Steele v. Offshore Shipbuilding, Inc.

• Decision Date: 15 March 1989
• Docket Number: No. 88-3141,88-3141
• Citation: 867 F.2d 1311
• Parties: 49 Fair Empl.Prac.Cas. 522, 49 Empl. Prac. Dec. P 38,839, 57 USLW 2541 Mary H. STEELE, Plaintiff-Appellant, v. OFFSHORE SHIPBUILDING, INC., a Florida Corporation, et al., Defendants- Appellees. Barbara J. McCULLOUGH, Plaintiff-Appellant, v. OFFSHORE SHIPBUILDING, INC., a Florida Corporation, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1311

867 F.2d 1311

49 Fair Empl.Prac.Cas. 522,

49 Empl. Prac. Dec. P 38,839, 57 USLW 2541

Mary H. STEELE, Plaintiff-Appellant, v. OFFSHORE SHIPBUILDING, INC., a Florida Corporation, et al.,

Defendants- Appellees.

Barbara J. McCULLOUGH, Plaintiff-Appellant, v. OFFSHORE SHIPBUILDING, INC., a Florida Corporation, et al.,

Defendants- Appellees.

No. 88-3141.

United States Court of Appeals Eleventh Circuit.

March 15, 1989.

Rehearing and Rehearing In Banc Denied April 19, 1989.

John F. MacLennan, Conrad Joseph Cendrowski, Kattman, Eshelman & MacLennan, Jacksonville, Fla., for plaintiff-appellant.

Gary A. Bubb, John N.C. Ledbetter, Toole, Bubb & Beale, Jacksonville, Fla., for defendants-appellees.

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

Before JOHNSON, HATCHETT and COX, Circuit Judges.

HATCHETT, Circuit Judge:

In this Title VII sexual harassment case, we affirm the district court's ruling that the corporate employer is not liable for the unlawful actions of its supervisor. Nevertheless, we remand the case to the district court on attorneys' fees issues.

I. FACTS

Offshore Shipbuilding, Inc. (OSI) builds and repairs offshore commercial vessels in Palatka, Florida. McCallister Brothers, Inc. (McCallister), a New York corporation, owns OSI. When building a vessel, OSI employs up to 350 people. Until 1984, these employees enjoyed a great deal of freedom. They entered and left the facility at their discretion and worked overtime without prior approval. In 1982, OSI hired Mary H. Steele, as an executive secretary. In January, 1984, OSI hired Barbara J. McCullough, as an emergency medical technician and safety person.

In August, 1984, OSI hired Anthony Bucknole, as its vice president and general manager. When it hired Bucknole, OSI employed 50 people. OSI instructed Bucknole to reduce overhead costs and to improve its financial condition. Consequently, Bucknole managed strictly, combined job duties, and made employees account for their time. He required Steele to remain at her desk during business hours, and he assigned McCullough to the tool room and gave her responsibility for company insurance matters.

Despite his strict management style, Bucknole often engaged in sexually-oriented joking with employees. For example, Bucknole requested sexual favors from Steele and McCullough. He commented on their attire in a suggestive manner and asked them to visit him on the couch in his office. The district court found, however, that Bucknole never intended to carry out his suggestions.

Occasionally, Steele and McCullough also engaged in sexually-oriented joking with Bucknole. For example, in December, 1984, Steele and several other employees gave Bucknole a sexually-explicit gift. Nevertheless, Steele and McCullough kept detailed notes of Bucknole's offensive comments.

In March, 1985, Steele and McCullough reported Bucknole to his superiors in New York for sexual harassment. McCallister's Equal Employment Opportunity Officer, James Forbes, interviewed Steele and McCullough in Palatka and advised them that McCallister would take remedial measures against Bucknole. At that time, Bucknole was in Saudi Arabia. Forbes returned to New York and consulted with other McCallister officials. The McCallister officials summoned Bucknole to New York from Saudi Arabia and verbally reprimanded him. The officials told Bucknole that his offensive conduct must stop immediately.

On March 27, 1985, Forbes and Bucknole returned to Palatka and met with Steele and McCullough. Forbes told Steele and McCullough that Bucknole would stop making offensive comments. He also assured Steele that her position at OSI was safe as long as she performed her duties properly. Bucknole did not harass Steele and McCullough after this meeting. On April 8, 1985, however, Steele and McCullough quit, leaving resignation letters with the facility gate guard.

II. PROCEDURAL HISTORY

In December, 1986, Steele and McCullough (hereinafter "the employees") sued Bucknole, OSI, and McCallister (hereinafter the "corporate employer"). The employees sought damages on three counts: sexual harassment and constructive discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Sec. 2000e (West 1981); tortious invasion of privacy; and intentional infliction of emotional distress. On October 1, 1987, the court consolidated the cases. Shortly thereafter, the employees dropped the emotional distress claim.

On October 29, 1987, Bucknole and the corporate employer moved for judgment on the pleadings or, in the alternative, to strike the demand for a jury trial. The district court granted the motion, dismissing the invasion of privacy count and striking the jury trial demand.

After a non-jury trial, the district court set forth three rulings. First, it held that the corporate employer did not constructively discharge the employees. The court found that the employees voluntarily resigned because the corporate employer failed to fire Bucknole. Second, the district court held that Bucknole, as an agent of the corporate employer, violated Title VII by creating a hostile working environment. Bucknole did not violate Title VII, however, through any work-related actions. The court ordered Bucknole to pay the employees nominal damages and reasonable attorneys' fees. Finally, the court held that the corporate employer was not liable for the hostile environment because it took prompt remedial action after it learned of Bucknole's actions.

In a subsequent order, the court set attorneys' fees at $16,650. The attorneys contended that they expended 276 hours, but the district court ruled that 165 hours was a reasonable amount of time to spend on the case.

III. CONTENTIONS OF THE PARTIES

The employees contend that the district court improperly relied on Ponton v. Scarfone, 468 So.2d 1009 (Fla. 2d D.C.A.1985) in dismissing the invasion of privacy count. Second, they contend that the corporate employer is directly liable for Bucknole's actions because Bucknole is its agent. Third, they contend that the corporate employer constructively discharged them by failing to stop Bucknole's sexual harassment. Finally, the employees contend that the district court improperly calculated attorneys' fees by failing to explain its decision to reduce the number of hours.

Bucknole and the corporate employer contend that Ponton precludes application of the invasion of privacy tort to this situation. They argue that, even if the cause of action applies, insufficient publication exists to support the claim. The corporate employer next contends that it is not liable for Bucknole's actions. The corporate employer argues that it is not directly liable because Bucknole did not use his supervisory authority against the employees, and it is not indirectly liable because it took prompt remedial action against Bucknole. The corporate employer also contends it did not constructively discharge the employees because Bucknole's harassment stopped before they quit. Finally, Bucknole contends that the district court's calculation of attorneys' fees should be upheld because the attorneys submitted inadequate proof of their claim.

IV. ISSUES

The issues presented on appeal are: (1) Whether the district court erred in dismissing the invasion of privacy count for failure to state a cause of action; (2) whether the district court erred in finding the corporate employer not liable for Bucknole's acts of sexual harassment; (3) whether the district court erred in finding that the corporate employer did not constructively discharge; and (4) whether the district court erred in assessing the award of attorneys' fees.

V. DISCUSSION

A. Invasion of Privacy

The employees contend that the district court improperly relied on Ponton v. Scarfone, 468 So.2d 1009 (Fla. 2d D.C.A.1985) in dismissing the invasion of privacy count. While we agree that Ponton does not preclude an invasion of privacy action for sexually-related comments, we find that the employees failed to prove that Bucknole sufficiently published his comments.

Florida recognizes the invasion of privacy tort. Forsberg v. Housing Authority, 455 So.2d 373 (Fla.1984); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944). The Ponton court limited the action where an employer's attempt to induce an employee into a sexual liaison failed to fall "within that zone of conduct permitting a determination that [the employee's] right of privacy was unlawfully invaded." Ponton, 468 So.2d at 1010. Ponton does not preclude an invasion of privacy action where an employer's conduct falls within that zone.

The cause of action for invasion of privacy failed because the employees did not prove sufficient publication. In Florida, except in cases of physical invasion, the tort of invasion of privacy must be accompanied by publication to the public in general or to a large number of persons. Santiesteban v. Goodyear Tire and Rubber Co., 306 F.2d 9, 11 (5th Cir.1962). See Rawls v. Conde Nast Publications, Inc., 446 F.2d 313, 319 (5th Cir.1971), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972); Sacco v. Eagle Finance Corp., 234 So.2d 406, 408 (Fla. 3d D.C.A.1970). Bucknole did not physically invade privacy. His offensive comments were never made to more than "one individual or a few." Santiesteban, 306 F.2d at 11. Therefore, insufficient publication existed to support the invasion of privacy claim. We affirm the district court's dismissal of the invasion of privacy claim.

B. The Corporate Employer's Liability

The employees contend that the corporate employer is directly liable for Bucknole's harassment because Bucknole and the corporate employer are both Title VII "employers." Title VII defines an employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a...