Brown v. Perry

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WENDY JO BROWN,

Plaintiff-Appellant,

v.

No. 97-1501

WILLIAM J. PERRY, Secretary of

Defense,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Jillyn K. Schulze, Magistrate Judge.

(CA-96-47)

Argued: January 29, 1998

Decided: July 14, 1999

Before MURNAGHAN, NIEMEYER, and MOTZ,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Murnaghan joined. Judge Niemeyer concurred in the

judgment.

_________________________________________________________________

COUNSEL

ARGUED: Stephen Zak Chertkof, HELLER, HURON, CHERTKOF,

LERNER & SALZMAN, Washington, D.C., for Appellant. Perry F.

Sekus, Assistant United States Attorney, Baltimore, Maryland, for

Appellee. ON BRIEF: Tracy L. Hilmer, Kensington, Maryland, for

Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellee.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

To resolve this Title VII appeal we need only determine whether

the evidence forecast by the plaintiff would, if proved, render her

employer vicariously liable for a supervisor's sexual harassment.

Wendy Jo Brown appeals the grant of summary judgment to her for-

mer employer, the Army and Air Force Exchange Service (AAFES)

of the United States Department of Defense, maintaining that AAFES

should be found liable for sexual harassment perpetrated on her by

one of her supervisors. We held this case in abeyance pending the

Supreme Court's decisions in Faragher v. City of Boca Raton, 118 S.

Ct. 2275 (1998), and Burlington Indus. v. Ellerth, 118 S. Ct. 2257

(1998). Guided by those opinions, we now affirm, albeit for reasons

somewhat different than those relied on by the magistrate judge.

I.

We state the facts in the light most favorable to Brown, the non-

moving party with respect to the summary judgment granted below.

In April 1992, AAFES, a nonappropriated fund instrumentality of

the Department of Defense which provides goods to members of the

military and their dependents, hired Brown as an exchange detective.

She was charged with investigation of employee theft and shoplifting

at the Regional Exchange in Fort Meade, Maryland.

Brown reported to and was evaluated by supervisory exchange

detective Timothy Boles, who in turn reported to exchange manager

George Bass. Brown received technical assistance, including work

assignments, from Alwyn Ansley, the area loss prevention manager

for the lower Mid-Atlantic AAFES region. Ansley was supervised by

William Boyd, Chief of Safety and Security for AAFES's Eastern

Region, who was stationed in Texas. In preparing Brown's perfor-

2

mance evaluations, Boles consulted with Ansley and Bass. Although

Boyd was not directly involved with any employment decisions con-

cerning Brown, Brown believed that Boyd could influence her career

and future advancement.

Brown first encountered Boyd when he visited Fort Meade and met

briefly with exchange detectives. Brown did not have any conversa-

tion with Boyd at that meeting.

In March 1993, Brown and Boyd met for the second time, at a

required AAFES conference for loss prevention personnel held at the

Ramada Inn in Alexandria, Virginia. As the senior loss prevention

employee at the conference, Boyd hosted a social gathering in his

suite on the first evening for conference attendees. Brown attended

this non-mandatory gathering at the urging of Ansley, who encour-

aged Brown to go and meet more of her colleagues.

Approximately seven employees were present when Brown arrived

at Boyd's suite, but by about 11:30 p.m. everyone had left the suite

except for Boyd and Brown. The two then discussed Brown's career

for approximately half an hour before Brown decided to leave.

According to Brown, as she moved toward the door, Boyd grabbed

her shoulders, pushed her against the wall, and kissed her face and

neck. He told her, "[Y]ou're so beautiful. I can make you feel like no

one else can." Brown freed herself and left Boyd's room. Boyd, how-

ever, followed her and when she reached the door to her room in the

hotel, he kissed her and stated, "You know, baby, I'll always take care

of you." Brown then managed to elude Boyd's grasp and entered her

own room.

Brown immediately contacted Boles, her supervisor, about the inci-

dent. Boles responded by telling Brown, "Whatever you want to do,

I'll support you 100%," and by suggesting that Brown speak with an

EEO counselor. He also offered to speak with Ansley about the inci-

dent.

In the morning, Brown herself spoke to Ansley, who responded

that "he had spoken to Mr. Boles about what had happened and that

he did not want to hear anything from me until I decided what I was

going to do because he would have to be doing the investigation."

3

This upset Brown because she was hoping Ansley would be more

supportive.

The next day Brown advised Ansley that she had "decided not to

do anything" about Boyd's conduct, i.e., not to pursue any grievance.

Neither Boles nor Ansley investigated the matter further. Brown did

tell Ansley that she would like Boyd to apologize (which Boyd ulti-

mately did). During the remainder of the conference, Brown did not

have any contact with Boyd, except to attend his lecture.

Brown did not experience any work-related problems because of

the March incident with Boyd, and she continued to excel at her job.

As a result of discussions with her husband, she decided "to let

bygones be bygones and hopefully I wouldn't have to see him again

and I was worried about my career and I just went on."

Brown had no further contact with Boyd until September 21, 1993,

when AAFES held another conference at the same hotel in Alexan-

dria, Virginia. Again, AAFES required Brown to stay at the hotel and

attend the conference. Boyd was also present at the conference, and

he once again held a non-mandatory social gathering in his suite on

the first night of the conference. Brown was reluctant to attend and

she advised Boles and Ansley of her reluctance. After both men

"stressed the importance to her career of attending the social" and

assured her that if she decided to attend they would be there with her,

Brown agreed to go to the gathering. Boles accompanied Brown to

the gathering, and upon their arrival Boyd apologized to Brown for

his previous conduct. Brown and Boyd then shook hands, which made

Brown feel more relaxed.

Brown was once again the last guest at the gathering. Brown and

Boyd again began to discuss Brown's career. Boyd noted that Boles

would be leaving his job, implying that Brown should apply for

Boles's position. Boyd did not, however, explicitly offer to assist

Brown in obtaining that position.

Brown and Boyd then left the hotel and walked to a pub, where

they each had a beer. While at the pub, they continued to discuss her

career. After 20-25 minutes, Brown and Boyd left the pub and went

across the street to a reggae bar. Boyd tried to get Brown to dance

4

with him, but Brown said she was tired and refused. After about 30

minutes at the reggae bar, they returned to the hotel.

Upon arriving at the hotel at approximately midnight, Boyd asked

Brown if she would come up to his room. Brown agreed after Boyd

promised "he would not touch her in any way." Brown had earlier

cautioned Boyd not to touch her and each time Boyd had agreed not

to.

Once they were in Boyd's suite, while Brown was in the bathroom,

Boyd turned off the lights and put on music. Upon discovering this,

Brown stated that she was going to leave. Boyd grabbed her by the

arms, got down on his knees, and pulled her on top of him. As Brown

tried to free herself, Boyd continually kissed and groped her. Once

she was out of his grasp and was heading for the door, Boyd stated,

"It's your word against mine," and gestured for her to leave.

Brown went back to her room and unsuccessfully attempted to

reach her husband. She did not try to contact anyone else about the

incident. In fact, throughout the rest of the conference, Brown did not

tell anyone about the incident and continued to participate in confer-

ence events.

Upon returning to work at Fort Meade, Brown informed Boles and

Ansley about the incident. They were not supportive, expressing sur-

prise and dismay that Brown would have allowed herself to be alone

with Boyd again.

A few days later, Brown, pursuant to the AAFES anti-harassment

policy, filed an informal EEO complaint about the September inci-

dent. She eventually also filed a written complaint and sought EEO

counseling. In addition, Brown reported the incident to Leigh Farney,

the human resource manager for the Fort Meade Exchange. Brown

and Farney met with the exchange's manager, George Bass, who

reported Brown's allegations to AAFES's Dallas headquarters.

On October 29, 1993, AAFES issued a restraining order in

response to Brown's charges that required Boyd to refrain from hav-

ing any further direct or indirect contact with Brown or with "anyone

5

assigned in any capacity to the Ft. Meade Exchange." After EEO

counseling, Brown entered into a voluntary settlement agreement with

AAFES on November 23, 1993. The agreement provided that (1) the

director of loss prevention would issue a formal apology to Brown,

(2) Boyd would have no further contact with Brown and no dealings

with any employee assigned to the Ft. Meade Exchange, and (3)

Brown's allegations would be investigated and appropriate corrective

action taken upon completion of the investigation. Brown was satis-

fied with this action at the time.

As a result of the investigation conducted pursuant to the settle-

ment agreement, Boyd received a 30-day suspension in June 1994 for

his "inappropriate physical contact and advances towards" Brown and

several other inappropriate work-related activities. This was not the

first time AAFES disciplined Boyd. In January 1993 (prior to both

incidents), Boyd had been counseled about several work-related

issues "including the inviting of female detectives to his room, invit-

ing female detectives to ride with him, making comments about their

looks, etc." He had allegedly commented to a female exchange detec-

tive "while looking at her nipples (through her clothing) that he could

see that she was really cold." In March 1993, employees reported that

a year earlier Boyd had asked a female employee to sit on his lap and

commented that her chest was "well endowed," had made public com-

ments about dildos, and had spoken of enjoying toe sucking. In Janu-

ary 1994, (after both incidents with Brown) still another female

employee reported that Boyd introduced her as his"sexy-tary" and

had engaged in other vulgarisms. None of these employees has ever

claimed that Boyd touched her inappropriately.

Boyd never spoke to or had any contact with Brown after the Sep-

tember 1993 incident. In November 1993, Brown was promoted to

Boles's former position; Boyd played no role in the promotion.

After the September incident, Brown's job performance began to

decline. She also started having suicidal thoughts, nightmares, and

difficulty concentrating. In December 1993, Brown discovered that

Boyd had sent e-mail messages to Ansley in Ft. Meade, causing her

to believe that Boyd had violated the settlement agreement. On Janu-

ary 10, 1994, Brown left her position at AAFES and she entered Wal-

ter Reed Army Hospital the next day. She was diagnosed with post-

6

traumatic stress disorder and depression. She and her husband

divorced soon thereafter. Brown remains unemployed.

II.

On January 5, 1996, Brown filed this action against the then Secre-

tary of Defense, William J. Perry, alleging that she had been sexually

harassed in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C.A. § 2000e-16 (West 1994), and seeking injunctive relief and

money damages.

Following discovery, the Secretary moved for summary judgment.

In response, Brown maintained that she had forecast sufficient evi-

dence to proceed to trial on her sexual harassment claim under either

a quid pro quo or hostile work environment theory. After thoroughly

detailing the relevant facts and carefully applying the then controlling

circuit precedent, the magistrate judge concluded that Brown had

failed to present sufficient evidence to proceed under either theory.

Hence, she granted summary judgment to the Secretary.

In order to prove a quid pro quo case -- i.e., that an employee's

receipt of a job-related benefit or detriment depended on the employ-

ee's reaction to a supervisor's unwelcome sexual harassment -- at the

time of the magistrate judge's decision, circuit precedent required a

plaintiff to establish five elements:

1. The employee belongs to a protected group.

2. The employee was subject to unwelcome sexual harass-

ment.

3. The harassment complained of was based upon sex.

4. The employee's reaction to the harassment affected tan-

gible aspects of the employee's compensation, terms,

conditions, or privileges of employment. The accep-

tance or rejection of the harassment must be an express

or implied condition to the receipt of a job benefit or

cause of a tangible job detriment to create liability. Fur-

7

ther, as in typical disparate treatment cases, the

employee must prove that she was deprived of a job

benefit which she was otherwise qualified to receive

because of the employer's use of a prohibited criterion

in making the employment decision.

5. The employer, as defined by Title VII, 42 U.S.C.

§ 2000e(b), knew or should have known of the harass-

ment and took no effective remedial action.

Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990)

(footnote omitted). The fifth element was "automatically met" when

the harassment was alleged to have been perpetrated by a supervisor.

Id. at 658 n.10 ("[W]here the harassment is being committed by one

of the employer's supervisors . . . knowledge of the harassment is

imputed to the employer.").

The magistrate judge concluded that Brown had forecast sufficient

evidence to survive summary judgment on the first three elements of

the quid pro quo test. However, she held that Brown had produced no

evidence to establish the fourth element, i.e. , that Boyd "assisted

[Brown] in obtaining a job benefit or caused her to suffer a detri-

ment."

The magistrate judge also noted the requirements of circuit prece-

dent concerning claims of what the judge characterized as the "second

form of Title VII sexual harassment," the "creation of a hostile work

environment." To establish a hostile work environment claim, a plain-

tiff was required to prove four elements:

(1) the subject conduct was unwelcome; (2) it was based on

the sex of the plaintiff; (3) it was sufficiently severe or per-

vasive to alter the plaintiff's conditions of employment and

to create an abusive work environment; and (4) it was

imputable on some factual basis to the employer.

Spicer v. Virginia, 66 F.3d 705, 710 (4th Cir. 1995) (en banc). The

magistrate judge found Brown's evidence sufficient to sustain a find-

ing in her favor on the first three elements, but not the fourth. At the

8

time of the judge's decision, circuit law provided that liability could

only be imputed to an employer in a hostile environment claim based

on a supervisor's conduct if a plaintiff could prove that the "employer

knew or should have known of the illegal conduct and failed to take

prompt and adequate remedial action." Andrade v. Mayfair Manage-

ment, Inc., 88 F.3d 258, 261 (4th Cir. 1996). The magistrate judge

concluded that "no reasonable factfinder could conclude that the

remedial action taken here was anything short of prompt and ade-

quate."

Brown appealed, asserting that the magistrate judge had erred with

respect to both her quid pro quo and hostile environment claims.

Brown maintained that she had forecast sufficient evidence to entitle

her to trial on both theories. The parties fully briefed and we heard

argument on the viability of these theories under the facts of this case.

Recognizing that the Supreme Court had granted certiorari in

Faragher and Burlington and that the Court's resolution of those

cases could clarify or even change the governing legal principles, we

held this case in abeyance pending the issuance of those decisions.

The Supreme Court's opinions in those cases did indeed change the

applicable legal principles, and the parties in this case accordingly

submitted supplemental briefs, which we appreciate and have care-

fully considered.1

III.

In Faragher and Burlington, the Supreme Court provided much-

needed guidance as to the proper analysis of sexual harassment claims

and, most particularly, as to the circumstances in which an employer

can be held liable for a supervisor's harassment of a subordinate.

The Court initially instructed that classification of alleged discrimi-

nation as either "quid pro quo" or"hostile work environment" harass-

ment plays no role in the decision as to whether an employer will be

_________________________________________________________________

1 The Secretary asserts in his supplemental brief, as he did in his princi-

pal brief, that Boyd "was not Brown's supervisor." Supplemental Brief

of Appellee at 6. In view of our resolution of this case, we need not reach

that question.

9

held vicariously liable for the acts of a supervisor. Although those

terms may describe or illustrate different types of sexual harassment,

they are otherwise of "limited utility." Burlington, 118 S. Ct. at 2264.

They are only relevant to the "threshold question[of] whether a plain-

tiff can prove discrimination in violation of Title VII." Id. at 2265.2

The Court further held that "the factors" it would set forth, "not the

categories quid pro quo and hostile work environment, will be con-

trolling on the issue of vicarious liability for alleged sexual harass-

ment." Id. at 2265. The Court thus made it clear that whether a claim

is of the quid pro quo or hostile work environment variety does not

govern the determination of vicarious liability under Title VII.

In limiting the use of the two categories as it did, the Court rejected

the distinction that we (and other circuits) had drawn when imputing

liability to an employer for the acts of a supervisor. As noted above,

circuit case law prior to Faragher and Burlington provided that in

quid pro quo cases, liability would be imputed to an employer "auto-

matically," but that in hostile environment cases, liability would be

imputed to the employer only when the employer knew or should

have known of the supervisor's acts and failed to take prompt and

adequate remedial action. In Faragher and Burlington the Supreme

Court directed that vicarious liability in all sexual harassment suits is

to be decided under one set of factors.

The Court then went on to set forth those factors. Whenever sexual

harassment by a supervisor takes the form of a "tangible employment

action" against a subordinate, vicarious liability will be imposed on

the employer. Id. at 2269; see also Faragher, 118 S. Ct. at 2293

("[W]hen the supervisor's harassment culminates in a tangible

employment action, such as discharge, demotion, or undesirable reas-

signment" an employer is vicariously liable); Burlington, 118 S. Ct.

at 2270 (same). In these circumstances, "[n]o affirmative defense is

available" on the issue of vicarious liability. Id.; accord Reinhold v.

Virginia, 151 F.3d 172, 174-75 (4th Cir. 1998). The Court explained

that its holding is based on the rule that a principal is liable when its

_________________________________________________________________

2 The Secretary makes no claim that Boyd's conduct in September

1993 was not "sufficiently severe and pervasive to constitute discrimina-

tion under Title VII." Cf. Lissau v. Southern Food Serv., Inc., 159 F.3d

177, 183 (4th Cir. 1998).

10

agent has been aided by the agency relationship in causing the harm

alleged. See Burlington, 118 S. Ct. at 2267-69. Because a tangible

employment action would not be possible "absent the agency rela-

tion," the Court concluded that "it would be implausible to interpret

agency principles to allow an employer to escape liability" for any

such action perpetrated by a supervisor against a subordinate. Id. at

2269. Thus, "[w]hatever the exact contours of the aided in agency

relation standard, its requirements will always be met when a supervi-

sor takes a tangible employment action against a subordinate." Id.

(emphasis added).

The Supreme Court further directed that even when a supervisor's

harassment does not involve a tangible employment action, an

employer may still be "subject to vicarious liability to a victimized"

subordinate. Faragher, 118 S. Ct. at 2292-93; Burlington, 118 S. Ct.

at 2270. However, "[w]hen no tangible employment action is taken,

a defending employer may raise an affirmative defense to liability or

damages." Faragher, 118 S. Ct. at 2293; Burlington, 118 S. Ct. at

2270; accord Lissau v. Southern Food Serv., Inc. , 159 F.3d 177, 182

(4th Cir. 1998).

To escape liability for a supervisor's harassment of a subordinate

by means of this affirmative defense, an employer must prove by a

"preponderance of the evidence . . . two necessary elements."

Faragher, 118 S. Ct. at 2293; Burlington, 118 S. Ct. at 2270. First,

the employer must establish that it "exercised reasonable care to pre-

vent and correct promptly any sexually harassing behavior." Id.;

accord Reinhold, 151 F.3d at 175. Second, the employer must demon-

strate "that the plaintiff employee unreasonably failed to take advan-

tage of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise." Faragher, 118 S. Ct. at 2293;

Burlington, 118 S. Ct. at 2270.

The employer's institution and enforcement of an anti-harassment

policy and an adequate complaint procedure, while not required "in

every instance as a matter of law," is certainly relevant in establishing

the first element of the affirmative defense. Id. Conversely, proof that

a plaintiff employee failed to follow a complaint procedure "will nor-

mally suffice to satisfy the employer's burden under the second ele-

ment of the defense." Id. Such proof is not, however, the only way

11

in which an employer can establish the second element. Id. ("proof

. . . is not limited to showing an[ ] unreasonable failure to use [the]

complaint procedures").

With these principles in mind, we turn to the case at hand.

IV.

Faragher and Burlington considerably simplify our resolution of

this case.

The undisputed facts clearly demonstrate that Brown suffered no

tangible employment action at Boyd's hands. Boyd simply took no

part in any decision to hire, fire, discharge, transfer, or reassign

Brown, or in any way to alter her employment benefits. Indeed, the

only tangible employment action taken with regard to Brown during

the relevant period was her promotion to Boles's former position, and

Brown concedes that Boyd "had no role in the promotion." Brief of

Appellant at 8. Because Brown indisputably suffered no tangible

employment action, Faragher and Burlington direct that imputation

of liability to her employer is not automatic.

Even in the absence of a tangible employment action, however,

vicarious liability will be imposed unless the employer can make out

the affirmative defense described in Faragher and Burlington. The

undisputed facts in this case demonstrate that AAFES has satisfied

both elements of that affirmative defense.

As a preliminary matter, we note that AAFES needs no defense

with respect to Boyd's advances on Brown at the March conference.

Brown has never sought recovery for damages arising from that inci-

dent. Furthermore, the district court held, and Brown does not seri-

ously dispute on appeal, that "no factfinder would conclude that

[Brown] subjectively perceived her work environment as hostile or

abusive during the period between the first assault and the second."

The uncontroverted facts support this conclusion. The quick and

wholehearted support provided to Brown by her supervisor when she

reported the March assault, Brown's decision not to pursue disciplin-

ary action against Boyd after that incident, her continued excellent job

12

performance, the fact that she had no contact with Boyd between the

two incidents, and her ultimate attendance at the September gathering

all indicate that Brown suffered no hostile work environment as a

result of Boyd's advances in March. Accordingly, the only issue

before us is whether AAFES established an affirmative defense as to

the September incident.

As to the first element of the affirmative defense-- whether the

employer has proved that it exercised reasonable care to prevent and

correct the harassment -- the record reflects that AAFES had in place

an anti-harassment policy (including a complaint procedure) designed

to deter sexual harassment. We recognize that an employer can meet

its burden as to the first element without such a policy, Faragher, 118

S. Ct. at 2293; Burlington, 118 S. Ct. at 2270, and that mere promul-

gation of such a policy may well fail to satisfy the employer's burden.

The employer must act reasonably, and thus any policy adopted by

the employer must be both reasonably designed and reasonably effec-

tual. See Faragher, 118 S. Ct. at 2293-94; see also Reinhold, 151 F.3d

at 175. But where, as here, there is no evidence that an employer

adopted or administered an anti-harassment policy in bad faith or that

the policy was otherwise defective or dysfunctional, the existence of

such a policy militates strongly in favor of a conclusion that the

employer "exercised reasonable care to prevent" and promptly correct

sexual harassment. Faragher, 118 S. Ct. at 2293; accord Lissau, 159

F.3d at 182.

Furthermore, the existence of a viable anti-harassment policy in

this case is accompanied by other undisputed evidence of the employ-

er's reasonable care. First, with regard to prevention of the September

incident, Brown herself concedes that as soon as she told Boles about

the March incident, he fully supported her. Boles immediately told

her, "Whatever you do, I'll support you 100%," and then suggested

that she contact an EEO counselor. Brown, however, told her supervi-

sors that she did not want "to do anything" about Boyd's first

advance. Brown's supervisors respected her wishes and did not pur-

sue the matter.

Apparently in doing so they violated an AAFES directive that all

instances of sexual harassment, even those a victim does not want to

pursue, must be reported to a "resources manager." Although this

13

directive seems a wise one, no reasonable factfinder could conclude

that in this case the supervisors did not take adequate action. They

were confronted with a victim who was continuing to work effec-

tively and did not wish to pursue the matter, who reported a single

incident of harassment perpetrated by a supervisory employee with

whom she would have very limited future contact. We believe that in

these circumstances offering immediate unconditional support to the

victim and suggesting that she pursue her EEO remedies constitutes

an entirely reasonable effort to prevent further incidents. That this

effort proved unsuccessful is unfortunate, but it does not mean that

the effort was unreasonable. Sometimes, as in this case, an employ-

er's reasonable attempt to prevent future harm will be frustrated by

events that are unforeseeable and beyond the employer's control. The

law requires an employer to be reasonable, not clairvoyant or omnipo-

tent.

The evidence as to the reasonableness of AAFES's corrective

action is similarly clear. When Brown did file an EEO complaint after

the September incident, AAFES took prompt corrective action.

AAFES immediately issued a restraining order prohibiting Boyd from

having any contact with Brown or other Ft. Meade employees. In

addition, Brown entered into a voluntary settlement agreement with

AAFES in which the agency agreed to investigate Boyd, to take

appropriate corrective action, to issue Brown a formal apology, and

to reiterate its order to Boyd to cease all contact with Brown and other

Ft. Meade employees. Upon receiving these orders, Boyd never again

had any contact with Brown. Moreover, AAFES did, in fact, investi-

gate Boyd, after which it suspended him for thirty days for inappro-

priate work-related activities including "inappropriate physical

contact and advances toward Brown." Even Brown acknowledged

that at the time she was satisfied that these constituted adequate cor-

rective measures by AAFES.

Later, of course, Brown contended that AAFES's corrective

efforts, like its preventive ones, were inadequate. Specifically, she

asserts that she never received a formal apology and that Boyd contin-

ued some business e-mail communications to other Ft. Meade

employees, that the settlement agreement was thus violated, and that

AAFES did nothing to remedy this. Even if the agreement was techni-

cally violated in these respects, in view of the fact that AAFES's

14

response pursuant to its established anti-harassment policy succeeded

in permanently ending Boyd's harassment of Brown and punishing

Boyd for his past behavior, no reasonable factfinder could conclude

that AAFES's action did not constitute reasonable corrective mea-

sures. Again, the law requires reasonableness, not perfection.

In sum, a reasonable finder of fact considering AAFES's fully

functioning anti-harassment policy; Boles's immediate support for

Brown after the first incident; AAFES's issuance of a restraining

order prohibiting Boyd from having any contact with Brown, which

succeeded in stopping any further harassment; AAFES's undertaking

of an investigation of Boyd; and finally AAFES's suspension of Boyd

for thirty days could only conclude that AAFES did"exercise[ ] rea-

sonable care to prevent and correct promptly" Boyd's "sexually

harassing behavior." Faragher, 118 S. Ct. at 2293; Burlington, 118 S.

Ct. at 2270. Thus, we must conclude that AAFES has met its burden

on the first element of the affirmative defense.

With regard to the second element, the evidence that AAFES met

its burden is just as clear. Contrary to the parties' apparent belief, in

order to satisfy this element an employer need not demonstrate that

an employee "unreasonably failed" to follow a"complaint procedure"

or "to take advantage of any preventive or corrective opportunities

provided by an employer." Id. Rather, an employer can prove the sec-

ond element of the affirmative defense by demonstrating that the

"plaintiff employee unreasonably failed . . . to avoid harm otherwise."

Id.

The record in this case is replete with uncontroverted evidence that

Brown utterly failed to "avoid harm otherwise." Less than six months

after rebuffing advances from Boyd in his hotel room late at night,

Brown unnecessarily put herself in a situation that permitted repeti-

tion of precisely the same kind of advances. By her own account,

Brown voluntarily decided to remain alone in Boyd's hotel room with

him at night during the September conference even though the March

incident was fresh in her mind. Brown not only remained alone with

Boyd in his room for a second time, she also accepted Boyd's invita-

tion to visit first a pub and then a reggae bar following the party.

Finally, after the bar-hopping, Brown agreed to return to Boyd's hotel

room at midnight. In light of her previous history with Boyd, no rea-

15

sonable factfinder could reach any conclusion other than that Brown

"unreasonably failed . . . to avoid harm." Id. Thus, the undisputed

facts demonstrate that AAFES satisfied the second element of the

affirmative defense as well as the first; hence, it cannot be held vicari-

ously liable for Boyd's harassment of Brown.

V.

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

AFFIRMED.

NIEMEYER, Circuit Judge, concurring in the judgment:

I agree that the district court should be affirmed in this case and

therefore concur in the judgment.

16