Opposition Brief — Minix v. Jeld-Wen, Inc. (No. 07-717)

Supreme Court, US.

FILED

DEC 2 8 2007

OPFICE OF THE CLERK

2

No. 07-717

In The

Supreme Court of the United States

Lorena Minix, et al

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QUESTION PRESENTED

Whether Petitioners have presented a compellioy

reason for this Court to grant review of the Eleventh

Circuits deciion when there is no confthet between

the decision and eather a decision of this Court or of a

federal court of appeals, and no departure from the

law of harassment and an employers affirmative

defense asat has developed from this Courts cominal

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TAY ‘Mb065 (199%) and baragvhesr y (ity ol Phewu

Maton, “OYAUIS 775, BOT C199)

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Pursuant to Sup Ct kh 496, JEL WEIN, one

i privately held and no publely held) corporation

own 1O% on more of ite etock Purthermore mone of

Ji. Wii ine bordianie: convlomerate:

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TABLE OF CONTENTS

QUESTION PRESENTED 1

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6 T

TABLE OF CONTENTS TT

TARLE OF AUTHORITIES iv

INTRODUCTION /\

STATEMENT CF THE CASE

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TABLE OF AUTHORITIES

FEDERAL CASES

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Miller v. Kenworth of Dothan, Inc,

277 Fad 1269 (ith Cir. 2002) o...3....0..0...0..c.cceereee.

Olson vo Lowe's Home Centers, lnc,

130 Fed) Appx. 360 (11 Cir, 205)

Randolph vo Ohio Department of Youth Serv,

453 b Sd 724 (th Cir 2006)

Watson vo hae Crrele Tre

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INTRODUCTION

Petitioners assert two intertwined bases upon

which they contend this Court should grant certiorari

review based on how the Eleventh Circuit and the

district court interpreted the notice requirement of

the Farragher/Ellerth affirmative defense ina

upervisor sexual harassment action devoid of any

tangible employment action hirst Petitioners

ontend that the Kleventh Circuit's decision conflicts

vill thie decrmion of other (court of Appeal

However a comparison of the other circuits decision

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STATEMENT OF THE CASE!

The three Plaintiff-Petitioners (“Plaintiffs”) are

former cmployees of Respondent JELD-WEN, inc.’s

(“JELD-WEN”) Roanoke, Alabama facility who were

employed there until the facility closed in late 2004.

Kach Plaintiff first reported allegations of sexual

harassment by their immediate supervisor, Group

Manager Richard Fetner, in a meeting with Dan

Hees, a JELDWEN Coordinating General Manager,

on the morning of October 13, 2004. Before noon on

that same day, Hees met with the alleved harasser

and his JELD WEN employment ended during the

meeting

JELD WEN has a pohey that prohibits

harasoment, providing i relevant part

Jhe td) WEN trive te provide a

productive and Cormlortible Works

environment tres from har reveal Gat

diecrimioation mie luding thicot whch Mhbsay

rye («oti fresco If) bie clfen ive (yt

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conduct. This policy applies to every

aspect of the employment relationship

throughout. the organization and to the

dealings of employees with one another,

as well as with vendors and customers.

Harassment in any form will not be

tolerated by the company. Any employee

who violates this policy is subject to

discipline up to and including discharge.

xh

Kamployees wall be made aware of this

poliey and are encouraged to not tolerate

harassment Any employee who belheves

that he/she a bem wubyeet bo

objectionable conduct should promptly

notify cuther thea uoniedimte Supervisor,

thear Gaeneral or Corporate Manayer, Vice

Vrowident or ubedianry President, on the

layveal Department at (541) HHA 4451

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If the information collected during the

investigation establishes that harassment

or other objectionable conduct did occur,

disciplinary action will be promptly taken

against the harasser, up to and including

termination if appropriate. Employees

will not be discriminated or retaliated

against for reporting harassment or

participating in an investigation.

(emphasis added). There is no claim in this matter

that JELDWEN's policy is defective in any fashion

Although it is unclear why Plaintiffs waited such a

long period of time to actually report the alleved

conduct, at as undisputed that they were aware of

JELD WEN's policy and the procedures to report the

alleyed) conduet In fact, outside persons (hhOC

representatives attorneys and others) advised cach

plarmtelf that the conduct should be reported por the

provisions of Ih WIM policy tony before the

fie tober PE report aod at leaet ome Viaiotill testified

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alleged harassment by Fetner with Joe Mendoza, a

“group manager’ at the facility.

The “group manager” position is akin to a

foreman (first line supervisor) in JELD-WEN’s

hierarchy; Mendoza was neither Thornton's nor any of

the Plaintiffs’ immediate supervisor and it 1s

undisputed that Mendoza only supervised six (6)

employces, all general laborers, at the facility and he

“coordinated” the work of two “groups” (column

turning and finger joint) that included the six

employees. The alleged harasser, Fetner, was also a

yroup manager although he supervised more than

tharty goneral laborers The vroup manager poustions

reported to the Acting General Manayer who, in turn

reported to the Coordinating General Manayver whe

mi turn, reported to the View President who, an turn

reported to the President of this pourticular Jb

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Plantiffs’ argument is essentially that a report to any

JELD-WEN supervisor is sufficient to give JELD-

WEN notice of the alleged conduct. Plaintiffs’

argument is not supported by this Court’s precedent

or by the cases cited in Plaintiffs’ brief seeking

certiorari review:

An employer may, for example, have

provided a proven, effective mechanism

for reporting and resolving complaints of

sexual harassment, available to the

coiployee without undue riok or oxpemnns

If othe plamstilf unreasonably farbed to

avail herself of the employer's preventive

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JELD-WEN’s_ policy was the “effective

mechanism” referenced in Faragher and afforded its

employees no fewer than five avenues to report

alleged harassment. Plaintiffs’ efforts in this case are

nothing more than an effort to expand an already

effective policy to fit the facts of their case; neither

they nor Thornton reported the conduct in the manner

designated by the policy which would have provided

an opportunity to correct the behavior. Their efforts

contradict the purpose of Title VII as interpreted by

this Court: “Although Title VII seeks to make persons

whole for injuries suffered on account of unlawful

employment discrimination its primary objective, like

that of any statute meant to influence primary

conduct, is not to provide redress but to avoid harm.”

Faragher, 805-806 (internal quotes and citations

omitted).

Plaintiffs also argue that, even in cases where

the alleged harassment was overt and permeated a

work location, the Eleventh Circuit has adopted a

standard that restricts JELD-WEN and_ other

employers from having notice of alleged harassment

except in cases where notice 1s given under the terms

of the policy. Plaintiffs’ misstatement of Eleventh

Circuit precedent will be addressed in the following

section. However, notwithstanding the misstatement,

Plaintiffs’ own testimony negates the ability to

credibly rely on a constructive notice theory of

recovery. Fetner surreptitiously directed the alleged

objectionable conduct towards the three Plaintiffs and

other female employees in a manner that other

management personnel would not be able to observe

the conduct. For example, the most egregious alleged

conduct was directed towards Ms. Thornton and was

all directed towards her in her own work area, a large

7

room where she worked alone or with one other

person who could not see her work station from his.

The undisputed facts do not establish that the facility

was permeated with overt harassment.

REASONS FOR DENYING THE PETITION

I. THERE IS NO COMPELLING REASON

TO GRANT CERTIORARI REVIEW

UNDER RULE 10 BECAUSE THERE IS

NO CIRCUIT CONFLICT.

“A petition for a writ of certiorari will be

granted only for compelling reasons.” Sup. Ct. R. 10.

Plaintiffs attempt to establish that there is a conflict

between the Eleventh Circuit’s decision in this case,

based on Eleventh Circuit precedent, and the

decisions of other United States courts of appeal. No

circuit conflict exists. Plaintiffs cite five cases to

support their argument that a conflict is present.

None of the cited cases matches the facts of this case

because each of the five cases involved direct notice to

upper-level company management and senior-level

human resources representatives, not alleged notice

to a front-line supervisor who was not the reporting

employee’s immediate supervisor.

Petitioners challenge to the Eleventh Circuit's

decision amounts to nothing more than a claim that

they should somehow be excused from complying with

the employer's “. . .proven, effective mechanism for

reporting and_ resolving complaints of sexual

harassment.” Faragher, 524 U.S. 775, 806-807.

Under the rules of this Court and clear precedent

construing those rules, Petitioners’ asserted grounds

for review fail to meet the high threshold for granting

8

a petition. The circumstances under which review

may be granted have by necessity been narrowly

drawn given the manifest impossibility of reviewing

every case in which the lower court is alleged to have

been wrong.

As noted, in the five cases cited by Plaintiffs,

the court generally determined that the employer had

notice because a senior-level management employee

had notice of the conduct. The employer’s harassment

policy was mentioned in some but not all of the cases.

In Erickson v. Wisconsin Dept. of Corrections, 469

F.3d. 600 (7th Cir. 2006), the Seventh Circuit held that

the employer had prior notice of potential danger to

the plaintiff-employee (who was raped on the job)

because the employee previously informed five senior

managers, including the employee’s direct supervisor

and human resources director, of prior threatening

conduct by the offending person. In Howard v.

Winter, 446 F.3d 559, 569 (4tt Cir. 2006), the court

held that the employee’s report of alleged sexual

harassment to a senior human resources

representative was sufficient to put the employer on

notice even though the employer's policy required that

the report be made up the “chain of command”. A key

component of the Fourth Circuit’s analysis was that

the employee was a “senior member of the Human

Resources Department” and not just “any NAVAIR

employee.” Id. In Randolph v. Ohio Dept. of Youth

Serv., 453 F.3d 724, 735 (6'» Cir. 2006), the harassed

employee and co-workers made numerous complaints

to their immediate supervisor and to a senior level

supervisor who reported directly to the

Superintendent. Based on the reports to senior level

personnel, the Court held that the employee’s failure

to follow the employer's sexual harassment policy did

9

not bar their claim. In Curran v. AMI Fireplace Co.

Inc., 163 Fed. Appx. 714, 716 (10 Cir. 2006), an

employee’s complaints to the employer's office

manager and the general manager who supervised

the office manager were sufficient to put the employer

on notice. The policy at issue in the Curran case

apparently only identified the Human Resources

Manager and not the senior-level manager notified by

the employee. Id. at 720. In Jackson v. Quanex

Corp., 191 F.3d 647, 662 (6 Cir. 1999), the

complaining employee reported some, but not all, of

the complained of racial harassment to management

and/or his immediate supervisor and the employer

never responded to any of the conduct even though

management had direct knowledge of slurs, graffiti

and internal tolerance of discrimination through its

own observation and failure to act. Id.

Similar to the cases upon which Plaintiffs rely

in an effort to establish a circuit conflict but contrary

to Plaintiffs’ contention, the Eleventh Circuit has

proven willing to permit claims to proceed even

though the employee did not strictly comply with the

reporting mechanism set forth in the employer's

policy. Each case involved circumstances where there

was some deficiency in the employer’s efforts to

prohibit and/or correct illegal harassment, conditions

that are not present in the case for which writ is

sought. In Dees v. Johnson, the employer acted

promptly upon notice to end the harassment, just as

JELD-WEN did in this case. However, the Eleventh

Circuit reversed summary judgment for the employer

based on earlier notices of the conduct by another

employee to human resources and by a second other

employee to members of upper management. 168

F.3d 417, 419-423 (11 Cir. 1999). Likewise, in Olson

10

v. Lowe’s Home Centers, Inc., 130 Fed. Appx. 380, 390

(11th Cir. 2005), the Eleventh Circuit held that notice

of harassment per the company’s “open door” policy

was sufficient to provide notice to the company of

alleged harassment even though the notice provided

under the terms of the open door policy did not strictly

conform to the requirements of the company’s

harassment policy. Furthermore, the Sixth Circuit’s

Jackson decision is analogous to the Eleventh

Circuit’s decision in Miller v. Kenworth of Dothan,

Inc., 277 F. 3d 1269, 1275 (11 Cir. 2002), wherein

the Eleventh Circuit affirmed a jury’s verdict that the

employer was on notice because the service manager

was present when ethnic slurs were directed at the

plaintiff.

Plaintiffs’ specific request is that the Eleventh

Circuit should be required to apply a “totality of the

circumstances” test in evaluating whether notice is

effective. Petition for Writ of Certiorari, p. 10. In

fact, the Eleventh Circuit does apply such a standard

in appropriate cases. See Allen v. Tyson Foods, Inc.,

121 F.3d 642, 647 (11% Cir. 1997) (reversing summary

judgment for employee because lower court failed to

evaluate the “totality of the circumstances” in

assessing whether conduct was persuasive enough to

put the employer on notice as required by Faragher).

Thus, it is clear that the Eleventh Circuit does not

impose an inflexible standard on reporting incidents

of harassment and considers the totality of the

circumstances in assessing whether the employer has

knowledge. Rather the Eleventh Circuit's

interpretation and application of the affirmative

defense is consistent with this Court’s decisions in

Faragher and Ellerth wherein this Court recognized a

need to balance the imposition of strict vicarious

11

liability on an employer for its supervisor’s harassing

conduct with the goal of encouraging the employer to

maintain an environment free of prohibited

harassment:

While proof that an employer had

promulgated an anti-harassment policy

with complaint procedures is_ not

necessary in every instance as a matter of

law, the need for a stated policy suitable

to the employment circumstances may

appropriately be addressed in any case

when htigating the first element of the

defense. And while proof that an

employee failed to fulfill the

corresponding obligation of reasonable

care to avoid harm is not limited to

showing an unreasonable failure to use

any complaint procedure provided by the

employer, a demonstration of such failure

will normally suffice to satisfy the

employer's burden under the _ second

element of the defense.

Ellerth, 524 U.S. 742, 765, Faragher, 524 U.S.-:775,

807-808

The Eleventh Circuit case law that has

developed in this area and that is questioned by

Plaintiffs in this case is consistent with this mandate.

As a threshold query in the Faragher/Ellerth

affirmative defense analysis, the employer must have

an effective policy that includes, among other

elements, sufficient reporting avenues:

12

once an employer has promulgated an

effective anti-harassment policy and

disseminated that policy and associated

procedures to its employees, then it is

incumbent upon the employees to utilize

the procedural mechanisms established

by the company specifically to address

problems and grievances.

Madray v. Publix Supermarkets, Inc., 208 F.3d 1290,

1300 (11th Cir. 2000); Coates v. Sundor Brands, Inc.,

164 F.3d 1361, 1364 (11% Cir. 1999) (noting

requirement of an adequate and reasonable sexual

harassment policy). In following this Court’s decision

and requiring an effective policy as a threshold to the

defense, the Eleventh Circuit has addressed the

concerns expressed by the Plaintiffs in this matter

and, at the same time, balanced the respective

interests of the employer and employee: the employee

has a right to be free of harassment but the employer

has an opportunity to correct deviations from its effort

to maintain a_ harassment-free environment.

However, in cases such as this one where the alleged

harassment is outside the presence of management, it

is only through the employees’ reports that the

employer will have the opportunity to remedy

workplace harassment. There is no circuit conflict on

this issue and there is no compelling reason to grant

the writ.

13

Il. THE ELEVENTH CIRCUIT

RECOGNIZES CONSTRUCTIVE

NOTICE IN APPROPRIATE CASES

REGARDLESS OF THE MERE

EXISTENCE OF A POLICY.

Plaintiffs’ second argument is closely related to

the first. They argue that the Eleventh Circuit’s

standard completely eliminates any avenue for the

employer to be held to have constructive notice of

prohibited harassment where the employer has a

policy prohibiting harassment. Plaintiffs argue that

“[tlhe Eleventh Circuit's approach would allow an

employer to avoid responsibility, when it has notice,

based on its own policy, drafted as much to avoid

hability than to prevent harm to its employees.”

Petition for Writ of Certiorari, p. 21. Plaintiffs’

argument fails to consider that, contrary to their

argument, Eleventh Circuit precedent does not

foreclose notice simply because the employer has a

“policy” under appropriate facts. Rather, as noted

above, the threshold inquiry is whether the employer

has an effective policy. The employer will be held to

have notice if the “policy” is not an effective policy,

either in its design or its enforcement. See Watson v.

Blue Circle, Inc., 324 F.3d 1252, 1259-1261 (11* Cir.

2003) (reversing summary judgment for employer

because employers policy was ineffective thus

constructive knowledge could attach).

Likewise, other circumstances can also warrant

exceptions in the Eleventh Circuit. For example,

where the conduct considering all] relevant

circumstances is sufficiently prevalent that the

employer's upper management is on notice of the

conduct, the Eleventh Circuit has held that the

14

employer has notice of the conduct notwithstanding

that the employer has a policy in p’ace and that the

employee failed to properly report the conduct. Miller

v. Kenworth of Dothan, Inc., 277 F. 3d 1269, 1275

(11% Cir. 2002) (employer liable where service

manager observed conduct and overhead ethnic slurs

directed at the plaintiff and did nothing to correct

behavior). However, such circumstances were not

present in this case as no other manager witnessed

Fetner’s conduct and it is clear that the Eleventh

Circuit’s threshold requirement of an effective policy

is consistent with this Court’s standards as set forth

in Faragher and Ellerth. To the extent plaintiffs

argue that there should be some pure constructive

notice of alleged harassment, this Court addressed

that contention in Faragher and Ellerth by requiring

that the policy and the employer's enforcement and

corrective measures be adequate to prevent and

properly correct alleged harassment. Again, there is

no compelling reason to issue the writ.

Il. THE ELEVENTH CIRCUIT PROPERLY

APPLIED THE LAW IN THIS ACTION

JELD-WEN’s policy prohibiting harassment

satisfies the standards announced in this Court’s

decision in Ellerth: the employee is permitted to

report alleged harassment to his or her supervisor

and up the reporting line through JELD-WEN’s

hierarchy. See Ellerth, 524 U.S. 742, 760-765.

Notwithstanding that each plaintiff and Ms. Thornton

all were aware of the proper reporting structure, they

failed to report the alleged conduct per the terms of

the policy. Accordingly, they were afforded ample

opportunity to avoid harm, yet failed to take

advantage of the opportunity. When the conduct was

15

finally reported, JELD-WEN acted swiftly to correct

the behavior and insolate its work site from illegal

harassment. The Eleventh Circuit’s analysis is

consistent with Faragher and Ellerth.

CONCLUSION

There is no compelling reason to grant

Petitioners’ writ in this matter. As demonstrated

herein, there is no circuit conflict and the Eleventh

Circuit’ interpretation and application of the law in

this area are consistent with this Court’s precedent.

Accordingly, the writ is due to be denied.

Respectfully submitted,

SCOTT SCOFIELD MICHAEL L.. THOMPSON

Scofield, Gerard, Singletary & Counsel of Record

Pohorelsky Lehr Middlebrooks

P.O. Drawer 3028 & Vreeland,P.C.

Lake Charles, LA 70601 P.O. Box 11945

Telephone: 337.433.9436 Birmingham, AL 35202-1945

Facsimile: 337.436-0306 Telephone: 205.326.3002

Email'sscofield@scofieldgerard.com Facsimile: 205.326-3008

Email:

mthompson@lehrmiddlebrooks.com

192591 .doc