Watkins v. Bowden

United States Court of Appeals,

Eleventh Circuit.

No. 94-9220.

Phyllis WATKINS, Plaintiff-Appellant,

v.

Ralph T. BOWDEN, Jr., Individually and in his official capacity

as DeKalb County Solicitor; DeKalb County, Georgia, Defendants-

Appellees.

Feb. 18, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:91-cv-1737-ODE), Orinda D. Evans,

Judge.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and GODBOLD,

Senior Circuit Judge.

PER CURIAM:

In this appeal, we affirm the district court's entry of

judgment for appellees Ralph Bowden and DeKalb County, Georgia, on

appellant Phyllis Watkins's constitutional claims brought pursuant

to 42 U.S.C. § 1983.

FACTS

On January 15, 1990, Phyllis Watkins, an African-American

female, began work as an assistant solicitor (assistant) in the

1

Office of the Solicitor of DeKalb County (the office). Ralph

Bowden, solicitor of the county, had hired Watkins the preceding

week. Bowden informed Watkins, the only African-American lawyer in

the office, that she was subject to a six month probationary period

and that he expected a two-year commitment from her. Watkins's

employment lasted until March 15, 1990; the parties sharply

1

Assistants process and prosecute individuals charged with

misdemeanors in DeKalb County (the county).

dispute the events surrounding her tenure. During a jury trial,

witnesses testified to the following factual scenarios.

Phyllis Watkins

Watkins testified that she experienced a series of occurrences

during her second week of work that she "found ... to be a little

strange and/or offensive." The office receptionist questioned her

if "black people have to wash their hair every day." One of the

office's investigators inquired whether Watkins's hair was real and

whether she had to comb it daily. Assistant Lisa Heiszek asked

Watkins if her ancestors were from Nigeria because she "could hear

Nigerian in [Watkins's] voice."2 Ann Elmore, an assistant and the

office's "trial specialist," asked Watkins "why was it that when

black people and Japanese people have babies together, the babies

are considered black, but when white people and Japanese people

have babies together, the babies are considered white?"

On another occasion, Watkins overheard two assistants, Andy

Rogers and Andrew Fernandez, her trial partner, laughing at the

prospect of buying a house near Carver High School, which is

located in a neighborhood of Atlanta populated predominantly by

African-Americans.3 Watkins also overheard Rogers, Fernandez, and

another assistant, Neal Bevans, discussing the film "Mandingo";

Fernandez stated that if "[y]ou watch that movie, ... you are just

going to go, "Oh my God.' " Watkins testified that she perceived

2

Watkins was born and raised in Georgia, and her family has

lived there for generations.

3

Fernandez testified that he did not have any recollection

of this conversation and did not know the location of the school.

Fernandez's comment as a statement on "a stereotype of black men,

that black men are supposed to have big genitals." 4 Watkins also

heard her secretary, Robin Clements, telling a joke comparing Jesse

Jackson to Buckwheat, the television character. Watkins told

Clements not to "tell black jokes in here," and Clements

apologized.5

Watkins testified that she discussed these occurrences at the

end of her second work week with Cliff Howard, the chief assistant

solicitor of the office. According to Watkins, she informed Howard

that the sexual and racial context of her colleagues' comments

offended her. She testified that Howard told her that he would

talk to Bowden about their conversation and speak to the

responsible individuals. Watkins also testified that during this

meeting Howard told her that one of his relatives was associated

with the Ku Klux Klan.

After this initial meeting with Howard, Watkins continued to

endure offensive incidents. While at lunch with four male

colleagues, assistants Rogers, Gary Bergman, and Brad Malkin, and

investigator David Newbern, "[t]he conversation turned to the size

of Jewish men's penises, that they were small, and after a few

minutes of this, they all turned to me, and I believe Gary Bergman

asked me if it was true what they said about black men." The men

laughed at this question; Watkins explained that she was offended

by the comments and "shocked that somebody would ask me that

4

Fernandez denied that this incident took place.

5

Clements's testimony corroborated Watkins's account of the

incident.

question." 6 On another day, upon Watkins's return to the office

following a weekend vacation with her husband, Rogers asked her, in

front of Howard and assistant Judy Emken, "Well, what was sex like

with your husband? I'm sure they had to put you in a building that

was all the way to the end because there was just a whole lot of

yelling and screaming going on." Howard laughed at Rogers's

remark.7

Regarding Emken, Watkins recounted that "there were constant

jokes about her hair, that she was a fake blond[e], that she was

dumb. Also, [other assistants] asked her questions all the time

about her boyfriend, and her relationship[s] with her boyfriend."

Howard informed Watkins that he had engaged in a sexual

relationship with Emken. Watkins also testified that colleagues

repeatedly made derogatory remarks regarding the competence of

Judge Linda Hunter, an African-American female, who, at the

relevant time, served as a state trial judge and presided over

matters the office handled.

Later, Watkins assisted Fernandez on a case involving a

Nigerian defendant. According to Watkins, after a witness provided

testimony favorable to the defendant, Fernandez said, "I wish they

would all go back."8 On another day, when Watkins told Fernandez

that she volunteered at a rape crisis center, Fernandez responded,

6

Rogers testified that the statements occurred, but that

Watkins responded to the questions in an "excited" manner and was

"very willing to engage in this topic of conversation."

7

Rogers testified that he "would not ask a question like

that."

8

Fernandez denied that he made this statement.

"Well, where can I go to get raped?"9

Watkins testified that following these incidents she again

reported her concerns and dissatisfaction to Howard. According to

Watkins, Howard expressed that "these were his friends, that I was

taking all of this stuff out of context, and that once I got to

know them better, that I would see they were only trying to get to

know me as a person."

Watkins testified that after five weeks on the job she

continued to hear comments she considered offensive. She

maintained that the comments regarding Emken and Judge Hunter "were

almost daily nonstop." Moreover, upon entering Malkin's office one

day, the assistant told Watkins that the black trash can on his

desk was a phallic symbol. When Watkins reported this incident to

Howard, Howard laughed about it. Watkins also testified that

Bevans would "constantly" mimic, to the amusement of colleagues,

what he perceived as the speech patterns of African-Americans. In

addition, Watkins related that one day Howard came up behind her,

placed his face a few inches from her head, and smelled her hair.

He stated that Watkins's "hair smells good. It smells like

coconut." Watkins further testified that Fernandez and Howard once

invited her to accompany them to a strip club.

As a result of these episodes, Watkins suffered from

depression and anxiety; she received medical treatment for her

depression in 1991. Watkins testified that she articulated her

frustrations about the office to assistant Deborah Blum and former

9

Fernandez testified, "I never made that statement. I would

never make that kind of statement."

assistant Greg Adams.10 She also received counselling from her

minister, Dr. Earl Moore. Watkins acknowledged that she sought out

Dr. Moore's advice in part because of his affiliations with the

Southern Christian Leadership Conference (SCLC) and the Concerned

Black Clergy; she believed Dr. Moore could advise her well on what

course of action to take concerning the office's environment. Two

weeks before her termination, Watkins met with Dr. Moore because

"the situation in the solicitor's office had gotten so bad, and I

felt this situation was greater or bigger than just my employment."

Watkins had concerns that future female and minority group member

assistants would face the same atmosphere in the office. Dr. Moore

and Watkins agreed on a plan of action—Dr. Moore gave Watkins a

list of civil rights leaders to contact and stated that he would

also contact community leaders and arrange for Watkins to meet with

them. Watkins testified that she did not follow through with the

plan because she "was fired before [she] was able to get to the

people."11

On March 15, 1990, all the assistants and Bowden attended a

Decatur-DeKalb Bar Association luncheon. The luncheon speaker made

several "jokes about females and ... black people" which Watkins

found inappropriate, including, for example, that "women lawyers

10

Watkins also testified that she did not receive "the

training that was promised" and thus was not given the

opportunity to develop as a prosecutor.

11

Watkins recounted that after she was fired she contacted

two officials of the National Association for the Advancement of

Colored People (NAACP), a Georgia congressman's office, the SCLC,

and Manuel Maloff, Chairman of the DeKalb County Commission. She

also filed a complaint with the Equal Employment Opportunity

Commission (EEOC).

are to the practice of law as women drivers are to the traffic

flow."12 After the luncheon, Watkins told Bowden that she found the

comments offensive and asked what he felt about the speaker's

presentation. According to Watkins, Bowden "thought the speech was

offensive because black people were in the audience."13 Later that

afternoon, Bowden informed Watkins that she was being terminated.

According to Watkins, Bowden stated that he was firing her because

she (1) did not know the Federal Rules of Evidence; (2) did not

get along with Elmore; (3) dressed inappropriately for court; (4)

could not take criticism well; and (5) could not operate under

pressure. Watkins testified that she told Bowden, "I knew why I

was being terminated, because I constantly complained about the

behavior of my colleagues in the office." In response, Bowden told

Watkins that she should have ignored the behavior and comments of

others and focused on developing her prosecutorial skills. Watkins

asked Bowden for the opportunity to work another month, but he

refused, stating that she would "never be able to function as a

prosecutor." Bowden, however, gave Watkins the opportunity to

resign, which she did.

David Newbern

Newbern testified that "[w]ithin the office ... there was a

very probing nature into everybody's sexual relationships. There

were many sexual jokes that were told within the office, and also

12

Several witnesses testified that they also found the

speaker's comments insulting.

13

Watkins had the "impression that what ... Mr. Bowden was

saying was that if no blacks had attended this meeting, that it

would have been okay to say these ridiculous things."

there were many occasions of ... racial jokes." Newbern's

testimony corroborated Watkins's version of events at the lunch

with Rogers, Bergman, and Malkin; Newbern stated that with

"Watkins being very new in the office at that time, she didn't

respond" to the offensive statements. Newbern also confirmed

Watkins's allegations concerning their colleagues' repeated

derogatory comments about Judge Hunter. He testified that

employees contended Judge Hunter "was incompetent to be in the

position of judge, and often they thought she got that position

because she is a black female.... [I]n general there seemed to be

anger towards Linda Hunter." Newbern also explained that he heard

"an assistant solicitor mimicking defendants who had been in court,

and plaintiffs who had been in court; in particular, blacks who

were from a lower income group, and this was fairly commonplace

that joking of this nature went on." In response to the mimicking,

"[g]enerally people laughed, kind of played along."

Gwendolyn Steel-Hill

Steel-Hill, an African-American female and one of the office's

investigators, testified that colleagues told sexual and racial

jokes during the period of Watkins's employ. "The sexual jokes

were about male sex organs, women who weren't getting any. The

racial jokes tended to be mimicking or making fun of blacks." She

confirmed that comments were made in the presence of Watkins about

"black men having larger sexual organs than white men" and about

Emken's sexual activity. Steel-Hill observed Watkins crying in the

office on three occasions. She believed, and told Watkins, "that

there were people in the office that would like to see her fail."

Steel-Hill heard colleagues joke about the smell and texture of

Watkins's hair; she also heard Howard ask Watkins whether her hair

was real.

Dr. Earl Moore

Dr. Moore testified that approximately three weeks after

Watkins had started work in the office, he noticed a "look of

sadness on her face" and inquired if she had any problems. In

response, Watkins admitted to her difficulties on the job. The two

engaged in prayer together, and their meeting ended. A few weeks

later, Dr. Moore noticed that Watkins "was looking distressed," and

he asked about conditions at the office. The two conferred about

the situation; Dr. Moore informed Watkins that she "need[ed] some

advocates." "I suggested to her that she go to the NAACP, the

SCLC, and I told her that I would take it to the Concerned Black

Clergy, and I suggested that she go to the EEOC...." Dr. Moore

testified that Watkins "indicated that she intended to" carry out

this plan. Dr. Moore never contacted Bowden.

Ralph Bowden

Bowden testified that he expects Howard to communicate with

him and that the two "have a policy of keeping each other well

informed on everything that's going on in the office of any

significance." Indeed, Bowden and Howard meet regularly to discuss

matters that occur in the office. Though the office has no written

policies concerning sexual or racial harassment, Bowden believes

that Howard "certainly" would tell him about any harassment issues.

He stated that if Watkins heard any statements that offended her,

and articulated that to Howard, "then he certainly ought to come

tell me about that." Bowden stated that he has an "open door"

policy and that assistants are free to come to him with problems or

concerns. He noticed that Watkins appeared sad and depressed in

the office. He denied, however, knowing about any of the comments

or incidents that Watkins allegedly endured. He stated that if

those comments had been made he would have wanted to know about

them. Bowden also remarked that if the comments occurred, and

Watkins told Howard about them, he "absolutely" would have expected

Howard to communicate this to him.

As to the training provided in the office, Bowden stated:

We don't train our assistants. The process of going from

being a new lawyer to becoming an assistant solicitor maybe

contains 10 or 15 percent of what we would call training;

that is, sitting down with somebody and showing them how to

fill out a form, showing them how to use the accusation form

book. We don't really have a training program.... We give

you an opportunity to learn how to be an assistant solicitor,

and you do that by observing and doing.

Around March 1, 1990, Bowden received a telephone call from

Judge Jack McLaughlin (before whom Watkins had appeared), who

stated that Watkins needed supervision and was not ready to be left

alone in the courtroom.14 Around the same time, Elmore told Bowden

that they had a "very serious problem" in Watkins. Elmore relayed

to Bowden that Watkins had (1) walked out of the courtroom on one

occasion in a pouting and sullen mood; (2) failed to keep

appointments with her; and (3) continually made the same mistakes

and thus was failing to progress as a prosecutor. Bowden testified

that before terminating Watkins, "I think I talked to every

assistant in that office, everyone who had been there for more than

14

Judge McLaughlin corroborated Bowden's testimony regarding

this conversation.

a year. So, I had an office full of experienced prosecutors, and

I talked to every one of them about the problem, yes." Bowden

maintained that no one, including Howard, told him that Watkins had

complained about sexist and racial comments made in the office.

Instead, all the assistants commented on "fundamental problems"

having to do with Watkins's performance as a prosecutor. Bowden

did not speak to Watkins concerning her performance before

terminating her employment. He denied that Watkins discussed at

the termination meeting any of the occurrences about which she

testified. Bowden reported that Watkins responded to her

termination with a sense of relief. He granted her request that

she be permitted to resign.

Cliff Howard

Howard testified that pursuant to office structure assistants

go to him with day-to-day problems; if he is not available, they

go directly to Bowden. He expressed that his "job is to make a

decision about what problems to go talk to Ralph about, and which

ones not to go talk to [him] about." He testified that if there

were complaints about sexual or racial harassment, "I would bring

that to Ralph's attention." Howard confirmed that Watkins came to

him after two or three weeks on the job and had concerns about (1)

colleagues' comments about her hair; (2) Rogers's and Fernandez's

remarks about living near Carver High School; and (3) the

conversation surrounding the film "Mandingo." Howard did not

relate Watkins's concerns to Bowden. He testified that

approximately two weeks after this initial meeting, Watkins

approached him and told him, "No one here is a racist. I really

like all the people I work with."

Howard explained that he did not take any action after Watkins

later complained to him about Bevans mimicking African-Americans

because "when we had the discussion about that's how Neal deals

with situations, he mimics everybody, he has mimicked everybody in

the office, she seemed to be satisfied with that statement." He

also testified that Watkins approached him about Emken and was

concerned about the "hard time" Emken was given. Howard told

Watkins that Emken had made no indication that she viewed any

behavior toward her as a problem. After this second meeting,

Howard "didn't think [the situation] rose to the level of something

I needed to bring to Mr. Bowden's attention." Howard denied that

he told Watkins about his relationship with Emken and that a family

member of his was involved in the Ku Klux Klan. He also denied

that he ever asked Watkins to accompany him to a strip club.

Howard had no recollection of Rogers's comments concerning

Watkins's vacation weekend. He further denied coming up behind

Watkins and smelling her hair. He also reported that he never

observed Watkins looking upset in the office.

After Bowden informed Howard that Judge McLaughlin had called

about Watkins's performance, Howard talked to "several assistants

[who] had worked with Phyllis." Howard testified that he and

Bowden had "between 10 and 35 discussions" about the decision to

terminate Watkins prior to her firing. Howard never mentioned any

of Watkins's complaints to Bowden during these discussions.

Rather, the two men discussed Watkins's "ability to perform the

job."

PROCEDURAL HISTORY

In July 1991, Watkins instituted this lawsuit against Bowden

and the county (collectively, "appellees") in the United States

District Court for the Northern District of Georgia, alleging an

array of federal constitutional claims and one state tort law cause

of action. Appellees subsequently moved for summary judgment; in

February 1993, the district court granted appellees' motion in part

and denied it in part. Four of Watkins's claims against appellees,

all brought pursuant to 42 U.S.C. § 1983, survived the court's

order: (1) a retaliatory discharge claim under the First Amendment

based on her complaints of sexual and racial harassment; (2) a

retaliatory discharge claim under the First Amendment based on her

complaint about the speech given at the bar luncheon; (3) a

retaliatory discharge claim under the Equal Protection Clause based

on her complaints of sexual and racial harassment; and (4) a

hostile work environment sexual and racial harassment claim under

the Equal Protection Clause. On appeal, this court found that

Watkins "failed to establish that defendant Bowden violated

clearly-established First Amendment law" and thus "reverse[d] the

judgment of the district court only insofar as it failed to grant

summary judgment to Bowden on plaintiff's First Amendment

claim[s]." Watkins v. Bowden, 28 F.3d 118 (table), No. 93-8779,

slip op. at 2 (11th Cir. June 30, 1994) (unpublished opinion).

Watkins tried her claims before a jury in September 1994. At

the close of Watkins's case, the district court granted directed

verdicts for appellees on all of her claims except the hostile work

environment sexual and racial harassment allegation against the

county. As to that claim, the court instructed the jury, in

relevant part, that:

Whether the harassment was sufficiently severe as to

alter the conditions of the plaintiff's employment is viewed

from the standpoint of a reasonable African American or woman;

that is, whether a reasonable African American or woman would

find such harassment sufficiently severe so as to alter the

conditions of employment and create an abusive working

environment.

In addition to showing that an abusive working

environment existed from an objective standpoint, the

plaintiff must also prove that she actually perceived the

environment as hostile and abusive as well.

After the jury retired with instructions not to begin

deliberations, counsel for the county objected to the above

instruction, arguing that Harris v. Forklift Systems, Inc., 510

U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), mandated that the

court instruct the jury to assess the alleged harassment from the

perspective of a "reasonable person." Counsel persuaded the court

of their position; accordingly, the court called the jury back

into the courtroom and stated:

Members of the jury, it has been called to my attention

that I gave you one inaccurate instruction. I instructed you

that in determining whether an abusive or hostile work

environment existed, that you would use an objective test

looking through the eyes of a reasonable African American or

woman. That was not correct.

The correct test is you look to see whether, objectively

speaking, a hostile working environment existed looking

through the eyes of a reasonable person.

In addition to that, as I previously told you, you also

look to see whether the evidence shows that the plaintiff

actually perceived the environment as abusive and hostile as

well.

The jury returned a verdict for the county. This appeal followed.

CONTENTIONS

Watkins first contends that the district court erred in

granting a directed verdict for the county on her claim of

retaliation under the First Amendment for her complaints of sexual

and racial harassment because those complaints affect a matter of

public concern and the evidence gives rise to an inference that

Bowden (and thus the county) knew or had notice of those

complaints. Watkins also insists that the court erred in granting

the county a directed verdict on her retaliation claim under the

First Amendment for her complaint regarding the bar luncheon

speaker because the evidence justifies an inference that Bowden

terminated her with a retaliatory motive. Next, Watkins asserts

that the court erred in granting appellees' motion for a directed

verdict on her claim of retaliation under the Equal Protection

Clause because, again, the evidence gives rise to a reasonable

inference that Bowden had knowledge or notice of her complaints of

sexual and racial harassment. Lastly, Watkins argues that the

court's corrective jury instruction employing a "reasonable person"

standard for evaluating whether a hostile work environment existed

was erroneous and highly prejudicial.15

Appellees respond to Watkins's contentions as follows.

First, the court properly granted appellees judgment as a matter of

law on Watkins's retaliation claims because she did not present

sufficient evidence from which a reasonable jury could infer that

Bowden had knowledge of her complaints. Without knowledge of

Watkins's complaints, Bowden could not have formed the required

15

This contention only affects Watkins's claim against the

county. Watkins did not appeal the district court's grant of a

directed verdict for Bowden on her hostile work environment

claim.

retaliatory motive. Moreover, the court correctly held that

Watkins's complaints regarding allegedly offensive conduct in the

work place did not amount to a matter of public concern sufficient

to trigger the protection of the First Amendment. As for Watkins's

claim that Bowden terminated her in retaliation for her complaint

concerning the bar luncheon speaker, the court properly held that

Watkins presented insufficient evidence from which a reasonable

jury could conclude that Bowden harbored the required unlawful

retaliatory motive. In addition, as a matter of law Watkins cannot

state a "generic" retaliation claim under the Equal Protection

Clause. Finally, the court properly instructed the jury on the

objective component of the standard for evaluating hostile work

environment claims; indeed, Harris compels the "reasonable person"

instruction.16

16

Watkins presses two other issues that we reject in summary

fashion. First, she argues that the district court erred in

refusing to admit Steel-Hill's proffered testimony concerning

alleged retaliation against her in 1992 and the proffered

testimony of Yvonne Twyman-Williams, an African-American female

who served as an assistant in the office from January 1992 to

April 1993. Twyman-Williams intended to testify about the

office's atmosphere and alleged retaliation against her during

her tenure. The district court possesses broad discretion in

determining the admissibility of evidence, and this court will

not disturb its rulings absent a clear showing of an abuse of

discretion. Lanham v. Whitfield, 805 F.2d 970, 972 (11th

Cir.1986). The district court reasoned that both witnesses'

proffered testimony was (1) too far removed in time from the

period that Watkins worked in the office, and (2) not

sufficiently similar to Watkins's allegations to merit admission

under Federal Rule of Evidence 404(b). The record confirms that

the district court's ruling did not constitute an abuse of

discretion.

Second, Watkins contends that the district court's

questioning of Newbern indicated to the jury that the court

believed that the assistants were merely "joking around"

when they engaged in sexual or racial banter, and,

therefore, the court overstepped its bounds of discretion

DISCUSSION

A. First Amendment Retaliation Claims

The district court relied on two grounds in directing a

verdict for the county on Watkins's First Amendment retaliation

claim based on her complaints of sexual and racial harassment.

First, the court found that no evidence of substance existed that

Bowden knew of Watkins's complaints. Second, the court did not

find that "the complaints that Mrs. Watkins related to Mr. Howard

r[o]se to the level of First Amendment concern." We first address

the district court's second holding, because if Watkins's

complaints did not affect a matter of public concern, her First

Amendment claims must fail.

A state may not demote or discharge a public employee in

retaliation for protected speech. This circuit has developed

a four-part test to determine whether an employee suffered

such retaliation. First, a court must determine whether the

employee's speech may be fairly characterized as constituting

speech on a matter of public concern. If so, the district

court must weigh the employee's first amendment interests

against the interest of the state, as an employer, in

promoting the efficiency of the public services it performs

through its employees. Should the employee prevail on the

balancing test, the fact-finder determines whether the

employee's speech played a substantial part in the

government's decision to demote or discharge the employee.

Finally, if the employee shows that the speech was a

substantial motivating factor in the employment decision, the

and assumed an advocate's role. A trial judge retains the

authority to question witnesses but can abuse that authority

by assuming the role of an advocate. Hanson v. Waller, 888

F.2d 806, 812 (11th Cir.1989). Counsel for Watkins,

however, never objected, even out of the presence of the

jury, to the questions the court posed to Newbern. "[W]here

a party fails to object in a timely manner, i.e., at the

next available time when the jury is not present, objection

to the alleged error will be deemed waived unless it

constitutes plain error." Hanson, 888 F.2d at 813. The

record does not reveal that the court strayed from

neutrality; thus, the court did not err (much less plainly

err) in its questioning of Newbern.

state must prove by a preponderance of the evidence that it

would have reached the same decision even in the absence of

the protected conduct.

Morgan v. Ford, 6 F.3d 750, 753-54 (11th Cir.1993) (quotation

marks, citations, brackets, and ellipsis omitted), cert. denied, --

- U.S. ----, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994). "The

threshold question of whether an employee's speech may be fairly

characterized as constituting speech on a matter of public concern

is a question of law, subject to de novo review by this court."

Deremo v. Watkins, 939 F.2d 908, 910 (11th Cir.1991).

For an employee's speech to rise to the level of public

concern, it must relate to a matter of political, social, or other

concern to the community. Therefore, this court must determine

whether the purpose of Watkins's speech was to raise issues of

public concern or to further her own private interest. Morgan, 6

F.3d at 754. In making this determination, we consider the

content, form, and context of the employee's statements, the

employee's attempts to make the concerns public, and the employee's

motivation in speaking. See Morgan, 6 F.3d at 754; Deremo, 939

F.2d at 910-11.

We are convinced that Watkins's speech did not constitute

speech on a matter of public concern. Watkins lodged her

complaints to Howard privately and informally, and those complaints

focused primarily on how her colleagues "behaved toward her and how

that conduct affected her work." Morgan, 6 F.3d at 755. Moreover,

Watkins's discussions with Blum, Adams, and Dr. Moore did not draw

the public at large or its concerns into the picture. Morgan, 6

F.3d at 755. Indeed, Dr. Moore's testimony revealed that he

initiated their discussions about the office's environment.

Furthermore, Watkins's expression of concern over her colleagues'

treatment of Emken was made in her capacity as employee, rather

than in her "role as citizen." Kurtz v. Vickrey, 855 F.2d 723, 727

(11th Cir.1988).

Watkins's complaints have a far more private and informal

flavor than the employee's speech at issue in Morgan. In that

case, the plaintiff, Jacqueline Morgan, a correctional officer at

the Augusta Correctional Medical Institute (ACMI), (1) served as a

witness for a colleague who had pursued a sexual harassment

complaint against Morgan's immediate supervisor, John Ford; (2)

told the Superintendent of ACMI of Ford's harassing behavior toward

her; (3) pressed charges against Ford with the Georgia Department

of Corrections Internal Affairs Division; and (4) filed a sexual

harassment charge against Ford with the Georgia Office of Fair

Employment Practices. Morgan, 6 F.3d at 752-53. This court

sustained the district court's entry of summary judgment against

Morgan on her section 1983 claim, finding that "the main thrust of

her speech took the form of a private employee grievance." Morgan,

6 F.3d at 755. Morgan's complaints did not rise to the level of

public concern; consequently, Watkins's speech certainly falls

below that mark.

Watkins's other First Amendment claim, which alleges that

Bowden (and thus the county) terminated her in retaliation for her

complaint about the bar luncheon speaker, fails for the same

reason.17 Watkins's informal and private comment to Bowden that she

found the speaker's comments offensive, without more, does not

constitute speech affecting a matter of public concern.18 Thus, we

affirm the district court's order granting directed verdicts for

the county on Watkins's First Amendment claims.

B. Equal Protection Retaliation Claim

The district court held that "[w]ith respect to the claim that

Mrs. Watkins was fired in retaliation for complaints regarding

sexual and racial harassment, again, I think there is just not any

evidence of substance that Mr. Bowden knew about her performance."

Watkins argues that the district court erred in granting appellees'

motion for a directed verdict on her claim of retaliation under the

17

The district judge denied Watkins relief on this claim on

other grounds, finding that "I just don't think there is evidence

in the record to support th[e] claim." "[T]his court may affirm

the district court where the judgment entered is correct on any

legal ground regardless of the grounds addressed, adopted or

rejected by the district court." Bonanni Ship Supply, Inc. v.

United States, 959 F.2d 1558, 1561 (11th Cir.1992).

18

Though Watkins splits her First Amendment allegations into

two claims, we note that even if we considered all of her

assertions under one First Amendment challenge, we would reach

the same conclusion—her speech did not affect a matter of public

concern. See Morgan, 6 F.3d at 751-55; see also Cooper v.

Smith, 89 F.3d 761, 765 (11th Cir.1996) (reporting corruption in

police department to state bureau of investigation involved issue

of public concern); Martinez v. City of Opa-Locka, Fla., 971

F.2d 708, 710, 712 (11th Cir.1992) (providing testimony before

city commission concerning purchasing practices of city affected

matter of public concern); Stough v. Gallagher, 967 F.2d 1523,

1524, 1528 (11th Cir.1992) (giving campaign speech at "political

forum" on behalf of candidate for sheriff addressed topic of

public concern); Stewart v. Baldwin County Bd. of Educ., 908

F.2d 1499, 1506 (11th Cir.1990) (expressing public "opposition to

the Superintendent's position on the upcoming tax referendum

clearly implicates a matter of public concern"); Williams v.

Roberts, 904 F.2d 634, 638 (11th Cir.1990) (publishing editorials

criticizing county's budget and employment actions implicated

matter of public concern).

Equal Protection Clause because the evidence adduced at trial gives

rise to a reasonable inference that Bowden knew of her complaints

of sexual and racial harassment. Appellees counter that the

district court's assessment of the evidence was accurate and, in

any event, that Watkins "did not contend, and did not prove, that

she, as a female (or African-American) who raised complaints of

sexual (or racial) harassment, was treated differently from any

male (or white) who raised similar claims." Appellees assert that

"[t]he equal protection clause prohibits only such class-based

distinctions; it does not, as ... other federal non-discrimination

statutes do, prohibit generic "retaliation.' Therefore, [Watkins]

failed to prove a violation of the equal protection clause."

We review the district court's granting of a directed verdict

motion under the de novo standard. Sherrin v. Northwestern Nat'l

Life Ins. Co., 2 F.3d 373, 377 (11th Cir.1993). In so doing, we

use the same standard the district court employed in determining

whether to grant the motion. See Sherrin, 2 F.3d at 377; Lamb v.

Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir.1993). Again,

"[o]ur review of an order granting a directed verdict is not

confined to the grounds relied on by the district court. We will

affirm if the district court can be sustained on any grounds."

Weeks v. Remington Arms Co., Inc., 733 F.2d 1485, 1490 n. 6 (11th

Cir.1984).

Watkins asserts that two elements of her "prima facie case of

retaliation under the Equal Protection Clause" are that she

"engaged in protected conduct or statements," and that her

"termination was based, at least in part, on her membership in a

protected classification." To the extent Watkins contends that she

was dismissed because of her expressive activity, that claim arises

under the First Amendment. See, e.g., Thompson v. City of

Starkville, 901 F.2d 456, 468 (5th Cir.1990) (dismissing

plaintiff's equal protection claim in retaliation case because it

"amounts to no more than a restatement of his first amendment

claim"); Vukadinovich v. Bartels, 853 F.2d 1387, 1391-92 (7th

Cir.1988) (finding that plaintiff's equal protection retaliation

claim, based on allegation that "he was treated differently because

he exercised his right to free speech," "is best characterized as

a mere rewording of [his] First Amendment-retaliation claim").

Moreover, to the extent Watkins links her alleged retaliatory

dismissal to her gender or race, that allegation constitutes part

of her equal protection discrimination (i.e., hostile work

environment sexual and racial harassment) claim. See, e.g.,

Beardsley v. Webb, 30 F.3d 524, 529-30 (4th Cir.1994). A pure or

generic retaliation claim, however, simply does not implicate the

Equal Protection Clause. See Ratliff v. DeKalb County, 62 F.3d

338, 340 (11th Cir.1995) (reversing denial of qualified immunity on

equal protection retaliation claim because "[t]he right to be free

from retaliation [for making complaints of discrimination] is

clearly established as a first amendment right and as a statutory

right under Title VII; but no clearly established right exists

under the equal protection clause to be free from retaliation");

Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100 F.3d 1287,

1296 n. 8 (7th Cir.1996) (Equal Protection Clause "does not

establish a general right to be free from retaliation"); Bernheim

v. Litt, 79 F.3d 318, 323 (2d Cir.1996) ("[W]e know of no court

that has recognized a claim under the equal protection clause for

retaliation following complaints of racial discrimination."); Gray

v. Lacke, 885 F.2d 399, 414 (7th Cir.1989) ("Gray's right to be

free from retaliation for protesting sexual harassment and sex

discrimination is a right created by Title VII, not the equal

protection clause."), cert. denied, 494 U.S. 1029, 110 S.Ct. 1476,

108 L.Ed.2d 613 (1990); Long v. Laramie County Community College

Dist., 840 F.2d 743, 752 (10th Cir.), cert. denied, 488 U.S. 825,

109 S.Ct. 73, 102 L.Ed.2d 50 (1988). Consequently, we affirm the

district court's grant of a directed verdict for appellees on

Watkins's equal protection retaliation claim.

C. Jury Instruction on the Hostile Work Environment Sexual and

Racial Harassment Claim Against the County

In order to prevail on her hostile work environment sexual

and racial harassment claim under the Equal Protection Clause,

Watkins had to show that (1) she belonged to the protected groups

at issue; (2) she was subjected to unwelcome sexual and racial

harassment; (3) the harassment was based upon her gender and race;

(4) the harassment affected the conditions of her employment; (5)

the defendant (the county, as represented by Bowden) acted under

color of law; and (6) the defendant acted with discriminatory

purpose or intent. See Cross v. Alabama, 49 F.3d 1490, 1504, 1507-

08 (11th Cir.1995).

The jury instruction at issue involved the fourth element

above. As to that element, a plaintiff must show that the

harassment was sufficiently severe or pervasive to alter the

conditions of her employment and create an abusive working

environment. See Harris, 510 U.S. at ----, 114 S.Ct. at 370;

Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th

Cir.1995); Cross, 49 F.3d at 1507.19 In Harris, the Supreme Court

further defined this element, granting "certiorari ... to resolve

a conflict among the Circuits on whether conduct, to be actionable

as abusive work environment harassment ..., must seriously affect

an employee's psychological well-being or lead the plaintiff to

suffer injury." Harris, 510 U.S. at ----, 114 S.Ct. at 370

(quotation marks and brackets omitted).20 In deciding this issue,

the Court elaborated on the objective and subjective components of

the hostile work environment inquiry:

Conduct that is not severe or pervasive enough to create an

objectively hostile or abusive work environment—an environment

that a reasonable person would find hostile or abusive—is

beyond Title VII's purview. Likewise, if the victim does not

subjectively perceive the environment to be abusive, the

conduct has not actually altered the conditions of the

victim's employment, and there is no Title VII violation.

Harris, 510 U.S. at ----, 114 S.Ct. at 370 (emphasis added).21

19

This requirement exists for plaintiffs whether they bring

a hostile work environment claim pursuant to 42 U.S.C. § 1983

(like Watkins) or Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2. See Cross, 49 F.3d at 1507-08.

20

The Court held that "[s]o long as the environment would

reasonably be perceived, and is perceived, as hostile or abusive

..., there is no need for it also to be psychologically

injurious." Harris, 510 U.S. at ----, 114 S.Ct. at 371.

21

Justice Ginsburg, in her concurring opinion, added:

[T]he adjudicator's inquiry should center, dominantly,

on whether the discriminatory conduct has unreasonably

interfered with the plaintiff's work performance....

It suffices to prove that a reasonable person subjected

to the discriminatory conduct would find, as the

plaintiff did, that the harassment so altered working

conditions as to "ma[k]e it more difficult to do the

job."

Despite Harris, Watkins contends that the district court erred

in instructing that the jury "look to see whether, objectively

speaking, a hostile working environment existed looking through the

eyes of a reasonable person." She argues that the court's

original, more contextual standard, which asked the jury to assess

the working environment from the standpoint of a "reasonable

African American or woman," was a correct statement of the law and

that the substituted instruction caused her prejudicial harm.

"In reviewing the district court's jury instructions, this

court will look to see whether the charges, considered as a whole,

sufficiently instruct the jury so that the jurors understand the

issues involved and are not misled." Pesaplastic, C.A. v.

Cincinnati Milacron Co., 750 F.2d 1516, 1525 (11th Cir.1985); see

also Cross, 49 F.3d at 1505. "If the instructions, taken together,

properly express the law applicable to the case, no reversible

error has occurred, even if an isolated clause may be inaccurate,

ambiguous, incomplete, or otherwise subject to criticism." Busby

v. City of Orlando, 931 F.2d 764, 776 (11th Cir.1991).

Given Harris, we cannot conclude that the district court's

corrective instruction did not properly express the law applicable

to this case.22 Moreover, the district court clearly identified the

Harris, 510 U.S. at ----, 114 S.Ct. at 372 (Ginsburg,

J., concurring) (emphasis added) (quoting Davis v.

Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir.1988),

cert. denied, 490 U.S. 1110, 109 S.Ct. 3166, 104

L.Ed.2d 1028 (1989)) (second alteration in original).

22

We are aware that several circuits have applied the more

contextual standard in hostile work environment actions even

after Harris. See, e.g., King v. Frazier, 77 F.3d 1361, 1363

(Fed.Cir.) (objective inquiry "require[s] that sexual harassment

be judged from the perspective of the one being harassed"), cert.

superseded instruction, concisely articulated the corrective

instruction, and then restated the subjective component of the

hostile work environment inquiry. Therefore, the court's

instructions gave the jurors sufficient guidance and did not

mislead or confuse them. Accordingly, no reversible error

occurred, and we affirm the judgment for the county on Watkins's

hostile work environment sexual and racial harassment claim.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the

district court.

denied, --- U.S. ----, 117 S.Ct. 62, 136 L.Ed.2d 24 (1996);

Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 540 (1st

Cir.1995) ("[T]he court must consider not only the actual effect

of the harassment on the plaintiff, but also the effect such

conduct would have on a reasonable person in the plaintiff's

position."), cert. denied, --- U.S. ----, 116 S.Ct. 1044, 134

L.Ed.2d 191 (1996); Fuller v. City of Oakland, 47 F.3d 1522,

1527 (9th Cir.1995) ("Whether the workplace is objectively

hostile must be determined from the perspective of a reasonable

person with the same fundamental characteristics."); West v.

Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir.1995) (inquiring

whether "the discrimination would have detrimentally affected a

reasonable person of the same protected class in that position");

Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir.1994)

("We thus consider not only the actual effect of the harasser's

conduct on his victim, but also the effect similar conduct would

have had on a reasonable person in the plaintiff's position.").

But see Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th

Cir.1996) (though court had previously adopted "reasonable woman"

standard, "[g]iven the Supreme Court's use of the "reasonable

person' standard [in Harris ], we cannot find that the district

court abused its discretion in using that standard in its jury

instruction"); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d

Cir.1995) (applying reasonable person standard); Amirmokri v.

Baltimore Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir.1995)

(same); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th

Cir.1995) (same); DeAngelis v. El Paso Mun. Police Officers

Ass'n, 51 F.3d 591, 594 (5th Cir.) ("The test is an objective

one, not a standard of offense to a "reasonable woman.' "), cert.

denied, --- U.S. ----, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995);

Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 (7th Cir.1994)

(applying reasonable person standard).

AFFIRMED.