Donya Mitchell v. Gene Pope

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

U.S. COURT OF APPEALS

_____________________________ ELEVENTH CIRCUIT

JUL 14, 2006

THOMAS K. KAHN

No. 05-14927

CLERK

Non-Argument Calendar

_____________________________

D.C. Docket No. 03-00157-CV-WDO-5

DONYA MITCHELL,

Plaintiff-Appellant,

versus

GENE POPE,

individually and officially,

MICHAEL OVERBEY,

individually and officially,

BUTTS COUNTY SHERIFF’S DEPARTMENT,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_______________________

(July 14, 2006)

Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Donya Mitchell, a female formerly employed by the

Butts County Sheriff’s Department as a Deputy Sheriff and Investigator, appeals

the grant of summary judgment in favor of Gene Pope, Sheriff of Butts County,

Georgia, and Michael Overbey, a Major in the Butts County Sheriff’s Department,

in her action alleging sexual harassment, in violation of Title VII, 42 U.S.C.

§ 2000e-2, and the Equal Protection Clause of the Fourteenth Amendment, under

42 U.S.C. § 1983.1 No reversible error has been shown; we affirm.

We review a district court’s grant of summary judgment de novo, viewing

the facts--as supported by the evidence in the record--and reasonable inferences

from those facts in the light most favorable to the nonmoving party. Young v.

City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Summary judgment is

proper where no genuine issue of material fact exists. Id.

Title VII makes it unlawful for an employer to “discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

1

The district court also granted summary judgment in favor of Defendants on Plaintiff’s claims

arising under 42 U.S.C. § 1985, the First Amendment, the Americans with Disabilities Act, 42

U.S.C. § 12112, the Equal Pay Act, 29 U.S.C. § 206(d), and Georgia state law. Plaintiff makes no

argument about these claims on appeal: they are abandoned. See Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

2

To prove sexual harassment under Title VII, a plaintiff must show, among other

things, that the harassment was sufficiently severe or pervasive to alter the terms

and conditions of employment and create a discriminatorily abusive working

environment. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th Cir. 2004).

“Sexual harassment in the workplace can alter the terms and conditions of

employment in either of two ways.” Id. at 1245. First, if the plaintiff proves “that

the harassment culminated in a ‘tangible employment action’ against her.” Cotton

v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (111th Cir. 2006).

Second, if the plaintiff shows hostile work environment harassment: where “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Harris v. Forklift Sys.,

Inc., 114 S.Ct. 367, 370 (1993) (internal quotation marks and citations omitted).

Plaintiff proceeds under both theories. She argues that Overbey’s acts

constituted actionable hostile work environment sexual harassment under Title VII

and § 1983.2 And she also contends that Overbey’s acts resulted in her

constructive discharge and in the alteration of her job duties; she, thus, maintains

2

We evaluate Plaintiff’s § 1983 claims together with her Title VII claims. See Hardin v.

Stinchcomb, 691 F.2d 1364, 1369 n.16 (11th Cir. 1982) (when § 1983 used as parallel remedy for

Title VII violation, elements of the two causes of action are the same).

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that she suffered a tangible employment action based on Overbey’s sexual

harassment.

We reject Plaintiff’s hostile work environment claim. In analyzing a hostile

work environment claim, we consider (1) the frequency of the conduct; (2) the

severity of the conduct; (3) whether the conduct was physically threatening or

humiliating, or a mere offensive utterance; and (4) whether the conduct

unreasonably interfered with the employee’s job performance. Mendoza v.

Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).

Overbey’s conduct was not that frequent. Plaintiff began working in the

Criminal Investigation Division, under Overbey’s supervision, in January 1998:

she resigned in July 2002. During those 4 years, Plaintiff points to 16 specific

instances of offensive conduct by Overbey.3 Of these instances, most involved

3

Plaintiff contends that Overbey: (1) tried to kiss her after the 1999 Sheriff’s Department

Christmas party and called her a “frigid bitch” when she refused, (2) showed up at places Plaintiff

was “staking out” in December 1999 and told her “you must be working out” and “you sure do look

fine,” (3) appeared several times in her driveway in January 2000, once drunk, when he told

Plaintiff’s son that he loved Plaintiff, (4) suggested she wear certain jeans and commented “your ass

sure does look fine,” (5) told her “you can just walk into the room and I’d get an erection,” (6) stood

on his tiptoes to look down her shirt, (7) rubbed up against her, whispered in her ear, and put his arm

across her chest, (8) chased her around the CID office, (9) once picked her up over his head in the

CID office, (10) asked her over the Sheriff’s Department telephones if she was dressed or naked,

(11) opened the door to the women’s bathroom and turned the lights off and on when Plaintiff was

inside, (12) simulated “humping” another female employee with that employee’s consent, (13) made

sexually derogatory remarks and gestures about a female magistrate judge, and (14) referred to

Sheriff Pope as a “big eared pencil dick motherfucker.” In March 2000, Plaintiff and Overbey

attended a conference in Alabama. Overbey told Plaintiff that the hotel had made a mistake and that

they would have to share a room. Overbey slept on the floor. The next night, after Overbey got his

4

“offensive utterances.” Only three times did Overbey touch her or attempt to

touch her: when he tried to kiss her, when he lifted her over his head, and when he

rubbed up against her and reached across her chest. And Plaintiff did not assert

that she felt threatened by Overbey’s conduct. In addition, much of Overbey’s

conduct involved horseplay; and some was not sex-based. Although Overbey’s

reprehensible behavior only can be described as crass and juvenile, we accept that

this behavior--given its relative infrequency--is not the kind of “severe”

harassment necessary for liability to attach under Title VII. Overbey’s conduct is

more comparable to the conduct in Gupta v. Florida Bd. of Regents, 212 F.3d 571,

584-86 (11th Cir. 2000), and in Mendoza, 195 F.3d at 1247, which we concluded

was not objectively severe or pervasive.4 And no evidence exists that Overbey’s

own room, he tried to convince Plaintiff to go to the hotel hot tub with him and other conventioneers.

He called her a “frigid bitch” when she refused; when she confronted him the next morning and

threatened to tell the Sheriff if Overbey did not leave the conference, Overbey cried, promised he

would be “good,” and left. And Plaintiff explained that, in June 2002, before she was scheduled to

work security at a private golf tournament given by a strip club owner, Overbey told her and other

officers about another golf tournament hosted by this owner where strippers acted as caddies.

Overbey said that the owner directed the strippers to place golf balls into their vaginas and to squirt

them onto the green.

4

In Mendoza, the alleged harasser said “I’m getting fired up,” rubbed his hip against the plaintiff’s

hip while touching her shoulder and smiling, twice made a sniffing sound while looking at the

plaintiff’s groin area and once sniffing without looking at her groin, and constantly following and

staring at Mendoza in a “very obvious fashion.” See 195 F.3d at 1247. In Gupta, the alleged

harasser suggested lunch at Hooters, said the plaintiff was “looking very beautiful,” called her at

home, unbuckled his pants and tucked in his shirt in front of her, stared at her twice, touched her ring

and kept asking her to lunch, placed his hand on her knee, and touched the hem of her dress. See

212 F.3d at 584-86.

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behavior unreasonably interfered with Plaintiff’s job performance. To the

contrary, the evidence indicates that Plaintiff’s health problems were the greatest

hindrance to her job performance and led to her ultimate confrontation with Pope

and her subsequent resignation. In short, Plaintiff has not shown a claim of

actionable hostile work environment under Title VII.5

And we reject Plaintiff’s claim that Overbey’s behavior culminated in a

tangible employment action. Plaintiff asserts that she changed her work schedule

several times to avoid Overbey, that she had her desk moved to avoid Overbey’s

stares, that Overbey forbade her from using a spare office for her polygraph

equipment, and that Overbey gave her two assignments normally not given to a

CID officer. These things do not rise to the level of tangible employment actions.

See Cotton, 434 F.3d at 1231 (stating that tangible employment action “constitutes

a significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits”).

5

We affirm the grant of summary judgment on Plaintiff’s hostile work environment claims, so

we need not address Plaintiff’s arguments that Sheriff Pope and Overbey (1) failed to satisfy their

burden on the affirmative defense to liability under Faragher v. City of Boca Raton, 118 S.Ct. 2275

(1998), and Burlington Indus., Inc. v. Ellerth, 118 S.Ct. 2257 (1998), and (2) were entitled to

Eleventh Amendment immunity and qualified immunity on Plaintiff’s § 1983 claims.

6

Plaintiff also points to her resignation, which she claims was a constructive

discharge, and, thus, a tangible employment action. We doubt that Plaintiff could

show that her working environment was so intolerable that resignation was

appropriate where she has failed to demonstrate that Overbey’s behavior was

severe or pervasive enough to alter her work conditions. See Pennsylvania State

Police v. Suders, 124 S.Ct. 2342, 2347 (2004) (to establish constructive discharge,

plaintiff must show that the abusive working environment became so intolerable

that her resignation qualified as a fitting response). In addition, although Plaintiff

believed that Sheriff Pope would not be receptive to complaints about Overbey’s

behavior, Plaintiff did not provide Sheriff Pope an opportunity to remedy the

situation: she never formally complained in writing about Overbey and never

complained orally to Sheriff Pope. See Kilgore v. Thompson & Brock Mgmt.,

Inc., 93 F.3d 752, 754 (11th Cir. 1996) (constructive discharge generally not

viable if employer not given sufficient time to remedy the situation).

And Plaintiff’s constructive discharge claim fails because she failed to

demonstrate a causal link between her resignation and the alleged harassment. See

Cotton, 434 F.3d at 1231. Plaintiff resigned after Sheriff Pope warned her that

she would be suspended or terminated if she took more leave after returning from

Family and Medical Leave Act (“FMLA”) leave. Plaintiff stated in her deposition

7

“I resigned the last day of my FMLA, in order to keep my COBRA6 coverage.”

The record demonstrates that Plaintiff resigned due to her health problems, a

dispute over her leave time, and the concern that she would lose her insurance if

terminated, not because of Overbey’s behavior. We, thus, reject Plaintiff’s

constructive discharge claim.

In sum, we affirm the district court’s grant of summary judgment in favor of

Defendants.

AFFIRMED.

6

The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) gives workers who

lose their health benefits the right to choose to continue health benefits provided by their health plan

for a limited time under certain circumstances. See 29 U.S.C. § 1161.

8