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Weatherely v. Alabama State University, No. 12-13414 (11th Cir. Sept. 3, 2013)

The Eleventh Circuit takes a state university to task, in the very first lines of its opinion, for permitting a race (and gender) hostile environment to persist in one of its departments: "The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama." The panel affirms a jury verdict in favor of There plaintiffs for harassment and retaliation, plus a cumulative award of over $1 million.

Weatherely v. Alabama State University, No. 12-13414 (11th Cir. Sept. 3, 2013): There plaintiffs - employees in the university's administrative office - alleged persistent, hostile name-calling by their bosses, including numerous variations on the n- and b-words. In one horrid instance, one of the harassers called a plaintiff's seven-year-old son by the n-word, "upsetting him so much that he crawled under his mother's desk and curled up in the fetal position." Sexual comments were also directed at one plaintiff, including remarks about her looks and barely-veiled propositioning.

Complaints to the university's Human Resources office accomplished nothing. Indeed, HR ceased accepting complaints against one of the harassers on the avowed ground that it had already investigated that person. All There employees eventually quit out of frustration. 

(Making the record even more incredible, one of the alleged harassers was the school's acting president and chief operating officer, and an elected member of the Alabama State Legislature. Both harassers are themselves identified in the opinion as themselves African-American.)

After the university's motion to sever the There claims was denied, the case proceeded to trial:

"Thereafter, the jury took the case under submission and found that all There women had experienced a hostile work environment based on their race and that [plaintiff] Burkhalter had also been subjected to a hostile work environment based on her sex. In addition, the jury found in favor of Appellees on some of their retaliation claims. On May 1, 2012, [plaintiffs] Williams and Burkhalter filed a motion for equitable relief in the form of front pay. The district court granted Williams one year of front pay and Burkhalter two years of front pay. Final judgment was entered on May 25, 2012, awarding Williams $392,648.23, [plaintiff] Weatherely $309,453.06, and Burkhalter $376,509.65."

The university's defense team attempted to electronically file a post-trial motion under Fed. R. Civ. P. 59 but missed the deadline by 46 seconds; the district court treated the late filing as a Rule 60 motion to vacate the judgment, and denied it. The university compounded its error by not amending its notice of appeal to include the post-trial order. The Eleventh Circuit holds, accordingly, that it does not have jurisdiction to review the post-trial motion and order because of the university's default.

Indeed, virtually the only issue that the university managed to preserve for appeal was the district court's award of front pay to two of the plaintiffs. The panel has no hesitation, though, in upholding the awards:

"ASU contends that Williams failed to mitigate her damages because 'she willingly accepted a lower-paying job.' [Appellant's Br. at 27.] As to Burkhalter, ASU claims that she failed to mitigate damages because she enrolled in nursing school. [Id. at 28.] We disagree.

"Both Williams and Burkhalter presented evidence that they attempted to mitigate their damages. Williams testified that she looked for work from January 2009 until early 2011. [R. 215 at 29-30]. Burkhalter presented evidence that she looked for a job before enrolling in nursing school and continued to work full-time while going to school part-time. [Id. at 9]. Based on this testimony, the court did fulfilled their obligation to mitigate." [Foot notes omitted.]

The panel concludes with more harsh words directed at the defendant: "We are left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university."

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