Anthony B. White v. Creative Hairdressers Inc.

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[DO NOT PUBLISH]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)
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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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