     Case: 14-50087      Document: 00512932867         Page: 1    Date Filed: 02/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50087
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JAMEL BLANTON,                                                           February 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

NEWTON ASSOCIATES, INCORPORATED, also known as Richmond
Enterprises, Incorporated, doing business as Pizza Hut; RICHMOND
ENTERPRISES, INCORPORATED, also known as Pizza Hut of San Antonio,
Incorporated, also known as Pizza Hut of San Antonio Number 6,
Incorporated; PIZZA HUT OF SAN ANTONIO NUMBER 6,
INCORPORATED; NEWTON ASSOCIATES I, LIMITED, doing business as
Pizza Hut of San Antonio, Incorporated,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-1103


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM:*
       In this employment discrimination case, a jury found that Plaintiff-
Appellant Jamel Blanton was subjected to sexual and racial harassment by his


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-50087
female manager, but that his employer, a Pizza Hut store and its corporate
operator (collectively “Pizza Hut”), proved the Ellerth/Faragher affirmative
defense. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998). Blanton appeals,
arguing that he is entitled to judgment as a matter of law on the affirmative
defense or, in the alternative, to a new trial. We affirm.
                                       I.
      We review the denial of Blanton’s motion for judgment as a matter of law
de novo and view the evidence and all reasonable inferences in the light most
favorable to the verdict. McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir.
2009). We must uphold the jury verdict unless “a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party on that issue.”
Fed. R. Civ. P. 50(a)(1).
      In a harassment case, an employer is vicariously liable for a supervisor’s
severe or pervasive sexual or racial harassment of a subordinate. See, e.g.,
Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002). However, if the
supervisor’s harassment involves no adverse employment action, 1 an employer
can avoid vicarious liability by proving both elements of the Ellerth/Faragher
affirmative defense: (1) that the employer exercised reasonable care to prevent
and promptly correct harassing behavior; and (2) that the employee
unreasonably failed to take advantage of any preventative or corrective
opportunities provided by the employer, or to otherwise avoid harm. Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at 807; Wyatt, 297 F.3d at 409. Blanton
argues that there was legally insufficient evidence supporting the jury’s
finding on both elements of the affirmative defense.



      1On appeal, Blanton makes no assertion that he was subjected to an adverse
employment action.
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                                 No. 14-50087
      There is no question that Blanton was subjected to egregious verbal
sexual and racial harassment by the general manager of the Pizza Hut store
where he worked. On appeal, Blanton has pointed to some evidence that the
implementation of Pizza Hut’s anti-discrimination policy was inadequate.
Specifically, there is evidence showing that Pizza Hut did no training for any
employees or managers on its anti-discrimination policies, and that a shift
leader and an assistant manager who witnessed or were told about the
harassment did not report it to other managers at Pizza Hut, instead telling
Blanton that they feared retaliation if they did report it.
      However, the evidence also showed that Blanton alerted only low-level
supervisors about the harassment, who, like Blanton, were subordinate to the
general manager and had no authority over her, although Pizza Hut’s policy
clearly provided that in such a situation he should complain to the harasser’s
supervisor. Once Blanton did complain to a manager with authority over the
general manager, Pizza Hut completed an investigation and fired her within
four days.
      The fact that some low-level supervisors at Pizza Hut knew of the
harassment earlier may have created a “real question as to whether the
supervisors should have taken the first step towards prevention and correction
by reporting these incidents to the relevant” Pizza Hut managers, but it is not
sufficient to remove the ultimate question of the reasonableness of Pizza Hut’s
preventative and corrective measures from the province of the jury. Clark v.
United Parcel Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005) (noting that where
low-level supervisors may have responded inadequately, whether the employer
“exercised reasonable care is a question for a factfinder”).           Contrary to
Blanton’s assertion, Pizza Hut did not rely solely on the existence of its anti-
discrimination policy to meet its burden on the affirmative defense. We agree
with Blanton that “an employer’s showing that it has a sexual harassment
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                                  No. 14-50087
policy does not automatically satisfy its burden.” Frederick v. Sprint/United
Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001). Here, however, Pizza Hut
pointed to the clear, straightforward content of its anti-discrimination policy
and complaint procedures, which had been given to all employees in an
employee handbook, together with its prompt and effective response to
Blanton’s specific complaint and Blanton’s own delay in making a complaint in
accordance with its procedures. Clark and Frederick do not mandate judgment
as a matter of law in Blanton’s favor, but affirm that it is often for the jury to
assess the content and implementation of an employer’s anti-discrimination
policies and determine whether the employer has taken reasonable corrective
and preventative measures. See Clark, 400 F.3d at 350; Frederick, 246 F.3d at
1314-15; see also EEOC. v. Boh Bros. Const. Co., 731 F.3d 444, 462-66 (5th Cir.
2013) (en banc) (affirming jury verdict for plaintiff where jury could reasonably
have found deficiencies in the content, publication and implementation of
employer’s anti-harassment policy, and in its response to the plaintiff’s
harassment complaint).
      Based on the evidence, Blanton has not met the high burden to show that
no reasonable jury could have found that Pizza Hut exercised reasonable care
to prevent and correct the harassment and that he unreasonably failed to take
advantage of Pizza Hut’s corrective measures.
                                       II.
      With regard to Blanton’s motion for a new trial, the ruling of the district
court is affirmed for essentially the reasons given by the district court in its
January 14, 2014 Order denying Blanton’s post-trial motions.
                                       III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.


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