Post on 22-Jan-2018
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No. 12-1205
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
ANDREA MILHOAN,
Plaintiff/Appellant
v.
MOOLAH & DOUGH LLP,
Defendant/Appellee
__________________________
ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
__________________________
BRIEF FOR THE APPELLANT __________________________
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STATEMENT OF JURISDICTION
Plaintiff Andrea Milhoan filed a complaint against Defendant Moolah
& Dough LLP in the United States District Court for the Northern District of
Georgia seeking damages and other relief under Title VII of the Civil Rights
Act of 1964 (R. at 1). The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. On August 16, 2011, the District Court entered an opinion
and order granting Defendant’s motion for summary judgment (R. at 24).
The District Court’s order granting Defendant’s motion for summary
judgment is a final judgment that disposed of all claims of all parties. See
Mendoza v. Borden, Inc., 195 F.3d 1238, 1242 (11th Cir. 1999). Andrea
filed a notice of appeal from this judgment on August 17, 2012 (R. at 25).
The notice of appeal was timely filed within 30 days after the entry of
judgment. Fed. R. App. P. 4(a)(1)(A). Accordingly, this Court has proper
jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
Did the District Court err by granting the defendant’s summary
judgment motion in a sexual harassment claim under Title VII of the Civil
Rights Act of 1964 (1) when the victim reported the harasser’s conduct to
her supervisor within a week of each of two sexually explicit incidents and
filed a formal EEOC complaint within a month of the second sexually
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explicit incident; (2) when the victim suffered approximately eighteen
physical encounters with the harasser within a six-month time period, two of
which were sexually explicit; and (3) when the victim missed a deadline,
was forced to move her office two floors above her former office, and cried
after one of the sexually explicit incidents?
Should an employer be held liable for sexual harassment under Title
VII of the Civil Rights Act of 1964 when the victim reported the sexual
harassment to a supervisor on more than one occasion, the supervisor
assured the victim that he would take care of it, and then he failed to take
prompt remedial action?
STATEMENT OF THE CASE
A. Course of the Proceedings and Disposition in the Court Below
Plaintiff Andrea Milhoan brought a cause of action against Defendant
Moolah & Dough LLP in the United States District Court for the
Northern District of Georgia for hostile work environment sexual
harassment under Title VII of the Civil Rights Act of 1964 (R. at 1).
Following discovery, which included depositions of Plaintiff Andrea
Milhoan and her supervisor, Luis Rodriguez, Defendant Moolah &
Dough filed a motion for summary judgment on July 20, 2012 (R. at 22).
The District Court granted Defendant’s motion on August 16, 2012,
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finding that Defendant took prompt remedial action regarding the alleged
sexual harassment that Plaintiff experienced during the course of
Plaintiff’s employment with Defendant (R. at 24). This appeal followed.
B. Statement of the Facts
Andrea Milhoan began working with Moolah & Dough LLP on or about
November 2, 2010 as a research assistant (R. at 3). Within a month of
Andrea’s hire date, Mr. Jacobs, one of her coworkers, physically
approached Andrea to ask her to go out on a date with him. Id. Even
though Andrea denied Mr. Jacobs’ request for a date and explicitly told
him that she was not interested in seeing him socially, Mr. Jacobs
persisted and physically approached Andrea to ask her out on dates after
every weekly staff meeting from November 2010 until mid-February
2011. Id.
On or about February 17, 2011, Mr. Jacobs approached Andrea as she
was picking up papers from the floor, placed his hands on her head, and
forcefully thrust his pelvis into her forehead. Id. During this incident, Mr.
Jacobs said, “Andrea, this could be my belated Valentine’s Day present.”
Id. Andrea then fell backwards and hit the back of her neck on the corner
of her desk. Id. Following this incident, Andrea ran to the women’s
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restroom, crying, and two of her coworkers witnessed the incident. Id.
Andrea also missed a deadline for a document summary due that day. Id.
On or about February 21, 2011, Andrea spoke with her supervisor, Luis
Rodriguez, to inform him of Mr. Jacobs’ harassing conduct (R. at 4). She
also requested that Mr. Jacobs’ office be moved away from hers. Id.
However, on March 19, 2011, Moolah & Dough moved Andrea’s office
two floors above her former office. Id.
On or about April 5, 2011, Mr. Jacobs sent a media text-message to
Andrea on her company cell phone with a subject line that read, “I’m
sorry.” Id. Although Andrea was initially relieved because she thought
that Mr. Jacobs wanted to apologize for his past conduct (R. at 16), the
text-message contained a video of celebrity Britney Spears and Adnan
Ghalib engaging in sex (R. at 4). The faces in the video had been digitally
replaced with Andrea’s and Mr. Jacobs’ photos, and the banner at the top
of the screen read, “We’ll make our own video!” Id. Before Andrea could
close the video, several of her coworkers saw or overheard it and started
laughing (R. at 16).
On April 6, 2011, Andrea spoke to Luis Rodriguez again regarding Mr.
Jacobs’ harassing conduct, specifically the media text-message, and Mr.
Rodriguez said, “We will take care of it, and I will let you know when
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this matter is resolved.” (R. at 4.) However, between April 7 and April
29, Moolah & Dough failed to take any action with respect to Mr. Jacobs
(R. at 5). On April 27, 2011, Andrea filed a formal EEOC complaint,
after which Moolah & Dough finally took action and suspended Mr.
Jacobs, without pay, pending an investigation. (R. at 21.) Mr. Jacobs
voluntarily resigned after learning of his suspension. Id.
C. Statement of the Standard of Review
The district court’s order granting a motion for summary judgment is
subject to de novo review. Harris v. H & W Contracting Co., 102 F.3d
516, 518 (11th Cir. 1996). “Summary judgment is appropriate where
the pleadings, depositions, and affidavits show that there is no genuine
issue of material fact and that the moving party is entitled to judgment
as a matter of law.” Id.
SUMMARY OF ARGUMENT
Federal Rule of Civil Procedure 56 provides that summary judgment
is permissible when no genuine issues as to material fact exist in a case. Fed.
R. Civ. P. 56. Andrea asks this Court to reverse the District Court’s grant of
Moolah and Dough’s motion for summary judgment and to hold that
genuine issues as to material fact exist in this Title VII sexual harassment
case regarding (1) whether the sexual harassment of Andrea was sufficiently
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severe and pervasive to alter a term or condition of her employment, and (2)
whether Moolah and Dough took prompt and appropriate remedial action
after receiving notice of the sexual harassment. The record establishes that
the facts raise genuine issues as to material fact regarding both of these
elements of Andrea’s Title VII sexual harassment claim.
First, the sexual harassment that Andrea endured during her
employment with Moolah and Dough was sufficiently severe and pervasive
to alter a term or condition of her employment. The relevant case law
establishes that, in order to be sufficiently severe or pervasive, sexual
harassment must be subjectively perceived by the victim as severe and
pervasive, and it must also be frequent, severe, physically threatening or
humiliating, and unreasonably interfere with the victim’s job.
The record reflects that Andrea suffered approximately eighteen
sexual harassment incidents over a six-month time period. This sexual
harassment was frequent because Andrea suffered numerous incidents
during a relatively short period of time. Additionally, the sexual harassment
was severe because one of the incidents involved sexually explicit physical
contact coupled with a sexually explicit verbal expression by the harasser.
Furthermore, the sexual harassment was physically threatening or
humiliating because another incident involved a sexually explicit text-
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message that was embarrassing to Andrea that was made public when
several of her coworkers either heard or saw its content before she was able
to close it on her work phone. Finally, the sexual harassment unreasonably
interfered with Andrea’s job because the sexual harassment caused her to
become very emotional at work, miss a deadline, and cope with the burden
of having to move her entire office to a new office space two floors above
her former office.
Therefore, the sexual harassment that Andrea endured was sufficiently
severe and pervasive to alter a term or condition of her employment.
Not only was the sexual harassment in this case severe and pervasive,
but Moolah and Dough also failed to take prompt and appropriate remedial
action against the harasser to terminate the sexual harassment after receiving
notice of it. In Andrea’s case, Moolah and Dough had actual notice of the
sexual harassment because Andrea reported the conduct to her direct
supervisor on two occasions, in accordance with Moolah and Dough’s No
Harassment Policy. Additionally, the action taken by Moolah and Dough in
response to Andrea’s complaints was not appropriately remedial because,
even after being explicitly instructed by the supervisor to cease the sexual
harassment of Andrea, the harasser continued with the sexual harassment,
and Moolah and Dough took no further disciplinary action against the
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harasser. Finally, Moolah and Dough’s actions in response to Andrea’s
complaints were not prompt because they involved neither the
commencement of an investigation into the harasser’s conduct nor taking
formal disciplinary action against the harasser either immediately or within a
short time after receiving actual notice of the harassment.
Therefore, Moolah and Dough failed to take prompt or appropriately
remedial action in response to Andrea’s complaints of sexual harassment
after receiving actual notice of the sexual harassment.
According to the record in this case, the facts raise genuine issues as
to material fact regarding (1) whether the sexual harassment was sufficiently
severe and pervasive to alter a term or condition of Andrea’s employment,
and (2) whether Moolah and Dough took prompt and appropriate remedial
action after receiving actual notice of the sexual harassment. Therefore, the
District Court erred in granting Moolah and Dough’s motion for summary
judgment. Andrea respectfully requests this Court to reverse the District
Court’s grant of the motion for summary judgment and remand this action to
the District Court for trial.
ARGUMENT AND CITATIONS OF AUTHORITY
I. THE DISTRICT COURT’S ORDER GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD BE REVERSED BECAUSE THE SEXUAL HARASSMENT OF ANDREA MILHOAN WAS SUFFICIENTLY
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SEVERE TO AFFECT A TERM OF HER EMPLOYMENT AND BECAUSE MOOLAH AND DOUGH DID NOT TAKE PROMPT REMEDIAL ACTION IN RESPONSE TO ANDREA’S COMPLAINTS, THUS RAISING GENUINE ISSUES OF MATERIAL FACT IN THE PRESENT CASE.
Under Title VII of the Civil Rights Act of 1964, an employer may not
discriminate against any employee “with respect to his terms, conditions, or
privileges of employment on the basis of such [employee’s] race, color,
religion, sex, or national origin.” See Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (citing 42 U.S.C. section 2000e-2(a)(1)). Although Title VII
does not explicitly address the issue of sexual harassment, the Supreme
Court recognizes that “[t]he phrase ‘terms, conditions, or privileges of
employment’ evinces a congressional intent to strike at the entire spectrum
of disparate treatment of men and women in employment, which includes
requiring people to work in a discriminatorily hostile or abusive
environment.” See Mendoza, 195 F.3d at 1244 (citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).
Any employee who establishes “(1) that he or she belongs to a protected
group; (2) that he or she 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 was based on his or her sex; (4) that
the harassment was sufficiently severe or pervasive to alter the terms and
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conditions of employment and create a discriminatorily abusive working
environment; and (5) a basis for holding the employer liable” is able to bring
a sexual harassment claim under Title VII. Id. at 1245.
The first three elements listed above are not at issue, and therefore they
will not be addressed in the present argument. With respect to the remaining
elements, the harassment of Andrea was, indeed, sufficiently severe to alter
the terms and conditions of her employment, and Moolah and Dough failed
to take prompt remedial action in response to Andrea’s complaints, thus
establishing a basis for holding Moolah and Dough liable. Accordingly, this
Court should reverse the District Court’s decision.
A. The Harassment that Andrea Suffered During her Employment at Moolah and Dough by Mr. Jacobs Created a Subjectively and Objectively Hostile or Abusive Work Environment Because Andrea Subjectively Perceived Such Conduct as Severe and Pervasive; Andrea was Subjected to Eighteen Physical Encounters with Mr. Jacobs in a Six-Month Period, Two of Which Were Sexually-Explicit; and Andrea Missed a Deadline at Work, Was Forced to Move her Office, and Ran to the Restroom Crying as a Result of Mr. Jacobs’ Conduct.
Under the common law, “establishing that harassing conduct was
sufficiently severe or pervasive to alter an employee’s terms or conditions of
employment includes a subjective and an objective component.” Id. at 1246.
Mr. Jacobs’ conduct toward Andrea far exceeds the minimum criteria of
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both the subjective and objective standards. Therefore, the Court should find
that Mr. Jacobs’ conduct rises to the level of “sufficiently severe.”
1. Andrea Subjectively Perceived Mr. Jacobs’ Harassment as Severe and Pervasive Because She Reported Mr. Jacobs’ Conduct to Her Supervisor Within a Week of Each of the Two Sexually Explicit Encounters with Mr. Jacobs, and She Filed an EEOC Complaint Within a Month After the Second Sexually Explicit Incident.
Andrea’s perception of Mr. Jacobs’ conduct as severe and pervasive
satisfies the subjective component for establishing that the conduct was
“sufficiently severe.” An employee that “subjectively perceives” the
harassment in question as severe and pervasive “to alter the terms or
conditions of employment” satisfies the subjective component. Id.
In the present case, Andrea subjectively perceived Mr. Jacobs’ conduct as
severe and pervasive. The first situation that evidences such a subjective
perception involves Andrea’s actions immediately after the February 17,
2011 incident, during which Mr. Jacobs thrust his pelvis into her forehead
(R. at 14). Immediately following this incident, Andrea “ran to the women’s
restroom crying.” Id. Additionally, Andrea testified that she reported Mr.
Jacobs’ conduct to her supervisor, Mr. Rodriguez, on two occasions. Id. The
first time that she reported his conduct to Mr. Rodriguez was less than a
week after the February 17th incident (R. at 14), and the second time was the
day following her receipt of the sexually explicit text-message from Mr.
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Jacobs (R. at 17). Furthermore, Andrea also filed a formal EEOC complaint
on April 27, 2011 (R. at 5).
Based on this evidence, Andrea subjectively perceived Mr. Jacobs’
conduct as severe and pervasive because, otherwise, she would not have
responded to his conduct as she did. Additionally, Andrea did not allow
weeks or months to pass before reporting Mr. Jacobs’ conduct to the
appropriate company official, which suggests that she perceived his conduct
as severe and wanted him to discontinue it as soon as possible. Accordingly,
Andrea subjectively perceived Mr. Jacobs’ conduct as severe and pervasive.
2. Mr. Jacobs’ Conduct Toward Andrea also Satisfies the Objective Component Because Andrea Was Subjected to Approximately Eighteen Physical Encounters with Mr. Jacobs Within a Six-Month Period, Two of Which Were Sexually Explicit; Mr. Jacobs’ Harassment Caused Andrea Extreme Embarrassment in Front of Her Coworkers; and Andrea Missed a Deadline, Was Forced to Move Her Office, and Ran to the Restroom Crying as a Result of Mr. Jacobs’ Harassment.
In the present case, Andrea is able to satisfy the objective component for
holding Mr. Jacobs’ conduct as “sufficiently severe.” In determining
whether the conduct satisfies the objective component, the Supreme Court
and the Eleventh Circuit have identified four relevant factors: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the
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employee’s job performance.” Mendoza, 195 F.3d at 1246. In the present
case, Andrea is able to satisfy every one of these four factors by a
preponderance of the evidence.
i. Mr. Jacobs’ Harassment was Frequent Because Andrea Endured Approximately Eighteen Physical Encounters With Mr. Jacobs During a Six-Month Time Period.
Mr. Jacobs’ conduct toward Andrea was frequent enough that the Court
should consider it severe and pervasive. Sexually harassing conduct is
frequent when it involves a large number of incidents occurring within a
relatively short time period. See Dees v. Johnson Controls World Serv., Inc.,
168 F.3d 417, 418-419 (11th Cir. 1999). In Dees, the court held that “almost
daily” sexually harassing acts over a three-year period satisfied the
frequency factor for “sufficiently severe” conduct. Id.
Like the harasser in Dees, who subjected the victim to a large number of
sexual harassment incidents within a short period of time, Mr. Jacobs in our
case subjected Andrea to numerous sexual harassment incidents within a
short time period. Within one month after Andrea’s hire date, Mr. Jacobs
began approaching her in person to ask her to go out with him on dates (R. at
3). These physical approaches occurred every week after staff meetings,
approximately sixteen times within a four-month period. Id. Although the
physical approaches requesting dates did not occur every day over a period
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of three years, like in Dees, there were still a substantial number of sexually
harassing incidents occurring within a short time period.
Mr. Jacobs further harassed Andrea on February 17, 2011, when he
grabbed her head and thrust his pelvis into her forehead (R. at 13), and on
April 5, 2011, when he sent a sexually explicit text-message (R. at 15). The
facts and testimony regarding the physical approaches requesting dates as
well as the two more disturbing incidents to which Andrea testified evidence
approximately eighteen total physical encounters between Andrea and Mr.
Jacobs within a six-month time period.
While Andrea’s case is analogous to Dees, it is distinguishable from
Mendoza. In Mendoza, the Court held that the supervisor’s conduct toward
the employee was not frequent because the facts asserted by the employee
only produced evidence of “a single instance of slight physical contact, one
arguably inappropriate statement, and three instances of [the supervisor’s]
making a sniffing sound.” Mendoza, 195 F.3d at 1249. Furthermore, the
Court noted that these incidents all occurred within an eleven-month time
period, so they were “far too infrequent.” Id.1 Unlike the infrequent number
of sexual harassment incidents in Mendoza, and similar to the frequent
1 Although Mendoza involved alleged sexual harassment between a supervisor and his employee, Mendoza is directly applicable to Andrea’s case because it establishes the legal rules and a guide for distinguishing Andrea’s case.
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number of sexual harassment incidents established in Dees, Andrea’s case
involves a large quantity of sexually harassing incidents occurring over a
short time period. Thus, Mr. Jacobs’ conduct was frequent.
ii. Mr. Jacobs’ Harassment Was Also Severe Because He Grabbed Andrea’s Head While She Was Picking Up Papers, Thrust His Pelvis into Her Forehead, While He Simultaneously Said, “Andrea, This Could be my Belated Valentine’s Day Present.”
Not only was Mr. Jacobs’ conduct toward Andrea frequent, but it was
also severe. When conduct involves sexually explicit physical contact
coupled with sexually related verbal expressions by the harasser, it is severe.
See Dees, 168 F.3d 419. In Dees, the court considered the harasser’s conduct
severe when he “ground his groin into [the victim’s] buttocks after stating
‘look at that sexy mama, I could just eat you in that skirt’.” Id.
Mr. Jacobs’ conduct is analogous to the harasser’s severe conduct in
Dees. Here, Mr. Jacobs grabbed Andrea’s head and thrust his pelvis into her
forehead, during which he said, “Andrea, this could be my belated
Valentine’s Day present.” (R. at 13.) Like the harasser’s conduct in Dees,
Mr. Jacobs’ conduct in this incident involved sexually explicit physical
contact, which was coupled with a sexually related verbal expression.
Accordingly, because Mr. Jacobs’ conduct in the February 17th incident
included sexually explicit physical contact, coupled with a sexually related
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verbal expression on the part of Mr. Jacobs, the Court in the present case
should hold such conduct by Mr. Jacobs to be severe.
iii. Additionally, Mr. Jacobs’ Harassment Was Physically Threatening or Humiliating Because He Sent Andrea a Sexually Explicit Text-Message That Was Made Public to Several of Her Co-workers Who Heard or Saw it and Started Laughing Before Andrea Was Able to Close it.
While Mr. Jacobs’ conduct toward Andrea was both frequent and severe,
it was also physically threatening or humiliating. When sexually harassing
conduct that is embarrassing to the victim is made public to others, that
conduct is physically threatening or humiliating. See Dees, 168 F.3d at 419.
In Dees, the court considered the harasser’s conduct to be physically
threatening or humiliating when “[he] asked [the victim] to sit on his lap.
When [the victim] refused, [the harasser] picked [her] up and squeezed her
so hard that she urinated in her pants. [The harasser], laughing, told the other
firefighters what had happened.” Id.
In the present case, Mr. Jacobs’ conduct was physically threatening or
humiliating. When Mr. Jacobs sent Andrea the sexually explicit text-
message, some of her coworkers overheard it and started laughing (R. at 16).
Furthermore, some of them actually saw the text-message before Andrea
was able to close it. Id. Like the harasser in Dees, who embarrassed the
victim by squeezing her so hard that she urinated in her pants and then made
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the occurrence public by telling others what happened, Mr. Jacobs
embarrassed Andrea by sending her a sexually explicit text-message that
was made public when several of her coworkers heard or saw it. Therefore,
because the text-message was both embarrassing to Andrea and was made
public to several of her coworkers, it was physically threatening or
humiliating.
Accordingly, Mr. Jacobs’ conduct was physically threatening or
humiliating.
iv. Finally, Mr. Jacobs’ Harassment Unreasonably Interfered With Andrea’s Job Because She Missed a Deadline, Her Office Was Moved Two Floors Above Her Former Office, and She Ran to the Women’s Restroom Crying After One of the Harassment Incidents.
In addition to the fact that Mr. Jacobs’ conduct in this case was frequent,
severe, and physically threatening or humiliating, his conduct also
unreasonably interfered with Andrea’s job. Whenever a coworker’s sexually
harassing conduct is such that it prevents the victim from effectively
engaging in the workplace and accomplishing required tasks, the sexually
harassing conduct unreasonably interferes with the victim’s job. See Johnson
v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir.
2000). In Johnson, the Court held that the harasser’s conduct unreasonably
interfered with the victim’s job because “she could not get along with her
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on-the-air co-host.” Id. Similar to the victim in Johnson, whose shift was
moved from the morning to the midday air shift, Andrea’s work office was
moved two floors above her former office as a result of Mr. Jacobs’
harassing conduct (R. at 4). In this regard, Mr. Jacobs’ sexually harassing
conduct prevented Andrea from effectively engaging in the workplace
because she was burdened with the requirement of having to move her entire
office as a result of Mr. Jacobs’ sexual harassment. Additionally, Andrea ran
to the women’s restroom crying after the February 17th incident (R. at 3),
which further suggests that Mr. Jacobs’ sexually harassing conduct
prevented Andrea from effectively engaging in the workplace because
someone who is emotional is usually unable to effectively engage with his or
her surroundings and other people with whom he or she is in close
proximity.
Unlike the victim in Johnson, however, who never reportedly missed a
deadline at work, the record in the present case reflects that Andrea missed a
deadline on a document summary due the same day as the February 17th
incident (R. at 3). Hence, Mr. Jacobs’ conduct prevented Andrea from
effectively accomplishing required tasks.
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Therefore, Mr. Jacobs’ harassing conduct prevented Andrea from
effectively engaging in the workplace as well as effectively accomplishing
required tasks, so his conduct unreasonably interfered with Andrea’s job.
Accordingly, the Court should hold that Mr. Jacobs’ conduct is
“sufficiently severe” within the meaning of Title VII and the relevant case
law presented to support this conclusion.
B. Moolah and Dough is Directly Liable for Mr. Jacobs’ Sexually Harassing Conduct Because Moolah and Dough Had Actual Notice of the Harassment, Failed to Take Appropriate Remedial Action Against Mr. Jacobs, and Did Not Promptly Respond to Andrea’s Complaints.
Any employee who demonstrates by a preponderance of the evidence that
his or her employer either knew (actual notice) or should have known
(constructive notice) of sexual harassment and failed to take prompt
remedial action in response to such sexual harassment establishes a basis for
holding the employer liable in a Title VII sexual harassment claim. See
Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000). In
Andrea’s case, the evidence establishes that Moolah and Dough had actual
notice of the sexual harassment that Andrea endured during the course of her
employment and that it failed to take prompt remedial action in response to
the sexual harassment. Accordingly, the Court should hold Moolah and
Dough liable for the sexual harassment that Andrea suffered.
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1. Moolah and Dough had Actual Notice of the Sexual Harassment that Andrea Endured During Her Employment Because, in Compliance with Moolah and Dough’s No Harassment Policy, Andrea Personally Reported Mr. Jacobs’ Conduct to Her Supervisor, Mr. Rodriguez, on Two Separate Occasions.
In the present case, Moolah and Dough had actual notice of the sexual
harassment that Andrea endured during the course of her employment. When
an employer has a clear and published policy for reporting incidents of
harassment, and the employee follows that policy, “the employer’s [actual]
notice of the harassment is established by the terms of the policy. Through
the policy, the employer has given the designated person explicit actual
authority to handle the complaints.” Id. at 889.
In Andrea’s case, Moolah and Dough had actual notice of the sexual
harassment. Andrea testified that she reported Mr. Jacobs’ conduct to her
supervising partner, Mr. Rodriguez, on two occasions (R. at 14). The first
time that she reported his conduct to Mr. Rodriguez was less than a week
after the February 17th incident (R. at 14), and the second time was within
one day of receiving the sexually explicit text-message from Mr. Jacobs (R.
at 17). During her first meeting with Mr. Rodriguez, Andrea reported that
Mr. Jacobs had asked her out on dates after every weekly staff meeting in
addition to reporting Mr. Jacobs’ conduct during the February 17th incident
(R. at 19).
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Furthermore, Moolah and Dough had a clear and published No
Harassment Policy that read, in pertinent part, “[i]f you believe that you
have been sexually harassed, please report it immediately to your direct
supervising partner, any senior partner, or the Human Resource Director”
(R. at 8). Andrea complied with Moolah and Dough’s No Harassment Policy
by reporting Mr. Jacobs’ conduct to Mr. Rodriguez, who was Andrea’s
direct supervising partner (R. at 4), within days following the February 17th
incident and the day after the April 5th incident on which she received the
sexually explicit text-message from Mr. Jacobs. Id.
Accordingly, since Andrea promptly reported Mr. Jacobs’ sexually
harassing conduct to her direct supervising partner on two separate
occasions in accordance with the No Harassment Policy, Moolah and Dough
had actual notice of the sexual harassment.
2. The Action Taken by Moolah and Dough was Not Appropriately Remedial Because, Even After Mr. Rodriguez Explicitly Instructed Mr. Jacobs to Leave Andrea Alone, He Disregarded the Instruction, And Moolah and Dough Failed to Take any Further Action Against Mr. Jacobs.
In addition to having actual notice of the sexual harassment that
Andrea endured during her employment, the action taken by Moolah and
Dough was not appropriately remedial to terminate the sexual harassment.
An employer that, after actual or constructive notice is established, fails to
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take any disciplinary action against a harasser or fails to take further action
when the harasser does not heed a supervisor’s explicit instruction to
discontinue the harassment complained of, fails to take appropriate remedial
action to terminate such harassment. See Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269 (11th Cir. 2002).
In Miller, a supervisor reviewed the employer’s anti-discrimination
policy with the harassers at a monthly safety meeting and warned the
harassers that anyone continuing to use ethnic slurs toward the victim would
be terminated immediately. Id. at 1274. However, one of the harassers
disregarded the supervisor’s warning and continued with the harassing
conduct. Id. The court held that the employer failed to take appropriate
remedial action because it did not take any action against the harasser, even
after the harasser disregarded the supervisor’s explicit instruction to cease
the harassing behavior. Id. at 1280.
Like the employer in Miller, that failed to take any action against the
harasser after he disregarded the supervisor’s explicit instruction to cease the
harassing conduct, Moolah and Dough in our case failed to take any
disciplinary action against Mr. Jacobs after he did not heed Mr. Rodriguez’s
explicit instruction to cease his sexual harassment of Andrea. Approximately
two weeks after Andrea personally reported the February 17th incident and
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Mr. Jacobs’ weekly requests for dates to Mr. Rodriguez, Mr. Rodriguez met
with Mr. Jacobs to “read him the sexual harassment policy of Moolah &
Dough in its entirety, verbatim, and [he] told [Mr. Jacobs] in no uncertain
words to leave Andrea alone” (R. at 19-20). Mr. Rodriguez testified that he
did not place a disciplinary letter in Mr. Jacobs’ personnel file, limit Mr.
Jacobs’ computer or phone use, or even request that another employee or
supervisor monitor Mr. Jacobs’ conduct toward Andrea after this meeting
(R. at 20). On April 5, Andrea received the sexually explicit text-message
from Mr. Jacobs and again reported the sexually harassing conduct to Mr.
Rodriguez, who responded, “[t]his is terrible. We will take care of it, and I
will let you know when this matter is resolved” (R. at 4). After Andrea made
her second complaint to Mr. Rodriguez, however, Moolah and Dough “did
not investigate and took no action with respect to Mr. Jacobs” (R. at 5).
The facts of Andrea’s case are substantially similar to the facts in
Miller. Like the supervisor in Miller, who reviewed the employer’s anti-
discrimination policy with the harasser and explicitly instructed him to cease
the harassing conduct, Mr. Rodriguez reviewed Moolah and Dough’s No
Harassment Policy with Mr. Jacobs and explicitly instructed him to leave
Andrea alone (R. at 19-20). Furthermore, like the harasser in Miller, who
disregarded the supervisor’s explicit instruction, Mr. Jacobs disregarded Mr.
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Rodriguez’s explicit instruction and continued to sexually harass Andrea by
sending her the sexually explicit text-message on April 5 (R. at 4).
Additionally, like the employer in Miller, that did not take any further
disciplinary action against the harasser after the harasser disregarded the
supervisor’s explicit instruction to cease the harassing conduct, Moolah and
Dough failed to take any further disciplinary action against Mr. Jacobs after
Andrea’s second sexual harassment complaint until after she filed the EEOC
complaint approximately three weeks after making the second sexual
harassment complaint to Mr. Rodriguez (R. at 5).
Accordingly, because Moolah and Dough failed to take any further
action against Mr. Jacobs after he disregarded Mr. Rodriguez’s explicit
instruction to cease his sexual harassment of Andrea, Moolah and Dough
failed to take appropriate remedial action.
3. The Action That Moolah and Dough Took in Response to Andrea’s Complaints Was Not Prompt Because Moolah and Dough Waited for Approximately Two Weeks Before Taking Any Action Following Andrea’s First Complaint to Mr. Rodriguez and Approximately One Month Following Andrea’s Second Complaint.
Finally, Moolah and Dough did not take prompt action in response to
Mr. Jacobs’ sexual harassment of Andrea.
Neither the case law nor the EEOC guidelines provide a clear and
definite rule for what constitutes prompt action by an employer. However,
26
this Court has previously held that prompt action can be found where an
investigation into the harassment is commenced, or formal disciplinary
action is taken against the harasser, either immediately or within a short time
following an employee’s harassment complaint. See Farley v. Am. Cast Iron
Pipe Co., 115 F.3d 1548 (11th Cir. 1997) (holding that commencement of an
investigation into the harassment within one week following the complaint is
“effective and immediate” action); see also Fleming v. Boeing Co., 120 F.3d
242 (11th Cir. 1997) (holding that the immediate commencement of an
investigation into the harassment and subsequent disciplinary action against
the harasser resulting from the investigator’s recommendation constituted
“effective and immediate” action).
In the present case, the actions that Moolah and Dough took following
both of Andrea’s sexual harassment complaints were not in any way prompt
within the scope of the previous holdings of this Court. Following Andrea’s
first sexual harassment complaint to Mr. Rodriguez on February 21 (R. at 4),
the record indicates that Mr. Rodriguez took no action whatsoever with
respect to Andrea’s complaint until March 8 when he met with Mr. Jacobs to
discuss the allegations (R. at 19). However, Mr. Rodriguez did not threaten
to fire Mr. Jacobs if he continued with the sexual harassment or even place a
disciplinary letter in Mr. Jacobs’ personnel file (R. at 20). Therefore,
27
although Mr. Rodriguez met with Mr. Jacobs on March 8 to discuss
Andrea’s complaint, the Court should not consider this action to be prompt
because it included neither the commencement of an investigation into the
sexual harassment nor any formal disciplinary action against Mr. Jacobs.
Additionally, it was not timely when compared with the cited previous
holdings of this Court because it occurred neither immediately nor within a
short time after Andrea’s sexual harassment complaint.
The record further indicates that, also in response to Andrea’s first
sexual harassment complaint, Moolah and Dough moved her office two
floors above her former office on March 19, approximately one month after
she made her first sexual harassment complaint (R. at 4). The relocation of
Andrea’s office, like Mr. Rodriguez’s meeting with Mr. Jacobs, should not
be considered prompt action because it does not include the commencement
of an investigation into the sexual harassment or formal disciplinary action
against Mr. Jacobs, nor did it occur immediately or within a short time after
Andrea’s first complaint. Therefore, the Court should not consider the
relocation of Andrea’s office as prompt action by Moolah and Dough in
response to Andrea’s complaint.
On April 6, Andrea met again with Mr. Rodriguez to make a second
sexual harassment complaint against Mr. Jacobs after she received the
28
sexually explicit text-message from him on the previous day (R. at 4).
Although Mr. Rodriguez told Andrea that he would “take care of it” (R. at
4), Moolah and Dough “did not investigate and took no action with respect
to Mr. Jacobs” until almost one month later, after Andrea filed an EEOC
complaint on April 27 (R. at 5). The record indicates that on May 2, Moolah
and Dough suspended Mr. Jacobs without pay pending the results of an
investigation, and Mr. Jacobs tendered his resignation that same day (R. at
21). While Moolah and Dough’s action in this circumstance involves both
the commencement of an investigation and formal disciplinary action against
Mr. Jacobs, such action was not undertaken until almost one month after
Andrea’s second sexual harassment complaint, which does not comport with
the “immediate” or “within a short time” standards established by the cited
previous holdings of this Court. Therefore, Moolah and Dough’s
investigation and suspension of Mr. Jacobs should not be considered prompt
action in this case.
Accordingly, Moolah and Dough’s actions following Andrea’s first
and second sexual harassment complaints were not prompt because they did
not comport with the “immediate” or “within a short time” standards
established by the cited previous holdings of this Court.
29
Therefore, because Moolah and Dough had actual notice of the sexual
harassment of Andrea and failed to take prompt remedial action, the Court
should hold Moolah and Dough liable for the sexual harassment in this case.
CONCLUSION
The District Court erred in granting Moolah and Dough’s motion for
summary judgment. For the reasons discussed above, Appellant Andrea
Milhoan respectfully requests that this Court reverse the judgment of the
District Court and remand the present action to the District Court for trial.
CERTIFICATE OF SERVICE
I, Steve Dluzneski, do hereby certify that I have served upon the
Appellee/Defendant a complete and accurate copy of this Brief, by placing a
copy in the United States Mail, sufficient postage affixed and addressed as
follows:
/s/ Steve Dluzneski
Dated: November 10, 2012 /s/ Attorney for Appellee/Defendant