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.
On January 15, 1990, Phyllis Watkins, an African-American female, began work as an assistant solicitor (assistant) in the Office of the Solicitor of DeKalb County (the office).
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."
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.
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 question."
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."
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"
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 assistant Greg Adams.
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 are to the practice of law as women drivers are to the traffic flow."
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 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
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.
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:
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."
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
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:
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:
The jury returned a verdict for the county. This appeal followed.
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
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 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.
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.
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.
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 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,
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 20-22, 114 S.Ct. at 370; Edwards v. Wallace Community College, 49 F.3d 1517, 1521 (11th Cir.1995); Cross, 49 F.3d at 1507.
Harris, 510 U.S. at 21-22, 114 S.Ct. at 370 (emphasis added).
"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.
For the foregoing reasons, we affirm the judgment of the district court.
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 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.
Harris, 510 U.S. at 25, 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).