In this week's Alabama Law Weekly Update, we report on two cases from the Eleventh Circuit Court of Appeals. The first case discusses the bone fide error defense to claims asserted under the Fair Debt Collection Practices Act and the second case discusses the severe and pervasive standard for sexual harassment claims asserted under Title VII.
Isaac v. RMB, Inc., Cloud & Tidwell, LLC, 2015 WL 118925 (11th Cir. March 17, 205)
Albert and Rosetta Isaac filed a lawsuit against RMB, Inc. alleging claims for violations of the Fair-Debt Collection Practices Act (“FDCPA”). The Isaacs claimed that RMB violated the FDCPA in three ways: (1) continuing to call them despite receiving a cease and desist letter; (2) calling them with the intent to annoy or harass; and (3) hanging up on Albert Isaac when he answered the calls without disclosing its entity. RMB filed a motion for summary judgment and asserted a bona fide error defense to the Isaacs FDCPA claims. RMB's motion for summary judgment was granted. The Isaacs appealed.
The FDCPA prohibits a debt collector from calling a consumer once notified that the consumer wishes the debt collector to cease communications. The FDCPA prevents a debt collector from calling a consumer “repeatedly or continuously with intent to annoy, abuse, or harass,” and from calling consumers “without meaningfully disclosing the callers identity.” However, the FDCPA provides an affirmative defense from liability called the bona fide error defense. To assert the bona fide error defense, a debt collector must prove that its violations of the FDCPA were unintentional and the result of a bona fide error. A bona fide error is a mistake that occurs in good faith.
On appeal, the Eleventh Circuit determined that RMB asserted a valid bona fide error defense. First, RMB had two employees specifically trained to processed cease and desist letters. Both employees were absent when RMB received the Isaacs' cease and desist letter. As soon as the cease and desist letter was appropriately logged by RMB, the calls to the Isaacs stopped. Second, the Isaacs could not show that RMB called them with the intent to annoy or harass. RMB's calls to the Isaacs were infrequent and there was no evidence that RMB had intent to annoy or harass. Third, RMB used a computer program to detect whether a call reached a live person or an answering machine. The RMB caller would identify herself only if the program detected that a live person answered the call. The computer program mistook Mr. Isaac for an answering machine resulting in the termination of the call without disclosure of the RMB caller's identity.
Ultimately, the Eleventh Circuit concluded that RMB's policies and procedures were reasonably adapted to avoid the kinds of errors that occurred in this case. As a result, those errors did not occur in bad faith and RMB presented a valid bona fide error defense.
Wilcox v. Corrections Corporation of America, 2015 WL 1059821 (11th Cir. March 11 2015).
Felecia A. Wilcox (“Wilcox”), an African-American woman, was employed as a corrections officer by Corrections Corporation of America (“CCA”) from April 5, 2004 until she was fired on July 8, 2010. From July 2009 to May 2010, Wilcox claims that she was subjected to sexual harassment resulting in a hostile work environment. Specifically, Wilcox claims that she was subjected to daily unwanted physical contact and numerous sexually suggestive comments. Wilcox claimed that the harassment was humiliating and interfered with her job performance. CCA filed a motion for summary judgment claiming that the harassment described by Wilcox was not sufficiently severe or pervasive. The trial court granted CCA's motion for summary judgment. Wilcox appealed.
Among other things, a plaintiff pursuing a claim of sexual harassment resulting in a hostile work environment must show that the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment and create a discriminatorily abusive work environment. The plaintiff must show that the harassment was both subjectively and objectively severe or pervasive. Harassment is subjectively severe or pervasive if the complaining employee perceives the harassment as severe and pervasive. Harassment is objectively severe and pervasive if a reasonable person in the plaintiff's position would judge the harassment severe and pervasive.
In evaluating whether harassment is objectively severe or pervasive, courts consider the following: its frequency; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with employee's work performance. The Eleventh Circuit noted that there is no “magic number” of instances of harassment that necessarily meet the severe or pervasive standard. Nonetheless, the Court concluded that Wilcox had produced sufficient evidence for a reasonable jury to conclude that the harassment was severe and pervasive. The Eleventh Circuit reversed the trial court's grant of summary judgment as to Wilcox's sexual harassment claim.