                    Case: 11-16121         Date Filed: 01/18/2013   Page: 1 of 5

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 11-16121
                                         Non-Argument Calendar
                                       ________________________

                                 D.C. Docket No. 0:11-cv-60723-JEM


ANTHONY B. WHITE,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellant,

ROBERT P. BISSONNETTE,

llllllllllllllllllllllllllllllllllllllll                                             Plaintiff,

                                                 versus

CREATIVE HAIRDRESSERS INC.,
a Virginia Corporation,
d.b.a. The Hair Cuttery,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellee,

CHRISTINE L. WILSON, et al.,

llllllllllllllllllllllllllllllllllllllll                                           Defendants.
                                       ________________________

                            Appeal from the United States District Court
                                for the Southern District of Florida
                                  ________________________
                                        (January 18, 2013)
              Case: 11-16121     Date Filed: 01/18/2013    Page: 2 of 5

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Anthony White, a male, appeals from the district court’s grant of summary

judgment in favor of his former employer in his sexual harassment suit under Title

VII and the Florida Civil Rights Act. White alleged that Creative Hairdressers,

Inc., d/b/a The Hair Cuttery (“Hair Cuttery”), was liable for allowing his former

manager at a Hair Cuttery salon to sexually harass him. The district court granted

summary judgment to the defendant, finding that there were no genuine issues of

material fact that Hair Cuttery exercised reasonable care to prevent and correctly

promptly any sexually harassing behavior, and that White unreasonably failed to

take advantage of preventive or corrective opportunities or to avoid harm. On

appeal, White argues that the district court: (1) abused its discretion in excluding

one of his coworkers, Jared Stallings, as a witness; (2) abused its discretion in

denying him leave to amend his response to the summary judgment motion;

(3) erred in granting summary judgment; and (4) improperly shifted the burden of

proof to establish a defense from Hair Cuttery to him.

                                          I.

      We review a district court’s exclusion of a witness not disclosed in a pretrial

witness list for abuse of discretion. Bearint ex rel. v. Dorell Juvenile Group, Inc.,

389 F.3d 1339, 1353 (11th Cir. 2004). We consider “(1) the importance of the


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testimony; (2) the reason for the appellant’s failure to disclose the witness earlier;

and (3) the prejudice to the opposing party if the witness had been allowed to

testify.” Id. To affirm a district court’s ruling excluding a witness, all three factors

need not weigh in favor of exclusion. See id. (affirming the exclusion of a witness,

“[r]egardless of the importance of [his] testimony,” when the reasons for the delay

in disclosure and consequent prejudice to the other party supported his exclusion).

Id.

      In this case, the record reflects that the district court made individualized

rulings on the admissibility of each witness and, based thereupon, we cannot say

that the reasons given by the district court for the exclusion of Stallings’ testimony,

including the Plaintiff’s lack of diligence in identifying him as a witness,

constituted an abuse of discretion.



                                          II.

      “A district court’s decision to grant or deny leave to amend is reviewed for

abuse of discretion.” Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th

Cir. 1994) (citation omitted) (reviewing a district court’s grant of leave to amend

an answer to include an additional affirmative defense). “District courts have

broad discretion to grant or deny leave to amend[,]” and “[i]n the absence of undue




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delay, bad faith, dilatory motive, or undue prejudice, leave to amend is routinely

granted.” Id. at 1405.

       Here, White timely filed a response brief, and only sought to amend his

response to cite to deposition transcripts that he had not obtained when he filed his

response due to his own delay. Thus, the district court did not abuse its discretion

in denying White leave to amend his response brief, nor did the court abuse its

discretion in denying White’s alternative motion for leave to file a surreply.

                                              III.

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

substantive law as the district court. Durr v. Shinseki, 638 F.3d 1342, 1346 (11th

Cir. 2011). Summary judgment is proper where there is no genuine dispute as to

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

Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007);

Fed.R.Civ.P. 56(a).

       Even if an employee establishes a prima facie case of sexual harassment, an

employer can avoid liability under the Faragher/Ellerth 1 defense if the employer

shows (1) that it 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

1
 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998);
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

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employer, or to otherwise avoid harm. Frederick v. Sprint/United Mgmt., 246 F.3d

1305, 1313 (11th Cir. 2001). Both elements must be satisfied for the employer to

avoid liability, and the employer bears the burden of proof on both elements. Id.

      Here, the district court did not reversibly err in finding that the

Faragher/Ellerth defense applied and that summary judgment in favor of Hair

Cuttery was warranted on White’s claims under Title VII and the FCRA. In light

of the undisputed evidence as to Hair Cuttery’s promulgation and dissemination of

sexual harassment policies and complaint procedures, the district court properly

found that there were no genuine issues of material fact that Hair Cuttery

adequately disseminated its policies. The court also properly found that White

failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and

complaint procedures by not promptly notifying the company of his harassment.

      Finally, White has not shown that the district court improperly shifted the

burden of proof as to the summary judgment motion, and the record supports the

court’s grant of summary judgment for Hair Cuttery.

      AFFIRMED.




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