                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT  OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JUNE 1, 2012
                                            No. 11-11546
                                      ________________________           JOHN LEY
                                                                          CLERK

                                  D.C. Docket No. 1:09-cv-00712-M



CRYSTAL KURTTS,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                            versus

CHIROPRACTIC STRATEGIES GROUP, INC.,
MOBILE SPINE & REHAB ON THE LOOP, INC.,
d/b/a/ Bayside Spine & Rehab,

llllllllllllllllllllllllllllllllllllllll                         Defendants - Appellees,

D.C. JOHNNIE MORGAN,

lllllllllllllllllllllllllllllllllllllllll                        Defendant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Alabama
                                  ________________________

                                            (June 1, 2012)
Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.

PER CURIAM:

       Crystal Kurtts appeals the grant of summary judgment in her employment

discrimination suit against Chiropractic Strategies Group, Inc. and Mobile Spine

& Rehab on the Loop, Inc. (collectively CSG). Kurtts asserts claims of sexual

harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and various tort claims under Alabama law, including

assault and battery, invasion of privacy, outrage, and negligent supervision and

training. The district court granted summary judgment in favor of CSG on all

claims.1 After reviewing the parties’ briefs, the record, and having the benefit of

oral argument, we reverse the grant of summary judgment and remand for further

proceedings consistent with this opinion.

       We review de novo a grant of summary judgment, applying the same

standard as the district court. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,

1196 (11th Cir. 1997). Summary judgment is proper where there are no genuine

issues as to any material fact and the movant is entitled to judgment as a matter of

       *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
       1
        The parties consented to proceeding before the magistrate judge in accordance with 28
U.S.C. § 636(c). The magistrate judge’s decisions will be referred to as those of the district
court.

                                                2
law. Fed. R. Civ. P. 56(a); Crawford v. City of Fairburn, 482 F.3d 1305, 1308

(11th Cir. 2007). Genuine disputes arise from evidence sufficient for a reasonable

jury to return a verdict for the non-movant. Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996). In deciding whether there is a genuine issue of

fact, the court must view all of the evidence, and all inferences reasonably drawn

from the evidence, in the light most favorable to the non-movant. Raney, 120 F.3d

at 1196. If the non-movant fails to make a sufficient showing as to any essential

element of her case for which she has the burden of proof, the moving party is

entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,

322–23, 106 S. Ct. 2548, 2552 (1986).

                                  I. Background

      Because this is an appeal from the grant of summary judgment we take all

facts in the light most favorable to Kurtts. See Raney, 120 F.3d at 1196. In July

2007, CSG hired Kurtts as a receptionist in its Mobile, Alabama office. Kurtts

was one of three employees in the office. Dr. Johnnie Morgan was Kurtts’s

supervisor and the only doctor on staff. The other staff member was Nakisha

Odom, a chiropractic assistant.

      In early October of 2007, Morgan began sending Kurtts lewd and sexually




                                         3
suggestive and explicit text messages,2 and on several occasions made unwelcome

physical contact with her. On November 6, 2007, Morgan told Kurtts that she

would receive a better work schedule for “small favors.” On the afternoon of

November 8, 2007, Morgan sent several text messages to Kurtts saying that she

was playing hard to get and that he wanted to have intercourse with her in the

office when Odom left for the day. That evening, as they were closing up the

office, Morgan turned off all of the lights in the office, snuck up on Kurtts, and

effectively cornered her in an empty office. Kurtts then screamed, which Odom

overheard because she had returned to retrieve her keys. That night Kurtts

contacted a former clinic employee for the contact information of the person to

whom she should report Morgan’s inappropriate conduct.

       The next day, November 9, Kurtts called the CSG office in Arlington, Texas

and spoke with Clinic Administrator Deborah Gonzales Oviedo to report

Morgan’s behavior. Kurtts requested that action be taken against Morgan.

Oviedo replied that she would bring the claim to the attention of Jennifer Giessner,

the controller/secretary at the Arlington Office, and that they would investigate the

matter. Kurtts then asked if Morgan would still be at the office because she felt



       2
         In one instance, Morgan sent sixty-four text messages to Kurtts in the span of two-and-
a-half hours.

                                                4
extremely uncomfortable around him.3 Oviedo stated that Morgan would still be

at the office and requested that Kurtts forward her the text messages. Oviedo then

called Kurtts back, said she was unsure of what would happen, and asked if Kurtts

just wanted to be sent her final paycheck. Kurtts replied in the affirmative. After

this conversation no one from CSG spoke to Kurtts again. Through discovery,

Kurtts found that Morgan received no other discipline other than being told to

“cool off” by the owner of CSG, Dr. Michael Plambeck.

                             II. Hostile Work Environment

       To establish a prima facie case of sexual harassment through the creation of

a hostile work environment, the employee must demonstrate: (1) that she belongs

to a protected group, (2) that she was subject to unwelcome sexual harassment, (3)

that the harassment was based on her sex, (4) that the “harassment was sufficiently

severe or pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment,” and (5) “a basis for holding the

employer liable.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808

(11th Cir. 2010) (en banc).

       Here, Kurtts claims that her constructive discharge is the basis for holding



       3
         Kurtts stated in her deposition that she did not feel comfortable working with Morgan
because the November 8 incident had frightened her.

                                               5
CSG liable. In a sexual harassment case based on a constructive discharge, in

addition to the elements of sexual harassment, the employee must also show “that

the abusive working environment became so intolerable that her resignation

qualified as a fitting response.” Pa. State Police v. Suders, 542 U.S. 129, 134, 124

S. Ct. 2342, 2347 (2004). If the constructive discharge was not precipitated by a

supervisor’s official act then the employer may assert the Ellerth/Faragher

affirmative defense. Id. at 148, 124 S. Ct. at 2355.4 Under the Ellerth/Faragher

affirmative defense, the employer bears the burden to show by a preponderance of

the evidence “(a) that the employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and (b) that the plaintiff

employee unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.” Burlington

Inds., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257, 2270 (1998); Faragher v.

City of Boca Raton, 524 U.S. 775, 807, 118 S. Ct. 2275, 2293 (1998); see also



       4
         We would like to clarify that a constructive discharge is not automatically a tangible
employment action that precludes the assertion of the Ellerth/Faragher affirmative defense.
Suders held that a constructive discharge is only a tangible employment action when it is
precipitated by an “official act,” and only then is the employer precluded from relying on the
Ellerth/Faragher affirmative defense. 542 U.S. at 140–41, 124 S. Ct. at 2350–51. When a
constructive discharge is not precipitated by an official act then the employer may assert the
defense. However, we do not need to decide whether Kurtts’s discharge was a tangible
employment action in light of our finding that CSG did not carry its burden under the
Ellerth/Faragher affirmative defense.

                                                 6
Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313 (11th Cir. 2001)

(“Both elements must be satisfied for the defendant-employer to avoid liability,

and the defendant bears the burden of proof on both elements.”).

       Given the extensive record of Morgan’s inappropriate behavior, CSG does

not contend that Morgan’s actions do not amount to sexual harassment. Rather

CSG argues that Kurtts was not constructively discharged and that CSG cannot be

held vicariously liable for Morgan’s conduct. The district court found that Kurtts

had been constructively discharged. The district court then found that CSG was

not vicariously liable because CSG proffered sufficient evidence to establish the

Ellerth/Faragher affirmative defense as a matter of law. We reverse this finding

because there are genuine issues of material fact as to whether CSG took

reasonable care to correct the harassment.5

       “The first element of the Ellerth/Faragher affirmative defense requires that

an employer demonstrate that it took reasonable care both to prevent and correct

harassment.” Frederick, 246 F.3d at 1314. “[T]o establish that it took proper

action to correct the harassment,” an employer must show that “it acted reasonably

promptly on [the] complaint when it was given proper notice of [the] allegations.”


       5
        As a result, we do not address whether (1) CSG took reasonable care to prevent
harassment at the workplace and (2) CSG provided sufficient evidence that Kurtts failed to take
advantage of CSG’s reporting procedures.

                                               7
Id. We have made it clear that “[a] threshold step in correcting harassment is to

determine if any occurred, and that requires an investigation that is reasonable

given the circumstances.” Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d

1287, 1303 (11th Cir. 2007). An employer is not required to “conduct a full-

blown, due process, trial-type proceeding in response to complaints of sexual

harassment.” Id. at 1304. Nor must an employer interview every witness deemed

critical by the complainant. See Walton v. Johnson & Johnson Servs., 347 F.3d

1272, 1288 (11th Cir. 2003) (per curiam). At a minimum, however, an employer

must make it clear that it will investigate the allegations and “arrive at a

reasonably fair estimate of [the] truth.” Baldwin, 480 F.3d at 1304.

      In this case, the record contains evidence that Kurtts reported Morgan’s

behavior to Oviedo and that Oviedo initially indicated to Kurtts that there would

be an investigation. There is evidence that when Kurtts expressed concern about

continuing to work with Morgan, Oviedo replied that Morgan would remain at the

clinic, and Kurtts was not given the option of taking temporary leave. The record

also shows that Kurtts forwarded some of Morgan’s text messages to Oviedo.

After reading them, Oviedo called back to say that “[s]he was unsure what she was

going to do” and asked whether Kurtts wanted her last paycheck. The text

messages were very explicit. During her deposition, Kurtts testified that she was

                                           8
frightened of Morgan after the November 8 incident and understood Oviedo’s

statements to mean that CSG would not take her complaint seriously and that

nothing would be done. During her deposition, Oviedo could not unequivocally

say that she told Kurtts that the matter would be investigated; in fact she could

remember very little of the conversation.

      An employee complaining of sexual harassment is vested with no legal right

to demand removal of the alleged harasser before an investigation has been

undertaken by the employer: there is no doctrine of removal, first; investigate,

later. It is the employer’s responsibility to take immediate and appropriate

corrective acts that might be called for after a reasonable investigation. In CSG’s

view, the record demonstrates that it adequately communicated to Kurtts its

intention to investigate the matter and that Kurtts unreasonably left her job before

it had the opportunity to look into her complaint. This may be a fair construction

of the proffered evidence, and a jury may well reach the same conclusion. We are

mindful, however, that at this juncture we must view the evidence, and all

reasonable inferences drawn from it, in the light most favorable to Kurtts. “At the

summary judgment stage, the court’s function is not to weigh the evidence to

determine the truth of the matter . . . .” Raney, 120 F.3d at 1196. Therefore, we

conclude that a reasonable jury could view Kurtts’s statement that she did not feel

                                            9
comfortable working with Morgan as an expression of her fear of working with

Morgan until the matter was investigated rather than as her resignation from CSG.

A jury could plausibly believe Kurtts’s testimony that Oviedo indicated that no

meaningful action would be taken, and that Oviedo’s action gave Kurtts only two

options: returning to the status quo or getting her “last paycheck.” Thus, a jury

could find that CSG did not exercise reasonable care in responding to Kurtts’s

complaint.

      Because CSG bears the burden of proof with respect to each element of the

Ellerth/Faragher affirmative defense, see Frederick, 246 F.3d at 1313, and CSG

failed to demonstrate that there is no genuine issue of fact as to all of these

elements, we must reverse the grant of summary judgment on this claim.

                                   III. Retaliation

      To establish a prima facie case of retaliation under Title VII, a plaintiff must

demonstrate that: (1) she engaged in statutorily protected activity; (2) she suffered

a materially adverse action; and (3) there was some causal relation between the

two. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).

The district court granted summary judgment in favor of CSG because it found

insufficient evidence to support the second element of this claim. On appeal,

Kurtts argues that the district court erred because it also found that she was

                                          10
constructively discharged, which she claims constitutes a materially adverse

action. Meanwhile, CSG asserts that because the evidence does not demonstrate a

constructive discharge, Kurtts cannot prove that she suffered an adverse

employment action.

      We begin by noting that the parties have assumed that the definition of an

adverse employment action under the anti-retaliation provision of Title VII, 42

U.S.C. § 2000e-3(a), is the same as that for an adverse employment action under

the anti-discrimination, or substantive, provision of the statute, § 2000e-2(a). The

Supreme Court rejected this view in Burlington Northern & Santa Fe Railway Co.

v. White, 548 U.S. 53, 64, 126 S. Ct. 2405, 2412–13 (2006), and we have

recognized that our prior precedent was abrogated by this decision. See Crawford

v. Carroll, 529 F.3d 961, 973–74 (11th Cir. 2008).

      The Supreme Court clarified that “Title VII’s substantive provision and its

antiretaliation provision are not coterminous.” Burlington, 548 U.S. at 67, 126 S.

Ct. at 2414. To establish a prima facie case of retaliation, a plaintiff is not

required to show “an ultimate employment decision or substantial employment

action.” Crawford, 529 F. 3d at 974. It is therefore unnecessary to decide whether

a reasonable jury could find that Kurtts was constructively discharged.

      The key question is whether the employer’s conduct “might have dissuaded

                                           11
a reasonable worker from making or supporting a charge of discrimination.” Id.

(quoting Burlington, 548 U.S. at 68, 126 S. Ct. at 2415). Although this standard

does not always reflect the common understanding of the term “retaliation,” it is

consistent with the central purpose of the anti-retaliation provision—to prohibit

“employer actions that are likely to ‘deter victims of discrimination from

complaining to the EEOC,’ the courts, and their employers.” Burlington, 548 U.S.

at 68, 126 S. Ct. at 2415 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346,

117 S. Ct. 843, 848 (1997)).

      Viewing the evidence in the light most favorable to Kurtts, we conclude that

a reasonable jury could find that Kurtts experienced a materially adverse action as

defined by the Supreme Court in Burlington. A jury crediting Kurtts’s account

could find that Kurtts complained about the harassment, was immediately told that

it was uncertain whether any action would be taken, and that she should instead

consider taking her last paycheck. A reasonable jury could conclude that CSG’s

response “might deter a reasonable employee” from lodging a complaint about

harassment. Crawford, 529 F.3d at 974.

      The district court’s grant of summary judgment rested on its view that

Kurtts cannot show that there was an adverse action on the part of CSG. CSG

urges us to affirm the district court’s decision solely on that ground. Because we

                                         12
agree with Kurtts that there is a genuine issue of fact, we reverse the grant of

summary judgment on this claim.

                               IV. State-Law Claims

      In her complaint, Kurtts asserted a number of claims under Alabama law:

assault and battery; invasion of privacy; outrage; and negligent and/or wanton

hiring, supervision, training, and retention. The district court granted summary

judgment in favor of CSG with respect to all of these claims.

              A. Assault and battery, invasion of privacy, and outrage

      CSG does not argue on appeal, and failed to argue in the district court, that

the evidence is insufficient to support the finding that Morgan committed these

intentional torts. Rather, CSG asserts that the evidence does not provide an

adequate basis to hold it vicariously liable for Morgan’s conduct.

      Alabama law provides that an employer can be held vicariously liable for

the intentional torts of its agent if (1) the agent’s wrongful acts were in the line

and scope of his employment; (2) the acts were in furtherance of the employer’s

business; or (3) the employer participated in, authorized, or ratified the wrongful

acts. Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992); see also E.

Ala. Behavioral Med., P.C. v. Chancey, 883 So. 2d 162, 166, 169 (Ala. 2003).

Kurtts only contends that CSG ratified Morgan’s conduct.

                                           13
      To prove that an employer ratified the wrongful acts of an employee, a

plaintiff must show that the employer

      (1) had actual knowledge of the tortious conduct of the offending
      employee and that the tortious conduct was directed at and visited upon
      the complaining employee; (2) that based on this knowledge, the
      employer knew, or should have known, that such conduct constituted
      sexual harassment . . . ; and (3) that the employer failed to take
      ‘adequate’ steps to remedy the situation.

Potts, 604 So. 2d at 400. If the steps taken by the employer are not “reasonably

calculated to halt the harassment, the steps taken by the employer are not

‘adequate.’” Id. at 401.

      When the proffered evidence is viewed in the light most favorable to Kurtts,

it supports the finding that each of these elements are present. First, there is

evidence that Kurtts told Oviedo about Morgan’s conduct, which was directed at

Kurtts, and that, as a result, CSG acquired knowledge of Morgan’s behavior.

Second, there is evidence that CSG knew or should have known that such conduct

constituted sexual harassment. Finally, there is evidence that CSG failed to take

adequate steps in response. As noted above, a reasonable jury could find that CSG

conveyed to Kurtts that no meaningful action would be taken in response to her

complaint and that instead she should take her last paycheck. A reasonable jury

could find that these did not constitute “‘adequate’ steps to remedy the situation.”



                                          14
Id. at 400. Thus, material questions of fact remain and summary judgment as to

Kurtts’s claims of intentional torts must be reversed.

      B. Negligent and/or wanton hiring, supervision, training, and retention

      The district court also granted summary judgment in favor of CSG with

respect to Kurtts’s claims of negligent and/or wanton hiring, supervision, training,

and retention. It did so on the ground that CSG could not be held liable with

respect to Kurtts’s claims of intentional torts. In other words, the district court

assumed that if CSG could not be held vicariously liable for the intentional torts of

Morgan, it also could not be held directly liable under claims of negligent and/or

wanton hiring, supervision, training, or retention for Morgan’s conduct. On

appeal, both Kurtts and CSG accept this assumption, asserting that all of the state-

law claims rise and fall together.

      We observe that if we were to accept this theory, our disposition of Kurtts’s

claims of intentional torts would require us to reverse the grant of summary

judgment as to Kurtts’s claims of negligent and/or wanton hiring, supervision,

training, and retention. We note, however, that the theory adopted by the district

court and by the parties does not accurately reflect Alabama law. The Alabama

Supreme Court has held that if there is not enough evidence to support a finding of

vicarious liability, an employer may nonetheless be held directly liable for the

                                          15
wrongful act of an employee under a theory of negligent and/or wanton hiring,

supervision, training, or retention. CP & B Enters., Inc. v. Mellert, 762 So. 2d

356, 362 (Ala. 2000). This holding recognizes the basic distinction between direct

liability and vicarious liability.

       The line of cases upon which the parties and the district court rely concern

the separate situation where there is insufficient evidence to support the finding

that the alleged tortfeasor-employee committed a tort. In such cases, the Alabama

Supreme Court has explained that an employer may not be held directly liable on a

theory of negligent supervision or training because no tort occurred. Jones

Express, Inc. v. Jackson, ___ So. 3d ___, 2010 WL 3724744, at *5 (Ala. 2010)

(per curiam). The situation here is different. As we have observed, CSG has not

argued that there is insufficient evidence for a jury to find that Morgan committed

the torts of assault and battery, invasion of privacy, or outrage. Thus, the line of

cases upon which the parties and the district court have relied is inapposite.

       In sum, we conclude that the grant of summary judgment for CSG must be

reversed and the case remanded for further proceedings consistent with this

opinion.

       REVERSED AND REMANDED.




                                          16
ANDERSON, concurring:

      With one observation, I concur in the per curiam opinion. My reading of

the record reveals that there is little or no evidence that Kurtts’s decision to resign

was made before Oviedo asked if she wanted her final paycheck. In any event,

there clearly are genuine issues of fact in that regard. A reasonable jury could find

that Oviedo’s question posed a Hobson’s choice and was not a reasonable

response to Kurtts’s complaint. Thus, I agree that there remain genuine issues of

fact as to whether CSG exercised reasonable care in responding to Kurtts’s

complaint.




                                          17
