                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________                   FILED
                                                      U.S. COURT OF APPEALS
                            No. 05-15069                ELEVENTH CIRCUIT
                                                            AUG 30, 2006
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                   D. C. Docket No. 04-00448-CV-BH

CORA ARMSTRONG,
SADIE SIMS,
KINNIE SIMPSON,

                                                         Plaintiffs-Appellants,

                                 versus

STANDARD FURNITURE,
THOMAS CASKEY,
EDDIE DENSON,

                                                       Defendants-Appellees.

                      ________________________

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

                           (August 30, 2006)

Before TJOFLAT, ANDERSON and CARNES, Circuit Judges.

PER CURIAM:
      Appellants, Cora Armstrong, Sadie Sims, and Kinnie Simpson, challenge the

district court’s grant of summary judgment to Appellee Standard Furniture on their

Title VII claims for hostile work environment. They also appeal the district court’s

grant of summary judgment to Appellees Standard Furniture, Thomas Caskey, and

Eddie Denson on plaintiffs’ Alabama tort law claims. For the reasons set forth

below, we affirm the district court on the Title VII claim and the tort law claims

against Standard Furniture. We also affirm the district court’s grant of summary

judgment to Caskey on all tort law claims. We affirm the grant of summary

judgment to Denson on the plaintiffs’ claims of outrage. However, we reverse the

district court’s grant of summary judgment to Denson with respect to Armstrong’s

and Sims’s invasion of privacy claims and Armstrong’s assault-and-battery claim.

                                          I.

      The district court concluded that none of the plaintiffs could establish the

existence of a hostile work environment. We need not decide this issue, because,

even assuming arguendo that Standard Furniture was a hostile work environment,

the plaintiffs will not prevail. When a plaintiff has established a hostile work

environment based on a supervisor’s actions, the defendant employer can put forth

an affirmative defense to avoid liability. To prevail on its affirmative defense,

Standard Furniture must demonstrate: “(a) that it took reasonable steps both to

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prevent sexual harassment and to remedy the sexually harassing conduct promptly

once it was brought to the employer’s attention, and (b) that the victimized

employee unreasonably failed to avoid harm or utilize any remedial opportunities

made available by the employer.” Dees v. Johnson Controls World Servs., Inc., 168

F.3d 417, 422 (11th Cir. 1999).

      The first prong of the test looks to whether the employer took reasonable

steps to prevent sexual harassment. Usually, although not necessarily, the employer

will show that it had an established anti-harassment policy. The parties do not

dispute that Standard Furniture had an anti-harassment policy. However, the

existence of a sexual harassment policy does not automatically satisfy an

employer’s burden. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314

(11th Cir. 2001); Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct.

2275, 2293, 141 L.E.2d 662 (denying an employer the affirmative defense where it

had entirely failed to disseminate its anti-harassment policy among its employees).

Standard Furniture also must prove that the policy was effectively published, that it

contained reasonable complaint procedures, and that it contained no other fatal

defect. Frederick, 246 F.3d at 1314. This Circuit has required an employer’s policy

to permit employees to bypass harassing supervisors. See Walton v. Johnson &

Johnson Servs., Inc., 347 F.3d 1272, 1287 (11th Cir. 2003); Madray v. Publix

                                          3
Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir. 2000).

      All three plaintiffs admit that they had received copies of Standard

Furniture’s anti-harassment policy and knew how to report harassment. All the

plaintiffs attended EEO/Anti-Harassment classes on more than one occasion.

Nonetheless, they failed to avail themselves of Standard Furniture’s anti-

harassment policy. When the plaintiffs finally did report harassment, the

harassment ceased, which suggests a functioning anti-harassment policy.

      A. Sadie Sims.

      In July of 2003, Sims complained to her supervisor, Derrick Bishop about

harassment by Thomas Caskey. Bishop reported the charge to Josh Rudd, the

Human Resources Manager. Rudd then spoke to Sims about Caskey. Sims never

mentioned any harassment by Denson to Rudd. Sims acknowledged that she had no

problems with Caskey or Denson after her conversation with Rudd. Sims claims

that she did not report Denson’s harassment because she did not trust Rudd because

he allowed Denson to continue working despite allegations of harassment in a

previous lawsuit. Rudd, however, investigated Sims’s claims against Caskey and

she admits that all harassment ceased after his investigation. Therefore, Sims has

presented no evidence that creates an issue of material fact as to whether Standard

Furniture’s harassment policy was ineffective. Her failure to report harassment

                                         4
under the policy was unreasonable.

      B. Cora Armstrong.

      Armstrong never initiated contact with Rudd about harassment. Rather, Rudd

contacted her in July, 2003 when he was investigating Sadie Sims’s claims against

Caskey. Armstrong complained to Rudd about harassment by Caskey. Armstrong

admits that Caskey did not harass her after that time. Later, in May 2004, Rudd

asked Armstrong how things were going. Armstrong told Rudd that another

employee had told Armstrong that Denson had licked his lips suggestively while

looking at Armstrong. Armstrong did not complain to Rudd about any other aspect

of Denson’s behavior, although she now claims that his harassment of her was

extreme. Rudd followed up on the complaint about Denson by asking the other

employee, Simpson, about the incident in which Denson licked his lips. Simpson

reported that Denson had licked his lips because they were dry and that she saw no

sexual conduct in the act.

      Armstrong never complained to Rudd, or any other supervisor at Standard

Furniture, about Denson’s harassment. Armstrong claims that she did not report

Denson’s harassment because she believed her employment would be terminated

for complaining. However, Armstrong has pointed to no evidence to support this

belief. She has pointed to no other employee who suffered an adverse employment

                                         5
action for reporting harassment. She asserts that Denson had the power to fire her,

but offers no evidence that she would be fired if she reported Denson’s behavior to

Rudd. This Circuit has held that “absent a credible threat of retaliation . . . [the

employee’s] subjective fears of reprisal do not excuse her failure to report [her

supervisor’s] alleged harassment.” Walton v. Johnson & Johnson Servs., Inc., 347

F.3d 1272, 1290-91 (11th Cir. 2003).

      C. Kinnie Simpson.

      Simpson has not claimed that she was harassed by anyone at Standard

Furniture. Rather, she claims to be a “witness” to support Armstrong’s claims of

harassment. Therefore, her Title VII claim fails. Moreover, even assuming

arguendo a hostile work environment, Simpson failed to take advantage of

Standard Furniture’s anti-harassment policy. She never complained to anyone

about harassment directed at her. Further, the evidence establishes that her failure

to report harassment was unreasonable. Rudd investigated all complaints made by

the other plaintiffs and they agree that harassment ceased after their complaints.

Simpson has pointed to nothing that would excuse her duty to report harassment

under Standard Furniture’s policy.

                                           II.

      The plaintiffs allege a variety of Alabama tort claims against Caskey,

                                            6
Denson, and Standard Furniture. We affirm the district court’s grant of summary

judgment to Standard Furniture and Caskey on all claims. We affirm the grant of

summary judgment to Denson with respect to the plaintiffs’ claims for outrage.1 We

reverse the grant of summary judgment with respect to Armstrong’s and Sims’s

invasion of privacy claims against Denson, and Armstrong’s claim for assault-and-

battery.

       A. Invasion of Privacy

       Plaintiffs Armstrong and Sims assert a claim for invasion of privacy against

Denson, Caskey, and Standard Furniture. Under Alabama law, there are four

wrongs that can constitute invasion of privacy: “(1) the intrusion upon the

plaintiff’s physical solitude or seclusion; (2) publicity which violates the ordinary

decencies; (3) putting the plaintiff in a false but not necessarily defamatory position

in the public eye; and (4) the appropriation of some element of the plaintiff’s

personality for a commercial use.” Phillips v. Smalley Maintenance Servs., Inc.,

435 So.2d 705, 708 (Ala. 1983). Sims and Armstrong assert that the defendants

intruded upon their physical solitude.

       The district court held that Denson and Caskey did not intrude upon the



       1
          We conclude that none of the plaintiffs can establish that Denson or Caskey is liable for
the tort of outrage. Therefore, Standard Furniture also is not liable for outrage.

                                                 7
plaintiffs’ solitude because they did not seek information about the plaintiffs’

personal lives. However, the Alabama Supreme Court has held that severe sexual

harassment can be an invasion of privacy. See Busby v. Truswal Sys. Corp., 551

So. 2d 322, 324 (Ala. 1989). Accepting Armstrong’s and Sims’s deposition

testimony as true, a jury could find that Denson invaded the plaintiffs’ privacy.

According to Armstrong, Denson regularly (1) made sexual comments in the

workplace; (2) stated “daily” that he wanted to have sex with Armstrong; (3)

groped Armstrong while she was working; and (4) regularly inquired whether

Armstrong was menstruating because he wanted some “cat.” Sims testified that

Denson would (1) constantly talk about sex; (2) regularly brush up against her; (3)

comment about her legs; and (4) come up to Sims “licking his tongue out” at her. A

jury could find that Denson intruded upon Armstrong’s and Sims’s sex lives in an

offensive manner and, therefore, invaded their right to privacy.

      The plaintiffs, however, have not made out a case for invasion of privacy

against Caskey. Armstrong testified that Caskey: (1) once stated that he would

handcuff her to a bed; and (2) once commented on her underwear when it was

visible. Sims testified that Caskey: (1) asked Sims out after work; (2) asked Sims to

give him Spanish lessons; and (3) asked Sims to join a church volleyball team.

These claims do not rise to the level of an invasion of privacy.

                                          8
      The plaintiffs also have not shown that Standard Furniture could be held

liable for Denson’s conduct. Under Alabama law, an employer is liable for the

intentional torts of its employees only if “(1) the employee’s acts are committed in

furtherance of the business of the employer; (2) the employee’s acts are within the

line and scope of his employment; or (3) the employer participated in, authorized,

or ratified the tortious acts.” Ex Parte Atmore Community Hosp. v. Hayes, 719

So.2d 1190, 1194 (Ala. 1998). Plaintiffs argue that Standard Furniture ratified

Denson’s conduct. An employer ratifies conduct when the employer “(1) had actual

knowledge of the tortious conduct of the offending employee and the tortious

conduct was directed at and visited upon the complaining employee; (2) that based

upon his knowledge, the employer knew or should have known that such conduct

constituted sexual harassment and/or a continuing tort; and (3) that the employer

failed to take ‘adequate’ steps to remedy the situation.” Potts v. BE & K Constr.

Co., 604 So.2d 398, 400 (Ala. 1992).

      For the reasons we explained in our discussion of the Title VII claims, we

hold that Standard Furniture did not ratify any harassing conduct. Standard

Furniture had no knowledge of harassment by Denson. Once informed of the

charges against Caskey, Standard Furniture investigated the situation and all

harassment ceased. See Ex Parte Atmore Community Hosp., 719 So. 2d at 1195

                                          9
(“[W]here the specific tortious conducts stops after corrective action by the

employer, this Court has held that the corrective action is adequate as a matter of

law.”). Standard Furniture had a functioning, publicized anti-harassment policy of

which plaintiffs were aware. Plaintiffs failed to avail themselves of that policy and,

consequently, Standard Furniture is not liable for the alleged harassment by

Denson or Caskey.2

       B. Assault-and-Battery

       Armstrong asserts that Denson has committed assault-and-battery because

Denson groped her in the workplace in an unwelcome manner. In an assault-and-

battery action a plaintiff must prove “(1) that the defendant touched the plaintiff;

(2) that the defendant intended to touch the plaintiff; and (3) that the touching was

conducted in a harmful or offensive manner.” Harper v. Winston County, 892

So.2d 346, 353 (Ala. 2004). Armstrong testified that Denson groped her at work,

and that she considered this touching to be unwelcome. Although there is

contradictory evidence in the record, on summary judgment we will not make

credibility determinations. Accordingly, Armstrong has created an issue of material

fact as to whether Denson committed assault-and-battery.



       2
        For the same reasons, we conclude that the plaintiffs have failed to establish that
Standard Furniture is liable for negligent supervision or retention.

                                                10
       However, for the same reasons discussed with respect to invasion of privacy,

we conclude that there is no basis for holding Standard Furniture liable for

Denson’s conduct. Armstrong failed to report Denson’s conduct, and Standard

Furniture had no other notice. Accordingly, we affirm the grant of summary

judgment to Standard Furniture on Armstrong’s claim for assault-and-battery.

       Therefore, Armstrong and Sims may proceed with their invasion of privacy

claims against Denson personally. Armstrong also may proceed with her assault-

and-battery claim against Denson personally. The district court’s summary

judgment order is affirmed as to all other claims. For the foregoing reasons, the

district court’s order is

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.3




       3
           Appellants’ request for oral argument is denied.

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