            Case: 17-11919   Date Filed: 06/25/2018   Page: 1 of 9


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT



                               No. 17-11919



                   D.C. Docket No. 1:11-cv-04365-ODE

FELICIA A. WILCOX,

                                                           Plaintiff - Appellant,

                                   versus

CORRECTIONS CORPORATION OF AMERICA,
a.k.a. McRae Correctional Facility,

                                                          Defendant - Appellee.



                Appeal from the United States District Court
                   for the Northern District of Georgia



                              (June 25, 2018)

Before TJOFLAT, ROSENBAUM, and BRANCH, Circuit Judges.

BRANCH, Circuit Judge:
                Case: 17-11919        Date Filed: 06/25/2018     Page: 2 of 9


       Felecia1 Wilcox sued her employer, Corrections Corporation of America, for

sexual harassment resulting in a hostile work environment under Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e et seq. At trial, she testified that she had

complained to the company that her coworker had sexually harassed her, but the

company failed to take prompt remedial action. The jury found in Wilcox’s favor

and awarded damages, but the district court later granted judgment as a matter of

law for the company. Wilcox appeals and argues that the jury was entitled to find

that the company failed to act promptly on her complaints. Because we disagree,

we affirm.

                                 I.      BACKGROUND

       In reviewing a judgment as a matter of law, we consider the facts in the light

most favorable to Wilcox. See Bogle v. Orange Cty. Bd. of Cty. Comm’rs, 162

F.3d 653, 656 (11th Cir. 1998). Wilcox worked as a corrections officer at McRae

Correctional Facility, a federal prison operated by Corrections Corporation of

America. On July 10, 2009, Wilcox’s coworker2 Larry Jackson slapped her on the

buttocks twice. Wilcox filed a formal complaint with the company that same day.

The company told Jackson not to associate with Wilcox or be anywhere around

her.
1
  This appeal is captioned as “Felicia A. Wilcox” because her counsel have spelled her name that
way in court documents, but we note that Wilcox spells her own name “Felecia.”
2
  Wilcox does not challenge on appeal the district court’s ruling that Jackson was her coworker,
not her supervisor.

                                               2
                   Case: 17-11919       Date Filed: 06/25/2018       Page: 3 of 9


          In the days following Wilcox’s complaint and the company’s admonition not

to associate with Wilcox, Jackson repeatedly rolled his eyes at Wilcox and once

punched a metal machine in her presence to intimidate her. On July 23, Wilcox

submitted a second complaint in which she reiterated that Jackson had hit her

buttocks on July 10, adding that she was afraid he would touch her again, that this

was not the first time that he had touched her, and that he had told her he could

touch her if he wanted to. Wilcox concedes, however, that Jackson never touched

her or made any inappropriate comments to her after her July 10 complaint.

          The company brought in an outside investigator to look into these and other

complaints against Jackson. On August 27, the investigator interviewed Wilcox,

who told her about two additional times before July 10 that Jackson had sexually

harassed her. On one occasion, Jackson squeezed her thigh and stated that he could

touch her “juicy, fat thighs” if he wanted. On the other occasion, Jackson made a

sexually explicit remark. On September 9, the investigator submitted her report

finding that Jackson had sexually harassed Wilcox and other coworkers. On

September 14, the company fired Jackson.

          Wilcox later filed a charge of discrimination with the Equal Employment

Opportunity Commission,3 and she filed this lawsuit against the company under

Title VII. The district court granted the company’s motion for summary judgment

3
    It is undisputed that Wilcox received notice of her right to sue from the EEOC.

                                                  3
                Case: 17-11919      Date Filed: 06/25/2018      Page: 4 of 9


on Wilcox’s sexual harassment claim, but we reversed because a triable issue of

fact existed about whether the harassment was severe or pervasive. 4 Wilcox v.

Corr. Corp. of Am., 603 F. App’x 862, 865–66 (11th Cir. 2015). On remand, a jury

trial was held. The jury returned a verdict for Wilcox of $4,000 in actual damages

and $100,000 in punitive damages. The company then renewed its motion for

judgment as a matter of law, which the district court granted, finding that the

company’s prompt remedial action in response to Wilcox’s complaints barred

liability as a matter of law. Wilcox again appeals.

                           II.    STANDARD OF REVIEW

       We review a district court’s grant of judgment as a matter of law de novo.

Bogle, 162 F.3d at 656. We view the evidence and draw all reasonable inferences

in Wilcox’s favor, id., and we may affirm only if we conclude that “a reasonable

jury would not have a legally sufficient evidentiary basis” to find for her, Fed. R.

Civ. P. 50(a)(1).

                                   III.   DISCUSSION

       To prevail in a suit against her employer for a fellow employee’s sexual

harassment that resulted in a hostile work environment, a plaintiff must prove five

elements:

4
 Our prior decision emphasized that Wilcox alleged that Jackson had hugged her on a daily basis
over a period of months. Wilcox, 603 F. App’x at 865.

                                              4
                Case: 17-11919        Date Filed: 06/25/2018       Page: 5 of 9


       (1) The employee belongs to a protected group;

       (2) the employee was subject to unwelcome sexual harassment;

       (3) the harassment complained of was based upon sex;

       (4) the harassment complained of was “sufficiently severe or
           pervasive to alter the terms and conditions of employment”; 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). With respect to the fifth element, the employer can be responsible for the

harassing conduct under a theory of either vicarious liability or direct liability.

Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). When, as

here, the perpetrator of the harassment is not the plaintiff’s supervisor, the

employer will be held directly liable only if it knew or should have known of the

harassing conduct but failed to take prompt remedial action. Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Only the fifth element is at

issue in this appeal.5 Wilcox argues that the company should have known about

Jackson’s extensive harassment and that it failed to act promptly and appropriately.

We address the company’s knowledge and action in turn.




5
  The fourth element, the severe or pervasive nature of the harassment, was a basis for our
decision in Wilcox’s earlier appeal, 603 F. App’x at 865, but it was waived in this appeal when
Wilcox failed to address it in her initial brief. See United States v. Levy, 379 F.3d 1241, 1244
(11th Cir. 2004) (we refuse to consider issues raised for the first time in an appellant’s reply
brief).

                                                5
               Case: 17-11919   Date Filed: 06/25/2018   Page: 6 of 9


                                A.     Knowledge

        An employee can demonstrate that an employer knew about the harassment

by showing that she complained to management about it. Henson v. City of

Dundee, 682 F.2d 897, 905 (11th Cir. 1982). The parties agree that the company

had actual knowledge on July 10—the date of Wilcox’s first complaint—that

Jackson had slapped Wilcox’s buttocks, and on September 9—the date of the

investigator’s report—that Jackson had sexually harassed Wilcox on two earlier

occasions.

        An employee can also show that the company should have known about

harassment that was so pervasive as to create an inference of constructive

knowledge. Id. Wilcox argues that the company should have known about

additional harassment: Jackson’s practice of inappropriately hugging her and other

female employees, and Jackson’s intimidating looks and gestures after she

complained about him. We disagree. Wilcox testified that she never reported the

hugging, and the other evidence of hugging in the record does not support the

inference that the hugging was widespread or that others considered it offensive.

Wilcox also never reported Jackson’s intimidating conduct to the company, and the

record contains no evidence that the company should have known about it at the

time.



                                         6
              Case: 17-11919     Date Filed: 06/25/2018   Page: 7 of 9


      Furthermore, an employer is insulated from sexual-harassment liability

based on constructive knowledge “when the employer has adopted an anti-

discrimination policy that is comprehensive, well-known to employees, vigorously

enforced, and provides alternate avenues of redress.” Farley v. Am. Cast Iron Pipe

Co., 115 F.3d 1548, 1554 (11th Cir. 1997). The parties agree that the company had

a comprehensive anti-discrimination policy that was well-known to Wilcox, but

Wilcox disputes how vigorously it was enforced in her case. We cannot conclude

that the company’s policy was not enforced here. Wilcox filed a complaint in

accordance with the policy’s procedures, and as a result, Jackson was admonished,

investigated, and terminated. With such a policy in place, the company cannot be

liable for Jackson’s harassment under a theory of constructive knowledge.

                                   B.     Action

      To avoid liability for an employee’s harassment, an employer must take

prompt remedial action upon learning about the harassment. Henson, 682 F.2d at

905. Because that action “must be ‘reasonably likely to prevent the misconduct

from recurring,’” Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754

(11th Cir. 1996) (quoting Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th

Cir. 1990)), we look to the effectiveness of the company’s action in preventing the

recurrence of the harassment it knew about. Here, the company’s action was

effective, and a reasonable jury would not have a legally sufficient evidentiary

                                          7
              Case: 17-11919     Date Filed: 06/25/2018    Page: 8 of 9


basis to find otherwise. Jackson never again touched Wilcox after her July 10

complaint, notwithstanding her fear that he would do so.

      The remaining issue, then, is whether the company’s action was sufficiently

prompt. Our cases have not established a bright-line rule for promptness, but we

have held, for example, that an employer acted promptly enough when it agreed to

fire the harasser if the victim complained about him again, and eventually did so.

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988).

Here, the company ordered Jackson not to be around Wilcox immediately after her

first complaint, and it fired Jackson two weeks after the investigator interviewed

Wilcox and learned of her other complaints against him. Wilcox argues that six

weeks between her first complaint and the investigator’s interview was too long,

but we disagree. It is undisputed that there were a lot of moving parts in the

company’s investigation, and each of those workings took time. Both of Wilcox’s

written complaints had to be examined internally and then referred out to the

company’s ethics office. Several other allegations against Jackson arose from other

employees and had to be investigated. Another investigator had to be brought in

from out of state, and she had to interview sixteen employees. Considering this

entire succession of activity that culminated in Jackson’s termination, we conclude

that the evidence could not allow the jury to find that the company failed to act

promptly.

                                          8
              Case: 17-11919     Date Filed: 06/25/2018   Page: 9 of 9


                               IV.   CONCLUSION

      Because the company took prompt remedial action against Jackson, no

reasonable jury could have found the company liable for his sexual harassment of

Wilcox. The judgment of the district court is AFFIRMED.




                                         9
