Opposition Brief — Shaw v. AutoZone, Inc.

| Supreme Court, U.S. ]

FILED

| ro 45 1999

S/

OFFICE OF THE CLERK

No. 99-668

In The

October Term, 1999

TIFFANY D. SHAW

Petitioner,

VS.

AUTOZONE, INC.

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

ROBERT B. WORLEY, JR.*

STEPHANIE C. MOORE

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE &

DENEGRE

201 St. Charles Avenue

New Orleans, Louisiana 70170

(504) 582-8000

Counsel for Respondents

AutoZone, Inc.

*Counsel of Record

Se ad

PARTIES TO THE PROCEEDING

The Petition accurately lists the parties to the proceeding.

There is no parent or publicly held company owning 10% or

more of AutoZone stock.

ul

TABLE OF CONTENTS

Page

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A. There Are No Issues Warranting Review .. |

B. The Specific Allegations of Sexual Harassment

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ba The Petition Fails to Set Forth in Detail How

Petitioner Failed to Report the Alleged

Harassment :

POET re 2

D. Petitioner Incorrectly States Why the Seventh

Circuit Applied the Affirmative Defense ... 3

Reasons for Denying the Writ .... 2... ............05. 4

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Contents

Page

TABLE OF AUTHORITIES

Cases Cited:

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998)... 1,3, 4, 7, 8,9, 10, 11, 12, 13

Faragher v. City of Boca Raton,

$24 U.S. 775 (1998) .. 02... 1,4, 8,9, 10, 11, 12, 13

Goodman vy. Lukens Steel Co.,

Oe l

Mandy v. Quad/Graphics, Inc.,

49 F Supp.2d 1095 (E.D. Wis. 1999) ............ 9

Montero v. Agco Corp.,

192 F.3d 856 (9th Cir. 1999) .. 0.00.20... 10

Scrivner v. Socorro Independent School District,

169 F.3d 969 (Sth Cir. 1999) .................. 9

Shaw v. AutoZone,

180 F.3d 806 (7th Cir. 1999) ......000.0....... 3

I

STATEMENT OF THE CASE

A. N W. i view

This Petition for a Writ of Certiorari. concerns an

affirmance of a summary judgment that was entered in favor of

the employer, AutoZone, Inc. (“AutoZone”), in a case of alleged

sexual harassment. More specifically, this Petition challenges

the Seventh Circuit’s application of the affirmative defense

established by this Court in Burlington Industries, Inc. vy.

Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca

Raton, 524 U.S. 775 (1998). Petitioner, Tiffany Shaw, does not

seek to challenge the legality of the defense. Instead, Petitioner

asserts the Seventh Circuit should not have applied the defense-

--contending that under the facts of this case the defense was

not satisfied. Petitioner contends the Seventh Circuit should

have remanded the case for the District Court to apply the

defense rather than deciding the matter itself Accordingly, this

Petition is fact-based, and presents no issue of law for this

Court to address. Goodman v. Lukens Steel Co. , 482 U.S. 656,

665 (1987) (“A court of law, such as this Court is, rather than

a court for corrections of errors in fact fi nding, cannot undertake

to review concurrent findings of fact by two counts below in the

absence of a very obvious and exceptional showing of error.”)

B. Che Specific Allegations of Sexual Harassment Are Not

at Issue

In her Statement of the Case, Petitioner highlights the

specific instances of alleged sexual harassment; however, the

issue before this Court is not whether the harassment took

place, or whether such conduct rises to the level of actionable

harassment even if it did occur. The District Court granted

summary judgment, and the Seventh Circuit affirmed, on the

basis that AutoZone could not be liable due to Petitioner’s

unreasonable failure to take advantage of the corrective

2

opportunities AutoZone provided by virtue of its sexual

harassment complaint procedure. Petitioner’s reference to the

specific allegations is immaterial at this stage of the

proceedings.

C. iti i i w Petiti

Failed to R ed H

Petitioner concedes that she did not report the alleged

harassment (Petitioner’s Brief at 6), but she gives that important

fact short shift. A descriptive account of her inaction would be

more instructive.

AutoZone is in the automotive parts business.

AutoZone employed Petitioner as an assistant store manager in

its Rock Falls, Illinois, store beginning in mid-February 1995,

until June 6, 1995. (R. 28, App. at 6, 15.) Donald A. Noble

became the store manager of AutoZone's Rock Falls store

around May 1993, and remained in this position during the

entire period in 1995 when AutoZone employed Petitioner. (R.

28, App. at 21-22.)

AutoZone's employee handbook, which was in effect

during Petitioner's employment with AutoZone, prohibits sexual

harassment and states that an employee who believes he/she is

a victim of sexual harassment should report the offending

behavior to his/her Store Manager, Area Advisor, District

Manager, or directly to the director of personnel services or the

Equal Employment Opportunity Manager in Department 8029

at AutoZone's corporate headquarters in Memphis, Tennessee.

(R. 28, App. at 36-37, 42-45.) Petitioner received a copy of this

handbook on February 14, 1995, as evidenced by the

acknowledgment form she signed that is retained in her

personnel file. (R. 28, App. at 36-37.) Petitioner never contacted

anyone who worked for AutoZone in any capacity regarding the

ae cow

3

alleged sexually harassing behavior of Donald Noble. (R. 28,

App. 10, 14.) Petitioner testified that during her employment

with AutoZone, from February to June 1995, she saw Noble's

supervisor, Dave Hunsche, in the store every two to three

weeks. Petitioner also attended a manager's meeting, which

District Manager Steve Lang and all of the other managers in

the area attended in March 1995. Steve Lang also accompanied

the AutoZone Vice President on a visit to the Rock Falls store

in May 1995; however, Petitioner did not, on any of these

occasions, complain that Mr. Noble sexually harassed her. (R.

28, App. at 8-10, 14.)

After Petitioner quit, Mr. Hunsche attempted to contact

her on three separate occasions in order to conduct an exit

interview to determine why she quit. Petitioner did not return

Mr. Hunsche's calls or meet with him. (R. 28, App. at 33. ) Mr.

Hunsche had no knowledge that Petitioner ever claimed that she

was sexually harassed while working at AutoZone until three

months after she quit and EEOC administrative proceedings had

commenced as a prelude to the instant action. (R. 28, App. at

32, 34.)

D. Petitioner Incorrectly States Why the Seventh Circuit

ied t rmative Defense

Petitioner states that the Seventh Circuit held that an

employee’s failure to use an employer’s complaint procedure

will always satisfy the employer’s burden under the second

element of the affirmative defense (Petitioner’s Brief at 8).

Petitioner further states that the parties should have an

Opportunity to develop the record on the issue of whether

Petitioner’s decision not to report sexual harassment was

reasonable (Petitioner’s Brief at 9). The Seventh Circuit

affirmed the summary judgment on de novo review because it

had sufficient evidence to apply the affirmative defense. Shaw

v. AutoZone, 180 F.3d. 806, 813 (7th Cir. 1999). Petitioner had

4

already answered comprehensive questions at her deposition

about the sexual harassment complaint procedure and the

reasons for her abject failure to report the alleged harassment.

Petitioner’s argument that it was reasonable for her not to

follow AutoZone’s complaint mechanism because she did not

feel comfortable speaking to anyone at AutoZone about the

alleged conduct was specifically rejected by the court. The court

acknowledged Petitioner’s argument, but concluded that, “an

employee’s subjective fears of confrontation, unpleasantness or

retaliation do not alleviate the employee’s duty under Ellerth to

alert the employer to the allegedly hostile environment.”

Shaw, 180 F.3d at 813. The Petitioner is wrong to say that the

Seventh Circuit incorrectly applied the affirmative defense

because it did not have the facts necessary to do so is incorrect.

The Seventh Circuit considered Petitioner’s failure to complain,

as well as her reasons for that failure, when it applied the

affirmative defense in favor of AutoZone.

REASONS FOR DENYING THE WRIT

I. Petitioner Failed to Do Anything to Report the

Alleged Harassment, and Given That Fact, Her

Inaction was Unreasonable and There is Nothing for

This Court to Consider

Petitioner correctly states that this Court established an

affirmative defense to claims of sexual harassment by

supervisors when the employee has suffered no tangible

employment action. More specifically, this Court held in

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), that the

employer is protected from liability when it can show: (1) that

the employer exercised reasonable care to prevent and correct

promptly any sexually harassing behavior; and (2) that the

5

plaintiff employee unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the

employer or to avoid harm otherwise. Petitioner concedes that

she suffered no tangible employment action (Petitioner’s Brief

at 5), so this is a case in which the affirmative defense is

applicable. Petitioner concedes that AutoZone had an anti-

sexual harassment policy with multiple reporting mechanisms

(Petitioner’s Brief at 6), thus satisfying the first prong of this

defense. Petitioner further concedes that she failed to report the

alleged harassment. (Petitioner’s Brief at 6). Petitioner argues,

however, that it is not always unreasonable for an employee to

fail to report alleged sexual harassment, and that this case

should be remanded to the District Court to consider whether

her silence was reasonable. AutoZone respectfully suggests that

Petitioner’s utter failure to do anything to notify management is

precisely what the Supreme Court contemplated when it

established the affirmative defense insulating employers from

liability. Therefore, Petitioner’s request for review should be

denied.

The evidence plainly establishes that Petitioner did

absolutely nothing to take advantage of the opportunities

AutoZone gave her to complain and offered no plausible

explanation for her failure to do so. In order to understand how

unreasonable Petitioner was, the language of the policy itself

should be considered, as that demonstrates how allegedly

aggrieved employees were urged to come forward. This policy

reads in pertinent part as follows:

Sexual Harassment

AutoZone will not tolerate sexual harassment.

Such conduct or the encouragement of such

conduct may result in termination.

6

AutoZone's stance on this issue extends to alli

AutoZoners, as well as people outside AutoZone

that we do business with -- our customers,

suppliers and vendors. Every AutoZoner needs

to be aware of AutoZone's sexual harassment

policy.

Sexual harassment means unwelcome sexual

advances, verbal or physical. Sexual

harassment occurs when:

“ Submission to such conduct becomes,

either explicitly or implicitly, a term or

condition of employment.

° Submission to, or rejection of, such

conduct by an individual becomes the

basis for employment decisions affecting

any individual.

° Such conduct interferes with your work

or creates an uncomfortable working

environment.

The bottom line is, all AutoZoners should be

treated with respect and AutoZone as a

company will not tolerate anything less.

We want you to know that AutoZone is

committed to having a cooperative and

harassment-free work environment. AutoZoners

who may have been subject to sexual

harassment should notify the store Manager at

once or report the situation directly to the AA or

the DM. The AutoZoner may also directly

contact the Director of Personnel Services or the

7

Equal Employment Manager at Mail Station

8029.

Any AutoZoner who receives a complaint or

becomes aware of a sexual harassment situation,

should report the allegation immediately.

Management action will be taken to investigate

each reported allegation thoroughly in as

confidential a manner as possible.

(R. F8, App. at 42-44.)

Petitioner’s deposition testimony proves that she was

unreasonable in failing to act. Petitioner testified that she never

reported the alleged harassment to anyone at or above her

immediate supervisor’s level in the company, and that she did

not take steps to avail herself of corrective and preventative

measures at place at AutoZone:

Q.

QHD > Df -

Did you tell Mr. Noble that you were

offended by that [his alleged comments

on inventory trips]?

No.

Why not?

I just wanted it to go away.

And you thought that if you asked him

to stop that it would not go away?

Correct.

But you never tried to stop it that way,

did you?

8

A. He was my employer. |

— |

A No.

Q. And you didn't call anybody from that

trip higher up in management to report

what was going on, did you?

A No.

Q. -I

talking about employees at the store now

-- that Mr. Noble made you feel upset or

uncomfortable?

A No.

Q. Is there any reason why you didn't speak |

up? |

A. I didn't feel that I could trust any of the

other employees to speak to them on that

kind of level.

A. Correct.

(R. 28, App. at 10, 14.) (Emphasis added.)

een cecmeeiien aaa

9

Pursuant to the Ellerth decision, courts have consistently

held that an employee who does nothing to report the alleged

harassment has unreasonably failed to take advantage of the

employer’s opportunities to correct the problem. Hence, the

Seventh Circuit's holding in the case sub judice is proper.

Scrivner v. Socorro Independent School District, 169

F.3d 969 (Sth Cir. 1999), involved an elementary school teacher

who sued the school district and the school principal for sexual

harassment and retaliation in violation of Title VII. The school

superintendent received an anonymous letter, from someone

other than the plaintiff, complaining about the principal’s

sexually harassing behavior and vulgar comments. The school

board immediately launched an investigation. In the context of

that investigation the school board questioned the plaintiff

about the principal’s conduct, but the plaintiff denied the

principal's conduct was sexually harassing or vulgar. She did

not disclose the principal’s inappropriate actions toward her.

Four months later; however, the plaintiff filed a formal

complaint with the school district regarding the principal’s

behavior.

The school district promptly investigated the complaint

and removed the principal from his position. Nevertheless, the

teacher filed her lawsuit. The school district filed a motion for

summary judgment on the basis that the plaintiff had

unreasonably failed to avail herself of the school district’s

preventative and corrective sexual harassment policies (the

affirmative defense recognized by Ellerth/Faragher). The

district court granted the motion and the plaintiff appealed.

Scrivner, 169 F.3d at 971. The Fifth Circuit held that the

plaintiff was unreasonable in failing to inform the schol

district of the principal’s conduct when given an express

opportunity to do so. For that reason, the employer successfully

proved the affirmative defense to Title VII liability for the

school principal's harassing behavior.

——

10

Even when an employee does complain about sexual

harassment, the employer may still be successful in proving the

second prong of the Ellerth/Faragher affirmative defense. In

Montero v. Agco Corp., 192 F.3d 856 (9th Cir. 1999), the

plaintiff received several copies of the sexual harassment

policy, and knew whom to contact if she believed she was

sexually harassed. Despite that fact, the plaintiff waited nearly

two years before complaining to the company’s human

resources department about sexual harassment. Once the

plaintiff did complain, the company promptly responded by

investigating the plaintiff's complaint and taking disciplinary

action against the alleged harassers. Because the plaintiff

waited so long to complain, the employer successfully met the

second prong of the Ellerth/Faragher defense by showing the

plaintiff “unreasonably failed to take advantage of the

company’s preventative and corrective opportunities earlier,

although she knew of their existence.” Montero,192 F.3d at

863.

Mandy v. Quad/Graphics, Inc., 49 F.Supp.2d 1095 (E.D.

Wis. 1999) is another example of an employee’s unreasonable

failure to take advantage of the employer’s preventative and

corrective opportunities. In that case, the plaintiff delayed

almost two years before reporting a supervisor’s sexual

harassment. The court noted that had she reported this conduct

immediately, or at least sooner, much of the harassment could

have been avoided. The plaintiff attempted to explain her delay

in reporting the harassment by claiming that she was afraid of

retaliation from the supervisor; however, the court rejected that

argument, pointing out that the company’s anti-harassment

policies and procedures would have protected her. The court

observed that the Supreme Court placed the burden on the

employee to report harassing conduct “before it becomes severe

or pervasive,...” /d. at p. 1111, quoting Burlington Indus., Inc.

v. Ellerth, 524 U.S. 742 (1998). The court held that the

1]

plaintiff's failure to come forward sooner established the

company’s affirmative defense.

Petitioner has cited no testimony from the record, nor

has she explained by way of argument, why her utter silence and

inaction should be excused as reasonable. The Supreme Court

has held that the second prong of the affirmative defense is

established when the employee has unreasonably failed to take

advantage of the employer’s corrective opportunities. It is

difficult to envision a set of facts whereby an employee could

have been any more unreasonable than the Petitioner in this

case. AutoZone implemented a complaint procedure so that it

would have the opportunity to correct such behavior, and this

Petitioner failed to report the harassment. This thwarted any

opportunity AutoZone would have had to correct such allegedly

harassing behavior. There is no reason to remand the case for

the District Court to consider whether, as a matter of law,

Petitioner’s absolute failure to report the alleged harassment

could be construed as reasonable.

Petitioner argues that the Supreme Court ruled in

Ellerth/Faragher that the reasonableness of an employee’s

failure to report the alleged harassment is a question of fact that

necessitates a remand to the district court for determination.

Petitioner is incorrect. he Supreme Court did not state that the

issue of the Petitioner’s reasonableness is a fact issue

precluding summary judgment. Rather, the Supreme Court

stated that: “[w]hile proof that an employee failed to fulfill the

corresponding obligation of reasonable care to avoid harm is not

limited to showing any unreasonable failure to use any

complaint procedure provided by the employer, a demonstration

of such failure will normally suffice to satisfy the employer’s

burden under the second element of the defense.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). This statement

actually lessens the burden on AutoZone in its proof of the

affirmative defense, rather than requiring remand for further

12

consideration. This pronouncement means that an employer

such as AutoZone can prove the employee acted unreasonably

even without showing the employee failed to utilize the

reporting procedure of its sexual harassment policy. If the

employer can prove that the employee unreasonably failed to

complain, that should be sufficient to establish the affirmative

defense. AutoZone has proven that Petitioner did nothing

whatsoever to take advantage of the opportunities it afforded

her to correct the alleged harassment, and thus, Petitioner’s writ

application should be denied.

II. The Supreme Court Applied the New Affirmative

Petitioner argues that the Seventh Circuit should not

have applied the Ellerth/Faragher defense itself, but rather,

should have remanded the case so that the District Court could

apply the defense. Petitioner reasons that at the time the

summary judgment was entered by the District Court, the

Supreme Court had not yet established the affirmative defense

in Ellerth/Faragher, and thus, a remand is necessary.

Petitioner’s argument is fallacious in two respects.

First, although it is true that the Ellerth/Faragher

defense had not yet been established at the time the District

Court entered summary judgment, the issue of whether or not

Petitioner had utilized the complaint procedure was at issue

before the District Court. The District Court applied a

negligence standard in granting the motion for summary

judgment holding that because Petitioner did not complain,

AutoZone had no reason to know of the alleged harassment.

The Supreme Court later held in Ellerth/Faragher that the

employer is vicariously liable, without regard to its own

Ne ee ee

aia

ee

13

negligence, unless the employer can-prove the new affirmative

defense. But even though the Supreme Court had not yet

decided Ellerth/Faragher, Petitioner’s failure to utilize the

complaint procedure was still at issue for purpose of the

negligence issue: whether AutoZone knew or reasonably

should have known of the alleged harassment. All questions

pertaining to Petitioner’s failure to utilize the complaint

procedure, indeed her failure to notify anyone in management

in any way of the alleged harassment, was fully developed

during the discovery stage in the District Court. Remanding the

case for further discovery would be pointless, because unless

Petitioner is suggesting that she would now change her

testimony to defeat the affirmative defense (which she has not

said), discovery pertaining to that affirmative defense has

already been accomplished.

Second, there is authority in support of the Seventh

Circuit’s decision to consider the affirmative defense on appeal,

rather than remand the case, and Petitioner’s argument fails for

that additional reason. As the Court of Appeals noted in its

decision below, the Supreme Court in Faragher applied the

new affirmative defense to the facts as previously developed by

the parties at the district court stage. The Supreme Court

decided the Faragher case without remanding for further

consideration of the newly established affirmative defense.

Considering that the Supreme Court applied this newly

established affirmative defense in Faragher, which along with

the Ellerth decision recognized the defense for the first time,

then certainly it would be appropriate for the Seventh Circuit to

apply the affirmative defense on appeal in this case.

CONCLUSION

AutoZone respectfully requests the Court to deny the

Petition for the foregoing reasons.

14

Dated: December 3, 1999

Respectfully submitted,

(otastt Dele.)

ROBERT B. WORLEY, JRZ

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE &

DENEGRE

201 St. Charles Avenue

New Orleans, Louisiana 70170

(504) 582-8000

Het C. Mire

STEPHANIE C. MOORE

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE &

DENEGRE

201 St. Charles Avenue

New Orleans, Louisiana 70170

(504) 582-8000

Counsel for Respondent

AutoZone, Inc.