FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 19, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-16076

Non-Argument Calendar

________________________

D.C. Docket No. 02-21091-CV-AJ

THERESA BRYANT,

Plaintiff-Appellant,

versus

SCHOOL BOARD OF MIAMI DADE COUNTY,

Defendant-Appellee.

__________________________

Appeal from the United States District Court 

for the Southern District of Florida

_________________________

 (July 19, 2005)

Before ANDERSON, HULL and WILSON, Circuit Judges. 

PER CURIAM:

Theresa Bryant appeals the grant of summary judgment against her on her
 Bryant used the term “quid pro quo.” Like a lot of other courts, we formerly used the 1

term “quid pro quo” to describe situations where a benefit of employment was tied to a demand

for sexual favors. Because the Supreme Court instructed us that term should no longer be used in

the analysis of whether an employer is liable under Title VII, Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 753- 54, 118 S.Ct. 2257, 2265 (1998), we have used the preferred term "tangible

employment action" to refer to harassment that culminates in a discharge, demotion, or

undesirable reassignment. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th

Cir. 2001). We do so in this opinion, as well.

2

claims of sex harassment and hostile work environment, brought pursuant to 42 1

U.S.C. § 2000e-2. On appeal, proceeding pro se, Bryant argues that she

“established that, because she is female, she was a victim of unwelcome sexual

harassment and retaliatory behavior.” She contends that evidence made clear that

the willingness of her supervisor, Frederick Jones, to include her in a job

reclassification, after initially excluding her, “coincides with her being nonargumentative” about his harassment. Bryant concedes that Jones may have

lacked formal authority to give a reclassification, but contends that he had

significant influence on those who did. 

We “review the district court’s order granting summary judgment de novo.”

Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296 (11th Cir. 2000). 

Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, shows “that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of
3

law.” See id.

To establish a prima facie tangible employment action, a plaintiff must

show: (1) that she belongs to a protected group; (2) that she has been subject to

unwelcome sexual harassment; (3) that the harassment was based on her sex; (4)

that the harassment was sufficiently severe or pervasive to alter the terms and

conditions of employment; and (5) that there is a basis for holding the employer

liable. Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1199 (11 Cir. th

2001). A plaintiff must also show that she suffered some tangible employment

action as a result, which was defined by the Supreme Court as “a significant

hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in benefits.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 2265 (1998).

The evidence is uncontroverted that Bryant suffered no job detriment, and

no job benefit was withheld from her, as the result of her rejecting Jones’s sexual

harassment. The Board presented evidence that employees and/or supervisors

could request a job reclassification, the only negative tangible employment

consequence Bryant claimed she was denied. Therefore, Bryant did not have to

wait for Jones to request one for her. Furthermore, the supervisor’s

recommendation is not necessary, and Bryant herself testified that she was told by
4

a person in Wage and Salary that she did not have to wait for Jones to act. Finally,

the director of Compensation Administration testified that she would not have

recommended reclassification because Bryant had not been in her position long

enough and because Bryant had received a promotional increase when she started

in her department (where she had been only one and a half years when she

complained of harassment). In other words, Bryant was not deemed eligible for a

reclassification. Accordingly, the district court did not err in granting summary

judgment to the School Board of Miami Dade County (the “Board”) on Bryant’s

tangible employment action harassment claim.

Turning to her hostile work environment claim, Bryant argues that Jones’s

conduct was both objectively and subjectively offensive, which is supported by the

Board’s reprimand of him. Bryant argues that the record indicates that Jones’s

behavior was subjectively offensive to her. She contends that Jones’s sexually

inappropriate behavior towards other women in the office is indicative that his

conduct was pervasive. Bryant argues that the Board failed to prevent and

promptly correct Jones’s behavior, since she filed her complaint in July of 2001

and Jones was not reprimanded until January of 2002. Bryant contends that

though Jones was supposedly stripped of his supervisory authority, he still

exercised “authoritative influence” over her. Bryant argues that her work
 We may affirm the district court's judgment on any grounds supported in the record. 2

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (citing Jaffke v. Dunham,

352 U.S. 280, 281, 77 S.Ct. 307, 308 (1957)). 

5

performance was affected in that she sought psychiatric treatment.

Without addressing the merits of Bryant’s hostile work environment case,

we look instead at the Board’s affirmative defense to that claim. In two cases 2

decided the same day, Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct.

2275 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct.

2257 (1998), the Supreme Court established an affirmative defense for an

employer for an actionable hostile work environment created by a supervisor,

which may be raised if no tangible employment action has been taken. See

Faragher, 524 U.S. at 807, 141 S.Ct. at 2292-93. If an employee has established a

hostile-environment sexual-harassment claim but no tangible employment action

was taken, an employer “may raise an affirmative defense to liability or damages,

subject to proof by a preponderance of the evidence.” Ellerth, 524 U.S. at 765,

118 S.Ct. at 2270. To establish the affirmative defense, the Board must show that

(1) it “exercised reasonable care to prevent and correct promptly any sexually

harassing behavior,” and (2) that Bryant “unreasonably failed to take advantage of

any preventive or corrective opportunities provided by [the Board] or to avoid

harm otherwise.” Faragher, 524 U.S. at 807, 118 S.Ct. at 2293; see Ellerth, 524
 Although Bryant argues that this was insufficient, the Board is only required to provide 3

a solution that stopped the harassment. Bryant testified in deposition that the harassment stopped

when the investigation began.

6

U.S. at 765, 118 S.Ct. at 2270 (same). “Both elements must be satisfied for the

defendant-employer to avoid liability, and the defendant bears the burden of proof

on both elements.” Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313

(11th Cir. 2001) (citations omitted). Further, the first element of the affirmative

defense has two prongs: (1) reasonable care to prevent sexual harassment and (2)

reasonable care to correct sexual harassment. Id. at 1314.

Looking at the facts, we conclude that the Board is entitled to this defense. 

The Board posted its sexual harassment policy quite extensively, going so far as to

even write it on the back of employee pay stubs. Immediately after Bryant

complained, the Board began an investigation and advised Jones against taking

any retaliatory action against Bryant. During the course of the investigation, the

Board offered Bryant the opportunity to move to another department, which she

declined. After the investigation, it reprimanded Jones, stripped him of his

supervisory authority, and moved him from his private office to a cubicle. The

Board gave Jones specific instructions to cease his inappropriate behavior and he

was given sexual harassment training. Bryant failed to use the Board’s 3

procedures for one and a half years; once she did, the harassment stopped. The
 Bryant’s request for oral argument is denied. 4

7

Board cannot be held liable for under Title VII in such circumstances.

Upon review of the pleadings and upon consideration of the briefs of the

parties, we find no reversible error. We conclude that the district court properly

granted summary judgment to the Board.

AFFIRMED.4