Faragher v. City of Boca Raton

• Decision Date: 15 April 1997
• Docket Number: No. 94-4878,94-4878
• Citation: 111 F.3d 1530
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1468, 70 Empl. Prac. Dec. P 44,634, 65 USLW 2701, 10 Fla. L. Weekly Fed. C 906 Beth Ann FARAGHER, Nancy Ewanchew, Plaintiffs-Appellants-Cross-Appellees, v. CITY OF BOCA RATON, a political subdivision of the State of Florida, Defendant-Appellee-Cross-Appellant, Bill Terry, David Silverman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1530

111 F.3d 1530

73 Fair Empl.Prac.Cas. (BNA) 1468,

70 Empl. Prac. Dec. P 44,634, 65 USLW 2701,

10 Fla. L. Weekly Fed. C 906

Beth Ann FARAGHER, Nancy Ewanchew Plaintiffs-Appellants-Cross-Appellees, v. CITY OF BOCA RATON, a political subdivision of the State of Florida, Defendant-Appellee-Cross-Appellant Bill Terry, David Silverman, Defendants-Appellees.

No. 94-4878.

United States Court of Appeals Eleventh Circuit.

April 15, 1997.

As Amended April 28, 1997 ^*.

William R. Amlong, Amlong & Amlong, P.A., Ft. Lauderdale, FL, for Plaintiffs-Appellants-Cross-Appellees.

Carolyn L. Wheeler, E.E.O.C., Washington, DC, for Amicus.

Cathy M. Stutin, Peter Hurtgen, Morgan, Lewis & Bockius, Miami, FL, for City of Boca Raton.

Michael T. Burke, Christine M. Duignan, Johnson, Anselmo, Murdoch, Burke & George, P.A., Ft. Lauderdale, FL, for Bill Terry.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and

DYER ^** and KRAVITCH ^***, Senior Circuit Judges.

COX, Circuit Judge.

I. Facts ¹

Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton, Florida (City), in the Parks and Recreation Department's Marine Safety Section. The City employed Faragher intermittently from September 1985 until June 1990. During these five years, Bill Terry and David Silverman acted as supervisors of the ocean lifeguards, Terry as Chief of the Marine Safety Section and Silverman as a Marine Safety lieutenant and then captain. Terry had the authority to supervise all aspects of the lifeguards' work assignments; to give oral reprimands and place reports of disciplinary actions in personnel files; and to interview and select new lifeguards, subject to approval by higher management. Silverman supervised the lifeguards' daily duties, including designating work assignments and supervising physical fitness routines.

The Marine Safety Section was organized according to a clear chain of command. Lifeguards reported to Marine Safety lieutenants, and above them to captains; the captains reported directly to the Chief of the Marine Safety Section, who was directly supervised by the Recreation Superintendent; the Recreation Superintendent reported to the Director of Parks and Recreation, who reported to the City Manager. Lifeguards had little contact with City officials. Marine Safety Headquarters was at the beach--in a remote location, far away from City Hall.

Marine Safety Chief Terry subjected Faragher and another lifeguard, Nancy Ewanchew, to uninvited and offensive touching, and lieutenant Silverman made offensive comments and gestures to both Faragher and Ewanchew. In particular, Faragher testified that over the course of her five years of employment Terry touched her shoulders or waist on a number of occasions, patted her thigh once in April 1990, and slapped her on the rear end. Ewanchew testified about two specific incidents where Terry touched her in a sexually offensive manner. However, neither Faragher nor Ewanchew complained to Parks and Recreation Department management about Terry's and Silverman's conduct while they were employed with the City or when they resigned. They both did speak about Terry's and Silverman's conduct with one of their supervisors, Marine Safety lieutenant and Training Captain Robert Gordon. In fact, most of the female lifeguards complained to Gordon about Silverman's language and conduct. The lifeguards did not speak with Gordon on a subordinate to superior basis; they spoke with him as a friend whom they held in high repute. Gordon did not report the complaints to his supervisor, Terry, or to any other City official.

Ewanchew resigned from her position with the City in April of 1989, saying that she was leaving because she had found a better job. Faragher resigned in June of 1990 to attend law school. In April of 1990, Ewanchew wrote a letter to the City's Director of Personnel complaining that she and other female lifeguards had been sexually harassed by Terry and Silverman while she was employed by the City. The City did not know about Terry's and Silverman's conduct until receiving Ewanchew's letter. The City then investigated Ewanchew's complaint and determined that Terry and Silverman had engaged in some inappropriate conduct. The City reprimanded and disciplined them both.

II. Procedural Background

In 1992, Faragher sued the City, Terry, and Silverman. Faragher sued the City for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I). Faragher sued Terry and Silverman for sexual harassment under 42 U.S.C. § 1983 (Counts II and III). Faragher also asserted pendent state law claims, suing Terry for battery (Counts IV and V) and the City for negligent retention and supervision of Terry (Counts VI and VII). The district court held a non-jury trial on all claims.

The district court entered judgment for Faragher on her Title VII claim against the City, awarding her $1 in nominal damages. ² The court held that Terry's and Silverman's offensive conduct was sufficiently severe and pervasive to alter the conditions of Faragher's employment by creating a hostile work environment. The court held that the City was directly liable for Terry's and Silverman's conduct under agency principles based on Terry's and Silverman's supervisory authority and the overall workplace structure. In addition, the court held that the City was indirectly liable for Terry's and Silverman's offensive conduct because the conduct was severe and pervasive and supported "an inference of knowledge, or constructive knowledge, on the part of the City regarding Terry's and Silverman's sexual harassment." (R.6-166 at 23.)

Faragher appealed and the City cross appealed. A panel of this court reversed the district court's judgment for Faragher on her Title VII sexual harassment claim against the City, but affirmed the district court's judgment in all other respects. Faragher v. City of Boca Raton, 76 F.3d 1155 (11th Cir.1996). That panel opinion was vacated and rehearing en banc was granted. Faragher v. City of Boca Raton, 83 F.3d 1346 (11th Cir.1996).

III. Issues on Appeal

We address two issues in this opinion: ³ First, whether the City may be liable under Title VII for Terry's and Silverman's hostile environment sexual harassment of Faragher, regardless of its actual or constructive knowledge of that harassment; and second, whether the City knew or should have known of Terry's and Silverman's hostile environment harassment of Faragher.

IV. Standards of Review

We review the district court's finding of fact under the clearly erroneous standard of review. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). We review the district court's conclusions of law and its application of law to facts de novo. Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994).

V. Contentions of the Parties

Faragher contends that Terry's and Silverman's positions as top lifeguard commanders make them prototypical agents of the City. Faragher argues that this status, combined with Terry's and Silverman's conduct, makes the City liable for hostile environment sexual harassment. In addition, Faragher argues that the harassment was so pervasive that the City should be charged with constructive knowledge of Terry's and Silverman's conduct.

The City argues that it cannot be held liable under agency principles for Terry's and Silverman's conduct because there is no evidence which supports a finding either that Terry and Silverman were acting within the scope of their authority in harassing Faragher, or that they were aided in accomplishing the harassment by the existence of their agency relationships with the City. The City further contends that the evidence is insufficient to support the trial court's finding that the City had constructive notice of Terry's and Silverman's conduct.

VI. Discussion

A. The City is not indirectly liable for Terry's and Silverman's conduct.

This case requires us to accommodate the Supreme Court's mandate in Meritor Savings Bank v. Vinson that federal courts use traditional agency principles when deciding hostile environment sexual harassment cases, but simultaneously "place some limits on the acts of employees for which employers under Title VII are to be held responsible." 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986).

Because the Eleventh and all other circuits employ agency principles in the realm of hostile environment sexual harassment, this opinion utilizes the language of traditional agency case law. Under this approach, direct liability and indirect liability are distinct concepts and form the only possible bases for an employer's liability. An employer is directly liable for hostile environment sexual harassment if it knew, or upon reasonably diligent inquiry should have known, of the harassment and failed to take immediate and appropriate corrective action. See Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir.1989); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982). ⁴ Under this theory of direct liability, the City can be held liable for its own negligence or recklessness, but not for the conduct of its supervisors or employees.

In contrast, an employer is indirectly, or vicariously, liable for the wrongful conduct of its agent, whether or not the employer knew or should have known about the agent's wrongful act. Generally, an employer may be indirectly liable for hostile environment sexual harassment by a superior: (1) if the harassment occurs within the scope of the superior's employment; (2) if the employer assigns performance of a non-delegable duty to a supervisor and an employee is injured because of the supervisor's...