[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 11-16121 

Non-Argument Calendar

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D.C. Docket No. 0:11-cv-60723-JEM

ANTHONY B. WHITE, 

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

ROBERT P. BISSONNETTE,

llllllllllllllllllllllllllllllllllllllll Plaintiff,

versus

CREATIVE HAIRDRESSERS INC., 

a Virginia Corporation, 

d.b.a. The Hair Cuttery, 

llllllllllllllllllllllllllllllllllllllll Defendant-Appellee,

CHRISTINE L. WILSON, et al.,

llllllllllllllllllllllllllllllllllllllll Defendants.

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Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 18, 2013)

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Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Anthony White, a male, appeals from the district court’s grant of summary 

judgment in favor of his former employer in his sexual harassment suit under Title 

VII and the Florida Civil Rights Act. White alleged that Creative Hairdressers, 

Inc., d/b/a The Hair Cuttery (“Hair Cuttery”), was liable for allowing his former 

manager at a Hair Cuttery salon to sexually harass him. The district court granted 

summary judgment to the defendant, finding that there were no genuine issues of 

material fact that Hair Cuttery exercised reasonable care to prevent and correctly 

promptly any sexually harassing behavior, and that White unreasonably failed to 

take advantage of preventive or corrective opportunities or to avoid harm. On 

appeal, White argues that the district court: (1) abused its discretion in excluding 

one of his coworkers, Jared Stallings, as a witness; (2) abused its discretion in 

denying him leave to amend his response to the summary judgment motion; 

(3) erred in granting summary judgment; and (4) improperly shifted the burden of 

proof to establish a defense from Hair Cuttery to him. 

I.

We review a district court’s exclusion of a witness not disclosed in a pretrial 

witness list for abuse of discretion. Bearint ex rel. v. Dorell Juvenile Group, Inc., 

389 F.3d 1339, 1353 (11th Cir. 2004). We consider “(1) the importance of the 

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testimony; (2) the reason for the appellant’s failure to disclose the witness earlier; 

and (3) the prejudice to the opposing party if the witness had been allowed to 

testify.” Id. To affirm a district court’s ruling excluding a witness, all three factors 

need not weigh in favor of exclusion. See id. (affirming the exclusion of a witness, 

“[r]egardless of the importance of [his] testimony,” when the reasons for the delay 

in disclosure and consequent prejudice to the other party supported his exclusion). 

Id. 

In this case, the record reflects that the district court made individualized 

rulings on the admissibility of each witness and, based thereupon, we cannot say 

that the reasons given by the district court for the exclusion of Stallings’ testimony, 

including the Plaintiff’s lack of diligence in identifying him as a witness, 

constituted an abuse of discretion. 

II.

“A district court’s decision to grant or deny leave to amend is reviewed for 

abuse of discretion.” Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th 

Cir. 1994) (citation omitted) (reviewing a district court’s grant of leave to amend 

an answer to include an additional affirmative defense). “District courts have 

broad discretion to grant or deny leave to amend[,]” and “[i]n the absence of undue 

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delay, bad faith, dilatory motive, or undue prejudice, leave to amend is routinely 

granted.” Id. at 1405.

Here, White timely filed a response brief, and only sought to amend his 

response to cite to deposition transcripts that he had not obtained when he filed his 

response due to his own delay. Thus, the district court did not abuse its discretion 

in denying White leave to amend his response brief, nor did the court abuse its 

discretion in denying White’s alternative motion for leave to file a surreply. 

III.

We review de novo a grant of summary judgment, applying the same 

substantive law as the district court. Durr v. Shinseki, 638 F.3d 1342, 1346 (11th 

Cir. 2011). Summary judgment is proper where there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law. 

Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007); 

Fed.R.Civ.P. 56(a). 

Even if an employee establishes a prima facie case of sexual harassment, an 

employer can avoid liability under the Faragher/Ellerth1 defense if the employer

shows (1) that it 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 

 1

 Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); 

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

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employer, or to otherwise avoid harm. Frederick v. Sprint/United Mgmt., 246 F.3d 

1305, 1313 (11th Cir. 2001). Both elements must be satisfied for the employer to 

avoid liability, and the employer bears the burden of proof on both elements. Id.

Here, the district court did not reversibly err in finding that the 

Faragher/Ellerth defense applied and that summary judgment in favor of Hair 

Cuttery was warranted on White’s claims under Title VII and the FCRA. In light 

of the undisputed evidence as to Hair Cuttery’s promulgation and dissemination of 

sexual harassment policies and complaint procedures, the district court properly 

found that there were no genuine issues of material fact that Hair Cuttery 

adequately disseminated its policies. The court also properly found that White 

failed to promptly take advantage of Hair Cuttery’s sexual harassment policies and 

complaint procedures by not promptly notifying the company of his harassment. 

Finally, White has not shown that the district court improperly shifted the 

burden of proof as to the summary judgment motion, and the record supports the

court’s grant of summary judgment for Hair Cuttery.

AFFIRMED.

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