Johnson v. Booker T. Washington Broadcasting Service

• Decision Date: 29 November 2000
• Docket Number: No. 99-6078,99-6078
• Citation: 234 F.3d 501,2000 WL 1752177
• Parties: (11th Cir. 2000) Dallas JOHNSON, Plaintiff-Appellant, v. BOOKER T. WASHINGTON BROADCASTING SERVICE, INC., d.b.a. WENN Radio, and David Donnell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 501

234 F.3d 501 (11th Cir. 2000)

Dallas JOHNSON, Plaintiff-Appellant, v. BOOKER T. WASHINGTON BROADCASTING SERVICE, INC., d.b.a. WENN Radio, and David Donnell, Defendants-Appellees.

No. 99-6078.

United States Court of Appeals, Eleventh Circuit.

November 29, 2000.

December 11, 2000.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Alabama.(No. 97-03215-CV-H-S), James H. Hancock, Judge.

Before COX, WILSON and GIBSON^*, Circuit Judges.

WILSON, Circuit Judge:

Dallas Johnson appeals the district court's grant of summary judgment to defendants-appellees on her sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and its dismissal of her pendent state law assault and battery claims. We affirm the district court's grant of summary judgment on Johnson's retaliation claim, but reverse on her sexual harassment claim. Since the district court will have subject matter jurisdiction over a federal claim upon our remand, we also reinstate Johnson's pendent state law claims.

I. BACKGROUND

Booker T. Washington Broadcasting Service, Inc. ("BTW") owned the WENN¹ radio station in Birmingham, Alabama. WENN was ranked as the number one or two station in the Birmingham market for some period of years before 1996. During this time period, WENN's highest rated show, The Morning Show with Dave Donnell (the "Morning Show"), generated nearly fifty percent of WENN's overall advertising revenue. When the Morning Show's ratings began to drop in 1996, WENN decided to add a co-host in hopes of boosting ratings.

WENN hired plaintiff-appellant Johnson as co-host of the Morning Show. As a new employee, Johnson received a copy of BTW's employment handbook. The harassment policy contained in the handbook prohibited employees from engaging in:

[S]exual flirtations, advances or propositions; continued or repeated verbal abuse of a nature which is ... sexual ...; graphic or degrading comments about an individual or his or her appearance; the display of sexually suggestive objects or pictures; or any offensive or abusive physical contact. Furthermore, no one should imply or threaten that an applicant's or employee's cooperation or refusal to participate in sexual involvement or discriminatory activity will have any effect on that individual's employment, assignment, compensation, advancement, career development, or any other condition of employment.

The policy also instructed employees:

If an employee experiences a problem with harassment, that employee must immediately notify his or her supervisor, or if notification to the supervisor would be inappropriate, another member of management.... All complaints will be promptly and thoroughly investigated and corrective action, if necessary, will be taken.

Dave Donnell served as co-host and program director on the new Morning Show. As program director, Donnell supervised Johnson. From the beginning, Johnson and Donnell did not hit it off. For example, Donnell would cut off Johnson's microphone while they were on the air. Johnson claims Donnell did this whenever he did not like her comments. Donnell claims he cut off Johnson's microphone only when she made inappropriate (e.g., sexually charged) comments. The listening audience and internal personnel complained about the hostile interaction between Donnell and Johnson; listeners thought it sounded like Donnell and Johnson were fighting on the air.

The Morning Show ratings continued to decline. In April 1997, WENN transferred Johnson from the morning to the midday air shift. Donnell testified he did not participate in making the decision to move Johnson to the midday shift, although he did inform her of the change. Co-worker Chris Talley likewise testified that station president Kirkwood Balton made all hiring and firing decisions at WENN, and that Donnell merely implemented Balton's directives. Co-worker Rick Owens, however, testified that Donnell "had all Mr. Balton's backing on all programming and personnel decisions. Whatever [Donnell] felt needed to be done, he would take that to Mr. Balton. And [sic] Mr. Balton would back him on it." Owens further testified that Donnell said "that the chemistry wasn't working [between Donnell and Johnson] and that they probably would have to move [Johnson] to either middays or possibly overnights."

On May 12, 1997, WENN again changed Johnson's shift, moving her from middays to late nights. WENN cut Johnson's pay correspondingly. On May 28, 1997, Johnson complained to Balton and station manager Rose Walker about the shift changes and pay cut, but Walker and Balton refused to make any changes. Johnson claimed she had a contract with WENN that guaranteed her a higher salary, but she would not produce the contract. Instead, Johnson left the station on May 28, 1997, after the meeting, and never returned to work.²

Believing Johnson had quit, WENN arranged an exit interview for Johnson on June 6, 1997. At the exit interview, Johnson alleged WENN was terminating her in retaliation for her refusal to give in to Donnell's sexual advances. This was the first time Johnson voiced any sexual harassment concerns to any BTW supervisor or officer.

Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in June 1997, received her right to sue letter in October 1997, and instigated the present suit in December 1997. Johnson's complaint consisted of three counts: first, against WENN³ for quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation; second, against Donnell for assault and battery; and third, against Donnell for wrongful interference with Johnson's business and contractual relationship with WENN.⁴

Johnson claims that during her tenure on the Morning Show Donnell sexually harassed her as evidenced by the following incidents:

1.Donnell repeatedly commented that Johnson had a sexy voice;

2.Donnell called out Johnson's name and winked at her;

3.Donnell called out Johnson's name and pulled his pants up in an obscene manner, revealing an imprint of his private parts;

4.Donnell called out Johnson's name and then looked her "up and down" while staring at her in a sexual manner;

5.Donnell said "Johnson, I like you and as long as I like you you're going to be all right. You don't have to worry about your job;"

6.Donnell repeatedly attempted to massage Johnson's shoulders against her wishes;

7.Donnell stuck his tongue out at Johnson in an obscene manner;

8.Donnell inappropriately rubbed his body parts against Johnson;

9.Donnell asked Johnson why a person with a body like hers always covered it up;

10.Donnell commented that he could "pull [Johnson] up" anytime, a comment Johnson interpreted as a sexual reference;

11.Donnell got close to Johnson's face as if to kiss her;

12.Donnell commented that Johnson "really knocked him off his feet;"

13.Donnell stated that "he had to stay on his side of the room;"

14.Donnell commented inappropriately about sex to Johnson and questioned Johnson about her own sex life; and

15.Donnell asked Johnson if she ever got lonely.

In a January 4, 1999 order, the district court granted WENN's motion for summary judgment on Johnson's retaliation and sexual harassment claims, and dismissed Johnson's pendent assault and battery claims against Donnell. Johnson appeals these rulings.

II. DISCUSSION

We have jurisdiction pursuant to 28 U.S.C. 1291, as this is an appeal from a final judgment.⁵ See 28 U.S.C. 1291. We review de novo the district court's grant of summary judgment, applying the same legal standards as the district court, and viewing all facts and reasonable inferences drawn therefrom in the light most favorable to Johnson, the non-moving party. See Evans v. McClain of Georgia, Inc., 131 F.3d 957, 961 (11th Cir.1997) (per curiam). We review the district court's dismissal of pendent state law claims for abuse of discretion. See Shahawy v. Harrison, 778 F.2d 636, 644 (11th Cir.1985), amended by 790 F.2d 75 (11th Cir.1986), appealed after remand, 875 F.2d 1529 (11th Cir.1989).

A. Retaliation Claims

Under Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. 2000e-3(a) (1982). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.1997) (per curiam).⁶ Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment. See, e.g., Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) ("[T]he protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those, like [appellant], who informally voice complaints to their superiors or who use their employers' internal grievance procedures.").

Johnson engaged in statutorily protected expressions by filing a charge with the EEOC in June 1997 and complaining about Donnell's harassment to Walker and Balton on June 6, 1997. Johnson's employment with WENN ended on May 28, 1997. Thus, Johnson's June 1997 protected expressions occurred after her employment ended in May 1997, and WENN's employment decisions could not have been based on Johnson's protected expressions. Hence Johnson cannot prevail on her retaliation claim, as she failed to satisfy the third Holifield prong: a...