1  

No. 12-1205

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

__________________________

ANDREA MILHOAN,

Plaintiff/Appellant

v.

MOOLAH & DOUGH LLP,

Defendant/Appellee

__________________________

ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

__________________________

BRIEF FOR THE APPELLANT __________________________

  2  

STATEMENT OF JURISDICTION

Plaintiff Andrea Milhoan filed a complaint against Defendant Moolah

& Dough LLP in the United States District Court for the Northern District of

Georgia seeking damages and other relief under Title VII of the Civil Rights

Act of 1964 (R. at 1). The District Court had jurisdiction pursuant to 28

U.S.C. § 1331. On August 16, 2011, the District Court entered an opinion

and order granting Defendant’s motion for summary judgment (R. at 24).

The District Court’s order granting Defendant’s motion for summary

judgment is a final judgment that disposed of all claims of all parties. See

Mendoza v. Borden, Inc., 195 F.3d 1238, 1242 (11th Cir. 1999). Andrea

filed a notice of appeal from this judgment on August 17, 2012 (R. at 25).

The notice of appeal was timely filed within 30 days after the entry of

judgment. Fed. R. App. P. 4(a)(1)(A). Accordingly, this Court has proper

jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

Did the District Court err by granting the defendant’s summary

judgment motion in a sexual harassment claim under Title VII of the Civil

Rights Act of 1964 (1) when the victim reported the harasser’s conduct to

her supervisor within a week of each of two sexually explicit incidents and

filed a formal EEOC complaint within a month of the second sexually

  3  

explicit incident; (2) when the victim suffered approximately eighteen

physical encounters with the harasser within a six-month time period, two of

which were sexually explicit; and (3) when the victim missed a deadline,

was forced to move her office two floors above her former office, and cried

after one of the sexually explicit incidents?

Should an employer be held liable for sexual harassment under Title

VII of the Civil Rights Act of 1964 when the victim reported the sexual

harassment to a supervisor on more than one occasion, the supervisor

assured the victim that he would take care of it, and then he failed to take

prompt remedial action?

STATEMENT OF THE CASE

A. Course of the Proceedings and Disposition in the Court Below

Plaintiff Andrea Milhoan brought a cause of action against Defendant

Moolah & Dough LLP in the United States District Court for the

Northern District of Georgia for hostile work environment sexual

harassment under Title VII of the Civil Rights Act of 1964 (R. at 1).

Following discovery, which included depositions of Plaintiff Andrea

Milhoan and her supervisor, Luis Rodriguez, Defendant Moolah &

Dough filed a motion for summary judgment on July 20, 2012 (R. at 22).

The District Court granted Defendant’s motion on August 16, 2012,

  4  

finding that Defendant took prompt remedial action regarding the alleged

sexual harassment that Plaintiff experienced during the course of

Plaintiff’s employment with Defendant (R. at 24). This appeal followed.

B. Statement of the Facts

Andrea Milhoan began working with Moolah & Dough LLP on or about

November 2, 2010 as a research assistant (R. at 3). Within a month of

Andrea’s hire date, Mr. Jacobs, one of her coworkers, physically

approached Andrea to ask her to go out on a date with him. Id. Even

though Andrea denied Mr. Jacobs’ request for a date and explicitly told

him that she was not interested in seeing him socially, Mr. Jacobs

persisted and physically approached Andrea to ask her out on dates after

every weekly staff meeting from November 2010 until mid-February

2011. Id.

On or about February 17, 2011, Mr. Jacobs approached Andrea as she

was picking up papers from the floor, placed his hands on her head, and

forcefully thrust his pelvis into her forehead. Id. During this incident, Mr.

Jacobs said, “Andrea, this could be my belated Valentine’s Day present.”

Id. Andrea then fell backwards and hit the back of her neck on the corner

of her desk. Id. Following this incident, Andrea ran to the women’s

  5  

restroom, crying, and two of her coworkers witnessed the incident. Id.

Andrea also missed a deadline for a document summary due that day. Id.

On or about February 21, 2011, Andrea spoke with her supervisor, Luis

Rodriguez, to inform him of Mr. Jacobs’ harassing conduct (R. at 4). She

also requested that Mr. Jacobs’ office be moved away from hers. Id.

However, on March 19, 2011, Moolah & Dough moved Andrea’s office

two floors above her former office. Id.

On or about April 5, 2011, Mr. Jacobs sent a media text-message to

Andrea on her company cell phone with a subject line that read, “I’m

sorry.” Id. Although Andrea was initially relieved because she thought

that Mr. Jacobs wanted to apologize for his past conduct (R. at 16), the

text-message contained a video of celebrity Britney Spears and Adnan

Ghalib engaging in sex (R. at 4). The faces in the video had been digitally

replaced with Andrea’s and Mr. Jacobs’ photos, and the banner at the top

of the screen read, “We’ll make our own video!” Id. Before Andrea could

close the video, several of her coworkers saw or overheard it and started

laughing (R. at 16).

On April 6, 2011, Andrea spoke to Luis Rodriguez again regarding Mr.

Jacobs’ harassing conduct, specifically the media text-message, and Mr.

Rodriguez said, “We will take care of it, and I will let you know when

  6  

this matter is resolved.” (R. at 4.) However, between April 7 and April

29, Moolah & Dough failed to take any action with respect to Mr. Jacobs

(R. at 5). On April 27, 2011, Andrea filed a formal EEOC complaint,

after which Moolah & Dough finally took action and suspended Mr.

Jacobs, without pay, pending an investigation. (R. at 21.) Mr. Jacobs

voluntarily resigned after learning of his suspension. Id.

C. Statement of the Standard of Review

The district court’s order granting a motion for summary judgment is

subject to de novo review. Harris v. H & W Contracting Co., 102 F.3d

516, 518 (11th Cir. 1996). “Summary judgment is appropriate where

the pleadings, depositions, and affidavits show that there is no genuine

issue of material fact and that the moving party is entitled to judgment

as a matter of law.” Id.

SUMMARY OF ARGUMENT

Federal Rule of Civil Procedure 56 provides that summary judgment

is permissible when no genuine issues as to material fact exist in a case. Fed.

R. Civ. P. 56. Andrea asks this Court to reverse the District Court’s grant of

Moolah and Dough’s motion for summary judgment and to hold that

genuine issues as to material fact exist in this Title VII sexual harassment

case regarding (1) whether the sexual harassment of Andrea was sufficiently

  7  

severe and pervasive to alter a term or condition of her employment, and (2)

whether Moolah and Dough took prompt and appropriate remedial action

after receiving notice of the sexual harassment. The record establishes that

the facts raise genuine issues as to material fact regarding both of these

elements of Andrea’s Title VII sexual harassment claim.

First, the sexual harassment that Andrea endured during her

employment with Moolah and Dough was sufficiently severe and pervasive

to alter a term or condition of her employment. The relevant case law

establishes that, in order to be sufficiently severe or pervasive, sexual

harassment must be subjectively perceived by the victim as severe and

pervasive, and it must also be frequent, severe, physically threatening or

humiliating, and unreasonably interfere with the victim’s job.

The record reflects that Andrea suffered approximately eighteen

sexual harassment incidents over a six-month time period. This sexual

harassment was frequent because Andrea suffered numerous incidents

during a relatively short period of time. Additionally, the sexual harassment

was severe because one of the incidents involved sexually explicit physical

contact coupled with a sexually explicit verbal expression by the harasser.

Furthermore, the sexual harassment was physically threatening or

humiliating because another incident involved a sexually explicit text-

  8  

message that was embarrassing to Andrea that was made public when

several of her coworkers either heard or saw its content before she was able

to close it on her work phone. Finally, the sexual harassment unreasonably

interfered with Andrea’s job because the sexual harassment caused her to

become very emotional at work, miss a deadline, and cope with the burden

of having to move her entire office to a new office space two floors above

her former office.

Therefore, the sexual harassment that Andrea endured was sufficiently

severe and pervasive to alter a term or condition of her employment.

Not only was the sexual harassment in this case severe and pervasive,

but Moolah and Dough also failed to take prompt and appropriate remedial

action against the harasser to terminate the sexual harassment after receiving

notice of it. In Andrea’s case, Moolah and Dough had actual notice of the

sexual harassment because Andrea reported the conduct to her direct

supervisor on two occasions, in accordance with Moolah and Dough’s No

Harassment Policy. Additionally, the action taken by Moolah and Dough in

response to Andrea’s complaints was not appropriately remedial because,

even after being explicitly instructed by the supervisor to cease the sexual

harassment of Andrea, the harasser continued with the sexual harassment,

and Moolah and Dough took no further disciplinary action against the

  9  

harasser. Finally, Moolah and Dough’s actions in response to Andrea’s

complaints were not prompt because they involved neither the

commencement of an investigation into the harasser’s conduct nor taking

formal disciplinary action against the harasser either immediately or within a

short time after receiving actual notice of the harassment.

Therefore, Moolah and Dough failed to take prompt or appropriately

remedial action in response to Andrea’s complaints of sexual harassment

after receiving actual notice of the sexual harassment.

According to the record in this case, the facts raise genuine issues as

to material fact regarding (1) whether the sexual harassment was sufficiently

severe and pervasive to alter a term or condition of Andrea’s employment,

and (2) whether Moolah and Dough took prompt and appropriate remedial

action after receiving actual notice of the sexual harassment. Therefore, the

District Court erred in granting Moolah and Dough’s motion for summary

judgment. Andrea respectfully requests this Court to reverse the District

Court’s grant of the motion for summary judgment and remand this action to

the District Court for trial.

ARGUMENT AND CITATIONS OF AUTHORITY

I. THE DISTRICT COURT’S ORDER GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD BE REVERSED BECAUSE THE SEXUAL HARASSMENT OF ANDREA MILHOAN WAS SUFFICIENTLY

  10  

SEVERE TO AFFECT A TERM OF HER EMPLOYMENT AND BECAUSE MOOLAH AND DOUGH DID NOT TAKE PROMPT REMEDIAL ACTION IN RESPONSE TO ANDREA’S COMPLAINTS, THUS RAISING GENUINE ISSUES OF MATERIAL FACT IN THE PRESENT CASE.

Under Title VII of the Civil Rights Act of 1964, an employer may not

discriminate against any employee “with respect to his terms, conditions, or

privileges of employment on the basis of such [employee’s] race, color,

religion, sex, or national origin.” See Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993) (citing 42 U.S.C. section 2000e-2(a)(1)). Although Title VII

does not explicitly address the issue of sexual harassment, the Supreme

Court recognizes that “[t]he phrase ‘terms, conditions, or privileges of

employment’ evinces a congressional intent to strike at the entire spectrum

of disparate treatment of men and women in employment, which includes

requiring people to work in a discriminatorily hostile or abusive

environment.” See Mendoza, 195 F.3d at 1244 (citing Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)).

Any employee who establishes “(1) that he or she belongs to a protected

group; (2) that he or she has been subject to unwelcome sexual harassment,

such as sexual advances, requests for sexual favors, and other conduct of a

sexual nature; (3) that the harassment was based on his or her sex; (4) that

the harassment was sufficiently severe or pervasive to alter the terms and

  11  

conditions of employment and create a discriminatorily abusive working

environment; and (5) a basis for holding the employer liable” is able to bring

a sexual harassment claim under Title VII. Id. at 1245.

The first three elements listed above are not at issue, and therefore they

will not be addressed in the present argument. With respect to the remaining

elements, the harassment of Andrea was, indeed, sufficiently severe to alter

the terms and conditions of her employment, and Moolah and Dough failed

to take prompt remedial action in response to Andrea’s complaints, thus

establishing a basis for holding Moolah and Dough liable. Accordingly, this

Court should reverse the District Court’s decision.

A. The Harassment that Andrea Suffered During her Employment at Moolah and Dough by Mr. Jacobs Created a Subjectively and Objectively Hostile or Abusive Work Environment Because Andrea Subjectively Perceived Such Conduct as Severe and Pervasive; Andrea was Subjected to Eighteen Physical Encounters with Mr. Jacobs in a Six-Month Period, Two of Which Were Sexually-Explicit; and Andrea Missed a Deadline at Work, Was Forced to Move her Office, and Ran to the Restroom Crying as a Result of Mr. Jacobs’ Conduct.

Under the common law, “establishing that harassing conduct was

sufficiently severe or pervasive to alter an employee’s terms or conditions of

employment includes a subjective and an objective component.” Id. at 1246.

Mr. Jacobs’ conduct toward Andrea far exceeds the minimum criteria of

  12  

both the subjective and objective standards. Therefore, the Court should find

that Mr. Jacobs’ conduct rises to the level of “sufficiently severe.”

1. Andrea Subjectively Perceived Mr. Jacobs’ Harassment as Severe and Pervasive Because She Reported Mr. Jacobs’ Conduct to Her Supervisor Within a Week of Each of the Two Sexually Explicit Encounters with Mr. Jacobs, and She Filed an EEOC Complaint Within a Month After the Second Sexually Explicit Incident.

Andrea’s perception of Mr. Jacobs’ conduct as severe and pervasive

satisfies the subjective component for establishing that the conduct was

“sufficiently severe.” An employee that “subjectively perceives” the

harassment in question as severe and pervasive “to alter the terms or

conditions of employment” satisfies the subjective component. Id.

In the present case, Andrea subjectively perceived Mr. Jacobs’ conduct as

severe and pervasive. The first situation that evidences such a subjective

perception involves Andrea’s actions immediately after the February 17,

2011 incident, during which Mr. Jacobs thrust his pelvis into her forehead

(R. at 14). Immediately following this incident, Andrea “ran to the women’s

restroom crying.” Id. Additionally, Andrea testified that she reported Mr.

Jacobs’ conduct to her supervisor, Mr. Rodriguez, on two occasions. Id. The

first time that she reported his conduct to Mr. Rodriguez was less than a

week after the February 17th incident (R. at 14), and the second time was the

day following her receipt of the sexually explicit text-message from Mr.

  13  

Jacobs (R. at 17). Furthermore, Andrea also filed a formal EEOC complaint

on April 27, 2011 (R. at 5).

Based on this evidence, Andrea subjectively perceived Mr. Jacobs’

conduct as severe and pervasive because, otherwise, she would not have

responded to his conduct as she did. Additionally, Andrea did not allow

weeks or months to pass before reporting Mr. Jacobs’ conduct to the

appropriate company official, which suggests that she perceived his conduct

as severe and wanted him to discontinue it as soon as possible. Accordingly,

Andrea subjectively perceived Mr. Jacobs’ conduct as severe and pervasive.

2. Mr. Jacobs’ Conduct Toward Andrea also Satisfies the Objective Component Because Andrea Was Subjected to Approximately Eighteen Physical Encounters with Mr. Jacobs Within a Six-Month Period, Two of Which Were Sexually Explicit; Mr. Jacobs’ Harassment Caused Andrea Extreme Embarrassment in Front of Her Coworkers; and Andrea Missed a Deadline, Was Forced to Move Her Office, and Ran to the Restroom Crying as a Result of Mr. Jacobs’ Harassment.

In the present case, Andrea is able to satisfy the objective component for

holding Mr. Jacobs’ conduct as “sufficiently severe.” In determining

whether the conduct satisfies the objective component, the Supreme Court

and the Eleventh Circuit have identified four relevant factors: “(1) the

frequency of the conduct; (2) the severity of the conduct; (3) whether the

conduct is physically threatening or humiliating, or a mere offensive

utterance; and (4) whether the conduct unreasonably interferes with the

  14  

employee’s job performance.” Mendoza, 195 F.3d at 1246. In the present

case, Andrea is able to satisfy every one of these four factors by a

preponderance of the evidence.

i. Mr. Jacobs’ Harassment was Frequent Because Andrea Endured Approximately Eighteen Physical Encounters With Mr. Jacobs During a Six-Month Time Period.

Mr. Jacobs’ conduct toward Andrea was frequent enough that the Court

should consider it severe and pervasive. Sexually harassing conduct is

frequent when it involves a large number of incidents occurring within a

relatively short time period. See Dees v. Johnson Controls World Serv., Inc.,

168 F.3d 417, 418-419 (11th Cir. 1999). In Dees, the court held that “almost

daily” sexually harassing acts over a three-year period satisfied the

frequency factor for “sufficiently severe” conduct. Id.

Like the harasser in Dees, who subjected the victim to a large number of

sexual harassment incidents within a short period of time, Mr. Jacobs in our

case subjected Andrea to numerous sexual harassment incidents within a

short time period. Within one month after Andrea’s hire date, Mr. Jacobs

began approaching her in person to ask her to go out with him on dates (R. at

3). These physical approaches occurred every week after staff meetings,

approximately sixteen times within a four-month period. Id. Although the

physical approaches requesting dates did not occur every day over a period

  15  

of three years, like in Dees, there were still a substantial number of sexually

harassing incidents occurring within a short time period.

Mr. Jacobs further harassed Andrea on February 17, 2011, when he

grabbed her head and thrust his pelvis into her forehead (R. at 13), and on

April 5, 2011, when he sent a sexually explicit text-message (R. at 15). The

facts and testimony regarding the physical approaches requesting dates as

well as the two more disturbing incidents to which Andrea testified evidence

approximately eighteen total physical encounters between Andrea and Mr.

Jacobs within a six-month time period.

While Andrea’s case is analogous to Dees, it is distinguishable from

Mendoza. In Mendoza, the Court held that the supervisor’s conduct toward

the employee was not frequent because the facts asserted by the employee

only produced evidence of “a single instance of slight physical contact, one

arguably inappropriate statement, and three instances of [the supervisor’s]

making a sniffing sound.” Mendoza, 195 F.3d at 1249. Furthermore, the

Court noted that these incidents all occurred within an eleven-month time

period, so they were “far too infrequent.” Id.1 Unlike the infrequent number

of sexual harassment incidents in Mendoza, and similar to the frequent

                                                                                                               1 Although Mendoza involved alleged sexual harassment between a supervisor and his employee, Mendoza is directly applicable to Andrea’s case because it establishes the legal rules and a guide for distinguishing Andrea’s case.

  16  

number of sexual harassment incidents established in Dees, Andrea’s case

involves a large quantity of sexually harassing incidents occurring over a

short time period. Thus, Mr. Jacobs’ conduct was frequent.

ii. Mr. Jacobs’ Harassment Was Also Severe Because He Grabbed Andrea’s Head While She Was Picking Up Papers, Thrust His Pelvis into Her Forehead, While He Simultaneously Said, “Andrea, This Could be my Belated Valentine’s Day Present.”

Not only was Mr. Jacobs’ conduct toward Andrea frequent, but it was

also severe. When conduct involves sexually explicit physical contact

coupled with sexually related verbal expressions by the harasser, it is severe.

See Dees, 168 F.3d 419. In Dees, the court considered the harasser’s conduct

severe when he “ground his groin into [the victim’s] buttocks after stating

‘look at that sexy mama, I could just eat you in that skirt’.” Id.

Mr. Jacobs’ conduct is analogous to the harasser’s severe conduct in

Dees. Here, Mr. Jacobs grabbed Andrea’s head and thrust his pelvis into her

forehead, during which he said, “Andrea, this could be my belated

Valentine’s Day present.” (R. at 13.) Like the harasser’s conduct in Dees,

Mr. Jacobs’ conduct in this incident involved sexually explicit physical

contact, which was coupled with a sexually related verbal expression.

Accordingly, because Mr. Jacobs’ conduct in the February 17th incident

included sexually explicit physical contact, coupled with a sexually related

  17  

verbal expression on the part of Mr. Jacobs, the Court in the present case

should hold such conduct by Mr. Jacobs to be severe.

iii. Additionally, Mr. Jacobs’ Harassment Was Physically Threatening or Humiliating Because He Sent Andrea a Sexually Explicit Text-Message That Was Made Public to Several of Her Co-workers Who Heard or Saw it and Started Laughing Before Andrea Was Able to Close it.

While Mr. Jacobs’ conduct toward Andrea was both frequent and severe,

it was also physically threatening or humiliating. When sexually harassing

conduct that is embarrassing to the victim is made public to others, that

conduct is physically threatening or humiliating. See Dees, 168 F.3d at 419.

In Dees, the court considered the harasser’s conduct to be physically

threatening or humiliating when “[he] asked [the victim] to sit on his lap.

When [the victim] refused, [the harasser] picked [her] up and squeezed her

so hard that she urinated in her pants. [The harasser], laughing, told the other

firefighters what had happened.” Id.

In the present case, Mr. Jacobs’ conduct was physically threatening or

humiliating. When Mr. Jacobs sent Andrea the sexually explicit text-

message, some of her coworkers overheard it and started laughing (R. at 16).

Furthermore, some of them actually saw the text-message before Andrea

was able to close it. Id. Like the harasser in Dees, who embarrassed the

victim by squeezing her so hard that she urinated in her pants and then made

  18  

the occurrence public by telling others what happened, Mr. Jacobs

embarrassed Andrea by sending her a sexually explicit text-message that

was made public when several of her coworkers heard or saw it. Therefore,

because the text-message was both embarrassing to Andrea and was made

public to several of her coworkers, it was physically threatening or

humiliating.

Accordingly, Mr. Jacobs’ conduct was physically threatening or

humiliating.

iv. Finally, Mr. Jacobs’ Harassment Unreasonably Interfered With Andrea’s Job Because She Missed a Deadline, Her Office Was Moved Two Floors Above Her Former Office, and She Ran to the Women’s Restroom Crying After One of the Harassment Incidents.

In addition to the fact that Mr. Jacobs’ conduct in this case was frequent,

severe, and physically threatening or humiliating, his conduct also

unreasonably interfered with Andrea’s job. Whenever a coworker’s sexually

harassing conduct is such that it prevents the victim from effectively

engaging in the workplace and accomplishing required tasks, the sexually

harassing conduct unreasonably interferes with the victim’s job. See Johnson

v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir.

2000). In Johnson, the Court held that the harasser’s conduct unreasonably

interfered with the victim’s job because “she could not get along with her

  19  

on-the-air co-host.” Id. Similar to the victim in Johnson, whose shift was

moved from the morning to the midday air shift, Andrea’s work office was

moved two floors above her former office as a result of Mr. Jacobs’

harassing conduct (R. at 4). In this regard, Mr. Jacobs’ sexually harassing

conduct prevented Andrea from effectively engaging in the workplace

because she was burdened with the requirement of having to move her entire

office as a result of Mr. Jacobs’ sexual harassment. Additionally, Andrea ran

to the women’s restroom crying after the February 17th incident (R. at 3),

which further suggests that Mr. Jacobs’ sexually harassing conduct

prevented Andrea from effectively engaging in the workplace because

someone who is emotional is usually unable to effectively engage with his or

her surroundings and other people with whom he or she is in close

proximity.

Unlike the victim in Johnson, however, who never reportedly missed a

deadline at work, the record in the present case reflects that Andrea missed a

deadline on a document summary due the same day as the February 17th

incident (R. at 3). Hence, Mr. Jacobs’ conduct prevented Andrea from

effectively accomplishing required tasks.

  20  

Therefore, Mr. Jacobs’ harassing conduct prevented Andrea from

effectively engaging in the workplace as well as effectively accomplishing

required tasks, so his conduct unreasonably interfered with Andrea’s job.

Accordingly, the Court should hold that Mr. Jacobs’ conduct is

“sufficiently severe” within the meaning of Title VII and the relevant case

law presented to support this conclusion.

B. Moolah and Dough is Directly Liable for Mr. Jacobs’ Sexually Harassing Conduct Because Moolah and Dough Had Actual Notice of the Harassment, Failed to Take Appropriate Remedial Action Against Mr. Jacobs, and Did Not Promptly Respond to Andrea’s Complaints.

Any employee who demonstrates by a preponderance of the evidence that

his or her employer either knew (actual notice) or should have known

(constructive notice) of sexual harassment and failed to take prompt

remedial action in response to such sexual harassment establishes a basis for

holding the employer liable in a Title VII sexual harassment claim. See

Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000). In

Andrea’s case, the evidence establishes that Moolah and Dough had actual

notice of the sexual harassment that Andrea endured during the course of her

employment and that it failed to take prompt remedial action in response to

the sexual harassment. Accordingly, the Court should hold Moolah and

Dough liable for the sexual harassment that Andrea suffered.

  21  

1. Moolah and Dough had Actual Notice of the Sexual Harassment that Andrea Endured During Her Employment Because, in Compliance with Moolah and Dough’s No Harassment Policy, Andrea Personally Reported Mr. Jacobs’ Conduct to Her Supervisor, Mr. Rodriguez, on Two Separate Occasions.

In the present case, Moolah and Dough had actual notice of the sexual

harassment that Andrea endured during the course of her employment. When

an employer has a clear and published policy for reporting incidents of

harassment, and the employee follows that policy, “the employer’s [actual]

notice of the harassment is established by the terms of the policy. Through

the policy, the employer has given the designated person explicit actual

authority to handle the complaints.” Id. at 889.

In Andrea’s case, Moolah and Dough had actual notice of the sexual

harassment. Andrea testified that she reported Mr. Jacobs’ conduct to her

supervising partner, Mr. Rodriguez, on two occasions (R. at 14). The first

time that she reported his conduct to Mr. Rodriguez was less than a week

after the February 17th incident (R. at 14), and the second time was within

one day of receiving the sexually explicit text-message from Mr. Jacobs (R.

at 17). During her first meeting with Mr. Rodriguez, Andrea reported that

Mr. Jacobs had asked her out on dates after every weekly staff meeting in

addition to reporting Mr. Jacobs’ conduct during the February 17th incident

(R. at 19).

  22  

Furthermore, Moolah and Dough had a clear and published No

Harassment Policy that read, in pertinent part, “[i]f you believe that you

have been sexually harassed, please report it immediately to your direct

supervising partner, any senior partner, or the Human Resource Director”

(R. at 8). Andrea complied with Moolah and Dough’s No Harassment Policy

by reporting Mr. Jacobs’ conduct to Mr. Rodriguez, who was Andrea’s

direct supervising partner (R. at 4), within days following the February 17th

incident and the day after the April 5th incident on which she received the

sexually explicit text-message from Mr. Jacobs. Id.

Accordingly, since Andrea promptly reported Mr. Jacobs’ sexually

harassing conduct to her direct supervising partner on two separate

occasions in accordance with the No Harassment Policy, Moolah and Dough

had actual notice of the sexual harassment.

2. The Action Taken by Moolah and Dough was Not Appropriately Remedial Because, Even After Mr. Rodriguez Explicitly Instructed Mr. Jacobs to Leave Andrea Alone, He Disregarded the Instruction, And Moolah and Dough Failed to Take any Further Action Against Mr. Jacobs.

In addition to having actual notice of the sexual harassment that

Andrea endured during her employment, the action taken by Moolah and

Dough was not appropriately remedial to terminate the sexual harassment.

An employer that, after actual or constructive notice is established, fails to

  23  

take any disciplinary action against a harasser or fails to take further action

when the harasser does not heed a supervisor’s explicit instruction to

discontinue the harassment complained of, fails to take appropriate remedial

action to terminate such harassment. See Miller v. Kenworth of Dothan, Inc.,

277 F.3d 1269 (11th Cir. 2002).

In Miller, a supervisor reviewed the employer’s anti-discrimination

policy with the harassers at a monthly safety meeting and warned the

harassers that anyone continuing to use ethnic slurs toward the victim would

be terminated immediately. Id. at 1274. However, one of the harassers

disregarded the supervisor’s warning and continued with the harassing

conduct. Id. The court held that the employer failed to take appropriate

remedial action because it did not take any action against the harasser, even

after the harasser disregarded the supervisor’s explicit instruction to cease

the harassing behavior. Id. at 1280.

Like the employer in Miller, that failed to take any action against the

harasser after he disregarded the supervisor’s explicit instruction to cease the

harassing conduct, Moolah and Dough in our case failed to take any

disciplinary action against Mr. Jacobs after he did not heed Mr. Rodriguez’s

explicit instruction to cease his sexual harassment of Andrea. Approximately

two weeks after Andrea personally reported the February 17th incident and

  24  

Mr. Jacobs’ weekly requests for dates to Mr. Rodriguez, Mr. Rodriguez met

with Mr. Jacobs to “read him the sexual harassment policy of Moolah &

Dough in its entirety, verbatim, and [he] told [Mr. Jacobs] in no uncertain

words to leave Andrea alone” (R. at 19-20). Mr. Rodriguez testified that he

did not place a disciplinary letter in Mr. Jacobs’ personnel file, limit Mr.

Jacobs’ computer or phone use, or even request that another employee or

supervisor monitor Mr. Jacobs’ conduct toward Andrea after this meeting

(R. at 20). On April 5, Andrea received the sexually explicit text-message

from Mr. Jacobs and again reported the sexually harassing conduct to Mr.

Rodriguez, who responded, “[t]his is terrible. We will take care of it, and I

will let you know when this matter is resolved” (R. at 4). After Andrea made

her second complaint to Mr. Rodriguez, however, Moolah and Dough “did

not investigate and took no action with respect to Mr. Jacobs” (R. at 5).

The facts of Andrea’s case are substantially similar to the facts in

Miller. Like the supervisor in Miller, who reviewed the employer’s anti-

discrimination policy with the harasser and explicitly instructed him to cease

the harassing conduct, Mr. Rodriguez reviewed Moolah and Dough’s No

Harassment Policy with Mr. Jacobs and explicitly instructed him to leave

Andrea alone (R. at 19-20). Furthermore, like the harasser in Miller, who

disregarded the supervisor’s explicit instruction, Mr. Jacobs disregarded Mr.

  25  

Rodriguez’s explicit instruction and continued to sexually harass Andrea by

sending her the sexually explicit text-message on April 5 (R. at 4).

Additionally, like the employer in Miller, that did not take any further

disciplinary action against the harasser after the harasser disregarded the

supervisor’s explicit instruction to cease the harassing conduct, Moolah and

Dough failed to take any further disciplinary action against Mr. Jacobs after

Andrea’s second sexual harassment complaint until after she filed the EEOC

complaint approximately three weeks after making the second sexual

harassment complaint to Mr. Rodriguez (R. at 5).

Accordingly, because Moolah and Dough failed to take any further

action against Mr. Jacobs after he disregarded Mr. Rodriguez’s explicit

instruction to cease his sexual harassment of Andrea, Moolah and Dough

failed to take appropriate remedial action.

3. The Action That Moolah and Dough Took in Response to Andrea’s Complaints Was Not Prompt Because Moolah and Dough Waited for Approximately Two Weeks Before Taking Any Action Following Andrea’s First Complaint to Mr. Rodriguez and Approximately One Month Following Andrea’s Second Complaint.

Finally, Moolah and Dough did not take prompt action in response to

Mr. Jacobs’ sexual harassment of Andrea.

Neither the case law nor the EEOC guidelines provide a clear and

definite rule for what constitutes prompt action by an employer. However,

  26  

this Court has previously held that prompt action can be found where an

investigation into the harassment is commenced, or formal disciplinary

action is taken against the harasser, either immediately or within a short time

following an employee’s harassment complaint. See Farley v. Am. Cast Iron

Pipe Co., 115 F.3d 1548 (11th Cir. 1997) (holding that commencement of an

investigation into the harassment within one week following the complaint is

“effective and immediate” action); see also Fleming v. Boeing Co., 120 F.3d

242 (11th Cir. 1997) (holding that the immediate commencement of an

investigation into the harassment and subsequent disciplinary action against

the harasser resulting from the investigator’s recommendation constituted

“effective and immediate” action).

In the present case, the actions that Moolah and Dough took following

both of Andrea’s sexual harassment complaints were not in any way prompt

within the scope of the previous holdings of this Court. Following Andrea’s

first sexual harassment complaint to Mr. Rodriguez on February 21 (R. at 4),

the record indicates that Mr. Rodriguez took no action whatsoever with

respect to Andrea’s complaint until March 8 when he met with Mr. Jacobs to

discuss the allegations (R. at 19). However, Mr. Rodriguez did not threaten

to fire Mr. Jacobs if he continued with the sexual harassment or even place a

disciplinary letter in Mr. Jacobs’ personnel file (R. at 20). Therefore,

  27  

although Mr. Rodriguez met with Mr. Jacobs on March 8 to discuss

Andrea’s complaint, the Court should not consider this action to be prompt

because it included neither the commencement of an investigation into the

sexual harassment nor any formal disciplinary action against Mr. Jacobs.

Additionally, it was not timely when compared with the cited previous

holdings of this Court because it occurred neither immediately nor within a

short time after Andrea’s sexual harassment complaint.

The record further indicates that, also in response to Andrea’s first

sexual harassment complaint, Moolah and Dough moved her office two

floors above her former office on March 19, approximately one month after

she made her first sexual harassment complaint (R. at 4). The relocation of

Andrea’s office, like Mr. Rodriguez’s meeting with Mr. Jacobs, should not

be considered prompt action because it does not include the commencement

of an investigation into the sexual harassment or formal disciplinary action

against Mr. Jacobs, nor did it occur immediately or within a short time after

Andrea’s first complaint. Therefore, the Court should not consider the

relocation of Andrea’s office as prompt action by Moolah and Dough in

response to Andrea’s complaint.

On April 6, Andrea met again with Mr. Rodriguez to make a second

sexual harassment complaint against Mr. Jacobs after she received the

  28  

sexually explicit text-message from him on the previous day (R. at 4).

Although Mr. Rodriguez told Andrea that he would “take care of it” (R. at

4), Moolah and Dough “did not investigate and took no action with respect

to Mr. Jacobs” until almost one month later, after Andrea filed an EEOC

complaint on April 27 (R. at 5). The record indicates that on May 2, Moolah

and Dough suspended Mr. Jacobs without pay pending the results of an

investigation, and Mr. Jacobs tendered his resignation that same day (R. at

21). While Moolah and Dough’s action in this circumstance involves both

the commencement of an investigation and formal disciplinary action against

Mr. Jacobs, such action was not undertaken until almost one month after

Andrea’s second sexual harassment complaint, which does not comport with

the “immediate” or “within a short time” standards established by the cited

previous holdings of this Court. Therefore, Moolah and Dough’s

investigation and suspension of Mr. Jacobs should not be considered prompt

action in this case.

Accordingly, Moolah and Dough’s actions following Andrea’s first

and second sexual harassment complaints were not prompt because they did

not comport with the “immediate” or “within a short time” standards

established by the cited previous holdings of this Court.

  29  

Therefore, because Moolah and Dough had actual notice of the sexual

harassment of Andrea and failed to take prompt remedial action, the Court

should hold Moolah and Dough liable for the sexual harassment in this case.

CONCLUSION

The District Court erred in granting Moolah and Dough’s motion for

summary judgment. For the reasons discussed above, Appellant Andrea

Milhoan respectfully requests that this Court reverse the judgment of the

District Court and remand the present action to the District Court for trial.

CERTIFICATE OF SERVICE

I, Steve Dluzneski, do hereby certify that I have served upon the

Appellee/Defendant a complete and accurate copy of this Brief, by placing a

copy in the United States Mail, sufficient postage affixed and addressed as

follows:

/s/ Steve Dluzneski

Dated: November 10, 2012 /s/ Attorney for Appellee/Defendant