Natson v. Eckerd Corp., Inc.

• Decision Date: 27 October 2004
• Docket Number: No. 4D03-4191.,4D03-4191.
• Parties: Shirail NATSON, Appellant, v. ECKERD CORPORATION, INC., Appellee.
• Court: Florida District Court of Appeals

885 So.2d 945

Shirail NATSON, Appellant, v. ECKERD CORPORATION, INC., Appellee.

No. 4D03-4191.

District Court of Appeal of Florida, Fourth District.

October 27, 2004.

Stanley Kiszkiel of Stanley Kiszkiel, P.A., Pembroke Pines, for appellant.

Susan L. Dolin of Rothstein, Rosenfeldt, Dolin & Pancier, P.A., Fort Lauderdale, for appellee.

WARNER, J.

Appellant, Shirail Natson, appeals a directed verdict in favor of Eckerd Corporation on her claim for sexual harassment in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes (2002). The court granted a directed verdict based upon Eckerd's affirmative defense that it exercised reasonable care to prevent and promptly correct sexual harassment and that Natson unreasonably failed to take advantage of preventative opportunities. We hold that the court erred in directing a verdict because the evidence taken in a light most favorable to Natson would defeat the affirmative defense. We therefore reverse.

Natson was employed as a photo lab technician for an Eckerd Store. Her regular supervisor was Maxime Nicolas, but Jennifer Woods was Nicolas's co-supervisor of the photo lab. In the joint pre-trial stipulation, Eckerd admitted that Woods was a supervisor. Howard Young was the overall photo lab manager and was the supervisor of both Nicolas and Woods.

About a month after Natson began working at Eckerd, Nicolas started touching her inappropriately. Natson told him to keep his hands to himself, but the conduct continued. That same month, she reported the conduct to Woods. Natson testified that she did not tell Woods not to tell anyone about the situation. Woods told her that she would "take care of it." Woods admitted that she talked to Natson about Nicolas's conduct, although she recalls Natson telling her only that Nicolas made her uncomfortable. Woods did not tell anyone about her conversations with Natson and no action was taken. Natson testified that after her conversation with Woods, the touching and verbal harassment became worse. After another month she went back to Woods and asked her if she took care of the problem. Woods said she had not but that she would talk to the district manager, Patte Neville, the next day. That same day, Nicolas took an opportunity to rub Natson's nipple while handing her a paper. At that point Natson decided to leave and walked out of the store.

Natson returned the next day and spoke to the store manager, Daryl Turner. She informed him that Nicolas had been touching her and making comments. She told Turner that she had wanted to tell him, but every time she went back to his office, Nicolas followed her. She told Turner that she had informed Woods about her problem, and Turner said that Woods should have reported it to him so that something could be done. Turner then called in the Human Resources Director, Marilyn Hannan, who conducted an investigation during which she interviewed Natson and contacted Woods. Woods told Hannan that Natson had complained to her on several occasions about Nicolas touching her. Natson was eventually terminated by Eckerd and brought this claim for sexual harassment. At the close of all of the evidence both parties moved for directed verdicts. The court granted Eckerd's motion for directed verdict on its affirmative defense that Natson failed to follow the company's policy on sexual harassment. This appeal follows.

A motion for directed verdict should be granted only where the evidence and reasonable inferences deduced from it, taken in the light most favorable to the non-moving party, could not sustain a verdict for the party moved against. See Ortlieb v. Butts, 849 So.2d 1165, 1168 (Fla. 4th DCA 2003)

; Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003). Where there is conflicting evidence or different reasonable inferences may be drawn from the evidence, then the factual issues must be submitted to the jury. Tenny, 858 So.2d at 1196.

An employee may assert a claim for sexual harassment under section 760.10, Florida Statutes (2002). "The Florida Civil Rights Act is patterned after Title VII, and therefore federal case law regarding Title VII is applicable." Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 n. 3 (Fla. 1st DCA 2002). Specifically, section 760.10, Florida Statutes (2002), provides:

(1) It is an unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

To establish a prima facie case of hostile work environment sexual harassment, a plaintiff must establish: (1) he or she is a member of a protected group; (2) he or she was the subject of unwelcome sexual harassment; (3) the harassment occurred because of his or her sex; and (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her employment. Breda v. Wolf Camera & Video, 222 F.3d 886, 889, n. 3 (11th Cir.2000). Additionally, "the employee must show that the employer knew or should have known of the harassment and failed to take remedial action." Castleberry, 810 So.2d at 1029-30. Eckerd does not dispute that Natson proved a prima facie case of sexual harassment.

Eckerd asserted as an affirmative defense to Natson's sexual harassment claim its policy on sexual harassment, which it says Natson did not follow. It cites Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), in which the Supreme Court said:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise ... No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275 (citations omitted). The trial court ruled as a matter of law that Natson did not suffer a tangible employment action as her termination was not the result of the sexual harassment, so the affirmative defense is available to Eckerd. The court...