IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50087

JAMEL BLANTON, 

 Plaintiff - Appellant

v.

NEWTON ASSOCIATES, INCORPORATED, also known as Richmond 

Enterprises, Incorporated, doing business as Pizza Hut; RICHMOND 

ENTERPRISES, INCORPORATED, also known as Pizza Hut of San Antonio, 

Incorporated, also known as Pizza Hut of San Antonio Number 6, 

Incorporated; PIZZA HUT OF SAN ANTONIO NUMBER 6, 

INCORPORATED; NEWTON ASSOCIATES I, LIMITED, doing business as 

Pizza Hut of San Antonio, Incorporated, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:12-CV-1103

Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit 

Judges.

PER CURIAM:*

In this employment discrimination case, a jury found that PlaintiffAppellant Jamel Blanton was subjected to sexual and racial harassment by his 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 10, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50087

female manager, but that his employer, a Pizza Hut store and its corporate 

operator (collectively “Pizza Hut”), proved the Ellerth/Faragher affirmative 

defense. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); 

Faragher v. City of Boca Raton, 524 U.S. 775, 806-08 (1998). Blanton appeals, 

arguing that he is entitled to judgment as a matter of law on the affirmative 

defense or, in the alternative, to a new trial. We affirm.

I. 

We review the denial of Blanton’s motion for judgment as a matter of law 

de novo and view the evidence and all reasonable inferences in the light most 

favorable to the verdict. McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 

2009). We must uphold the jury verdict unless “a reasonable jury would not 

have a legally sufficient evidentiary basis to find for the party on that issue.” 

Fed. R. Civ. P. 50(a)(1). 

In a harassment case, an employer is vicariously liable for a supervisor’s 

severe or pervasive sexual or racial harassment of a subordinate. See, e.g., 

Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir. 2002). However, if the 

supervisor’s harassment involves no adverse employment action,1 an employer 

can avoid vicarious liability by proving both elements of the Ellerth/Faragher

affirmative defense: (1) that the employer 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 employer, or to otherwise avoid harm. Ellerth, 

524 U.S. at 765; Faragher, 524 U.S. at 807; Wyatt, 297 F.3d at 409. Blanton 

argues that there was legally insufficient evidence supporting the jury’s 

finding on both elements of the affirmative defense. 

1 On appeal, Blanton makes no assertion that he was subjected to an adverse 

employment action. 

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There is no question that Blanton was subjected to egregious verbal 

sexual and racial harassment by the general manager of the Pizza Hut store 

where he worked. On appeal, Blanton has pointed to some evidence that the 

implementation of Pizza Hut’s anti-discrimination policy was inadequate. 

Specifically, there is evidence showing that Pizza Hut did no training for any 

employees or managers on its anti-discrimination policies, and that a shift 

leader and an assistant manager who witnessed or were told about the 

harassment did not report it to other managers at Pizza Hut, instead telling 

Blanton that they feared retaliation if they did report it. 

However, the evidence also showed that Blanton alerted only low-level 

supervisors about the harassment, who, like Blanton, were subordinate to the 

general manager and had no authority over her, although Pizza Hut’s policy 

clearly provided that in such a situation he should complain to the harasser’s 

supervisor. Once Blanton did complain to a manager with authority over the 

general manager, Pizza Hut completed an investigation and fired her within 

four days. 

The fact that some low-level supervisors at Pizza Hut knew of the 

harassment earlier may have created a “real question as to whether the 

supervisors should have taken the first step towards prevention and correction 

by reporting these incidents to the relevant” Pizza Hut managers, but it is not 

sufficient to remove the ultimate question of the reasonableness of Pizza Hut’s 

preventative and corrective measures from the province of the jury. Clark v. 

United Parcel Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005) (noting that where 

low-level supervisors may have responded inadequately, whether the employer 

“exercised reasonable care is a question for a factfinder”). Contrary to 

Blanton’s assertion, Pizza Hut did not rely solely on the existence of its antidiscrimination policy to meet its burden on the affirmative defense. We agree 

with Blanton that “an employer’s showing that it has a sexual harassment 

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No. 14-50087

policy does not automatically satisfy its burden.” Frederick v. Sprint/United 

Mgmt. Co., 246 F.3d 1305, 1314 (11th Cir. 2001). Here, however, Pizza Hut 

pointed to the clear, straightforward content of its anti-discrimination policy 

and complaint procedures, which had been given to all employees in an 

employee handbook, together with its prompt and effective response to 

Blanton’s specific complaint and Blanton’s own delay in making a complaint in 

accordance with its procedures. Clark and Frederick do not mandate judgment 

as a matter of law in Blanton’s favor, but affirm that it is often for the jury to 

assess the content and implementation of an employer’s anti-discrimination

policies and determine whether the employer has taken reasonable corrective 

and preventative measures. See Clark, 400 F.3d at 350; Frederick, 246 F.3d at 

1314-15; see also EEOC. v. Boh Bros. Const. Co., 731 F.3d 444, 462-66 (5th Cir. 

2013) (en banc) (affirming jury verdict for plaintiff where jury could reasonably 

have found deficiencies in the content, publication and implementation of 

employer’s anti-harassment policy, and in its response to the plaintiff’s 

harassment complaint).

Based on the evidence, Blanton has not met the high burden to show that 

no reasonable jury could have found that Pizza Hut exercised reasonable care 

to prevent and correct the harassment and that he unreasonably failed to take 

advantage of Pizza Hut’s corrective measures. 

II.

With regard to Blanton’s motion for a new trial, the ruling of the district 

court is affirmed for essentially the reasons given by the district court in its 

January 14, 2014 Order denying Blanton’s post-trial motions.

III.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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