208 F.3d 1290 (11th Cir. 2000), 98-5802, Madray v Publix Supermarkets Inc.

Docket Nº:98-5802.
Citation:208 F.3d 1290
Party Name:Connie Lynn MADRAY and Melody Holden, Plaintiffs-Appellants, v. PUBLIX SUPERMARKETS, INC., Defendants-Appellees.
Case Date:April 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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208 F.3d 1290 (11th Cir. 2000)

Connie Lynn MADRAY and Melody Holden, Plaintiffs-Appellants,


PUBLIX SUPERMARKETS, INC., Defendants-Appellees.

No. 98-5802.

United States Court of Appeals, Eleventh Circuit

April 13, 2000

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[Copyrighted Material Omitted]

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

Before BIRCH and MARCUS, Circuit Judges, and ALAIMO[*], Senior District Judge.

BIRCH, Circuit Judge:

Connie Lynn Madray and Melody Holden (collectively, "plaintiffs") appeal the district court's order granting summary judgment to Publix Super Markets, Inc. ("Publix") and dismissing their claims against Publix for hostile environment sexual harassment, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., as amended. The plaintiffs argue that Publix is not entitled to the affirmative defense to vicarious liability for sexual harassment announced by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), (the "Faragher affirmative defense") because questions persist about (1) whether Publix exercised due care to prevent sexual harassment in its store, (2) when Publix became aware of the sexual harassment to which the plaintiffs were being subjected, and (3) whether the plaintiffs utilized the appropriate procedures for reporting sexual harassment.1 For the reasons that follow,

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we AFFIRM the holding of the district court.


Holden has worked in Publix store number 118 in Okeechobee, Florida since 1987. She continues to be employed as a scan price clerk in store 118. Madray worked at store 118 from 1990 until April 1997, when she moved to Georgia. She is now employed by Publix as a part-time stock clerk in Athens, Georgia. Ronald Selph became the manager of store 118 in 1994. As store manager, Selph was the highest ranking employee in store 118. Thus, he exercised supervisory authority over both Holden and Madray until he was transferred to store 61 as an assistant manager in September 1995.

From the commencement of his employment as manager of store 118, Selph made a practice of hugging and patting his employees. Selph explained that he engaged in this behavior in an effort to promote a family atmosphere at the store and increase productivity. The plaintiffs were not initially offended by Selph's behavior; however, over time, the plaintiffs contend that Selph's conduct escalated and became offensive.2

The plaintiffs first complained about Selph's harassing behavior to three mid-level managers at store 118. Holden testified that, at a party for a departing employee, she told Darlene Clark, a Second Assistant Manager, "[t]hat it made me sick for [Selph] to hug me and touch me and kiss me." R3-82, Deposition of Melody Holden, at 58. However, Holden did not request that Clark take any action as a result of her comment. See id. at 59. Rather, Holden "hop[ed] that [Clark would] take it in her own hands and do it because she's in management." Id. at 59.

About a month or two later, Holden testified that, while in a restaurant with several other employees of store 118, she told Second Assistant Manager Gary Priest that Selph had "grabbed me and ducked me over and kissed me on the neck." Id. at 62. While Holden did not request that Priest undertake any action regarding her complaint, she did tell him that she did not know what do about Selph's behavior. See id. at 63. Holden stated that Priest was "shocked" by her account of Selph's behavior and "didn't know what to say either." Id. at 62-63.

Holden also testified that approximately two to three weeks before she lodged a formal complaint against Selph, David Neff, the Bakery Manager, witnessed an incident of inappropriate behavior by Selph. According to Holden, Neff told Selph "That's sexual harassment," but Selph responded that he did not care what Neff called it. Id. at 125-26. Holden stated that when she thanked Neff for trying to stop Selph's inappropriate behavior, she explained that she hoped he would stop since Neff had told him it was sexual harassment. Neff replied: "Well, if it doesn't, you let me know. And if it still continues, if you don't complain about it, then I have to as a manager." Id. at 126. Holden responded that she would talk to Madray and make arrangements to see District Manager Richard Rhodes.

Approximately three or four days before Holden made her formal complaint, Priest actually witnessed Selph's inappropriate behavior towards Holden and made

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an effort to distract Selph from Holden. Additionally, Madray testified that a few days prior to lodging a formal complaint, Priest also witnessed Selph hugging her and said, "I've seen too much. We need to talk to Mr. Rhodes." R3-84, Deposition of Connie Lynn Madray, at 133. Subsequently, Holden requested that Priest call district manager Rhodes and set up an appointment so that the plaintiffs could complain about Selph's harassing behavior towards them. Rhodes met with the plaintiffs the next day and began an investigation. The plaintiffs agreed that Rhodes was responsive to their complaints and was very upset because "[h]e said that the managers knew better and should have let him know what was going on." R3-82 at 132. Upon completion of Rhodes' investigation, Selph was given a written warning, demoted to assistant manager, and transferred to a store in another city. After making the complaint neither plaintiff had any contact with Selph.3

Publix has promulgated a sexual harassment policy and disseminated it to employees in their employee handbook. The policy requires that the employees "bring [any complaints] to the attention of appropriate persons in Company Management.... [I]n order for the Company to deal with the problem, we must report such offensive conduct or situations to the Store Manager, District Manager, or Divisional Personnel Managers." R2-67-Ex. 4 at 3. (emphasis in original).4

Additionally, Publix maintained an "Open Door Policy" which was also published in the employee handbook. This policy encouraged employees to talk to a manager about any "problems or misunderstandings." Id. at 1-2. This policy

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reminded employees that they could "talk to anyone in management," but encouraged them to first discuss their problem with their "immediate Supervisor" and then proceed to "the next highest level of management." Id.5

The plaintiffs filed suit against Publix and Selph, alleging hostile work environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.6 The plaintiffs claimed that they were each subjected to an array of improper conduct by Selph as a condition of their employment, they were retaliated against by Selph after they reported his inappropriate conduct to other store management personnel, the management personnel to whom they reported Selph's conduct responded ineffectively, and they were ridiculed and embarrassed because Publix and its agents allowed their complaints to be made public. The plaintiffs further claimed that Publix was aware of Selph's behavior via the managers and supervisors in store 118, Publix was ineffective in curtailing the bad conduct, and, after transferring Selph from store 118, Publix allowed the plaintiffs' complaint to become public, thereby exposing them to further ridicule, embarrassment, and retaliation. The plaintiffs asserted that they had both suffered damages in the form of lost income and benefits, as well as nightmares and migraines. Additionally, Madray claimed she was demoted, scheduled to work fewer hours, and her schedule was changed to be less convenient for her family as a result of complaints against Selph.

Publix moved for summary judgement, arguing that it was not liable for Selph's conduct because it had a well-disseminated anti-harassment policy in force and it responded immediately to the plaintiffs' complaints. Selph also moved for summary judgment, adopting Publix's arguments and further asserting that the facts as set forth by the plaintiffs failed to satisfy the requirements for the state law claims of battery and invasion of privacy. The plaintiffs replied that Publix should be considered to have had notice of Selph's behavior beginning with Holden's initial complaint to Second Assistant Manager Darlene Clark, as much as six months prior to the initiation of District Manager Rhodes' investigation. Therefore, the plaintiffs argued that Publix's response to the plaintiffs' complaints could not be considered prompt.

The district court concluded that Publix was not liable for Selph's alleged harassment because Publix had exercised reasonable care to prevent sexual harassment by promulgating an anti-harassment policy, of which the plaintiffs were aware, and Publix responded promptly and effectively to stop the alleged harassment once the plaintiffs utilized the policy's established

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reporting procedures. The district court found that the plaintiffs failed to follow the procedures established by Publix's sexual harassment policy because they were afraid of potential negative consequences. The court further found that it was unreasonable for the plaintiffs not to take advantage of the preventive and corrective procedures developed by Publix because Publix's policy was unambiguous and the plaintiffs admitted that they knew and understood the sexual harassment policy. The district court noted that "[t]o permit an employee to disregard a policy of which she was admittedly aware based on generalized fears would require an employer to be automatically liable for harassment committed by a supervisor." R4-144 at 10-11. Accordingly, the district court granted Publix's motion for summary judgment on the plaintiffs' claims for hostile work...

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