Dees v. Johnson Controls World Services, Inc.

• Decision Date: 23 February 1999
• Docket Number: No. 96-9079,96-9079
• Citation: 168 F.3d 417
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1446, 75 Empl. Prac. Dec. P 45,771, 12 Fla. L. Weekly Fed. C 540 Mashell C. DEES, Plaintiff-Appellant, v. JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 417

168 F.3d 417

79 Fair Empl.Prac.Cas. (BNA) 1446,

75 Empl. Prac. Dec. P 45,771,

12 Fla. L. Weekly Fed. C 540

Mashell C. DEES, Plaintiff-Appellant, v. JOHNSON CONTROLS WORLD SERVICES, INC., Defendant-Appellee.

No. 96-9079.

United States Court of Appeals, Eleventh Circuit.

Feb. 23, 1999.

Joseph Egan, Jr., Egan, Lev & Siwica, P.A., Orlando, FL, John S. Myers, St. Marys, GA, for Plaintiff-Appellant.

Wallace E. Harrell, Gilbert, Harrell, Gilbert, Brunswick, GA, Guy O. Farmer, II, Amy W. Littrell, Beth S. Joseph, Foley & Lardner, Jacksonville, FL, for Defendant-Appellee.

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

Before HATCHETT, Chief Judge, and TJOFLAT and COX, Circuit Judges.

TJOFLAT, Circuit Judge:

Mashell Dees appeals the district court's grant of summary judgment in favor of defendant Johnson Controls World Services, Inc. ("World Services"), on her hostile work environment sexual harassment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1994) ("Title VII"). Dees contends that there were issues of material fact as to whether World Services took sufficient measures to prevent and correct sexual harassment at the fire station where Dees was employed. We agree, and therefore vacate the district court's entry of summary judgment and remand the case for further proceedings.

I.

World Services held a contract with the United States Navy to provide fire protection, security, transportation, and other services to the submarine base located at Kings Bay, Georgia. World Services hired Dees in 1989 to work in the Human Resources Department. In September 1991, she was transferred to the Fire Department at her own request, and became its Office Coordinator.

The Fire Department was geographically separate from World Services' other facilities. Consequently, it was rarely visited by Art Robb, World Services' Project Manager, who described the Fire Department as a "family" or a "fraternity." The Fire Department was managed by Fire Chief Waymon Rainey, and Assistant Chief Jerry Jacobs, and Dees worked under the supervision of both men.

According to Dees, during her three years at the Fire Department she was subjected to a continuous barrage of sexual harassment by Rainey and Jacobs, as well as Fire Captain Danny Stewart and Assistant Chief Alfred Amerson. ¹ This almost-daily abuse took a variety of forms, from sexually explicit stories and jokes, to comments about her body or those of male firefighters, to physical harassment. On one particularly humiliating occasion, Jacobs asked Dees to sit on his lap. When she refused, Jacobs picked her up and squeezed her so hard that she urinated in her pants. Jacobs, laughing, then told the other firefighters what had happened. On another occasion, Stewart ground his groin into Dees' buttocks after stating "look at that sexy mama, I could just eat you in that skirt." Rainey propositioned Dees on a number of occasions, whispering in her ear that she was "the kind of woman I like; you're not only beautiful, you're hot-blooded," or telling her that she needed a "sugar daddy" and that with a body like hers, she would not have to work if she listened to him. On numerous other instances, the four men grabbed or slapped Dees' buttocks, groped her leg, or otherwise touched her in a sexually suggestive manner.

According to Dees, she had no way of ending the abuse. Although she frequently complained to Rainey, he was one of the harassers. Predictably, therefore, he dismissed her complaints, telling her that she "needed to get used to it" and that the firefighters were merely joking. Dees also claims that she could not complain outside the Fire Department; although World Services had a sexual harassment policy, Rainey and Jacobs used their unchecked authority over the fire station to render the policy ineffective. They did so by threatening to retaliate against her if she complained, and by preventing Human Resources from properly investigating sexual harassment complaints in the Fire Department.

Dees alleges that Rainey and Jacobs threatened her with unspecified consequences if she raised complaints outside the Fire Department, and that they told her that World Services' sexual harassment policy did not apply to the Fire Department. The two men also prevented Dees from posting the policy in the fire station--in 1993 Rainey ordered Dees not to put up the policy, and in 1994, when Dees posted the policy without their permission, Jacobs immediately removed it. ²

Dees contends that the two men also hampered the effectiveness of the sexual harassment policy by conspiring with other firefighters to discredit any complaints that were made to Human Resources. In March 1994, a firefighter named Susan Clark complained to the Human Resources Department that Jacobs sexually harassed her. Dees claims that she overheard several discussions among Rainey, Stewart, Jacobs, Amerson, and others during which the firefighters fabricated a story to refute Clark's allegations and protect Jacobs from punishment. Rainey also warned Dees not to discuss Clark's complaint with Human Resources and told her that if a Human Resources investigator contacted her, she should offer a fake excuse to explain why she could not appear for questioning.

According to Dees, the Human Resources Department also contributed to the ineffectiveness of the sexual harassment policy by conducting harassment investigations poorly. For example, one of the employees assigned to investigate Clark's complaint, Joe Lewis, allowed Jacobs to read Clark's statement. ³ Consequently, Clark's allegations spread around the fire station, and thereafter, the firefighters shunned and ridiculed her. Although Dees claims that the investigation of Clark's complaint helped convince her that the sexual harassment policy was ineffective, Dees does not deny that Clark's complaint resulted in Jacobs' immediate suspension, and later, his permanent transfer out of the Fire Department.

Although Dees had been afraid that she would lose her job if she made a complaint, by August 1994 Dees decided she could no longer tolerate the daily harassment. Consequently, on August 4, Dees complained to Human Resources. After making her complaint, Dees was sent to Robb, who immediately transferred her to a position in the Transportation Department with no loss in salary or benefits. ⁴ Robb then initiated an investigation of Dees' complaint, the result of which was that Jacobs and Stewart were fired and Rainey was placed on indefinite conditional employment status.

Dees filed this lawsuit against World Services on September 13, 1995. Her complaint alleged that she was subjected to continuous unwelcome sexual harassment by Rainey, Jacobs, Stewart, and Amerson, and that the harassment created a hostile work environment in violation of Title VII. ⁵ Dees asserted that World Services was liable for this harassment for two reasons.

First, Dees claimed World Services knew or should have known about the harassment but took no remedial action. According to Dees, the sexual harassment was so pervasive that World Services either knew about the harassment and did nothing, or at least should have known of its presence. Furthermore, Dees asserted, World Services could not claim that it lacked knowledge of the harassment, because it lacked an effective procedure for employees to raise complaints outside of the Fire Department.

Second, Dees asserted that World Services was liable because Rainey and Jacobs were World Services' agents. ⁶ The Restatement (Second) of Agency states that an employer

is not subject to liability for the torts of his servants acting outside the scope of their employment, unless ... the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Restatement (Second) of Agency § 219(2) (1958). Dees contended that World Services was liable because Rainey's and Jacobs' apparent authority deterred her from filing a complaint. According to Dees, this apparent authority stemmed from Rainey's and Jacobs' authority to hire, fire, and promote Fire Department employees, as well as World Services' lack of an effective complaint procedure. In light of the fact that employees had no effective avenue for making complaints, Rainey and Jacobs had virtually complete authority over everyone they supervised. This authority, Dees contended, created the appearance that World Services endorsed the harassment.

Furthermore, Dees claimed that World Services was liable because Rainey and Jacobs were aided in committing the sexual harassment by their agency relationship with World Services. Both Rainey and Jacobs, Dees argued, used their power to fire Dees or increase her work load in order to intimidate Dees and prevent her from complaining about the abuse. Both men also used the authority given to them by World Services to place themselves into a position to harass her. On several occasions, for example, Rainey ordered Dees to ride with him in a car. Once Rainey had Dees in this confined space, Rainey groped her leg and asked her to have sex with him. If not for Rainey's agency relationship with World Services, Dees contends, he could not have ordered her into the car with him so that he could harass her.

On August 20, 1996, the court granted World Services' motion for summary judgment. ⁷ Assuming Dees was sexually harassed the court reasoned, World Services was not liable for that harassment because it took prompt remedial action. In fact, the court stated that it could not imagine a faster response to the harassment complaint than the steps taken by World Services. The court pointed out that Dees was immediately transferred and personally escorted by Robb to meet her new supervisor. Furthermore, the Human Resources Department immediately began a detailed...