Case: 14-11258   Date Filed: 03/11/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11258
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-04365-ODE



FELICIA A. WILCOX,

                                                            Plaintiff-Appellant,

                                   versus

CORRECTIONS CORPORATION OF AMERICA,
a.k.a. McRae Correctional Facility,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                             (March 11, 2015)

Before TJOFLAT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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         Felicia A. Wilcox appeals the district court’s grant of summary judgment for

defendant Corrections Corporation of America (CCA) in her suit alleging sexual

harassment and retaliation under Title VII of the Civil Rights Act. After careful

review, we reverse the district court’s grant of summary judgment on the sexual

harassment claim and affirm its grant of summary judgment on the retaliation

claim.

                                           I.

         Wilcox is an African-American woman who was employed as a corrections

officer at McRae Correctional Facility from April 5, 2004 until she was fired on

July 28, 2010. In December 2008, CCA fired Wilcox’s husband, who had also

been employed at McRae Correctional Facility, after an investigation into

allegations of sexual harassment made by other employees.

         In July 2009, Wilcox verbally complained to McRae’s warden and human

resources department that, after her husband was fired, she had been subject to

sexual harassment by her direct supervisor. In describing the harassment in her

deposition and affidavit, Wilcox stated that her supervisor (1) hugged and

“caressed [her] down [her] back” on a daily basis for a period of months; (2)

touched her thighs and told her that he could touch her “fat juicy thighs if he

wanted to”; (3) hit her twice on the buttocks in the presence of other employees;

and (4) told her that he had a female friend with a clitoris as long as his penis.


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CCA fired Wilcox’s supervisor in September 2009 following allegations of sexual

harassment made by other female employees. 1

       Wilcox also made a number of internal and external complaints of racial

discrimination and retaliatory conduct by other McRae employees. In June 2009,

she complained that an assistant warden walked through a security checkpoint,

retrieved his personal items from plastic basket, and threw the basket at her.

Wilcox stated that she believed that the incident was racially motivated. After an

investigation, CCA concluded that “no information was found to support a finding

that [the assistant warden’s actions] were hostile or intended as a form of

harassment.”

       In July 2009, Wilcox complained that McRae’s chief security officer

addressed her and other African-American employees as “kid.” CCA investigated

this complaint and concluded that “no information was obtained to conclude that

[the chief security officer’s] use of the work [sic] ‘kid’ is limited to a specific race

of employees . . . .”

       In September 2009, Wilcox complained that a housing manager required her

to sign in when she entered McRae’s Special Housing Unit. At her deposition, she

stated that she believed that the manager’s conduct was retaliation for bringing a



1
 Between July and September 2009, Wilcox and her supervisor continued to work together. At
his deposition, McRae’s warden stated that he gave very little weight to Wilcox’s allegations.
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sexual harassment complaint against her supervisor because other employees had

not been required to sign in.

      Next, in December 2009, Wilcox complained that a McRae employee

looked through and removed cookies and butter from a food cart that she was

transporting. She described the incident as a search and stated that she believed

that the search was in retaliation for bringing a sexual harassment complaint

against her supervisor. After investigation, CCA determined that this incident was

not intended to be retaliatory.

      On December 13, 2009, Wilcox submitted an unverified Intake

Questionnaire to the Equal Employment Opportunity Commission, in which she

alleged that she had been forced to work with her supervisor even after she

complained of sexual harassment; that the assistant warden had created a hostile

work environment by throwing a basket at her; that the chief security officer

referred to her as “kid”; and that she had been harassed in retaliation for

complaining about sexual harassment. Three days later, the EEOC sent a “Notice

of Charge of Discrimination” to CCA. This notice stated that Wilcox had alleged

sexual harassment beginning on July 10, 2009. Wilcox later filed a verified

“Charge of Discrimination” with the EEOC on March 15, 2010, in which she

stated that “[t]his perfects my original correspondence which was timely received

by the Commission on December 16, 2009.”


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      Finally, in May 2010, Wilcox complained that a maintenance employee

taunted her with a stick in a threatening manner. After reviewing the surveillance

footage and interviewing nearby employees, CCA concluded that Wilcox’s

allegations could not be substantiated. Shortly after this incident, CCA fired

Wilcox because of “a pattern of repeated unfounded claims against other staff

members.”

      As relevant here, Wilcox’s complaint alleged that her supervisor’s sexual

harassment resulted in hostile work environment and that she was fired in

retaliation for lodging complaints of race and gender discrimination. The district

court granted CCA’s motion for summary judgment on the sexual harassment

claim because it found that the harassment described by Wilcox was not

sufficiently severe or pervasive. It also granted CCA’s motion for summary

judgment on the retaliation claim because Wilcox had not shown that CCA’s

proffered legitimate non-discriminatory reason for her termination—making false

and exaggerated complaints in violation of CCA’s Code of Conduct—was

pretextual. This appeal followed.

                                         II.

      We first address Wilcox’s sexual harassment claim. We review de novo a

district court’s grant of summary judgment, considering only the evidence

available to the district court. Holloman v. Mail-Well Corp., 

, 836


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(11th Cir. 2006). “Summary judgment is appropriate when the evidence, viewed in

the light most favorable to the nonmoving party, presents no genuine issue of

material fact and compels judgment as a matter of law in favor of the moving

party.” 

“A mere scintilla of evidence supporting [Wilcox’s]

position will not suffice; there must be enough of a showing that the jury could

reasonably find for [her].” Walker v. Darby, 

, 1577 (11th Cir. 1990)

(quotation marks omitted).

      Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits

sexual harassment that results in a hostile work environment. Mendoza v. Borden,

Inc., 

, 1244–45 (11th Cir. 1999) (en banc). In order to prove a

hostile work environment, an employee must show:

      (1) that he or she belongs to a protected group; (2) that the employee
      has been subject to unwelcome sexual harassment, such as sexual
      advances, requests for sexual favors, and other conduct of a sexual
      nature; (3) that the harassment must have been based on the sex of the
      employee; (4) that the harassment was sufficiently severe or pervasive
      to alter the terms and conditions of employment and create a
      discriminatorily abusive working environment; and (5) a basis for
      holding the employer liable.

Reeves v. C.H. Robinson Worldwide, Inc., 

, 808 (11th Cir. 2010) (en

banc) (quoting 

).

      With respect to the fourth element, the harassment must be both subjectively

and objectively severe or pervasive. See 

“Harassment is subjectively

severe and pervasive if the complaining employee perceives the harassment as
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severe and pervasive, and harassment is objectively severe and pervasive if a

reasonable person in the plaintiff’s position would adjudge the harassment severe

and pervasive.” Johnson v. Booker T. Washington Broad. Serv., Inc., 

, 509 (11th Cir. 2000).

      In evaluating whether harassment is objectively severe or pervasive, we

consider its frequency; its severity; whether it was physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interfered

with an employee’s work performance. Hulsey v. Pride Rests., LLC, 

, 1247–48 (11th Cir. 2004). “[W]e employ a totality of the circumstances

approach, instead of requiring proof of each factor individually.” 

      We have previously observed that there is no “magic number” of instances

of harassment that is necessary to meet the severe-or-pervasive standard. See

Miller v. Kenworth of Dothan, Inc., 

, 1276 (11th Cir. 2002)

(quotation omitted). In this case, however, Wilcox did not state that she was

merely subject to the occasional off-color comment. Instead, her deposition and

affidavit describe harassment that a reasonable jury could conclude was severe or

pervasive, including daily unwanted physical contact over a period of months, two

additional attempts to touch her thighs and buttocks, and two expressly sexual

comments. She also stated that the harassment was humiliating and interfered with

her job performance. See 

(“We have said that sexual


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harassment is subjectively severe and pervasive if the complaining employee

perceived it to be at the time. [The plaintiff’s] deposition testimony indicates that

she did.” (citation omitted)).

      Indeed, the conduct described here is similar to conduct that we have

previously held to be severe or pervasive harassment. See, e.g., 

(holding that daily taunts, including the use of ethnic slurs and derogatory

names in an intimidating manner, over the course of one month were sufficiently

severe or pervasive); 

(holding that “roughly fifteen

separate instances of harassment over the course of four months,” including

unwanted physical contact and sexually explicit comments, were sufficiently

severe or pervasive). Thus, when viewing the evidence in the light most favorable

to Wilcox, we find that she has introduced sufficient evidence for a reasonable jury

to conclude that her harassment was severe or pervasive.

                                         III.

        CCA argues that we may alternatively affirm the district court’s grant of

summary judgment on Wilcox’s sexual harassment claim because it is time barred.

Prior to pursuing a Title VII claim in federal court, an employee must exhaust her

administrative remedies, a process that includes filing a “charge of discrimination”

in writing and under oath with the EEOC within 180 days of the last discriminatory




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act.2 Wilkerson v. Grinnell Corp., 

, 1317 (11th Cir. 2001) (quotation

omitted); see also 29 C.F.R. § 1601.9 (“A charge shall be in writing and signed and

shall be verified.”). Although Wilcox’s unverified Intake Questionnaire was filed

on December 13, 2009—within 180 days of the alleged harassment—her verified

Charge of Discrimination was not filed until March 15, 2010, more than 180 days

after her supervisor was fired. Because Wilcox’s Intake Questionnaire was not

verified, CCA contends that it cannot serve as a charge of discrimination for the

purposes of meeting the statute of limitations.

       However, as the district court correctly pointed out, EEOC regulations

permit an employee to amend a charge of discrimination to cure technical defects,

“including failure to verify the charge,” and provide that “[s]uch amendments . . .

will relate back to the date the charge was first received.” 29 C.F.R. § 1601.12(b);

see also Edelman v. Lynchburg Coll., 

, 115, 

, 1150

(2002). In addition, the EEOC treated Wilcox’s December 13, 2009 Intake

Questionnaire as a charge of discrimination because it sent a “Notice of Charge of

Discrimination” to CCA which specified that Wilcox had alleged sexual

harassment beginning on July 10, 2009. See Edelman v. Lynchburg Coll., 

, 404–05 (4th Cir. 2002) (holding, following remand from the Supreme


2
  EEOC regulations provide that a charge of discrimination “is sufficient when the Commission
receives . . . a written statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of.” 29 C.F.R. § 1601.12(b).
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Court, that verified charge related back to unverified letter where verified charge

concerned the same circumstances as the unverified letter and there was no

evidence that the unverified letter was substantively deficient). Thus, we find that

Wilcox’s sexual harassment claim was not time barred and reverse the district

court’s grant of summary judgment on this claim.

                                         IV.

      We next consider Wilcox’s retaliation claim. “Title VII also prohibits

retaliation against an employee because she has opposed any practice made an

unlawful employment practice by Title VII, or because she has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing thereunder.” Crawford v. Carroll, 

, 970 (11th Cir. 2008)

(alterations adopted and quotation omitted).

      For retaliation claims that rely on circumstantial evidence—like Wilcox’s—

we apply the burden-shifting analysis from McDonnell Douglas Corp. v. Green,

, 

(1973). Brown v. Ala. Dep’t of Transp., 

, 1181 (11th Cir. 2010). Under the McDonnell Douglas framework, a plaintiff

may first establish a prima facie case of retaliation by showing that: “(1) [s]he

engaged in a statutorily protected activity; (2) [s]he suffered an adverse

employment action; and (3) [s]he established a causal link between the protected

activity and the adverse action.” See Bryant v. Jones, 

, 1307–08


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(11th Cir. 2009). If a plaintiff establishes a prima facie case, “the burden of

production shifts to the defendant to . . . articulat[e] a legitimate, non-

discriminatory reason for the adverse employment action.” 

If the

defendant meets the burden of production, the plaintiff may demonstrate that the

defendant’s proffered reason was pretextual. 

pretext, “[t]he plaintiff must meet the reason proffered head on and

rebut it.” Crawford v. City of Fairburn, Ga., 

, 1308 (11th Cir. 2007).

She must “present concrete evidence in the form of specific facts which show[]

that the defendant’s proffered reason [is] mere pretext.” 

(quotation omitted).

      Notwithstanding the protections of Title VII, employers are permitted to fire

employees for lying in the course of internal investigations into harassment and

discrimination. See EEOC v. Total Sys. Servs., Inc., 

, 1176 (11th

Cir. 2000) (“And, at least when the circumstances give the employer good reason

to believe that the fictitious version was the result of a knowingly false statement

by one of its employees, the law will not protect the employee's job.”). In this

case, Wilcox argues that she was fired because she filed internal complaints of

harassment and discrimination. CCA has introduced evidence demonstrating that

it did not terminate Wilcox’s employment because she filed complaints, but

because a number of her complaints were found to be false and exaggerated. For


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example, in May 2010, after Wilcox alleged that a maintenance employee

threatened her with a stick, CCA reviewed surveillance footage and interviewed

twelve witnesses before concluding that her allegations could not be substantiated.

Similarly, CCA investigated Wilcox’s allegations that a supervisor referred to her

and other African-American employees as “kid” before finding no evidence the

supervisor’s use of the word was discriminatory.

      Wilcox has not rebutted CCA’s proffered legitimate, non-discriminatory

reason for termination. Thus, we affirm the district court’s grant of summary

judgment on her retaliation claim.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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