Pamerla C. Quick v. City of Birmingham

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 25, 2009
No. 08-14972 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00500-CV-2-SLB
PAMERLA C. QUICK,
Plaintiff-Appellant,
versus
BIRMINGHAM, CITY OF,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(September 25, 2009)
Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Pamerla C. Quick appeals the denial of her motion for a new trial
in her sex discrimination suit brought against the City of Birmingham, Alabama
(the City), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2. The jury found that Quick, a firefighter with the Birmingham Fire and
Rescue Service, was sexually harassed on the job, but that she had failed to prove
that the environment of harassment “was created or permitted” by a supervisor.
Quick argues on appeal that the jury’s latter finding was against the great weight of
the evidence and that, therefore, the district court abused its discretion when it
denied her a new trial.
We review the denial of a motion for a new trial for abuse of discretion.
Bianchi v. Roadway Express, Inc., 441 F.3d 1278, 1282 (11th Cir. 2006). The
district court should grant a new trial only if “the verdict is against the clear weight
of the evidence . . . or will result in a miscarriage of justice.” Hewitt v. B.F.
Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984) (alteration in original)
(internal quotation marks omitted). “[N]ew trials should not be granted on
evidentiary grounds unless, at a minimum, the verdict is against the great—not
merely the greater—weight of the evidence.” Id. (internal quotation marks
omitted). Where conflicting testimony is presented and the jury is called upon to
make credibility determinations and to weigh the evidence, we will uphold the
verdict as long as there is some support for the jury’s decision. See Rosenfield v.
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Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), forbids
sex-based harassment of an employee. Miller v. Kenworth of Dothan, Inc., 277
F.3d 1269, 1275 (11th Cir. 2002). An employer may be held vicariously liable for
workplace harassment under any of three different theories. See id. at 1278. First,
when a supervisor with immediate or successively higher authority over the
employee engages in harassment that includes an adverse employment action, the
employer is held strictly liable. Id. Second, when such a supervisor engages in
harassment that does not include an adverse employment action, the employer is
held vicariously liable unless it is able to prove the “Faragher/Ellerth 1 affirmative
defense.” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir.
2001). Finally, when the perpetrator of the harassment is a coworker rather than a
supervisor, the employer is only held vicariously liable if it had actual knowledge
of the harassment, or constructive knowledge due to the severity and pervasiveness
of the harassment, and failed to take prompt remedial action. Miller, 277 F.3d at
1278. The plaintiff bears the burden of proving the employer’s liability. See id. at
1275.
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Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998);
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998).
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Here, the record demonstrates that the City presented testimony
contradicting Quick’s allegations that her supervisors made gender-biased
comments and that they made job assignments based on her sex. It also presented
testimony that it investigated her complaints of harassment by coworkers as it
became aware of them. The jury was free to weigh the evidence and make
credibility determinations in concluding whether the City adequately responded to
incidents of coworker harassment and whether the supervisors’ conduct
contributed to the environment of sexual harassment.
Furthermore, although the City did not contest Quick’s testimony that one
supervisor saw her as a troublemaker and it conceded that there were no dedicated
restrooms or locker rooms for women as there were for men, it presented evidence
that the stations had been built years before the City began to hire female
firefighters and that it gave the women access to private showers and bathrooms.
The jury was not obligated to find persuasive Quick’s characterizations of the
supervisor’s attitude as gender-biased or of the bathroom policy as fostering the
incidents in which coworkers harassed her in the restroom and changing area.
Because the record provides some support for the jury’s decision, the verdict
is not against the great weight of the evidence and the district court did not abuse
its discretion in denying Quick’s motion for a new trial. For these reasons, we
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affirm the judgment entered on the jury’s verdict and the district court’s order
denying Quick’s motion for a new trial.
AFFIRMED.
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