                                                             [PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT
                   ________________________          FILED
                                            U.S. COURT OF APPEALS
                         No. 09-11540         ELEVENTH CIRCUIT
                   ________________________       MAY 07, 2010
                                                   JOHN LEY
                                                     CLERK
                D. C. Docket No. 06-14324-CV-JEM

MELANIE BECKFORD,
CHARLENE FONTNEAU,
TITA DE LA CRUZ,
LEE WASCHER,
LINDA JONES, et al.,


                                                    Plaintiffs-Appellees,

                              versus

DEPARTMENT OF CORRECTIONS,

                                                   Defendant-Appellant.

                       ____________________

                            No. 09-14903
                       _____________________

                D. C. Docket No. 06-14324-CV-JEM

MELANIE BECKFORD,
CHARLENE FONTNEAU,
TITA DE LA CRUZ,
LEE WASCHER,
LINDA JONES, et al.,
                                                    Plaintiffs-Appellees,
                                           versus

DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA,

                                                                    Defendants-Appellants.

                              ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________

                                       (May 7, 2010)

Before PRYOR and FAY, Circuit Judges, and QUIST,* District Judge.

PRYOR, Circuit Judge:

       This appeal presents the question whether the Florida Department of

Corrections can be liable, under Title VII of the Civil Rights Act of 1964, for

failing to remedy a sexually hostile work environment that male inmates created

for female employees at Martin Correctional Institution. See 42 U.S.C.

§ 2000e–2(a)(1). Melanie Beckford and 13 other women, all former non-security

employees at Martin, complained that the Department failed to remedy sexually

offensive conduct of inmates, including the frequent use of gender-specific abusive

language and pervasive “gunning,” the notorious practice of inmates openly



       *
       Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.

                                               2
masturbating toward female staff. At trial, a jury heard evidence of this

harassment, considered the ability of the Department to mitigate the misconduct,

and held the Department liable. On appeal, the Department presents four

arguments: (1) the Department, as a matter of law, cannot be liable under Title VII

unless its staff actively encouraged or participated in the harassment; (2) the female

employees failed to prove that the inmates’ harassment was because of sex; (3) the

district court should have instructed the jury about the affirmative defense

recognized in Faragher v. City of Boca Raton, 524 U.S. 775, 807–08, 118 S. Ct.

2275, 2292–93 (1998); and (4) the district court should have severed the

employees’ claims under Federal Rule of Civil Procedure 42(b). We conclude that

the jury was entitled to find the Department liable under Title VII because it

unreasonably failed to remedy the sexual harassment by its inmates. We also reject

the other arguments of the Department and affirm.

                                I. BACKGROUND

      Beckford and the 13 other former employees worked at Martin between

1999 and 2002. Beckford, Susan Black, Tita De la Cruz, Charlene Fontneau,

Linda Jones, Paula LaCroix, Joyce Meyer, Donna Pixley, Vesna Poirier, Michelle

Pollock, Lourdes Silvagnoli, and Lee Wascher worked as nurses; Sushma Parekh

worked as a physician; and Janet Smith worked as a classification officer. Each of



                                          3
the female employees worked in the “close management” housing dorms at Martin.

The nurses entered the close management dorms each day to pass medication to

inmates, answer sick calls, and respond to medical emergencies. The other former

employees entered the close management dorms at least several times each week to

perform similar duties or to discuss administrative matters with inmates.

      According to James Upchurch, the director of security operations for the

Department, the close management dorms house inmates who “have demonstrated

by their behavior and the pattern of their behavior that they can’t be left in the

general population because they pose too great a threat” to other inmates and staff.

Martin houses close management inmates in several separate dorms. Each dorm

comprises four quads, which contain individual inmate cells. Each single cell

contains a bunk, sink, and toilet and has a solid door with a glass window. Each

cell door contains a slot through which prison staff pass medication and food.

Each close management dorm also contains a glass control room or bubble that sits

in the middle of the dorm and provides staff a view of the quads. From the

bubbles, staff can view each cell in a dorm.

      While the women were employed at Martin, the close management inmates

abused staff, especially female staff. David Harris, who served as assistant warden

at Martin during the 1990s, testified that close management “inmates would throw



                                           4
urine, throw feces on [male security] staff.” Sergeant Brian McDew, who worked

as a corrections officer at Martin during the same period, testified that this behavior

toward male staff did not happen “very often, but it happen[ed].” According to the

testimony of the female employees, the inmates reacted especially poorly to the

presence of female staff in the close management dorms. When the inmates saw

female employees approaching one of the close management dorms, the inmates

called the employees names—including cunt, whore, slut, and bitch—through the

exterior cell windows and explained, in graphic detail, the sexual liberties that the

inmates would take with the employees, if given the opportunity.

         The inmates often instructed each other to “lock and load” when they saw

female staff approaching one of the dorms. The inmates’ phrase “lock and load”

referred to the most notorious conduct to which they exposed the female staff:

gunning. That conduct involved exposing themselves and masturbating directly at

staff.

         The female employees testified to similar experiences. They testified that

inmates gunned them from the inmates’ cells while the female employees were

waiting in the close management dorm bubbles before working in the quads. To

harass the women waiting in the bubbles, the inmates would stand, a nurse

testified, “at their windows, hanging off the door jambs, standing on the toilets, on



                                            5
rolled up mattresses” so that the female employees could see the inmates gunning

through the cell windows. The inmates often would ejaculate on the cell windows

and through the food slot or flap on the cell door, sometimes when female staff

were standing at the door. The inmates masturbated when the female employees

were completing paperwork in the dorms, and when the women saw inmates in the

isolation room in the medical building.

      The inmates also gunned the female employees when the women responded

to medical emergencies in the close management dorms. Nurse Poirier testified

that “99.9 percent of the time the emergencies were bogus. It was just for me to

get down there for [the inmates] to have the entertainment for the evening.” Nurse

Fontneau explained that the inmates faked emergencies and they “call[ed] because

it was like hiring a call girl or a whore.” Nurse Pixley recalled an incident in

which a male nurse responded to an emergency in a close management dorm. She

testified that the male nurse “was back within five minutes because . . . the inmate

cussed him out and said that he didn’t need medical. . . . [The inmate] asked him

where is the female nurse.”

      Each of the female employees testified about her own humiliating

experiences with gunning. Nurse Meyer, for example, recalled being abandoned

by a male security employee, Lieutenant Ferguson, while she was delivering



                                           6
medication in a close management dorm. When Nurse Meyer was alone, “the

inmates in the quad all started to scream and bang on the doors.” “[T]hey were

hanging onto the door frames above the door and they were on their toilet and they

were all masturbating.” Nurse Meyer estimated that “it was probably 15 inmates

that they were ejaculating and everything on the windows.” Lieutenant Ferguson

“totally ignored” Nurse Meyer’s calls for help, and when she confronted him later

about the episode, he said, “‘[Y]ou were looking for it. I saw you, you were

looking for it. You were asking for it.’” Nurse Meyer was scheduled to leave the

Department at the end of that day, but she quit on the spot.

      Gunning was a frequent phenomenon. At trial, the female employees

estimated that when they were in the close management dorms, virtually “every

one of” the inmates gunned. Nurse Beckford testified that the inmates used a

“team effort” for gunning the female employees, and Nurse Jones described the

inmates’ behavior as a “chain reaction.” The employees also presented evidence

that virtually all the inmates participated in the misconduct and the inmates gunned

only female staff, not the all-male security staff.

      The female employees attempted to limit their exposure to inmate gunning.

The employees tried to place screens in front of the windows of the isolation rooms

and suggested papering cell door windows, but security personnel did not permit



                                            7
those measures. The employees also suggested two-way mirrors for the nursing

stations, but management rejected that idea as too expensive. The employees

suggested that inmates be brought to the medical building so that the employees

would not have to visit the dorms or that inmates be brought to a separate room in

the close management dorms, but prison officials determined that staff shortages

prevented these measures. The employees also suggested the use of pink uniforms

to shame repeat gunners. Some of the employees wore baggy clothes; neck towels

to disguise sweat, which inmates enjoyed seeing; sunglasses to avoid eye contact

with inmates; and headphones to avoid the verbal harassment. It is unclear how

successful these last measures were, as they sometimes generated additional

harassment.

      The female employees complained to prison management, including the

warden, about the conduct of the inmates. The employees testified that they filed

disciplinary reports regarding inmate harassment, including gunning. Several

female employees testified that management ordinarily ignored these complaints.

Captain Wiles, for example, once informed a complaining nurse that the inmates

were in “their living room and they could do whatever they wanted.” Male

employees encouraged the female employees to accept the gunning “as a

compliment.” Other female employees testified that prison officials sometimes



                                         8
punished inmates in response to the employees’ complaints of harassment. The

female employees also presented evidence that management discouraged the

nursing staff from filing disciplinary reports. In a formal memorandum circulated

to the staff, Dr. David Thomas, the director of health services, explained that “it is

far more appropriate for correctional officers and non-health services employees to

do discipline reports and other forms of punishment.”

      The Department maintained a sexual harassment policy, but the female

employees testified that they understood the policy to cover only harassment by

other employees and outside vendors who transacted with the Department, not

inmates. At trial, the Equal Employment Opportunity investigator for the

Department, Debbie Dawson, agreed that the policy, as explained to the female

employees, did not cover harassment by inmates. Dawson also testified that, if the

policy had covered harassment by inmates, the employees had fully satisfied the

reporting requirements of the policy by complaining to prison management, the

Florida Commission on Human Relations, and the Equal Employment Opportunity

Commission.

      Eventually, the warden met with several female employees to discuss the

harassment. After the meeting, the Department adopted a new “three minute rule,”

which permitted employees to refuse service to an inmate who gunned the



                                           9
employees for more than three minutes. A nurse testified that, after the adoption of

the new rule, the gunning “got worse because the inmates knew they had three

minutes and they used to say ‘you can’t refuse me, you got to wait.’” Another

employee testified that the rule led the inmates to believe that “[t]hey ran the

facilities.”

       In 2001, the former employees in this appeal and others sued the Department

in a Florida court. The female employees alleged that the Department violated

state law by creating a hostile work environment and successfully sought class

certification. In March 2006, the employees amended their complaint to add a

claim under Title VII.

       The Department removed the case to the Northern District of Florida, which

later decertified the class and transferred the claims before us to the Southern

District of Florida. Before trial, the Department moved to sever the employees’

claims under either Federal Rule of Civil Procedure 21 or Rule 42(b), but the

district court denied that motion. The district court weighed the prejudice of a

single trial against the costs of severance and ruled that joinder of the claims was

warranted.

       At trial, the Department asked the district court to instruct the jury on its

Faragher affirmative defense, but the district court refused. The district court



                                           10
explained that “the Faragher defense seems to me to be much more involved with

supervisors and supervision and this is not that.” The district court instructed the

jury to determine, “by looking at all the circumstances,” whether the plaintiffs

proved, by a preponderance of the evidence, that the employment environment at

Martin was “hostile or abusive.” The district court further explained that “[i]f you

determine that a particular plaintiff was in fact subject to a hostile or abusive work

environment, you must then determine whether her employer created or permitted

that hostile and abusive work environment.” The district court explained that the

“Department of Corrections created or permitted a hostile or abusive work

environment only if the department . . . failed to take corrective action reasonabl[y]

calculated to address the inmate misconduct.” When determining whether the

corrective action was reasonable, the jury was instructed to consider “the

Department of Corrections’ ability to stop or mitigate the misconduct.” The

district court required the jury to answer a special interogatory for each verdict that

asked whether the employees proved that the “defendant failed to exercise

reasonable care to prevent and correct promptly any sexually harassing behavior in

the workplace.” The jury returned a verdict against the Department and awarded

each employee $45,000 in damages.

      The Department moved for judgment notwithstanding the verdict and,



                                           11
alternatively, for a new trial. The Department argued that it could not be liable for

harassment by inmates unless Department employees encouraged or participated in

the conduct and that the female employees had not proved employee

encouragement or participation. The Department also argued that none of the

harassment by inmates was based on sex and that the Department was entitled to

judgment as a matter of law on the Faragher defense. The Department again

contended that the district court should have instructed the jury on the Faragher

defense. The district court denied the motion.

                          II. STANDARDS OF REVIEW

      Three standards of review govern this appeal. We review de novo the

decision to deny the Department judgment as a matter of law. Ross v. Rhodes

Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998). We will render judgment

for the Department if “there is no legally sufficient evidentiary basis for a

reasonable jury to find for” the plaintiff employees. Cleveland v. Home Shopping

Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004); see also Fed. R. Civ. P. 50.

“We review a district court’s refusal to give a particular jury instruction for abuse

of discretion.” United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir. 2003)

(internal quotation marks omitted). The failure of a district court to give an

appropriate instruction is reversible error where the “requested instruction (1) was



                                           12
correct; (2) was not substantially covered by the charge actually given; and (3)

dealt with some point in the trial so important that failure to give the requested

instruction seriously impaired the defendant’s ability to conduct his defense.” Id.

at 1222–23 (internal quotation marks omitted). “[W]e disturb a district court’s

decision not to order separate trials only upon a showing of abuse of discretion.”

Alexander v. Fulton County, 207 F.3d 1303, 1325 (11th Cir. 2000).

                                 III. DISCUSSION

      We divide our discussion in four parts. First, we explain that the jury was

entitled to find the Department liable for a hostile work environment because the

Department unreasonably failed to remedy the harassment. Second, we explain

that the jury was entitled to find that the harassment of female staff by inmates was

based on sex. Third, we explain that the Department was not entitled to have the

jury instructed about the Faragher defense. Fourth, we explain that the district

court did not abuse its discretion when it refused to sever the individual

employees’ claims under Rule 42(b).

      A. The Department Can Be Liable for Sexual Harassment by Inmates.

      The Department argues that, as a matter of law, a prison cannot be held

liable for sexual harassment by its inmates unless its employees participate in or

encourage the harassment. Although the Department acknowledges that ordinarily



                                          13
employers can be held liable for unreasonably failing to remedy harassment of

employees by third parties, the Department argues that “[p]rison officials should be

treated different from other employers.” We disagree.

      It is well established that employers may be liable for failing to remedy the

harassment of employees by third parties who create a hostile work environment.

In Watson v. Blue Circle, Inc., we held that an “employer may be found liable for

the harassing conduct of its customers if the employer fails to take immediate and

appropriate corrective action in response to a hostile work environment of which

the employer knew or reasonably should have known.” 324 F.3d 1252, 1258 n.2

(11th Cir. 2003). Uniformly, our sister circuits have applied the same rule that

employers may be held liable under Title VII for harassment by third parties when

that conduct creates a hostile work environment. See, e.g., Erickson v. Wis. Dep’t

of Corr., 469 F.3d 600, 605 (7th Cir. 2006); Galdamez v. Potter, 415 F.3d 1015,

1022 (9th Cir. 2005); Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th

Cir. 2001); Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Slayton v.

Ohio Dep’t of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000); Lockard v. Pizza

Hut, Inc., 162 F.3d 1062, 1073–74 (10th Cir. 1998); Rodriguez-Hernandez v.

Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998); Crist v. Focus Homes, Inc., 122

F.3d 1107, 1108 (8th Cir. 1997); see also Noah D. Zatz, Managing the Macaw:



                                         14
Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory

Intent, 109 Colum. L. Rev. 1357, 1372–73 (2009).

      In defense of that rule, Judge Easterbrook wrote, “Because liability is direct

rather than derivative, it makes no difference whether the person whose acts are

complained of is an employee, an independent contractor, or for that matter a

customer. Ability to ‘control’ the actor plays no role.” Dunn v. Wash. County

Hosp., 429 F.3d 689, 691 (7th Cir. 2005). Judge Easterbrook explained that

employees are not pawns whose conduct uniquely subjects an employer to liability

for their harassment of another employee while the employer is absolved of any

liability for the conduct of third-party harassers: “Employees are not puppets on

strings; employers have an arsenal of incentives and sanctions (including

discharge) that can be applied to affect conduct. It is the use [of] (or failure to use)

these options that makes an employer responsible—and in this respect [third

parties] are no different from employees. ” Id. To illustrate this point, Judge

Easterbrook famously used the colorful analogy of managing a macaw:

      Indeed, it makes no difference whether the actor is human. Suppose a
      patient kept a macaw in his room, that the bird bit and scratched
      women but not men, and that the Hospital did nothing. The Hospital
      would be responsible for the decision to expose women to the
      working conditions affected by the macaw, even though the bird (a)
      was not an employee, and (b) could not be controlled by reasoning or
      sanctions. It would be the Hospital’s responsibility to protect its
      female employees by excluding the offending bird from its premises.

                                        15
Id. A prison certainly has a larger arsenal of incentives and sanctions that would

allow it to manage more rational beings like inmates than a hospital would have at

its disposal to manage a macaw.

      We refuse the invitation of the Department to treat inmates differently from

other third-party harassers and prisons differently from other employers under Title

VII. Several of our sister circuits have refused this invitation too and permitted

liability for sexual harassment by inmates. See Erickson, 469 F.3d at 605–06;

Freitag v. Ayers, 468 F.3d 528, 538–39 (9th Cir. 2006); Weston, 251 F.3d at 427;

Slayton, 206 F.3d at 677; see also Garrett v. Dep’t of Corr., 589 F. Supp. 2d 1289,

1297–98 (M.D. Fla. 2007). Like them, we reject the notion that “prisons are

uniquely exempt from liability for sexual harassment under Title VII.” Freitag,

468 F.3d at 539. We agree that “[n]othing in the law suggests that prison officials

may ignore sexually hostile conduct and refrain from taking corrective actions that

would safeguard the rights of the victims, whether they be [employees] or

inmates.” Id.

      Contrary to the argument of the Department, Bell v. Wolfish, 441 U.S. 520,

99 S. Ct. 1861 (1979), and similar precedents do not require that we exempt

prisons from the requirements of Title VII. These authorities instead reconcile the

competing demands of officials to maintain control of prisons and respect the

                                          16
constitutional rights of prisoners and pretrial detainees. Id. at 547–48, 99 S. Ct. at

1878–79. Bell and similar precedents about the deference owed to prison officials

in their control of inmates do not exempt prison officials from liability under Title

VII when the source of harassment or discrimination of employees is inmates.

      Our general rule of reasonableness regarding employer liability for third-

party harassment under Title VII adequately respects the difficulties that prison

officials encounter in controlling inmate conduct. Title VII does not require, on

the one hand, that prisons prevent all manner of harassment at all cost and without

regard to important penological interests. We recognize that there are practical and

constitutional limits on what prisons can do to protect staff. Prisons cannot, for

example, eject unruly inmates like businesses can eject rude customers. Cf. Dunn,

429 F.3d at 691. The Eighth Amendment also limits the sanctions that prisons can

impose on abusive inmates, probably even inmates who create a sexually hostile

work environment for prison employees. Cf. Ricci v. DeStefano, 557 U.S. - - , 129

S. Ct. 2658, 2682 (2009) (Scalia, J., concurring). Although some harassment by

inmates cannot be reasonably avoided, the Department, on the other hand, cannot

refuse to adopt reasonable measures to curtail harassment by inmates.

      The district court correctly applied the standard of reasonableness that

governs employers under Title VII. The district court instructed the jury that “[i]f



                                           17
you determine that a particular plaintiff was in fact subject to a hostile or abusive

work environment, you must then determine whether her employer created or

permitted that hostile and abusive work environment.” The district court explained

that the “Department of Corrections created or permitted a hostile or abusive work

environment only if the department . . . failed to take corrective action reasonabl[y]

calculated to address the inmate misconduct.” The district court instructed that, in

considering whether the corrective action was reasonable, the jury should consider

“the Department of Corrections’ ability to stop or mitigate the misconduct.” The

district court also required the jury to answer a special interrogatory for each

verdict that asked whether “the defendant failed to exercise reasonable care to

prevent and correct promptly any sexually harassing behavior in the workplace.”

      At oral argument, the Department conceded that sufficient evidence entitled

the jury to find that the Department unreasonably failed to remedy the harassment

by the inmates, and we agree. A reasonable jury could have found that prison

officials should have enforced the inmate dress policy, which required inmates to

wear pants when female staff were in the close management dorms. According to

an expert who testified at trial, enforcing this rule would have “discourage[d] th[e]

gunning masturbation.” A reasonable jury also could have found that security

personnel should have accompanied female staff while they were in the close



                                           18
management dorms. A reasonable jury could have found that the Department

should have required security officers to write disciplinary reports or permitted the

female staff to report the misconduct of inmates. See Freitag, 468 F.3d at 541;

Garrett, 589 F. Supp. 2d at 1292. Moreover, a reasonable jury could have found

that prison administrators should have permitted the nurses to use screens at cell

windows and in the bubble to prevent harassment. Freitag, 468 F.3d at 540–41;

Garrett, 589 F. Supp. 2d at 1292–93. A reasonable jury also could have found that

the prison should have treated masturbation toward female staff as the Department

treated abuse of the all-male security staff and referred the incidents for outside

prosecution. Freitag, 468 F.3d at 541 & n.6. A reasonable jury also could have

found that the Department should have adopted a specific anti-gunning policy. Id.

at 541; Garrett, 589 F. Supp. 2d at 1298.

      The Department could reasonably have done any or all of these things to

protect the employees at Martin. The Department instead sought a blanket

exemption from an established requirement of Title VII. That strategy was

misguided.

        B. The Harassment of Employees by Inmates Was Based on Sex.

      Our recent en banc opinion in Reeves v. C.H. Robinson Worldwide, Inc.,

forecloses the alternative argument of the Department that no reasonable jury could



                                            19
have found that the conduct of the inmates was based on sex. 594 F.3d 798 (11th

Cir. 2010) (en banc). The Department contends that the “inmates in close

management confinement [were] equal opportunity harassers” and that the women

“chose to work in a correctional facility that houses close management inmates

[and] made a choice to work in an environment with the ‘worst of the worst,’” but

these arguments fail. That the close management inmates are typically crude and

even obscene does not mean that their harassment was indiscriminate. Id. at 810.

The employees presented evidence that the inmates called them cunts, whores,

bitches, and sluts, and we have ruled that these gender-specific and highly

offensive epithets evidence sex-based harassment under Title VII. Id. The female

employees also presented evidence that the inmates gunned only female staff,

Garrett, 589 F. Supp. 2d at 1292 n.3, and, not surprisingly, our sister circuits agree

that exhibitionist masturbation, especially gunning, is sex based and highly

offensive conduct. See, e.g., Freitag, 468 F.3d at 540; see also Garrett, 589 F.

Supp. 2d at 1298–99.

      Title VII required the Department to adopt reasonable remedial measures to

protect its female employees from the sexually hostile environment that the

inmates created. The jury was entitled to find that the Department made almost no

effort to protect its employees from this sex-based harassment. This record entitled



                                          20
the jury to find the Department liable under Title VII.

     C. The District Court Did Not Err in Rejecting the Faragher Instruction.

      The Department argues that the district court should have instructed the jury

about the affirmative defense that the Supreme Court articulated in Faragher, 524

U.S. at 807–08, 118 S. Ct. at 2292–93. According to the Department, the district

court should have instructed the jury that it could return a verdict in favor of the

Department if the jury found, by a preponderance of the evidence, that the

Department exercised reasonable care to prevent or promptly correct any sexual

harassment and the employees unreasonably failed to take advantage of any

preventive or corrective opportunities provided. This argument fails for two

reasons.

      We agree with the district court that the Faragher defense was not available

to the Department. By its own terms, the Faragher defense is available to

employers who defend against complaints of “an actionable hostile environment

created by a supervisor with immediate (or successively higher) authority over the

[plaintiff] employee.” Id. at 807, 118 S. Ct. at 2293 (emphasis added). When, as

here, employees complain of harassment by someone other than a supervisor, the

Faragher defense does not apply. “One standard exists for harassment by

supervisors and another for harassment by coworkers” and third parties. Erickson,



                                           21
469 F.3d at 604. The district court did not abuse its discretion when it instructed

the jury consistent with our precedent, see Miller v. Kenworth of Dothan, Inc., 277

F.3d 1269, 1278 (11th Cir. 2002); see also Dunn, 429 F.3d at 691, and refused to

give the instruction that the Department requested.

      Alternatively, the refusal of the district court to instruct the jury about the

Faragher defense did not prejudice the Department. If it had received its requested

instruction, the Department could have avoided liability if it had proved, by a

preponderance of the evidence, that it had taken reasonable preventive or

corrective measures to address the harassment by the inmates, see Faragher, 524

U.S. at 807, 118 S. Ct. at 2293, but we know that the jury would not have found for

the Department on that issue. The jury answered “yes” to special interrogatories

that asked whether the Department “failed to exercise reasonable care to prevent

and correct promptly any sexually harassing behavior in the workplace.” The

“affirmative answer[s] to the[se] . . . interrogator[ies] indicat[e], without doubt,”

how the jury would have found on a necessary element of the Faragher defense,

and render any error in refusing the instruction of the Department harmless. Bogle

v. McClure, 332 F.3d 1347, 1357–58 (11th Cir. 2003).

 D. The District Court Did Not Abuse Its Discretion When It Refused to Sever the
                     Employees’ Claims Under Rule 42(b).

      The Department concedes that Rule 20(a) permitted the district court to join

                                           22
the individual employees’ claims, but argues that the district court should have

severed the claims under Rule 42(b) and ordered separate trials “to avoid

prejudice” to the Department. See Fed. R. Civ. P. 42(b). The Department

contends that it “suffered prejudice by the large number of claims, the sheer

volume of information, and the inflammatory nature of the allegations.” The

Department recognizes the “practical burdens that could result from conducting

fourteen separate trials as opposed to a single large trial,” but maintains that “such

burdens, if they manifest, cannot take precedence over the administration of justice

and the right of the [Department] to a fair trial.”

      At least four considerations persuade us that, on “the peculiar facts and

circumstances of [this] case,” the district court did not abuse its discretion.

Alexander, 207 F.3d at 1325. First, this litigation involved 14 plaintiffs, and we

have affirmed refusals to sever that involved more plaintiffs. See id. (affirming

refusal to sever in employment discrimination action involving 18 plaintiffs).

Second, “in this case the potential for prejudice was minimized because of the core

similarities” in the female employees’ claims. Id. Each employee sought to prove

that inmates repeatedly gunned and verbally abused female employees, the

Department knew of this gunning and harassment, the Department reasonably

could have prevented or remedied this behavior, and the Department did not



                                           23
respond to the harassment in ways that it reasonably could have. The defense of

the Department, as it was explained to the district court and presented at trial, did

not differ from claim to claim. Third, the district court was understandably

concerned about delaying this litigation, which had been wending its way through

state and federal court for more than five years, and “economy[ and] expedition”

are relevant considerations under Rule 42(b). Id. Fourth, the district court sensibly

considered that another district court had recently tried, successfully and in only

five days, a nearly identical set of actions involving 12 female prison employees.

The Department argues that “the volatile nature of the allegation[s] warranted

severance,” but severance would not have changed the highly incendiary nature of

the inmates’ conduct or the employees’ allegations. In the light of our precedents,

we cannot say that the district court abused its discretion in trying these claims

together.

                                IV. CONCLUSION

      The judgment of the district court is AFFIRMED.




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