Baldwin v. Blue Cross/Blue Shield of Alabama

• Decision Date: 19 March 2007
• Docket Number: No. 05-15619.,05-15619.
• Citation: 480 F.3d 1287
• Parties: Susan BALDWIN, Plaintiff-Appellant, v. BLUE CROSS/BLUE SHIELD OF ALABAMA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

480 F.3d 1287

Susan BALDWIN, Plaintiff-Appellant, v. BLUE CROSS/BLUE SHIELD OF ALABAMA, Defendant-Appellee.

No. 05-15619.

United States Court of Appeals, Eleventh Circuit.

March 19, 2007.

Roderick T. Cooks, Lee David Winston, Winston Cooks, LLC, Birmingham, AL, for Baldwin.

Alysonne O. Hatfield, John Richard Carrigan, Peyton Lacy, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Birmingham, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before CARNES and MARCUS, Circuit Judges, and JORDAN,^* District Judge.

CARNES, Circuit Judge:

Employers generally are liable for a supervisor's sexual harassment if the harassment is severe and pervasive enough to result in a hostile work environment amounting to discrimination prohibited by Title VII, 42 U.S.C. § 2000e et seq. There is, however, an affirmative defense, which the Supreme Court wrote into the law in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The defense has two halves, one of which focuses on the employer's responsibility to prevent or correct workplace harassment, and the other of which focuses on the employee's responsibility to protect herself and others from harassment by using the procedures the employer has in place to promptly report it. To prevail under the Faragher-Ellerth defense, an employer must show not only that it fulfilled its responsibility, but also that the employee failed to fulfill hers. This appeal presents us with issues about both halves of that defense, some of which we have not addressed before.

I.

The facts we consider are taken from our view of the evidence in the light most favorable to Susan Baldwin, the plaintiff who suffered summary judgment in the district court and is the appellant here. See Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 556-57 (11th Cir. 1997). She began working for Blue Cross in 1989, and became a marketing representative in the company's Huntsville, Alabama office in 1998. Scott Head became Baldwin's boss in November 2000 when Blue Cross promoted him from marketing representative to the position of district manager in Huntsville. There is no evidence that either of them had been involved in any reported incidents of sexual harassment before the events at issue here.

The record does not paint a complete picture of Head and Baldwin's professional relationship before he became district manager, but there are enough brush strokes that we can see that there were problems. We know, for example, that when Baldwin was first hired, Head told her: "Hey, Baldwin, look, the only reason you are here is because we needed a skirt in the office." Baldwin did not like Head calling all the women in the office "Babe," as in his characteristic greeting "Hey, Babe . . .," although she never complained about it. We also know that Baldwin believed Head had mistreated Blue Cross customers and acted unethically on occasion and she had openly supported another Huntsville staff member for the district manager's position that went to Head. The short of it is that the two had never been each other's biggest boosters.

Nonetheless, on the day Head's promotion to district manager was announced in November 2000, Baldwin stopped by his office to congratulate him. Head told her to sit down and asked, "Hey, Babe, are you on my team?" She told him that everyone in the Huntsville office was on his team and that she would continue to handle her responsibilities as she had. Head replied: "That is not the question that I asked you." When Baldwin told him that she believed she had answered the question Head stood up, leaned across the desk, and pointed his finger at her. In what she describes as a "very raised tone of voice," Head said, "[t]hat's not the fucking question I asked you. Are you on my team?" As Baldwin puts it, the two of them "proceeded in a very lengthy discussion regarding whether or not I was on his, quote, fucking team." Their talk was also about "power, authority, and respect."

Baldwin described this post-promotion discussion as a "follow up" to an earlier conversation in which she and Head had expressed different views about the same subject when Head was anticipating becoming district manager. After he had said on that earlier occasion that he was looking forward to having the power and authority of a district manager, Baldwin told him "you may have the power and you may have the authority in this position [they were in the district manager's office], but as far as respect goes, you'll get that from people in the office based on . . . how you handle your job responsibilities." This context reinforced Baldwin's view of Head's "on-my-team" inquiry as a demand for loyalty.

The discussion in question on that November day when Head became district manager ended after about thirty minutes with Head once more asking if Baldwin was on his team and Baldwin simply saying, "Yes, Scott, I'm on the team." Baldwin says that Head's behavior on that day made her feel "pretty threatened." She did not, however, complain to anyone about it, at least not then.

Over the next eight months, there were no problems. When Baldwin went in and asked Head something or if he had a question for her, in her view "everything was handled very professionally." Head did use some offensive language, but not in a threatening manner and not aimed at her specifically. As Baldwin would later explain in her deposition, "[p]rofanity can be used in different ways," and she agreed that "there is a difference in being cursed in front of and [being] cursed at." When pointedly asked, Baldwin testified that she could not recall a specific incident between November 2000 (the day of Head's promotion) and July 26, 2001 (the significance of that date will be apparent later) when she was cursed at "[i]n a threatening kind of manner." Baldwin also conceded that she had herself used profanity in the office, although not on a daily basis.

Head, by contrast, did eventually come to use profanity on a daily basis. And that may be an understatement. If, as John Marshall Harlan suggested, it is "often true that one man's vulgarity is another's lyric," Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971), then Head was quite lyrical around the office. He regularly called the marketing representatives, who were all male with the exception of Baldwin, "cocksuckers" and "peckerwoods." For example, he would summon the marketing representatives into a meeting by saying, "Hey, you bunch of cocksuckers, hey, you bunch of peckerwoods, come in here. I need to talk to y'all." Or, during the meeting, he would ask, "Hey, you bunch of cocksuckers, how much business I got coming in?" Head regularly used the word "fuck" in general conversation, as in "what the fuck" or something along those lines. And Baldwin testified that Head used the term "bitch" to refer to women in general, although she could not provide many examples of Head's use of the word in that way. She did recall a single instance, when the two of them were marketing representatives, in which Head referred to a prospective client as a bitch. And she also recalled another instance in which Head, after he became district manager referred to his wife as a "fucking bitch" (more about that later).

On Tuesday, July 26, 2001, Head, along with Baldwin and other marketing representatives from the Huntsville office, went to Birmingham for a banquet honoring top Blue Cross managers. After noticing Baldwin speaking to the company president, Head asked her what she had said. Baldwin told him that she had spoken to the president favorably about Head's job performance, to which Head replied, "Thanks Babe, you take care of me, I take care of you."

Later, while the banquet speaker was talking, Head leaned over to Baldwin and invited her to forgo her return trip to Huntsville in favor of a night of dancing and partying that would include her staying in his hotel room in Birmingham. "No one will ever know," he assured her. Baldwin told Head, "Thanks, a lot, Scott, but I can't do that. I've got meetings tomorrow," or something along those lines. After the banquet was over, she drove to Huntsville.

While she was on the trip home, Head called her and urged her to spend some time with him that night. He told her that he was on his way back to Huntsville himself, was coming to her house, that she should just leave her garage door open, and that he would get some beer, pick her up, put the car top down, and they would "just cruise through Green Mountain, drink and play CDs." Baldwin told Head that she really appreciated the offer but had to decline. Head called her a couple of more times before she got home, and during one conversation when the connection was lost she may have called him back. As Baldwin was pulling into her driveway, Head called her and said that he was at her front door. We don't know for sure whether Head actually was at Baldwin's front door, but she told him over the phone, "Scott, you just need to go home to your wife and kids." He responded, "All right, Babe. All right, Babe."

A few days later—Baldwin thinks it was the following Monday (which would have been July 31, 2001)—Head called her into his office. After she went in, he closed the door, walked behind her, and said "Hey, Babe, blow me," having moved so close to her that the only place for her to go was to fall backwards onto a couch behind her. Baldwin replied by asking Head if there was anything else that he needed her for. When Head replied "No," she got off the couch, retrieved a couple of M&M candies from a jar on Head's desk, and sat down in a chair in front of his desk. Right about then, Head asked Baldwin about her weekend. Baldwin told him that she and her husband had not done anything exciting, and asked Head...