Faragher v. City of Boca Raton

• Citation: 76 F.3d 1155
• Decision Date: 08 February 1996
• Docket Number: No. 94-4878,94-4878
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1590, 68 Empl. Prac. Dec. P 44,000, 64 USLW 2543 Beth Ann FARAGHER, Nancy Ewanchew, Plaintiffs-Appellants-Cross-Appellees, v. CITY OF BOCA RATON, a political subdivision of the State of Florida, Defendant-Appellee-Cross-Appellant, Bill Terry, David Silverman, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1155

76 F.3d 1155

69 Fair Empl.Prac.Cas. (BNA) 1590,

68 Empl. Prac. Dec. P 44,000, 64 USLW 2543

Beth Ann FARAGHER, Nancy Ewanchew Plaintiffs-Appellants-Cross-Appellees, v. CITY OF BOCA RATON, a political subdivision of the State of Florida, Defendant-Appellee-Cross-Appellant Bill Terry, David Silverman, Defendants-Appellees.

No. 94-4878.

United States Court of Appeals Eleventh Circuit.

Feb. 8, 1996.

William R. Amlong, Amlong & Amlong, P.A., Ft. Lauderdale, FL, for appellants.

Cathy M. Stutin, Peter J. Hurtgen, Morgan, Lewis & Bockius, Miami, FL, for City of Boca Raton.

Michael T. Burke, Christine M. Duignan, Johnson, Anselmo, Murdoch, Burke & George, P.A., Ft. Lauderdale, FL, for Bill Terry.

Appeals from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and GOETTEL ^*, Senior District Judge.

COX, Circuit Judge:

In this case we must decide several important questions regarding hostile work environment sexual harassment under Title VII.

I. FACTS ¹

Beth Ann Faragher and Nancy Ewanchew worked as ocean lifeguards for defendant City of Boca Raton, Florida (the "City"), in the Parks and Recreation Department's Marine Safety Section. Only four to six of the forty to fifty lifeguards were female. The Marine Safety Headquarters was a small, one-story building with limited facilities, and all of the lifeguards shared the same locker room and shower. The tight quarters and high male-female ratio apparently led to a rambunctious atmosphere among the lifeguards.

During the relevant time frame, defendants Bill Terry and David Silverman acted as supervisors of the ocean lifeguards, Terry as Chief of the Marine Safety Section and Silverman as a Marine Safety lieutenant and then captain. Terry had the authority to supervise all aspects of the lifeguards' work assignments; to give oral reprimands and place reports of disciplinary actions in personnel files; and to interview and select new lifeguards, subject to approval by higher management. Silverman had supervisory authority over the lifeguards' daily duties, including designating work assignments and supervising physical fitness routines.

The Marine Safety Section was organized according to a clear chain of command. Lifeguards reported to Marine Safety lieutenants, and above them to captains; the captains reported directly to the Chief of the Marine Safety Section, who was directly supervised by the Recreation Superintendent; the Recreation Superintendent reported to the Director of Parks and Recreation, who reported to the City Manager. Lifeguards had almost no contact with City officials such as the Recreation Superintendent. Marine Safety Headquarters was in a remote location, far away from City Hall.

Marine Safety Chief Terry subjected both Faragher and Ewanchew to uninvited and offensive touching, and Ewanchew to offensive language as well. For example, Terry would put his arm around Faragher and rest his hand on her buttock. In a particularly egregious example of Terry's touching, Terry pressed himself against Ewanchew's buttocks and simulated sexual movement while the two were at the water fountain. Other female lifeguards similarly were subjected to Terry's uninvited and offensive touching and to his demeaning and offensive comments.

Lieutenant Silverman made offensive comments and gestures to both Faragher and Ewanchew. For example, in the presence of both Faragher and Ewanchew, as well as other lifeguards, Silverman engaged in a pantomime depicting cunnilingus. Examples of Silverman's offensive comments include saying to Faragher, after tackling her, "If you had tits I would do you in a minute," and to Ewanchew, "There are a lot of tits on the beach today." Silverman also made offensive remarks to other female lifeguards.

Neither Ewanchew nor Faragher complained to Parks and Recreation Department management about Terry's and Silverman's conduct while they were employed with the City or when they resigned. However, they both spoke about Terry's and Silverman's conduct with one of their supervisors, Marine Safety Lieutenant and Training Captain Robert Gordon. In fact, most of the female lifeguards complained to Gordon about Silverman's language and conduct. The lifeguards did not speak with Gordon on a subordinate to superior basis; they spoke with him because they held him in high repute. Gordon did not report the complaints to his supervisor, Terry, or to any other City official.

Ewanchew resigned from her position with the City in April of 1989, saying that she was leaving because she had found a better job. At some time after her resignation, Ewanchew visited Terry and requested re-employment on a part-time basis. She was not re-employed. Faragher resigned in June of 1990 to attend law school. Her decision to leave was unrelated to the alleged sexual harassment. She did not discourage her sister from applying for a lifeguard position with the City.

In April of 1990, Ewanchew wrote a letter to the City's Director of Personnel complaining that she and other female lifeguards had been sexually harassed by Terry and Silverman while she was employed by the City. The City did not know of Terry's and Silverman's conduct until receiving Ewanchew's letter. The City then investigated Ewanchew's complaint, determining that Terry and Silverman had engaged in some inappropriate conduct. The City reprimanded and disciplined them both.

II. PROCEDURAL BACKGROUND

In 1992, Faragher and Ewanchew sued the City, Terry, and Silverman. Faragher sued the City for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Count I). Faragher and Ewanchew each sued Terry and Silverman for sexual harassment under 42 U.S.C. § 1983 (Counts II and III). Faragher and Ewanchew also asserted pendent state law claims. Faragher and Ewanchew each sued Terry for battery (Counts IV and V) and the City for negligent retention and supervision of Terry (Counts VI and VII). The district court held a non-jury trial on all claims.

The district court entered judgment for Faragher on her Title VII claim against the City, awarding her $1 in nominal damages. The court held that Terry's and Silverman's offensive conduct was sufficiently severe and pervasive to alter the conditions of Faragher's employment by creating a hostile work environment. The court held that the City was directly liable for Terry's and Silverman's conduct under agency principles based on Terry's and Silverman's supervisory authority and the overall workplace structure. In addition, the court held that the City was indirectly liable for Terry's and Silverman's offensive conduct because the court's finding that the conduct was severe and pervasive "supports an inference of knowledge, or constructive knowledge, on the part of the City regarding Terry's and Silverman's sexual harassment."

The district court entered judgment for Faragher on her § 1983 claim against Terry and Silverman. Noting that the Eleventh Circuit has not recognized a § 1983 cause of action for sexual harassment, the court held that such a cause of action is cognizable based on the weight of authority from other circuits. ² The court found that Terry and Silverman acted under color of state law based on their supervisory authority. The court found that Faragher had proved her § 1983 claim by showing actionable sexual harassment under Title VII and intent to harass based on membership in a particular class, i.e., females. The court rejected Terry's qualified immunity defense. The court awarded Faragher $10,000 in compensatory damages against Terry and Silverman, jointly and severally.

The district court entered judgment for Terry and Silverman on Ewanchew's § 1983 claim. The court held that Ewanchew did not prove her § 1983 claim because she failed to show actionable sexual harassment under Title VII. ³ Specifically, the court found that Ewanchew's request for re-employment after resigning "makes it illogical to find a perception of hostility in the work environment on her part." In addition, the court found that Ewanchew's testimony that Terry's and Silverman's conduct was intolerable at the time was not credible. The court held that Ewanchew therefore had not satisfied the requirement that an employee subjectively perceive the work environment to be abusive. See Harris v. Forklift Systems, Inc., --- U.S. ----, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).

The court entered judgment for Faragher on her battery claim against Terry and for Ewanchew on her battery claim against Terry. The court awarded Ewanchew $35,000 in compensatory damages and $2,000 in punitive damages. Faragher was awarded $500 in punitive damages.

The court entered judgment for the City on both Faragher's and Ewanchew's negligent retention claims. The court held that its finding that the City had constructive notice of Terry's and Silverman's conduct for purposes of Title VII liability did not mean that the City had constructive notice of Terry's conduct for purposes of negligent retention liability. Applying to the City the reasonable employer standard, the court found insufficient proof that the City should have known of Terry's conduct before Ewanchew's letter.

Faragher and Ewanchew appeal. The City cross-appeals.

III. ISSUES ON APPEAL

The issues presented on appeal are: (1) whether, to recover under Title VII for hostile environment sexual harassment, an employee must subjectively perceive the work environment to be abusive at the time that she is employed; (2) whether the district court erred in relying on conduct of which Faragher was unaware in determining that Terry's and Silverman's conduct was sufficiently severe or pervasive to alter the conditions of her employment in violation of Title VII; (3) whether the district court erred in finding that Faragher was subjected to an abusive work environment and perceived the environment to be abusive;...