Nichols v. Volunteers of America, North Alabama, Inc.

Filing 78

MEMORANDUM OPINION AND ORDER that the defendant's motion for summary judgment based on the Faragher defense is DENIED and defendant's motion to strike is DENIED as MOOT and this case will be set for a pretrial conference by separate order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/24/2013. (AHI)

FILED
2013 Apr-24 PM 12:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
CASSANDRA
NICHOLS,

RENEE

Plaintiff,
vs.
VOLUNTEERS OF AMERICA,
NORTH ALABAMA, INC.,
Defendant.

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Civil Action No. CV 08-S-501-NW

MEMORANDUM OPINION
This case is before the court on remand from the Eleventh Circuit.1 The
complaint of plaintiff, Cassandra Renee Nichols, asserted numerous federal
discrimination claims and state law torts against her former employer, Volunteers of
America, North Alabama, Inc.2 This court entered summary judgment in favor of the
defendant on November 23, 2010, however, and dismissed all of plaintiff’s claims.3
Plaintiff appealed, and the Eleventh Circuit affirmed in all respects, save one. When
ruling upon defendant’s motion for summary judgment, this court found that plaintiff
“effectively abandoned” her hostile work environment claim and dismissed it.4 A
1

See doc. nos. 66 (Eleventh Circuit Opinion), and 67 (Mandate).

2

See generally doc. no. 1 (Complaint).

3

See doc. no. 57 (Memorandum Opinion), at 35-36.

4

Id. at 12 (“Plaintiff offered no response to defendant’s well-supported arguments that
summary judgment should be granted on that claim. Issues and contentions not raised in a party’s
response brief are deemed abandoned. ”) (citing Chapman v. AI Transport, 229 F.3d 1012, 1027

majority of the Eleventh Circuit panel held that decision to be error, saying that, by
presenting evidence that plaintiff had encountered racially hostile behavior and
language at Volunteers on a daily basis, she had “presented sufficient evidence to
create a genuine issue of material fact about whether the harassment she allegedly
suffered at Volunteers was severe or persuasive.” Nichols v. Volunteers of America,
North Alabama, Inc., 470 F. App’x 757, 761 (11th Cir. 2012) (per curiam). Even so,
the majority’s opinion observed that the defendant had
also moved for summary judgment [on the plaintiff’s hostile work
environment claim] based on the affirmative defense recognized in
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L.
Ed. 2d 662 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998), [but] the district court did
not address whether Volunteers was entitled to summary judgment on
that alternative ground. On remand, the district court should address
(11th Cir. 2000) (en banc)). See also id. at 13-15, stating that:
It is not sufficient for Nichols to merely mention the words “harassment” and
“hostile work environment” randomly throughout her response brief. Equally
insufficient is Nichols’s statement at the beginning of her “Argument” section that
she “was subjected to severe and pervasive racially derogatory language and received
discriminatory and retaliatory discipline, including being demoted, put on
administrative leave, stripped of her higher hourly wage, and constructively
discharged.” At no point in her response brief does Nichols actually address her
hostile work environment claim — to the extent that she even alleged this claim in
her muddled complaint — despite VOA’s well-articulated and properly supported
arguments that the purported hostile work environment was neither severe nor
pervasive, and that Nichols did not reasonably avail herself of VOA’s
anti-harassment policies.
The court will not give consideration to arguments that are not fully
developed or bolstered with legal authority. . . . Accordingly, VOA is entitled to
summary judgment on Nichols’s hostile work environment claim. [Footnotes and
citations omitted.]

2

whether the affirmative defense recognized in Ellerth and Faragher
applies. We will not address this issue in the first instance.
Nichols, 470 F. App’x at 761 (alterations supplied).
Upon consideration of the parties’ briefs and oral arguments addressing the
issues remanded by the Eleventh Circuit, this court concludes, for the reasons
discussed below, that defendant’s motion for summary judgment on plaintiff’s
racially hostile work environment claim should be denied.5
I. FACTUAL BACKGROUND
The underlying facts of this controversy have been recounted in this court’s
prior opinion, as well as the Eleventh Circuit’s opinion on appeal.6 Consequently, the
following discussion will state only those facts, construed in the light most favorable
to plaintiff, that are relevant to a determination of whether summary judgment should
be entered in favor of defendant on plaintiff’s sole, remaining claim.
Defendant promulgated a “Personnel Policies Manual” that addressed, among
5

Defendant also previously moved to strike portions of plaintiff’s evidence submitted in
opposition to summary judgment. See doc. no. 50. In its prior summary judgment opinion, this court
denied the motion to strike as moot. Doc. no. 57 (Memorandum Opinion), at 2, 35. The motion to
strike is again in play because the case has returned to the court at the summary judgment stage.
Nevertheless, the viability of the Faragher defense can be determined without the need to rely upon
the evidence to which defendant objects. Stated differently, the court need not consider plaintiff’s
declaration assertions that she reported harassing behavior to defendant’s Human Resources
Department and Chief Executive Officer, see doc. no. 50 (Defendant’s Motion to Strike), at 16-17,
20-21, because plaintiff testified in her deposition that she reported the harassment to her immediate
supervisor, Sonja King. Thus, the motion to strike is still due to be denied.
6

See doc. no. 57 (Memorandum Opinion), at 3-11; doc. no. 66 (Eleventh Circuit Opinion),

at 2-4.

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other things, its anti-harassment policy.7 The Manual stated that defendant sought to
“ensure that . . . employees are treated fairly during employment[,] without regard to
their race, creed, color, age, religion, sex, national origin, or disability.”8 The Manual
pledged under the heading “Productive Work Environment” that defendant “will not
tolerate verbal or physical conduct by any employee that harasses, disrupts, or
interferes with another’s work performance or which creates an intimidating,
offensive, or hostile environment.”9 The Manual then outlined the complaint
procedure for employees who believed they had been subject to harassment — a
procedure that included the following steps:
C.

Any employee who believes that the actions or words of a
supervisor or fellow employee constitute unwelcome harassment
has a responsibility to report or complain as soon as possible to
their supervisor and/or to the Human Resources Department or
CEO.

D.

All complaints of harassment will be investigated promptly as
directed by the CEO with an emphasis upon complete impartiality
and confidentiality. In all cases, the employee is to be advised of
the management’s findings and conclusion.10

Defendant provided a copy of the Manual to plaintiff at the beginning of her

7

Doc. no. 45-4 (Attachments to Nichols’s Deposition), at ECF 3-44 (Personnel Policies
Manual).
8

Id. at ECF 12 (alteration supplied).

9

Id. at ECF 40.

10

Id. (emphasis supplied).

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employment in 2005.11 Plaintiff received a second copy, which she signed, in March
of the following year.12 She testified that she had read, and was familiar with, the
complaint procedure policy contained within the Manual.13
Sonja King was plaintiff’s immediate supervisor.14 King was not plaintiff’s
only supervisor, however.15 For example, Amy Johnson (a “House Manager II”) and
fellow employee Sarah Rickard also assigned plaintiff duties and exercised oversight
of her work.16
Plaintiff testified that, at various undisclosed times, she reported to Sonja King
that some of defendant’s employees, including Teresa Stephenson (defendant’s
Program Director) and Sarah Rickard (a “House Manager II”) were subjecting her to
a hostile environment through the use of disparaging and offensive racial remarks.17

11

See doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 212.

12

Id.; see doc. no. 45-4 (Attachments to Nichols’s Deposition), at ECF 4-5.

13

Doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 212-213.

14

See id. at 173; doc. no. 48-3 (Declaration of Cassandra Nichols), at 3, 11, 14, 45; see also
doc. no. 57 (Memorandum Opinion), at 9; doc. no. 66 (Eleventh Circuit Opinion), at 2.
15

See doc. no. 48-1 (Declaration of Sonja King), at 37, 41, 52

16

Id. at 9, 37; doc. no. 48-3 (Declaration of Cassandra Nichols), at 12, 45; doc. no. 57
(Memorandum Opinion), at 5; doc. no. 66 (Eleventh Circuit Opinion), at 2.
17

Doc. no. 45-1 (Deposition of Cassandra Nichols, Part 1), at 155-66 (reporting complaints
about Stephenson’s comments); doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 173 (“As
I said, I reported everything to Sonja . . . . Sonja was my supervisor. So I reported it to her.”), 175
(“I’ve reported things to Sonja[.]”), 180-82 (“I done my chain of command. I told her if I had
harassment, something wrong. I told Sonja . . . I just talked — whatever I had a complaint about,
I talked to Sonja about it.”), 185 (“I reported [Amy Johnson’s use of the word “nigger”] to Sonja.”),
213-14 (“I did that. I followed the chain of command. I was supposed to tell Sonja. . . . I mean, I
let Sonja know. . . . I told Sonja.”); doc. no. 57 (Memorandum Opinion), at 9.

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II. ANALYSIS
The parties devoted little discussion in their summary judgment briefs to the
Ellerth and Faragher affirmative defense. Defendant’s argument on the issue was
less than three pages.18 Plaintiff’s response brief failed to address the issue at all.19
In any event, the defense applies when it is shown: “(a) that the employer exercised
reasonable care to prevent and correct promptly any . . . 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.”
Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296-97 (11th Cir. 2000)
(quoting Faragher, 524 U.S. at 807) (emphasis supplied).
A court’s assessment . . . requires, first, an analysis of whether the
employer has exercised reasonable care in preventing . . . harassing
18

Doc. no. 44 (Brief in Support of Summary Judgment), at 31-33.

19

See generally doc. no. 47 (Brief in Opposition to Summary Judgment). Ordinarily, a court
should grant summary judgment when plaintiff does not respond to defendant’s arguments. See, e.g.,
Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (It is “incumbent upon the nonmovant to
respond by, at the very least, raising in their opposition papers any and all arguments or defenses”
that preclude summary judgment.) Nevertheless, two reasons suggest a different course here.
First, the Eleventh Circuit already rejected this court’s conclusion that plaintiff abandoned
her hostile work environment claim, even despite her brief’s complete lack of argument on the
matter. Doc. no. 66 (Eleventh Circuit Opinion), at 6-9 (recounting the evidence that supports
plaintiff’s hostile work environment claim, but not identifying any legal arguments plaintiff made
on summary judgment); see id. at 20-22 (Kravitch, J., concurring in part and dissenting in part)
(noting that plaintiff’s brief never discussed the elements of, and failed to formulate arguments
about, her hostile work environment claim ).
Second, the Faragher defense is an affirmative one for which defendant has the burden of
proof. See Frederick v. Sprint/United Management Co., 246 F.3d 1305, 1313 (11th Cir. 2001).
Thus, even though plaintiff did not respond to defendant’s argument, the onus still rests on defendant
to demonstrate that the defense applies.

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behavior. The court next directs its inquiry to whether the employee
made reasonably sufficient use of available avenues to put the employer
on notice of the problem. Finally, the court refocuses on the employer
to determine whether the employer or its authorized agent, after
receiving notice of the harassment, took adequate steps to abate it and
prevent its recurrence.
Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1369 (11th Cir. 1999) (Barkett, J.,
concurring) (first emphasis in original, second emphasis supplied).
Of course, if plaintiff — based on the facts viewed in the light most favorably
to her — did not avail herself of the complaint procedures outlined in the defendant’s
Personnel Policies Manual, then there is no further inquiry into defendant’s remedial
actions, and the defense applies. See id. at 1364 (“Only if we determine that adequate
notice of the harassment was given to [the employer] do we then move to determine
whether [it] responded reasonably to [plaintiff’s] complaint.”) (emphasis and
alterations supplied). That is the reasoning and conclusion that defendant urges here.
Importantly, defendant does not argue that it promptly acted to correct the harassing
behavior.20 Instead, defendant contends that plaintiff “unreasonably failed to avail
herself of the corrective or preventive opportunities provided” by defendant because
she “complained to her friend (and fellow disgruntled employee) Sonja King about
the alleged harassment, but . . . never complained to Human Resources or
20

See doc. no. 44 (Brief in Support of Summary Judgment), at 31-33 & n.11 (acknowledging
that, under the first prong of the Faragher defense, defendant must show that it exercised reasonable
care in promptly correcting harassment, but failing to provide argument on that issue).

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[defendant’s CEO Victor] Tucker.”21 Put differently, defendant asserts that plaintiff
failed to inform the appropriate personnel about the harassment she allegedly
endured.
As a threshold matter, it appears that defendant exercised reasonable care in
preventing harassment based upon the existence, content, and dissemination of its
anti-harassment policy. In deciding whether an employer exercised reasonable care,
courts consider whether the company promulgated a written anti-harassment policy,
although that fact alone is not dispositive.

See Frederick v. Sprint/United

Management Co., 246 F.3d 1305, 1313-14 (11th Cir. 2001). Additionally, an
employer must show that the company’s “harassment policy was effectively
published, that it contained reasonable complaint procedures, and that it contained no
other fatal defect.” Id. at 1314. Dissemination of the policy is critical, and the
complaint procedures must provide “multiple avenues of lodging a complaint” to
designated representatives of the employer. Madray v. Publix Supermarkets, Inc.,
208 F.3d 1290, 1298-99 (11th Cir. 2000).
It appears to this court that defendant satisfied the foregoing standards. It
included a written anti-harassment policy in its Personnel Policies Manual.22 Plaintiff

21

Doc. no. 44 (Brief in Support of Summary Judgment), at 32 (alteration supplied).

22

Doc. no. 45-4 (Attachments to Nichols’s Deposition), at ECF 3-44 (Personnel Policies

Manual).

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was provided two copies of the Manual, and admitted that she had read and was
familiar with the policy and complaint procedures.23 Finally, it appears that a
reasonable factfinder could conclude that the policy’s complaint procedures were
reasonable and contained alternative channels for lodging complaints: employees
could report harassment directly to their supervisor, or to either the Human Resources
Department or the Chief Executive Officer.24
“[O]nce an employer has promulgated an effective anti-harassment policy and
disseminated that policy and associated procedures to its employees, then ‘it is
incumbent upon the employees to utilize the procedural mechanisms established by
the company specifically to address problems and grievances.’” Madray v. Publix
Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir. 2000) (quoting Farley v.
American Cast Iron Pipe, 115 F.3d 1548, 1554 (11th Cir. 1997)) (alteration supplied).
“The sole inquiry when the employer has a clear and published policy is whether the
complaining employee followed the procedures established in the company’s policy.”
Breda v. Wolf Camera & Video, 222 F.3d 886, 890 (11th Cir. 2000).
There are genuine issues of material fact that impact the question of whether
plaintiff complied with the anti-harassment policy. Construing those issues of fact
in the light most favorable to plaintiff, it appears that she complied with the
23

Doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 212-213.

24

Doc. no. 45-4 (Attachments to Nichols’s Deposition), at ECF 40.

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harassment policy.

The policy provided employees the option of reporting

harassment “to their supervisor.”25 Plaintiff testified that she reported the harassment
to Sonja King.26 King was plaintiff’s immediate supervisor,27 and not just plaintiff’s
“friend.”28 Accepting those facts as true, it appears that plaintiff satisfied her duty to
take advantage of defendant’s complaint procedures; and if she did, then defendant,
by the terms of its own policy, is deemed to have had notice of the harassment.29 See
Breda, 222 F.3d at 889 (“When an employer has a policy for reporting harassment
that is clear and published to its employees, and an employee follows that policy, the
employer’s notice of the harassment is established by the terms of the policy.”); see
25

Id.

26

Doc. no. 45-1 (Deposition of Cassandra Nichols, Part 1), at 155-66 (reporting complaints
about Stephenson’s comments); doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 173 (“As
I said, I reported everything to Sonja . . . . Sonja was my supervisor. So I reported it to her.”), 175
(“I’ve reported things to Sonja[.]”), 180-82 (“I done my chain of command. I told her if I had
harassment, something wrong. I told Sonja . . . I just talked — whatever I had a complaint about,
I talked to Sonja about it.”), 185 (“I reported [Amy Johnson’s use of the word “nigger”] to Sonja.”),
213-14 (“I did that. I followed the chain of command. I was supposed to tell Sonja. . . . I mean, I
let Sonja know. . . . I told Sonja.”); doc. no. 57 (Memorandum Opinion), at 9.
27

Doc. no. 45-2 (Deposition of Cassandra Nichols, Part 2), at 173; doc. no. 48-3 (Declaration
of Cassandra Nichols), at 3, 11, 14, 45.
28

Doc. no. 44 (Brief in Support of Summary Judgment), at 32.

29

Defendant suggests in passing that plaintiff’s failure to lodge additional complaints — i.e.,
other than those made to King — is significant: it claims that “Nichols acted precisely in the manner
that alleged victims of harassment should not act in order to prevail — by not complaining to the
people that needed to know, even after her alleged complaints to King were not acted upon.” Doc.
no. 44 (Brief in Support of Summary Judgment), at 33 (emphasis supplied). But once plaintiff
complied with the policy by reporting the harassment to her supervisor, she was not required to
report it again later. See Madray, 208 F.3d at 1302 (citing Distasio v. Perkin Elmer Corp., 157 F.3d
55, 65 (2d Cir. 1998) (“When a plaintiff reports harassing misconduct in accordance with company
policy, she is under no duty to report it a second time before the company is charged with knowledge
of it.”)).

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also Coates, 164 F.3d at 1364.
If a plaintiff reports harassment in accordance with the employer’s policy, the
employer then must show that it took remedial steps within a “reasonably prompt”
time after it was on notice of the alleged harassment. Frederick, 246 F.3d at 1314;
see Coates, 164 F.3d at 1369 (Barkett, J., concurring). As mentioned above,
however, defendant made no attempt to prove the remedial prong of the Faragher
defense.30 Rather, it based its position on the contention that plaintiff “unreasonably
failed to avail herself of the corrective or preventive opportunities provided” in its
anti-harassment policy.31 Defendant may ultimately be able to prove that contention
at trial. However, at the summary judgment stage, there are genuine issues of
material fact that, when construed in plaintiff’s favor, preclude the entry of summary
judgment on plaintiff’s hostile work environment claim.
III. CONCLUSION AND ORDER
For all of the foregoing reasons, defendant’s motion for summary judgment
based on the Faragher defense is DENIED. Defendant’s motion to strike is denied
as MOOT. The case will be set for a pretrial conference by separate order.
DONE and ORDERED this 24th day of April, 2013.

30

See doc. no. 44 (Brief in Support of Summary Judgment), at 31-33.

31

Id. at 32; see also supra note 29.

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______________________________
United States District Judge

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