297 F.3d 405 (5th Cir. 2002), 01-30361, Wyatt v. Hunt Plywood Co., Inc.

Docket Nº:01-30361.
Citation:297 F.3d 405
Party Name:Alisha WYATT, Plaintiff-Appellant, v. HUNT PLYWOOD COMPANY, INC.; et al., Defendants, Hunt Plywood Company, Inc. and Federal Insurance Company, Defendants-Appellees.
Case Date:July 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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297 F.3d 405 (5th Cir. 2002)

Alisha WYATT, Plaintiff-Appellant,


HUNT PLYWOOD COMPANY, INC.; et al., Defendants,

Hunt Plywood Company, Inc. and Federal Insurance Company, Defendants-Appellees.

No. 01-30361.

United States Court of Appeals, Fifth Circuit

July 5, 2002

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Vincent Charles Cofield (argued), Cofield's Law Offices, Natchitoches, LA, for Plaintiff-Appellant.

Henry Philip Julien, Jr. (argued), The Kullman Firm, New Orleans, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

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WIENER, Circuit Judge

Plaintiff-Appellant Alisha Wyatt appeals the district court's grant of summary judgment in favor of Defendants-Appellees Hunt Plywood Co. and Federal Ins. Co. (collectively "Hunt") on her Title VII sex discrimination claim, her state law tort claims, and her motion for a jury trial. Concluding that (1) as to one aspect of Wyatt's sexual harassment claim based on the behavior of a Hunt supervisor, factual questions exist regarding Hunt's affirmative defense under the Ellerth/Faragher test,1 and (2) Wyatt did not waive her right to a federal jury trial, we reverse, in part, the grant of summary judgment in favor of Hunt and remand with instructions.


Plaintiff-Appellant Wyatt was an employee of Hunt from March 1994 until she quit her job in May 1995. Her immediate supervisor was John Thompson and her next higher supervisor was Donald Gorum, both of whom allegedly harassed Wyatt sexually.2 When Wyatt was hired, she received a copy of Hunt's employee relations manual which contained Hunt's sexual harassment policy. In relevant part, that policy directs: "Employees who feel that they have been harassed are urged to contact their supervisor, a member of the Personnel Department, Mr. Gary Crawford, or me [Alex T. Hunt, Executive Vice President]."3 Wyatt admits that she had knowledge of the policy and was aware that she could report harassment to any one or more of the individuals listed.

Wyatt alleges that, almost immediately after she began working at Hunt, Thompson commenced harassing her sexually, referring to her in vulgar terms and continually asking her to have sex with him. Wyatt asserts that she promptly complained of Thompson's conduct to Gorum, her and Thompson's next higher supervisor; but that despite her complaints and Gorum's informal discussions with Thompson, the harassment persisted. The discrete facts of Thompson's harassment and Wyatt's reporting them to Gorum are not in dispute.

Wyatt further alleges, and Hunt concedes, that instead of remedying the problem, Gorum himself eventually subjected Wyatt to sexual advances and harassment, beginning in late June or early July 1994. Wyatt concedes, however, that she never reported Gorum's conduct to anyone higher up the management chain during her time at Hunt.

Thompson's harassment of Wyatt reached its zenith on November 12, 1994, when he sneaked up behind her and pulled down her sweat pants while she was actively working on the line, and in the plain view of other employees. Wyatt immediately complained to Gorum, who promptly discussed the incident with Wyatt and agreed to write an incident report. Nevertheless, in an effort to down-play Thompson's actions, Gorum declined to indicate

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in the report that Thompson had pulled Wyatt's pants down.

Wyatt did not report to work on the day following the pants incident, but did on the day after that, when she met with Buddy Rachal, the superintendent to whom Gorum reported. After hearing Wyatt's version of the story, Rachal promptly reported the matter to Larry Manthei, Hunt's Plant Manager. Manthei commenced an investigation, suspended Thompson and Gorum, and informed Wyatt that any further harassing actions were to be reported to Rachal. Just three days after the pants incident, Hunt completed its investigation, fired Thompson for inappropriate conduct, and fired Gorum for misrepresenting facts to management and mishandling the situation as a supervisor.

Wyatt alleges that, following these firings, she was ostracized and criticized by her co-workers. She advised supervisors of this development and, over the next few months, Hunt management personnel met with Wyatt's co-workers, individually and in groups, informing them that Wyatt was not to be criticized or otherwise treated unfairly for reporting Gorum and Thompson.

Wyatt's employment with Hunt continued until she quit in May 1995. She then filed suit against Hunt in state court, asserting state law tort claims for assault, battery, and intentional infliction of emotional distress.

In her state court petition, Wyatt requested a jury trial, but failed to post the required bond before the specified deadline. This led Hunt to file a motion to strike Wyatt's jury demand. Wyatt did not directly respond; instead, she filed a motion to amend her original petition to add a Title VII claim and to name Federal Insurance Company (Hunt's liability insurance carrier) as an additional defendant. In considering both parties' motions, the state court expressly informed Wyatt that she had forfeited her right to a jury trial by not posting the required bond, expressly admonishing her that she could not use her amended petition, which did not allege any new facts, to breathe life into her erstwhile jury trial demand.

After Wyatt added the federal claim, Hunt removed the case to federal district court. Some nine weeks after removal, Wyatt filed a motion for a jury trial. Without addressing the timeliness of her federal jury demand, the court denied the motion on grounds that she had waived her right to a jury trial by her acts in the state court proceedings. Wyatt then filed (1) a mandamus petition requesting that we order the district court to grant her a jury trial, (2) a notice of appeal from the district court's denial of jury trial, and (3) a second motion for jury trial in district court. We first denied her mandamus petition and then dismissed her appeal for want of prosecution. The district court denied her second motion for a jury trial.

Hunt filed a motion for summary judgment in district court seeking dismissal of Wyatt's claims. Wyatt opposed Hunt's motion and filed her own motion for partial summary judgment as to liability. The district court granted Hunt's summary judgment and dismissed Wyatt's action with prejudice, after which Wyatt timely filed a notice of appeal.


A. Standard of Review

We review the district court's rulings on summary judgment motions de novo, employing the same analysis as the district court.4 A motion for summary judgment is properly granted only if there is no

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genuine issue as to any material fact.5 An issue is material if its resolution could affect the outcome of the action.6 In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party.7

The standard for summary judgment mirrors that for judgment as a matter of law.8 Thus, we must review all of the evidence in the record but make no credibility determinations or weigh any evidence.9 In reviewing the evidence, we must disregard everything favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached.10

B. Supervisor Sexual Harassment After Ellerth and Faragher

For the sake of clarity, we reiterate our established methodology for analyzing supervisor sexual harassment cases under Title VII.11 First we determine whether the complaining employee suffered a "tangible employment action."12 If he has, the claim is classified as a "quid pro quo" case; if he has not, the claim is classified as a "hostile environment" case.13] In a quid pro quo suit, proof that a tangible employment action resulted from a supervisor's sexual harassment renders the employer vicariously liable, and no affirmative defense can be asserted. In a hostile environment case, however, the next inquiry is whether the supervisor's actions constituted severe or pervasive sexual harassment: If the conduct was not severe or pervasive, the employer cannot be held liable vicariously for the supervisor's actions; if the conduct was severe and pervasive, the employer is vicariously liable unless the employer can establish both prongs of the conjunctive Ellerth/Faragher affirmative defense—the only affirmative defense to vicarious liability now available in a supervisor sexual harassment hostile work environment case.14 To establish this defense, the employer must show that (1) the employer exercised reasonable care to prevent and correct promptly any sexual harassment, and (2) the complaining employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer.

C. Application of the Ellerth/Faragher Test

Wyatt seeks to recover from Hunt, not for any direct sex discrimination by Hunt, but for its vicarious liability for the sexual

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harassment visited on her by supervisors. The supervisor sexual harassment allegedly experienced by Wyatt in this case is properly classified as a hostile work environment claim.15 To state a prima facie hostile work environment claim, Wyatt must prove that the she was subjected to severe and pervasive harassment by a supervisor based on her sex.16 The district court assumed, and Hunt conceded for purposes...

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