347 F.3d 1272 (11th Cir. 2003), 02-12520, Walton v. Johnson & Johnson Services, Inc.

Docket Nº:02-12520
Citation:347 F.3d 1272
Party Name:Walton v. Johnson & Johnson Services, Inc.
Case Date:October 20, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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347 F.3d 1272 (11th Cir. 2003)

Luanne WALTON, Plaintiff-Appellant,


JOHNSON & JOHNSON SERVICES, INC., Ortho-McNeil Pharmaceutical, Inc., Defendants-Appellees.

No. 02-12520.

United States Court of Appeals, Eleventh Circuit

October 20, 2003

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[Copyrighted Material Omitted]

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Claire Saady, Lutz, FL, for Plaintiff-Appellant.

Terence G. Connor, Marlene Rodriguez, Lisa Rothberg Askowitz, Morgan, Lewis & Bockius, LLP, Miami, FL, for Defendants-Appellees.

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

Before ANDERSON and WILSON, Circuit Judges, and O'KELLEY [*], District Judge.


Luanne Walton appeals the district court's grant of summary judgment in favor of her employer, Ortho-McNeil Pharmaceutical, Inc. ("Ortho"). Walton sued Ortho under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming that the company was responsible for sexual harassment committed by her supervisor. The district court concluded that although there was a genuine issue of material fact as to whether there was actionable harassment, the employer was entitled to summary judgment on the basis of the affirmative defense recognized by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Walton appeals that decision.


In reviewing the district court's summary judgment order, we must consider all of the evidence in the record, viewing it in the light most favorable to the non-moving party's claims. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1309 (11th Cir. 2001). Accordingly, the following account is drawn from the record evidence, viewed in the light most favorable to Walton's allegations.

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Walton worked as a pharmaceutical sales representative ("PSR") for Ortho for a number of years preceding the events in question. In 1997, she requested and received a transfer from Virginia to Tampa, Florida. Like many other PSRs, Walton worked out of her home, spending much of her time calling on doctor's offices in an effort to persuade doctors to write prescriptions for Ortho products. Each PSR reported directly to a district manager, and the district manager would sometimes accompany the PSR on his or her calls (called a "drive-with").

In January of 1999, Ortho went outside the company and hired George Mykytiuk, of Eli Lilly, to work as the district manager for the Tampa area. Mykytiuk had been referred to Ortho by one of its employees, Lou Ferrerra, who was himself a former Eli Lilly employee. Though Mykytiuk did not directly supervise employees during his tenure at Eli Lilly, he had worked as a national account manager, and based on his business experience in the pharmaceutical industry, Ortho's regional business director, Cathy Wichert, felt that he would be the best candidate for the job. Wichert contacted two other Ortho employees who worked at Eli Lilly while Mykytiuk was there in order to confirm that he had been working in the position he claimed he was. Though the company, when it hired Mykytiuk, did a background investigation (including a criminal history check), it did not contact his then-current employer or check any of his references. 1

Mykytiuk was Walton's direct supervisor. Mykytiuk, like the PSRs, worked out of his home office. 2 In April, Walton told Mykytiuk that she was interested in obtaining a promotion to a hospital representative position. Mykytiuk told her that he was well-connected to upper management and that he could assist her in getting the promotion.

On June 14, 1999, Mykytiuk was scheduled to drive with Walton while she made her calls. Instead, Walton claims that Mykytiuk asked her to go shopping with him, took her to a movie, and asked her to accompany him to dinner. Walton claims that Mykytiuk tried to hold her hand during the movie, and that when they parted company that evening, he tried to kiss her. Walton claims that she told Mykytiuk that his behavior was inappropriate and that he apologized and promised never to do it again.

The next day, June 15, Mykytiuk traveled with Walton while she made her calls, ostensibly for the purpose of observing her performance in the field. At some point during the day, Mykytiuk indicated that he needed to go to his office, which was at his apartment, in order to finish some inventory paperwork. Walton accompanied him to his apartment. When Mykytiuk finished his paperwork, he told Walton that he did not feel like working the rest of the day. He began talking about his marital difficulties and picked up a gray box and pulled out some letters his wife had written him. He asked Walton to read the letters aloud. At some point thereafter, Mykytiuk took a gun out of the box and showed it to Walton. Later, when Walton was about to leave, Mykytiuk grabbed Walton's breasts and buttocks and attempted to kiss her. She again told him that this behavior was inappropriate, and

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he again apologized and said it would not happen in the future.

A couple of days later, Walton, at Mykytiuk's request, came by Mykytiuk's apartment and accepted a key and security code to his apartment. Mykytiuk told her that he considered her an assistant manager and that she needed to have access to his office in case he was out of town and needed something faxed to him.

More than a week later, on June 29, 1999, Walton hosted a dinner program for 95 nurse practitioners, a program that Mykytiuk attended. After the dinner was over, Mykytiuk complimented Walton on her performance. He told Walton that he was intoxicated and asked her to follow him home. He indicated that he wanted to recap the program once they got there. 3 When she arrived at Mykytiuk's apartment, he offered her a glass of wine, which she accepted. He pulled out the gray box, removed the gun, and placed it back in the box after talking about it for a few moments. Mykytiuk continued to talk about his marital difficulties. He next began to compliment Walton, telling her what a good friend she had been to him. He then purportedly jumped on top of her and began to kiss her. Walton claims that she told him "no" and tried to push him away, and that despite her efforts, he physically entered her without her consent. She testified that she fell into a state of shock and that she believes she was raped again later that evening, after Mykytiuk carried her into his bedroom.

Walton did not immediately report the alleged assault to either her employer or the police. The next day, Walton called in sick. She returned to work later that week, and about a week later, on July 8, she attended a lunch business meeting with Mykytiuk. After the meeting, he asked her to give him a ride back to his apartment. When she got there, she was offered and again accepted a glass of wine from Mykytiuk. He asked her to lie down on the floor so that he could give her a massage. She complied, and, according to Walton, Mykytiuk allegedly raped her yet again. After the alleged assault, Mykytiuk apologized to Walton, who was crying. He said that it would not happen again and that they would have a professional relationship in the future.

Once again, Walton did not immediately report Mykytiuk's conduct to either her employer or the police. She did tell her husband the next day that Mykytiuk had tried to kiss her and that he was calling her a lot, making her life very stressful. Though Walton was able to avoid Mykytiuk in the days immediately following the July 8 assault, she claims that Mykytiuk continued with his incessant phone calls. Walton then decided to contact Mykytiuk's psychologist, Dr. Karen Cervenka, hoping that she could persuade Mykytiuk to stop his advances. 4

On July 21, 1999, Walton had a meeting with Dr. Cervenka. At that meeting, Walton told Dr. Cervenka that one of her patients, George Mykytiuk, was harassing Walton at work. Dr. Cervenka asked Walton whether she had sex with Mykytiuk, and Walton told her that she had, but that she did not "want to." Walton never told Dr. Cervenka that Mykytiuk had raped her. Dr. Cervenka arranged for Walton and Mykytiuk to have a joint session (called a "conjoint" session) to discuss

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these issues on July 26, 1999. At the conjoint session, Walton and Mykytiuk worked out a 30-day agreement in which he was to no longer call Walton or ask her to his apartment for meetings. In addition, Walton was not to be alone with Mykytiuk at any meetings.

Mykytiuk, however, allegedly violated that agreement on numerous occasions. He showed up uninvited at her house, wanting to go water skiing. And, after driving Walton to a meeting in Orlando on August 21, 1999, Mykytiuk invited Walton to his room so that he could review her "good sales numbers." Though she initially refused, Mykytiuk persuaded her that she could trust him. Once there, he tried to hug and kiss her, and he managed to fondle her breasts and buttocks over her objection. A few days later, on August 26, 1999, after a business dinner, Mykytiuk allegedly pressed Walton to have sex with him again and tried to hug and kiss her. Walton refused and pushed him away.

The next day, August 27, 1999, Mykytiuk asked Walton to give him a ride home after they met with another sales representative in a nearby town. Walton returned to Mykytiuk's apartment, this time for the purpose of using the restroom. While there, Mykytiuk purportedly handed her a "Victoria Secret's" catalogue and told her to pick something out for herself.

During this time period, Walton claims that Mykytiuk continued to make harassing phone calls. At some point in July, Walton had confided to Kim Van Goidstnoven, a friend who worked at one of Ortho's sister companies (a company under the Johnson & Johnson umbrella), that Mykytiuk was paying too much attention to her....

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