Braeonda Bell v. Liberty National Life Insurance Company, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11015
Non-Argument Calendar
____________________
BRAEONDA BELL,
Plaintiff-Appellant,
versus
LIBERTY NATIONAL LIFE INSURANCE COMPANY,
a corporation,
CLINT MCLAIN AGENCY, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-01335-ACA
____________________
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2 Opinion of the Court 22-11015
Before L UCK , L AGOA , and ANDERSON, Circuit Judges.
PER CURIAM:
Braeonda Bell appeals following the district court’s grant of
summary judgment for Liberty National Life Insurance (“Liberty
National”) and Clint McClain Agency, Inc. (“TCMA”) on her ra-
cially hostile work environment claim under the Civil Rights Act
of 1866, as amended, 42 U.S.C. § 1981. After careful review, we
affirm.
I.
Liberty National sells life insurance and supplemental health
insurance. To sell its products, Liberty National utilizes a “field
force” of independent contractors across the country. Clint
McLain operates TCMA, a corporation that leases office space and
owns office equipment that he and other Liberty National inde-
pendent agents may use. Liberty National did not have a legal re-
lationship with TCMA, but rather had an independent contract
with Clint McLain.
Bell, an African American female, was initially contacted by
Liberty National by email after she posted her resume on a job-
search website. She testified that Scott Pritchett, a white male, and
Phillip Nichols interviewed her for the position as an insurance
agent. At the time, she believed that Pritchett was her “immediate
supervisor.” Luke Gilliam, a senior vice president at Liberty Na-
tional, testified that Pritchett was an independent contractor. On
May 4, 2018, the same day as her “interview,” Bell entered into an
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22-11015 Opinion of the Court 3
Independent Agent Agreement (“Agreement”) with Liberty Na-
tional. The Agreement expressly stated that “the relationship in-
tended by this Contract between the Independent Agent and the
Company shall be that of an independent contractor only, and that
nothing contained herein shall be construed to create the relation-
ship of employer and employee.” The Agreement further stated
that the “Independent Agent shall not be considered an employee
of the Company for purposes of any federal or state law or regula-
tion.” Gilliam testified that he had visited the TCMA office twice.
Bell testified that she was an “independent contractor insur-
ance agent.” Liberty National did not set sales quotas for Bell but
did require her to produce one premium application every eight
weeks to keep her status as an independent agent. Liberty National
set no requirements as to how many hours a day Bell had to spend
selling insurance. During her time as an independent agent, Bell
earned between $1,500 and $2,000 in commission payments from
Liberty National. Bell testified that Pritchett approved her sale
leads and would sometimes deny her the opportunity to sell some-
body insurance if “he felt like it wasn’t worth [her] going or it
wasn’t enough money.”
She attended three days of job training that covered how to
get leads and sell Liberty National insurance. When Bell started
working, she would travel with Pritchett to people’s homes to train
on how to sell insurance. According to Bell, about two or three
weeks into driving around with him, Pritchett began saying racial
slurs around her, including the n-word, and making racial and
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4 Opinion of the Court 22-11015
sexually inappropriate jokes on a regular basis both in the car and
at the TCMA office.
Bell testified that she reported Pritchett to McClain about
four months after the inappropriate comments began. That was
the first time that Bell ever told anybody associated with Liberty
National or Clint McLain that Pritchett was behaving inappropri-
ately. After that meeting, Bell started working with someone else
and was never asked to work with Pritchett again. She testified
that she had to see him but did not have to talk to him. Bell testified
that after that meeting, Pritchett never harassed or said anything
inappropriate to her again. About a month later, Bell stopped sell-
ing insurance as an independent contractor with Liberty National.
Clint McLain testified that Bell declined an offer to report Pritchett
to Liberty National. For his part, Clint McLain stated that he was
shocked and surprised to hear about the sexual and racial harass-
ment.
In August 2019, Bell filed a complaint against Liberty Na-
tional and TCMA. In her amended complaint, she alleged sexual
harassment in violation of Title VII of the Civil Rights Act (Count
1); sexually hostile working environment in violation of Title VII
(Count 2); race discrimination in violation of Title VII and 42
U.S.C. § 1981 (Count 3); racially hostile working environment in
violation of Title VII and 42 U.S.C. § 1981 (Count 4); and state law
claims for intentional infliction of emotional distress, and negligent
and/or malicious retention, supervision, and training. (Count 5
and 6).
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22-11015 Opinion of the Court 5
On March 29, 2021, Liberty National and TCMA both filed
motions for summary judgment. On March 1, 2022, the district
court entered an order granting summary judgment for Liberty
National and TCMA on all of Bell’s federal claims and declined to
exercise supplemental jurisdiction over her state law claims.1 As to
her claims under § 1981 against Liberty National and TCMA, the
district court first explained that it would construe her claim for
race discrimination as one advancing a hostile work environment
theory of liability because she cited to cases examining hostile
work claims, stated that she was denied the right to work in an en-
vironment free of discrimination and racial slurs, and did not iden-
tify any discrete adverse employment action taken by either com-
pany. The district court then discussed the proper five-step frame-
work for these claims and noted that it could not located an Elev-
enth Circuit decision analyzing a § 1981 hostile work environment
claim brought by an independent contractor under that frame-
work.
Liberty National and TCMA only challenged the fourth and
fifth elements of Bell’s hostile work environment claim, which re-
quire Bell to show that her harassment was severe or pervasive
enough to alter the terms and conditions of her employment and
that Liberty National and TCMA were responsible for her work
1 Bell does not appeal the district court’s grant of summary judgment on her
claims of sexual harassment or sexually hostile work environment under Title
VII nor her claims of a racially hostile work environment under Title VII. She
also does not appeal the district court’s dismissal without prejudice of her
state-law claims.
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6 Opinion of the Court 22-11015
environment under a theory of either vicarious or direct liability,
respectively. Assuming that Bell created triable issues of fact as to
whether Pritchett’s racial harassment was severe and pervasive, the
district court concluded that her claim still failed because she could
not demonstrate liability for either Liberty National or TCMA.
Bell’s tangible employment action theory also failed because she
did not identify a tangible employment action that Pritchett, Lib-
erty National, or TCMA took because of the harassment.
Further, before determining other levels of liability, the dis-
trict court first asked whether Pritchett was a coworker or supervi-
sor of Bell. Noting that Bell failed to cite any record evidence that
Pritchett was a supervisor for TCMA or that Liberty National em-
powered Pritchett to approve of her sales leads, the district court
concluded that as a matter of law Pritchett was not Bell’s supervi-
sor. Because Pritchett was her coworker, the district court noted
that Liberty National and TCMA would be liable only if they knew
or should have known of the harassment in question and failed to
take prompt remedial action. As to TCMA, because Bell never had
to work with Pritchett and the harassment stopped after she re-
ported it to McClain, the district court concluded that there was no
triable issue of fact about whether TCMA took appropriate reme-
dial action once it knew of the harassment. As to Liberty National,
because the record contained no evidence that Liberty National
knew or should have known of Pritchett’s conduct and Bell de-
clined the invitation to report him to Liberty National, the district
court concluded that Bell did not establish a basis for holding Lib-
erty National liable for Pritchett’s racial harassment. Without
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22-11015 Opinion of the Court 7
liability for either Liberty National or TCMA, the district court de-
termined that her claims failed as a matter of law.
Bell timely appealed.
II.
We review the district court’s grant of summary judgment
de novo. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate if the movant shows that
there is no genuine dispute of material fact and the movant is enti-
tled to judgment as a matter of law. Id. at 1263–64. In determining
whether there is a genuine dispute of material fact to defeat a mo-
tion for summary judgment, the evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in her fa-
vor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). We may
affirm summary judgment on any ground supported by the record,
even if the district court relied on an incorrect ground or gave an
incorrect reason. Alvarez, 610 F.3d at 1264.
III.
On appeal, Bell challenges the district court’s summary judg-
ment ruling only as to her racially hostile work environment claims
under 42 U.S.C. § 1981. She first argues that the conditions of her
employment were sufficiently severe because of Pritchett’s racially
inappropriate comments. She next argues that Liberty National
and TCMA were liable for this harassment because Pritchett was
her supervisor, and, alternatively, that Liberty National and TCMA
would still be liable because they should have known about his har-
assing conduct.
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8 Opinion of the Court 22-11015
Section 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and Ter-
ritory to make and enforce contracts, to sue, be par-
ties, give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons
and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). Section 1981 permits claims based on a racially
hostile work environment. Jackson v. Motel 6 Multipurpose, Inc., 130
F.3d 999, 1008 n.17 (11th Cir. 1997).
We examine § 1981 claims for a hostile work environment
under the same legal framework as Title VII. Smelter v. S. Home Care
Servs., Inc., 904 F.3d 1276, 1283 & n.3 (11th Cir. 2018). For a hostile
work environment claim, the employee must prove: (1) she belongs
to a protected class; (2) she was subjected to unwelcome harass-
ment; (3) the harassment was based on her race; (4) the harassment
was severe or pervasive enough to alter the terms of her employ-
ment and create an abusive working environment; and (5) the em-
ployer is responsible for the environment under a theory of vicari-
ous or direct liability. Id. at 1284.
Under the fifth element, the employer’s liability depends on
whether the harassing employee is the plaintiff’s coworker or su-
pervisor. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th
Cir. 2002). When a supervisor creates a hostile environment, an
employer is subject to vicarious liability. Id. If the supervisor takes
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22-11015 Opinion of the Court 9
tangible employment action against the plaintiff, the employer will
be strictly liable. Id. An employee is a supervisor for purposes of
vicarious liability when “the employer has empowered that em-
ployee to take tangible employment actions against the victim.”
Vance v. Ball State Univ., 570 U.S. 421, 431 (2013). Tangible employ-
ment actions are those that cause a significant change in employ-
ment, such as “hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a signif-
icant change in benefits.” Id. (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
When the perpetrator is merely a coworker, the employer
will be held directly liable “if it knew or should have known of the
harassing conduct but failed to take prompt remedial action.” Mil-
ler, 277 F.3d at 1278. Employers can also be liable for failing to rem-
edy harassment of employees by third parties. Beckford v. Dep’t of
Corr., 605 F.3d 951, 957 (11th Cir. 2010). The victim must show ac-
tual knowledge or conduct sufficiently severe to constitute con-
structive knowledge. Miller, 277 F.3d at 1278. To decide whether
an employer had constructive notice, we consider: (1) the remote-
ness of the location of the harassment compared to the location of
management; (2) whether the harassment occurs intermittently
over a long period of time; (3) whether the victims were employed
part-time or full-time; and (4) whether there were only a few in-
stances of harassment. Id. at 1278–79. “If an employer has actual
or constructive notice of harassment but takes immediate and ap-
propriate corrective action, the employer is not liable for the
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10 Opinion of the Court 22-11015
harassment.” Watson v. Blue Circle, Inc., 324 F.3d 1252, 1261 (11th
Cir. 2003).
As an initial matter, we conclude that based on the record
evidence, Pritchett was not Bell’s supervisor. Despite Bell’s testi-
mony that Pritchett was her “immediate supervisor,” the record
evidence shows that he did not have the power to hire, fire, pro-
mote, or reassign Bell on his own or make any decisions affecting
her benefits. To the extent that Pritchett interviewed her, trained
her, and approved of her leads, Liberty National did not empower
Pritchett to do any of those things. And because neither Pritchett
nor Bell had any legal relationship with TCMA, he could not have
been empowered to do those things on TCMA’s behalf. We thus
conclude that Liberty National and TCMA cannot be held vicari-
ously liable for Pritchett’s actions because he was not Bell’s super-
visor. Miller, 277 F.3d at 1278. Because Bell and Pritchett were
coworkers, Liberty National and TCMA can only be held liable if
they knew or should have known of the harassing conduct but
failed to take prompt remedial action. Id. at 1278–79; Watson, 324
F.3d at 1261.
We begin our discussion with TCMA. The record evidence
shows that TCMA took immediate remedial action once it had ac-
tual knowledge and thus cannot be liable for the harassment. See
Watson, 324 F.3d at 1261. Indeed, Bell does not dispute that after
the first time she complained to McClain about Pritchett’s conduct,
Pritchett no longer harassed her and never worked with her again.
Given this record evidence, we conclude that the district court did
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22-11015 Opinion of the Court 11
not err in concluding that TCMA did not have liability after it took
immediate and appropriate corrective action upon receiving actual
notice of the harassment.
With regards to Liberty National, there is no record evi-
dence that Bell reported the harassment to Liberty National, such
that it would have had actual notice. Rather, the record shows that
Bell declined McClain’s offer to report Prichett’s harassment to Lib-
erty National. The record evidence further shows that the harass-
ment occurred on property that Liberty National did not own or
operate. And the only evidence of contact between Liberty Na-
tional and Bell’s workplace was Vice President Gilliam’s two visits,
and Bell does not allege that he heard any harassment or that it was
occurring during those visits. Given this record evidence, we con-
clude that the district court did not err in concluding that Liberty
National did not have liability given its lack of actual or construc-
tive notice.
IV.
For the reasons stated, we conclude that the district court
did not err in finding Liberty National and TCMA were not vicari-
ously liable because the perpetrator was not Bell’s supervisor and
he did not take any tangible employment action against her. We
also conclude that the district court also did not err in finding that
the defendants were not directly liable because Liberty National
never received actual or constructive notice of the harassment and
when TCMA received notice, it took action to stop the harassment.
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12 Opinion of the Court 22-11015
Thus, we affirm the district court’s grant of summary judg-
ment for Liberty National and TCMA.
AFFIRMED.
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