II. Title VII prohibits discrimination in employment based on sex. 42 U.S.C. § 2000e-2(a)(1). “[I]ntangible forms of discrimina- tion, such as being forced to work in a sexually hostile work envi- ronment, constitute actionable discrimination under Title VII.” Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1279 (11th Cir. 2003) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S 57, 64, 106 S. Ct. 2399, 2404 (1986)). To establish a hostile work environment claim, a plaintiff must show: (1) that [s]he belongs to a protected group; (2) that [s]he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic 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 USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 4 of 10

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environment; and (5) that the employer is responsible for such environment under either a theory of vicari- ous or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). “Where the perpetrator of the harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action.” Id. at 1278. In contrast, where the perpetrator of the harassment is a su- pervisor of the victim, and “the supervisor’s harassment involves no adverse ‘tangible employment action,’ an employer can avoid vicarious liability for the supervisor’s conduct by raising and prov- ing the” Faragher/Ellerth 2 affirmative defense. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). To successfully interpose this defense, the employer must show: “(a) that [it] exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or correc- tive opportunities provided by the employer or to avoid harm oth- erwise.” Faragher, 524 U.S. at 807, 118 S. Ct. at 2293. Because it is an affirmative defense, the employer bears the burden of establish- ing both prongs. Frederick, 246 F.3d at 1313.

2 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998). USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 5 of 10

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The employer’s promulgation and dissemination of an anti- harassment policy is fundamental to meeting the requirement for exercising reasonable care in preventing sexual harassment. Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1298-99 (11th Cir. 2000). Indeed, “an employer is insulated from liability under Title VII for a hostile environment sexual harassment claim prem- ised on constructive knowledge of the harassment when the em- ployer has adopted an anti-discrimination policy that is compre- hensive, well-known to employees, vigorously enforced, and pro- vides alternate avenues of redress.” Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997). Nevertheless, if there is evidence that an employer had actual notice of the harassment, “then it is liable unless it took prompt corrective action.” See Madray, 208 F.3d at 1299; see also Farley, 115 F.3d at 1554 (“Where there is evidence from which a jury reasonably could infer that the employer did know of the harassment . . . the existence of a pol- icy—no matter how well-designed—will not absolve an employer of liability under Title VII.”) (emphasis in original). “[T]he ques- tion of whether an employer timely acted to correct harassment turns on when it had proper notice of an employee’s harassment complaint.” Frederick, 246 F.3d at 1315. In Madray, we determined that the plaintiffs’ informal com- plaints to various mid-level managers, not designated as appropri- ate representatives by the anti-harassment policy, did not place the employer on notice of the alleged sexual harassment. 208 F.3d at 1300. There, not only had the plaintiffs complained to various USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 6 of 10

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mid-level managers, but two of the managers had witnessed the harasser engage in sexually inappropriate behavior towards the plaintiffs. Id. at 1293-94. We nevertheless held that the plaintiffs’ informal complaints did not place their employer on notice. We reasoned that even if the mid-level managers were con- sidered agents of the employer, “the context surrounding the plain- tiffs’ comments to these individuals compel[led] the conclusion that these mid-level managers could not reasonably have been ex- pected to act to address the plaintiffs’ complaints.” Id. at 1300 (cit- ing Coates v. Sundor Brands, 164 F.3d 1361, 1365 (11th Cir. 1999)). We determined that the plaintiffs never “fully explained the full di- mensions of their harassment . . . or approached these mid-level managers in a professional capacity to request assistance,” and, af- ter the plaintiffs did formally complain, the employer responded promptly to end the harassment. Id. at 1301. We, thus, concluded that the employer was entitled to interpose the Faragher/Ellerth defense, and we upheld summary judgment in the employer’s fa- vor. Id. at 1302-03. Normally, the employer can satisfy its burden under the sec- ond element of the defense if it can demonstrate that an employee unreasonably failed to use any complaint procedure provided by the employer. Faragher, 524 U.S. at 807-08. One of the primary obligations that an employee has “is to take full advantage of the employer’s preventative measures.” Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1306-07 (11th Cir. 2007). Employees must “report harassment promptly, earlier instead of later, and the USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 7 of 10

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sooner the better.” Id. at 1307 (holding that the employee unrea- sonably delayed by filing her complaint three months after the first incident of sexual harassment). Discrimination claims brought under 42 U.S.C. § 1983 are subject to the same standards of proof and use the same analytical framework as claims brought under Title VII. See Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (“Where, as here, a plaintiff predicates liability under Title VII on disparate treatment and also claims liability under . . . [§ 1983], the legal elements of the claims are identical.”). To state a claim for relief under § 1983, a plaintiff must show that a person acting under the color of state law deprived him of a federal right. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). However, to hold a municipality liable under § 1983, a plain- tiff must establish that her rights were violated pursuant to a “cus- tom” or “policy” of the municipality, and municipal liability under § 1983 cannot be predicated on a theory of respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 694, 98 S. Ct. 2018, 2036, 2037-38 (1978). “[A] municipality’s failure to correct the con- stitutionally offensive actions of its employees can rise to the level of a custom or policy ‘if the municipality tacitly authorizes these actions or displays deliberate indifference’ towards the miscon- duct.” Griffin, 261 F.3d at 1308 (citation omitted). “[D]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 8 of 10

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his actions.” Connick v. Thompson, 563 U.S. 51, 61, 131 S. Ct. 1350, 1360 (2011) (quotation marks omitted, alteration in original). III. The record demonstrates that because the City established both prongs of its Faragher/Ellerth defense, and because no genu- ine dispute of fact existed as to whether it had notice of Ewing’s alleged sexual harassment before the Plaintiffs initiated their formal complaints, the district court did not err in granting summary judg- ment to the City. First, as to the Plaintiffs whom Ewing super- vised—Banks, Wideman, and Toney—the district court did not err in granting summary judgment in the City’s favor based on its Fa- ragher/Ellerth defense. See Frederick, 246 F.3d at 1311. By show- ing that it promulgated and disseminated a sexual harassment pol- icy that contained multiple reporting options, the City met its bur- den of demonstrating that it exercised reasonable care to prevent sexual harassment. See Madray, 208 F.3d at 1298-99; Frederick, 246 F.3d at 1313. Specifically, the record shows that the City introduced un- controverted evidence that it maintained a database through which all employees could access its policies. In addition, the City distrib- uted its policies to employees at new-hire orientation, and it also provided an “alert” to all employees regarding updates to its poli- cies in 2018, which included a directive instructing employees to read the updated policies. Despite the Plaintiffs’ argument that the general manager lacked awareness of the policy and had not re- ceived sexual harassment training, because the City adopted an USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 9 of 10

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anti-harassment policy that was comprehensive, well-known to most employees, and provided alternate avenues of redress, it is insulated from liability for the Plaintiffs’ Title VII claims premised on constructive knowledge. As to the second element of the City’s Faragher/Ellerth de- fense, the record supports the district court’s conclusion that Banks, Wideman and Toney unreasonably failed to take advantage of preventative or corrective opportunities due to their delay in in- itiating their formal complaint. See Faragher, 524 U.S. at 807, 118 S. Ct. at 2293. Viewing the Plaintiffs’ sworn statements in their EEOC charge forms, which indicate the dates that Ewing’s harass- ment of each began, Wideman delayed complaining for more than four years; Banks delayed complaining for more than two years; and Toney delayed complaining for more than three months. These delays are in juxtaposition to their obligation to “report har- assment promptly, earlier instead of later,” and their failure to use the City’s designated complaint procedure suffices to satisfy the City’s burden under the second element of its Faragher/Ellerth de- fense. See Faragher, 524 U.S. at 807-08, 118 S. Ct. at 2293; Baldwin, 480 F.3d at 1306-07. Thus, because the City established both prongs of its Faragher/Ellerth defense, the district court correctly granted summary judgment in its favor as to the Plaintiffs’ Title VII claims. Next, as to Washington’s Title VII claim that the City is di- rectly liable to her as Ewing’s co-employee, there is no genuine dis- pute of fact about whether the City knew or should have known of USCA11 Case: 21-14122 Date Filed: 09/30/2022 Page: 10 of 10

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Ewing’s misconduct but failed to take prompt remedial action. See Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. 2552; Miller, 277 F.3d at 1278. The City’s anti-harassment policy insulated it from liability premised on constructive notice. Further, because the City sus- pended Ewing, investigated him, and fired him within days of re- ceiving the first formal complaint, there is no basis in the record to support a finding that the City failed to take prompt remedial ac- tion after it received actual notice of his misconduct. See Ellis, 432 F.3d at 1325-26; Farley, 115 F.3d at 1554. Thus, the district court did not err in granting summary judgment against Washington’s Title VII claim. Third, as to the Plaintiffs’ § 1983 claims, not only do those claims fail because they cannot establish an essential element of their Title VII claims, but they also cannot establish that their rights were violated pursuant to a “policy or custom” of the City. See Monell, 436 U.S. at 694, 98 S. Ct. at 2037-38; Stallworth, 777 F.2d at 1433. Considering the Plaintiffs’ inability to show that the City had notice of Ewing’s misconduct prior to 2019, there is no basis in the record to support a finding that the City tacitly authorized or dis- played deliberate indifference towards his misconduct. See Ellis, 432 F.3d at 1325-26; Griffin, 261 F.3d at 1308. Accordingly, based on the aforementioned reasons, we af- firm the district court’s order granting summary judgment to the City. AFFIRMED.