               Case: 14-11791     Date Filed: 01/06/2015   Page: 1 of 13


                                                               [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-11791
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 1:11-cv-02310-RLV



JANICE STURDIVANT,

                                                                  Plaintiff-Appellant,


                                        versus


THE CITY OF ATLANTA,
CHIEF GEORGE TURNER,
in his individual capacity,
SGT. JOHN LUDWIG,

                                                               Defendants-Appellees,

MAYOR KASIM REED,
in his individual capacity, et al.,

                                                                           Defendants.
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                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________
                                (January 6, 2015)

Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff Janice Sturdivant appeals the district court’s grant of summary

judgment in favor of the City of Atlanta (“the City”) and Atlanta Police Chief

George Turner, in his individual capacity, on her employment discrimination

claims under Title VII and 42 U.S.C. § 1983. After review, we affirm.

                         I. FACTUAL BACKGROUND

A.    Claims on Appeal

      In the district court, Sturdivant voluntarily dismissed her race discrimination

claims, all of her claims against Mayor Kasim Reed and City Council President

Caesar Mitchell, her Title VII claims against Police Chief Turner and Sergeant

John Ludwig, and her § 1983 claims against Sergeant Ludwig and against Chief

Turner in his official capacity. In addition, on appeal, Sturdivant does not

challenge the district court’s entry of summary judgment in favor of the City of

Atlanta on her Title VII disparate treatment gender discrimination claim or the

district court’s decision to decline to exercise supplemental jurisdiction over her

state law claims against Sergeant Ludwig and to dismiss those state law claims

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without prejudice. Thus, these claims are abandoned. See Carmichael v. Kellogg,

Brown & Root Serv., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009).

      As a result, the only claims on appeal are Sturdivant’s Title VII hostile work

environment sexual harassment claim against the City of Atlanta and her § 1983

gender-based equal protection claim against the City of Atlanta and Chief Turner

in his individual capacity.

B.    Text Messages to Sturdivant

      Sturdivant works for the Atlanta Police Department’s (“APD”) human

resources department as the Assistant Commander of Human Resources and holds

the rank of sergeant. Sturdivant’s duties include overseeing payroll, drug

screening, and the grievance procedure, and also acting as the EEOC liaison

between APD and the City’s human resources department.

      Sometime in 2009, another APD officer, Sergeant Ludwig, began to send

text messages to Sturdivant’s city-issued cell phone that commented on her

physical appearance and asked about her private life. Sturdivant did not work or

socialize with Sergeant Ludwig and had met him only a couple of times through

work. Ludwig sent Sturdivant these text messages intermittently, every three to

four months, until June 2010. Sturdivant responded to Ludwig that he was being

disrespectful, but did not report his text messages to her superiors.




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      On June 9, 2010, Ludwig sent Sturdivant a series of text messages

commenting on her body, which she ignored. Later that evening, Ludwig sent her

a photograph of his erect penis, stating, “[T]his is what happens to me when I’m

thinking about you.” Sturdivant told Ludwig he had crossed the line and that she

would report him to the Office of Professional Standards (“OPS”).

C.    Sturdivant’s First Complaint

      The next morning, June 10, 2010, Sturdivant reported Ludwig’s text to her

work supervisor and another superior officer, who immediately called OPS. Two

days after receiving the photograph, on June 11, 2010, Sturdivant went to OPS and

filed a formal complaint. Ten minutes after giving her statement to OPS,

Sturdivant received a text message from Ludwig stating he “really blew it this

time” and indicating he knew she had made the complaint against him. Sturdivant

complained to OPS that her complaint had not been kept confidential.

D.    Text Messages Stop After Complaint

      A few days after Sturdivant’s OPS complaint, OPS interviewed Ludwig.

OPS told Ludwig to have no further contact with Sturdivant. Sturdivant admits

that she has received no further texts from Ludwig.

      After filing her OPS complaint, Sturdivant did see Ludwig three or four

times in the police headquarters building where she worked, but Ludwig never

approached her or spoke to her. About a week after Sturdivant’s OPS complaint,


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at a staff meeting, Ludwig laughed and smirked at Sturdivant, but did not say

anything to her. On another occasion about two weeks after her OPS complaint,

Sturdivant saw Ludwig standing in the hallway outside her office talking to his

superior officer.

E.    Formal Investigation and Discipline

      A few weeks after filing her OPS complaint, Sturdivant learned that OPS

had not yet begun a formal investigation and had not retrieved and preserved the

text messages and the photograph on her cell phone, even though OPS is supposed

to investigate sexual harassment complaints immediately. Sturdivant told OPS that

if it did not start the formal investigation by assigning her case a control number,

she would call an attorney.

      OPS started the formal investigation on July 1, 2010, about three weeks after

her OPS complaint was filed. During the interim, there were no further text

messages from Ludwig. Because she felt OPS was not taking her complaint

seriously, Sturdivant called Deputy Chief Shawn Jones. Deputy Chief Jones called

OPS to inquire about Sturdivant’s complaint, and OPS told him that “it’s just

[Sturdivant], she’ll get over it.”

      During the OPS investigation, Ludwig did not deny sending Sturdivant the

texts and photograph. In January 2011, disciplinary proceedings against Ludwig

began, but then were postponed so that OPS could interview additional witnesses.


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Disciplinary proceedings concluded in late March 2011, and Ludwig was found

guilty of failing to follow directives, namely, the City’s sexual harassment policy.

On April 7, 2011, almost ten months after Sturdivant filed her OPS complaint,

Ludwig was suspended for ten days and restricted from accessing the headquarters

building where Sturdivant worked without prior approval. Ludwig’s discipline

was in accordance with the City’s sexual harassment policy, which called for

disciplinary action ranging from a ten-day suspension to dismissal for an

employee’s first offense.

                                 II. DISCUSSION

A.    Title VII Claim of Hostile Work Environment Sexual Harassment

      The district court did not err in concluding that Sturdivant’s Title VII hostile

work environment claim was time-barred. Sturdivant did not file her EEOC charge

until April 19, 2011, more than 180 days after Ludwig’s June 2010 laughing and

smirking at Sturdivant, the last acts that could arguably be said to have contributed

to the alleged hostile work environment. See Wilkerson v. Grinnell Corp., 270

F.3d 1314, 1317 (11th Cir. 2001); 42 U.S.C. § 2000e-5(e)(1) (requiring an

employee in a non-deferral state such as Georgia to exhaust administrative

remedies by filing a charge of discrimination with the EEOC within 180 days of

the alleged unlawful employment practice); Nat’l R.R. Passenger Corp. v Morgan,

536 U.S. 101, 116-17, 122 S. Ct. 2061, 2074 (2002) (concluding that for hostile


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work environment claims, which involve the cumulative effect of many separate

acts, the charge is timely if “an act contributing to the claim occurs within the

filing period”).

       Sturdivant contends that her EEOC charge was timely because the APD’s

delayed and inept handling of her OPS complaint up to April 2011 were acts

contributing to the hostile work environment. The district court properly rejected

this argument based on McCann v. Tillman, 526 F.3d 1370 (11th Cir. 2008), in

which this Court concluded that claims that “complaints of discrimination were

subject to retaliation and not investigated” could not “be brought under a hostile

work environment claim that centers on ‘discriminatory intimidation, ridicule, and

insult,’” but rather “must be challenged as separate statutory discrimination and

retaliation claims.” McCann, 526 F.3d at 1378-79 (quoting in part Morgan, 536

U.S. at 116, 122 S. Ct. at 2074).

       In any event, assuming the EEOC charge was timely, summary judgment on

the merits was appropriate because Sturdivant failed to establish a prima facie

hostile work environment claim. 1 To establish a prima facie case, the plaintiff

must show, among other things, that the employer is responsible for the hostile



       1
        We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the party opposing the motion. Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party is entitled to judgment as a matter
of law. Id.; Fed. R. Civ. P. 56(a).
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work environment “under either a theory of vicarious or of direct liability.”

McCann, 526 F.3d at 1378 (quotation marks omitted). Where, as here, the harasser

is a coworker, rather than a supervisor, the employer is responsible for the conduct

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).

      It is undisputed that Sturdivant’s supervisors at APD knew nothing of

Ludwig’s behavior until Sturdivant reported it on June 10, 2010, at which point

they referred Sturdivant to OPS to file a formal complaint. Further, once

Sturdivant reported Ludwig’s text messages to OPS, OPS told Ludwig to have no

further communication with Sturdivant, and Ludwig complied. Ludwig was

disciplined according to the City’s sexual harassment policy. Ludwig also was

instructed not to go in the building where Sturdivant worked without prior

authorization. Most importantly, Ludwig admitted sending the text messages, and

the text messages stopped immediately after her formal complaint.

      Sturdivant stresses that the City’s investigation and disciplinary proceedings

took about ten months to complete and contends that OPS deliberately dragged out

the investigation and disciplinary proceedings and intentionally failed to preserve

Ludwig’s text messages. Sturdivant did not produce any evidence to support her

contention, however. Further, APD officials involved in the OPS investigation


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testified that attempts were made as early as June 14, 2010, to obtain Ludwig’s text

messages from Verizon once OPS realized Sturdivant’s cell phone had

automatically deleted them and that the disciplinary proceedings were suspended

while OPS conducted interviews of additional witnesses who could support

Sturdivant’s complaint. Given these undisputed facts, no reasonable jury could

conclude that the City was responsible for Ludwig’s conduct.

B      Section 1983 Equal Protection Claim

       The district court also did not err in granting summary judgment to the City

and Chief Turner on Sturdivant’s gender-based equal protection claim. 2 The

gravamen of Sturdivant’s equal protection claim is that the City and Chief Turner

were deliberately indifferent to a practice at APD of discouraging female

employees from filing formal sexual harassment complaints and failing to

promptly investigate and resolve female employees’ sexual harassment complaints.

       As there is no respondeat superior theory of liability under § 1983, to hold

an individual supervisor liable, the plaintiff must show either that the supervisor

personally participated in the constitutional deprivation or that there was a causal

connection between the supervisor’s actions and the constitutional deprivation.

Crawford v. Carroll, 529 F.3d 961, 978 (11th Cir. 2008). Sturdivant does not

       2
         Because the factual basis for Sturdivant’s § 1983 equal protection claim is the same as
her Title VII hostile work environment claim, the elements of her § 1983 claim mirror the
elements of her Title VII claim. See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008);
Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985).
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contend Chief Turner personally participated in the deprivation of her

constitutional rights, but tries to show a causal connection between Chief Turner’s

actions (or inactions) and the alleged constitutional deprivation. To demonstrate

the requisite causal connection, the plaintiff must show a “history of widespread

abuse” that would put the supervisor “on notice of the need to correct the alleged

deprivation.” Id. (quotation marks omitted). “[I]solated occurrences” are

insufficient; rather, the plaintiff must show widespread abuse that is “obvious

flagrant, rampant, and of continued duration.” Id. (quotation marks omitted).

      Similarly, to hold a municipality liable, the plaintiff must show that the

deprivation of rights was caused by a custom or policy of the municipality. Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2036 (1978). A

“custom” is a practice “so widespread as to have the force of law.” Bd of Cnty.

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 1388

(1997). Further, the plaintiff must show that the municipal action was taken with

“deliberate indifference to its known or obvious consequences.” Davis v. DeKalb

Cnty. Sch. Dist., 233 F.3d 1367, 1375-76 (11th Cir. 2000) (quotation marks

omitted).

      Here, it is undisputed that the City had a sexual harassment policy, that APD

provided Ludwig with sexual harassment training, and that APD had not received

any prior sexual harassment complaints involving Ludwig. Moreover, as soon as


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Sturdivant reported Ludwig’s text messages, her superiors contacted OPS and told

Sturdivant to file a formal complaint. After the OPS investigation, Ludwig was

suspended for ten days, in accordance with the City’s sexual harassment policy.

As already noted, while the investigation and disciplinary process took about ten

months, Sturdivant did not present any evidence that these delays were deliberate

or based on her gender.

      Additionally, Sturdivant did not provide any evidentiary support for her

claim that there was a custom or practice at APD of encouraging female officers to

resolve sexual harassment complaints informally and of dragging out

investigations of female officers’ formal sexual harassment complaints, while

promptly resolving those of male officers. Sturdivant’s conclusory assertions in

her declaration that such a custom or practice existed and that Chief Turner knew

of it are not facts simply because Sturdivant avers that they are based on her “29

years with APD.” Sturdivant’s declaration did not provide any supporting facts

from which a jury could reasonably conclude that the purported custom or practice

was so widespread and obvious that the City and Chief Turner could be said to be

on notice of it. See Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.

1985) (“This court has consistently held that conclusory allegations without

specific supporting facts have no probative value.”).




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      Sturdivant argues, without explanation, that her duties as the EEOC liaison

gave her personal knowledge of these matters, but her declaration does not make

this claim and the record does not support it. In fact, in her deposition, Sturdivant

testified that her duties did not involve sexual harassment complaints, which are

handled exclusively by OPS, a department in which she has never worked.

      Indeed, Sturdivant further testified that, as a supervisor, she received only

one complaint of sexual harassment from a direct report, a female officer named

Cassandra Pruitt, and that Sturdivant and Deputy Chief Shawn Jones (a male)

together contacted OPS and then transported Pruitt to OPS to file a formal

complaint. On another occasion, Sturdivant gave a statement in an OPS

investigation into a sexual harassment complaint filed by a female recruit at the

police academy. In other words, as to Sturdivant’s only personal experiences with

other female officers’ sexual harassment complaints, Sturdivant did not claim the

female officers were discouraged from filing a formal complaint or that their

complaints were not properly investigated. On this record, Sturdivant’s conclusory

statements about a custom or practice in handling male and female officers’ sexual

harassment complaints and Chief Turner’s awareness of it do not appear to be

based on Sturdivant’s personal knowledge and carry no probative value.

      For all these reasons, we affirm the district court’s order granting summary

judgment to the City and Chief Turner.


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AFFIRMED.




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