Petition for Writ of Certiorari — Eddy Potash, Inc. v. Harrison
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supreme Court, U.S.
FILED
01 383 AUG 29 203
No. 01- OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
EDDY POTASH, INC.,
Petitioner,
v.
JEANNE HARRISON,
Respondent.
On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
—-~
—
PETITION FOR A WRIT OF CERTIORARI
W. T. Martin, JR.
Counsel of Record
Law Orrices OF W. T. Martin, JR., P.A.
509 W. Pierce St.
P.O. Box 2168
Carlsbad, NM 88221-2168
(505) 887-3528
Attorney for Petitioner
168392 g
COUNSEL PRESS
" (800) 274-3321 + (800) 359-6859
A J
es he ei
a ee mney
i
QUESTIONS PRESENTED
I. Should an employer be vicariously liable for supervisor
sexual harassment where:
a.
A reasonable employer has received a complaint
from an employee in a reasonable time period and
the employer promptly and reasonably acts to
remedy the harassment?
(or stated in an alternative manner)
b.
(and)
(or)
If an employer has in place reasonable preventive
and corrective opportunities, of which the alleged
victim reasonably avails herself/himself, should the
employer be able to escape vicarious liability for a
supervisor’s sexual harassment?
~~
Should the Ellerth/Faragher affirmative defense be
clarified to address the issue stated in Ia and Ib
above.
Should the Ellerth/Faragher affirmative defense be
modified to allow an employer to escape liability
for a supervisor’s creation of a hostile work
environment by proving both of the following
elements: (1) the employer exercised reasonable care
by creating and maintaining preventative and
remedial programs relating to sexual harassment;
and (2) the employer exercised reasonable care in
responding to notice that harassment has occurred,
thereby encouraging the employer to deal with
harassment before, while, and after it occurs?
il
TABLE OF CONTENTS
Page
Questions Poesaabel .....444csxtiiacisteeneaun i
TORNG OF CORNING 6a nck Ua ee il
Table of Cited Authorities ...............00008. iv
Fable of Ageemeee uc ocak cea ae eat Vil
Crentons DORW ois 505 ies Release ene tees l
Statement Of JUrisGictwOM ok nc cc ccevtnacwees l
ee Pi te hy ot a l
Statement Of the C66 2. v4 6s:kikuees cana puav eens l
A. SneQeee 2065554555 l
DB. POM ooo scsbcannkeee eee 3
C. PROM 2.46655 eee 8
Reasons for Granting the Writ ................. 11
I. The Issue Of Whether An Employer Should
Be Held Vicariously Liable Where That
Employer Has Acted Reasonably And The
Employee Has Acted Reasonably By
Promptly Complaining Of The Harassment
(Availing Oneself Of Available Preventative
Or Corrective Measures) Should Be
Addressed By This Court ........ccesee. 11
II. The Ellerth/Faragher Affirmative Defense
(1) Fails To Address The Issue Of Vicarious
Liability Where The Employer Has Acted
Properly And Reasonably And (2) Defeats
The Goal Of Encouraging Employer Action
ee eS
is ee ee ed ORS
Contents
To Prevent Sexual Harassment By Imposing
Liability Upon An Employer Where It Has
Acted Reasonably And The Employee Has
Likewise Acted Reasonably, But Conversely,
Leaving The Employer Not Vicariously
Liable Where The Employee Has Not Acted
Reh eerie ka wh 6 vie oon aoe
A. Defense Counsel Journal Article (April,
ere ee
B. University of San Francisco Law Review
Article (Spring 2001) ..............
C. Fordham Law Review (March 2001) ..
D. Various Courts’ Commentary on the
Probiems with the Ellerth/Faragher
Affirmative Defense ...............
III. There Exists Conflict Between The United
States Circuit Courts Of Appeal On The
Application And Implementation Of The
Ellerth/Faragher Affirmative Defense ....
IV. The Need For Consistency On A Nationwide
Basis And The Importance Of The Federal
Law Applicable To This Case Warrant The
CE Mc venevndecesecceseus
I a a
Page
13
14
15
21
25
29
30
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
Barrett v. Applied Radiant Energy, 70 F. Supp.2d 644
(W.D. Va. 1999), aff'd in part, vacated in part,
240 F.3d 262, 85 Fair Empl.Prac.Cas. (BNA) 253,
8 Emp.Prac.Dec. 940,418 (4th Cir. (Va.) Feb. 13,
ME, ad 54a ke eek dks ses eee eae blake 13
Barua v. Credit Lyonnais — U.S. Branches, 1998
Wis PESOS CEEs BE Es BOD oc ccsasecsecnses 22
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
oo er nA eT er Pe er ee passim
Coates v. Sundour Brands Inc., 164 F.3d 1361
fale RO ee errr rrr 22, 23, 28
Faragher v. City of Boca Raton, 524 U.S. 775
SU a c6d5o baRC ehh el edad a eee passim
Gunnell v. Utah Valley State College, 152 F.3d 1253
CP: SEE ce du ose siensecravashencess \.Ue
Indest v. Freeman Decorating, Inc., 164 F.3d 258
oe | BS ree 18, 23, 24, 25, 26, 27
Marsicano v. American Society of Safety Engineers,
1998 WL 603128 (N.D. Ill. 1998) ............ 22
Neal v. Electronic Data Systems Corp., 1999 U.S.
Dist. Lexis 9732 (W.D. N.C. 1999) ........... 25
Cited Authorities
Page
Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir.
PFOEd bectbevccdentieusacereeee eee 25
Watkins v. Professional Security Bureau Ltd.,
201 F.3d 439 (4th Cir. 1999) ................. 23, 26
Williams v. General Motors Corp., 187 F.3d 553
oe Pr ere pee er yy ee 27
Statutes:
rR LE OF eae RY Lg ep ean the YS th oh rats l
Wise sce. Cc. Pee 8
Be le BERT 6: Ks 42AS SRR Te 8
GZ Ua. © DRO OD 60x adden bcaeuecdees 1
Other Authorities:
Restatement (Second) of Agency § 219(2)(d) ..... 8
Dont Train Your Employees and Cancel your
“1-800” Harassment Hotline: An Empirical
Examination and Correction of the Flaws in the
Affirmative Defense, 69 Fordham L. Rev. 1265
CE ED ok adn dnt aks arabe neease ern 19
Indest v. Freeman Decorating, Inc.: Dealing with
Vicarious Liability for Sexual Harassment by a
Supervisor, Daniel N. Raytis, 35 U.S.F.L. Rev. 623
) Breer ree reer prey eis Aer 15, 16.
vi
Cited Authorities
Page
“Let s be Reasonable” — Resolving the Ambiguities
of the Faragher-Ellerth Affirmative Defense,
68 Def. Couns. J. 211 (April 2001) ............ 2,14
vil
TABLE OF APPENDICES
Page
Appendix A — Opinion Of The United States Court
Of Appeals For The Tenth Circuit Dated And Filed
PP Pee PTT ete eT en yr nee la
Appendix B — Judgment Of The United States
District Court For The District Of New Mexico
Dated And Filed March 30, 2000 ............. 28a
Appendix C — Order Of The United States Court
Of Appeals For The Tenth Circuit Denying
Petition For Rehearing Dated And Filed May 31,
ET PET VET CET POET TE eT ee 30a
Appendix D — Relevant Statute ............... 32a
Appendix E — Relevant Jury Instructions ....... 33a
l
Petitioner, Eddy Potash, Inc, (EP/), respectfully petitions
for a Writ of Certiorari to review the judgment of the United
States Court of Appeals for the Tenth Circuit (Tenth Circuit)
entered April 30, 2001.
OPINIONS BELOW
The opinion of the Tenth Circuit is officially reported
at 248 F.3d 1014, 85 Fair Emp.Prac.Cas.(BNA) 990,
80 Empl.Prac.Dec. { 40,506, 2001 DJCAR 228 (10th Cir. (NM)
April 30, 2001). The Tenth Circuit’s published opinion is
reproduced in the Appendix filed with this Petition for Writ of
Certiorari. (Appendix A, p. 1a)
STATEMENT OF JURISDICTION
The Tenth Circuit entered its judgment on April 30, 2001.
On May 31, 2001, the Tenth Circuit entered its Order denying
EPI’s Petition for Rehearing. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
STATUTES INVOLVED
42 U.S.C. § 2000e-2(a), the relevant portions of the statute
is set forth, infra, at Appendix D, p. 32a.
STATEMENT OF THE CASE
A. Introduction
Following years of massive amounts of litigation and heated
debate regarding when an employer may be vicariously liable
for a supervisor’s sexual harassment of an employee, this Court,
in 1998, issued two decisions, Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton,
524 U.S. 775 (1998) (Ellerth/Faragher). The two cases created
strict liability in the hostile work environment context unless
the employer can establish an affirmative defense crafted by
this Court in those decisions. The affirmative defense comprises
two elements: (a) that the employer exercised reasonable care
to prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided
by the employer to avoid harm otherwise. The affirmative
defense is not available when the supervisor’s harassment
2 “
culminates in a tangible employment action, such as discharge,
demotion, or undesirable reassignment. The subsequent case
law dealing with the Ellerth/Faragher affirmative defense
evidence, ongoing confusion and uncertainty as to its application
and whether it has addressed all situations that might arise.
Division exists between the courts regarding the affirmative
defense as to its clarity and application to certain situations,
such as the one presented in the this case. Legal commentators
in articles contained in law reviews and journals are seriously
questioning whether the affirmative defense is in fact achieving
the goals sought by this Court in Ellerth/Faragher. As one legal
commentator has stated:
Unfortunately, the majority opinions in Faragher
and Ellerth do not resound with clarity as to
exactly what an employer must do to escape
liability for sexually harassing behavior by a
supervisor. .. . Faragher and Ellerth do little more
than create confusion and an abundance of
litigation, which has and undoubtedly will
continue in the lower courts. Even deeper than
the rift between the Supreme Court’s majority
and dissenters is the split between the circuits as
to what is reasonable versus what is
unreasonable. ...
“Lets be Reasonable” — Resolving the Ambiguities of the
Faragher-Ellerth Affirmative Defense, 68 Def. Couns. J. 211
(April 2001). Among the issues encased in uncertainty and lack
of clarity is the question of the availability of protection to a
reasonable employer who receives a reasonable complaint and
promptly remedies the harassment.
The problem that has manifested itself may be best
characterized by the following illustration:
Assume an employer has a policy against sexual
harassment in place. Further assume a wayward
supervisor has sexually harassed a female employee
and the female employee has promptly reported the
a Py rape rae ee
3
harassment to the employer. Following the report,
the employer promptly investigates the allegations
of sexual harassment. The investigation results in
disciplinary action being taken against the
supervisor. In spite of the employer’s having an anti-
harassment policy in place which it has promptly
and properly enforced, the female employee who had
also promptly reported the harassment files suit
under Title VII.
The question that arises from the illustration is whether the
employer should be held vicariously liable and whether Ellerth/
Faragher actually address such a situation and, if they do, how
should the affirmative defense be applied. The other question
that arises is whether the Ellerth/Faragher affirmative defense
should be modified to deal with such a situation. The facts
present in this case involving Jeanne Harrison, the employee,
and EPI, the employer, fall squarely into the realm of uncertainty
remaining from Ellerth/Faragher regarding the application of
the affirmative defense.
B. Facts
EPI operated an underground potash mine near Carlsbad,
Eddy County, New Mexico. The Defendant, R. L. Brown
(Brown), was a low-level supervisor with the responsibilities
of a shift foreman and face boss. The position of face boss is
the lowest supervisory level at EPI. EPI had combined the duties
of an underground shift foreman and face boss. Brown, as the
shift foreman, had no authority to hire, no authority to fire, and
no authority to discipline. The extent of Brown’s authority as
an underground shift foreman/face boss was to make work
assignments for members of his crew and pair members of his
crew to accomplish those work assignments. Brown had no
involvement other than reporting the infraction to upper-level
management. EPI’s decision as to the appropriate level of
disciplinary action to be invoked was made by a committee or
group of upper-level management personnel. Brown, as an
underground shift foreman/face boss, was not a member of,
4
nor participant in, the group. Brown, as an underground
shift foreman/face boss, had no authority to determine who
was assigned to his crew or what work was to be done.
Those decisions were controlled by upper level management.
The extent of Brown’s authority was to pair the workers assigned
to his crew and to delegate the paired workers to the tasks to be
accomplished.
The Respondent, Jeanne Harrison (Harrison), began
working for EPI as an underground potash miner in May of
1992. Harrison was assigned to Brown’s crew. As an
underground potash mimer, Harrison participated in the “buddy
system.” The buddy system was one in which each miner was
assigned another laborer. The two then worked together within
a section of the mine away from other members of his or her
crew. If a miner was not assigned a “buddy” on a particular
shift, he or she was designated the extra person and was typically
assigned to perform miscellaneous duties. Beginning in
November, of 1992, Brown began engaging in giving Harrison
“hugs.” On May 5, 1993, Harrison was working with her regular
partner when Brown drove up with a replacement “buddy” for
Harrison and requested that Harrison accompany him to get
some supplies. On the way to get the supplies, Brown stopped
the vehicle in which they were riding and engaged in sexual
activity with Harrison. Again, on May 15, 1993, Brown came
to the place where Harrison was working and requested that
Harrison go with him to locate a part that the mechanic needed
to fix a piece of broken machinery in Harrison’s section. On the
way to obtain the part, Brown again stopped the vehicle in an
isolated area of the mine and engaged in sexual activity with
Harrison. On May 24, 1993, Harrison accompanied Brown to
check on methane readings and to make sure an area where
methane was present was properly curtained off. During this
trip, Brown engaged in sexual activity with Harrison. On June
7, 1993, Harrison was helping Brown deliver a load of supplies
to a machine. On the way to delivering the supplies, Brown
stopped the vehicle and engaged in sexual activity with Harrison.
Finally, on June 27, 1993, Brown requested Harrison accompany
5
him to shovel materials in tunnels in the mine. On the way there,
Brown attempted to engage in sexual activity with Harrison
and Harrison refused. Brown made no further attempts to engage
in sexual activity and drove Harrison back to continue the work
that she was performing when he picked her up. Later that same
day, Harrison assisted Brown in the task of cleaning his office.
At that time, Brown and Harrison engaged in sexual activity.
It is undisputed that in all of these incidents, Brown never
used his authority to threaten or coerce Harrison into engaging
in any of the activities. It is likewise undisputed that Brown
never conditioned tangible job benefits on Harrison’s submission
to the sexual activity. During the June 27, 1993 incident,
Harrison refused Brown’s request. Brown abided by her wishes
and no sexual activity occurred at that time.
On June 28, 1993, Harrison called the line foreman and
told him she was having some problems and needed to take
some vacation days to finish out the remainder of her 11-day
shift. The next scheduled work day, Harrison called in sick.
She did the same the following day. On July 7, 1993, Harrison
called Dale Janway (/Janway), the manager of EPI’s Safety
Office, and told him of the activities that had been occurring
with Brown. Janway immediately contacted Kenneth Leivo
(Leivo), EPI’s Human Resources Manager. Leivo immediately
began an investigation. Leivo telephoned Harrison and informed
her that she would be on administrative leave with full pay and
benefits pending the outcome of the investigation. Leivo also
asked Harrison to prepare a written statement outlining what
had happened. During the course of Leivo’s investigation,
he contacted Harrison several times on the telephone. Leivo
interviewed Brown regarding Harrison’s allegations. Brown had
claimed the relationship was consensual. Though admitting she
never orally told Brown she did not want to engage in the sexual
activities, Harrison contended the relationship was not
consensual. There were not any third party witnesses of any
nature. EPI was left with a credibility issue as between Brown
and Harrison. On July 14, 1993, seven days after the complaint
6
was first received, Leivo issued a three-page determination and
disposition outlining his conclusions resulting from his
investigation. As a result of EPI’s investigation, Brown was
formally reprimanded for his involvement in the incident and
was placed on permanent probation for the rest of his work life
at EPI. Further, Brown was prohibited from having any contact
whatsoever with Harrison. Harrison was transferred from
Brown’s crew to another work crew in a separate portion of the
mine. Harrison never returned to work. However, Harrison
remained on EPI’s payroll for approximately one year. Harrison
had claimed she was incurring emotional problems as a result
of the sexual encounters with Brown. EPI paid all medical bills
for Harrison during the ensuing 12 months. On June 17, 1994,
Harrison’s employment was terminated due to a reduction in
force occasioned by economic conditions in the potash industry.
Because of Harrison’s lack of seniority, she was permanently
laid off from work at EPI.
At all times material to this case, EP] had a written policy
against sexual harassment in effect. The sexual harassment
policy was drafted and adopted in 1989. It had been disseminated
throughout the mine. It was posted on all bulletin boards where
any employee wishing to read it had the opportunity to read
such policy. Kenneth Leivo, the Human Resources Director who
- drafted the policy, testified the policy was posted on bulletin
boards throughout the mine including the area in which Harrison
worked. Brown testified that he had seen the written sexual
harassment policy, it was presented to crews in 1989 and he
had posted the policy on the bulletin board in the area in which
Harrison worked. Harrison testified that she had never been
handed a copy of the policy at the time she was hired nor had
she been given any training regarding the policy. Harrison said
the policy was not on the bulletin board in the area of the mine
where she worked. Upon cross-examination, she admitted she
was not sure whether the policy was or was not posted on that
particular bulletin board. However, during the time period these
incidents with Brown were occurring, Harrison acknowledged
7
seeing the written sexual harassment policy posted on another
bulletin board. She testified she only glanced at it and did not
read it. She admitted that she did not read the confidentiality
portion of the policy. Even after seeing the policy, Harrison still
failed to report the incidents and did not report new incidents
until the last incident on June 27, 1993, over one month and
three weeks after the first incident. Even though Harrison
testified she had not initially been given the policy when hired
by EPI and that she had not seen the policy until a time period
after the incident began to occur, she acknowledged, based on
her work experience, that she knew sexual harassment was
illegal and that if a company found out about it, they would
generally take steps to correct or address the issue.
It is undisputed EPI’s sexual harassment policy was actively
enforced by management. Immediately upon Harrison’s
complaining of the sexual activities with Brown, EPI took
immediate and effective corrective action. No further harassment
occurred after Harrison brought her complaints to management.
Also, Harrison acknowledged seeing the written sexual
harassment policy posted on the bulletin board during the time
in which these incidents were occurring, though she claims she
never read it.
At trial,’ Harrison testified to a series of encounters with
Brown which occurred intermittently over a period time from
November, 1992, through June 27, 1993. The encounters had
begun with Brown hugging her and culminated in actual sexual
encounters which occurred between May 5, 1993, and ended
with the last incident on June 27, 1993, Harrison never
complained to anyone at any level of management at EPI about
Brown’s actions. Harrison testified her reasons for not
complaining to management were (1) she was fearful no one
1. As will be explained in the Proceedings section of this Petition,
the trial being referred to in this paragraph is the second trial which
followed this Court’s vacating the first Decision of the Tenth Circuit
and thereafter, the Tenth Circuit’s remand to the District Court for trial
on the issue of whether EPI is entitled to the Ellerth/Faragher affirmative
defense.
8
would believe her; (2) EPI would do nothing about the alleged
problem; (3) that she would be fired because she was already
on probation for missing work; and (4) that telling someone
about the incidents was humiliating and degrading. On cross—
examination, Harrison acknowledged her reasons for not
complaining were generalized fears that she just generally felt.
C. Proceedings
On September 16, 1994, Harrison filed a Complaint against
EPI and Brown in the United States District Court for the District
of New Mexico alleging sexual harassment in violation of
Title VII and a number of supplemental state law tort claims.
Subject matter jurisdiction in the District Court over these claims
was alleged to be under 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
A week-long jury trial was conducted with a verdict being
returned in favor of EPI and against Harrison on February 7,
1996. The jury also returned a verdict in favor of Harrison and
against Brown on state common law tort claims for battery and
intentional infliction of emotional distress, but declined to
impose liability against EPI for Brown’s actions. (/t should be
noted, the sexual harassment question submitted to the jury
involved only a claim of hostile working environment and no
claim of quid pro quo harassment. Harrison had agreed there
was no basis for a quid pro quo claim.) On February 27, 1996,
Harrison filed her Notice of Appeal to the Tenth Circuit.
On May 8, 1997, the Tenth Circuit issued its decision reversing
and remanding the District Court’s judgment with the direction
that the District Court give a different jury instruction concerning
§ 219(2)(d) of the Restatement (Second) of Agency. Harrison
v. Eddy Potash, Inc., 112 F.3d 1437, 156 L.R.R.M. (BNA) 2033,
73 Fair Emp1.Prac.Cas. (BNA) 1384, 70 Emp. Prac. Dec.
144,689, 65 USLW 2799, 97 CJ C.A.R. 674 (10th Cir. 1997)
(Harrison I). EPI then petitioned this Court for a Writ of
Certiorari which was granted. This Court summarily vacated
the decision in Harrison J and remanded the case to the Tenth
Circuit for further consideration in light of the Ellerth/Faragher
decisions. Eddy Potash, Inc. v. Harrison, 524 U.S. 947 (1998)
9
(Docket No. 97-232) On remand, the Tenth Circuit again
decided the District Court had improperly instructed the jury
with respect to the standards for imposing vicarious liability
upon an employer for sexual harassment perpetrated by one of
its supervisors. Harrison v. Eddy Potash, Inc., 158 F.3d 1371
(10th Cir. 1998) (Harrison IJ). The Tenth Circuit remanded the
case to the District Court for trial on the issue of whether EPI is
entitled to the Ellerth/Faragher affirmative defense.
Following the remand, a second jury trial was held on the
issue Of whether EPI was vicariously liable and whether EPI
was entitled to the Ellerth/Faragher affirmative defense. At the
close of the second trial, based upon undisputed evidence
regarding EPI’s actions, EPI requested the Trial Court submit
the following instruction to the jury.
DEFENDANT’S REQUESTED INSTRUCTION NO. 7
You are instructed that if you find that
Plaintiff Jeanne Harrison promptly complained
of Robert L. Brown’s harassing conduct and that
Eddy Potash promptly responded, disciplined
appropriately, and stopped the harassment, then
you should find for Eddy Potash. (Appendix E,
p. 33a)
The Trial Court refused to submit the instruction. The Trial
Court submitted its Instruction Number 5 which read:
Defendant Eddy Potash, Inc. is liable for Robert
L. Brown’s sexual harassment of Plaintiff Jeanne
Harrison unless Defendant Eddy Potash can
prove each of the following elements of its defense
by a preponderance of the evidence:
First: Defendant Eddy Potash exercised
reasonable care to prevent and
correct promptly any sexually
harassing behavior; and
Second: Plaintiff Jeanne Harrison
unreasonably failed to take
advantage of any preventive or
10
corrective opportunities
provided by Defendant Eddy
Potash or to avoid harm
otherwise. ‘
If you find that Defendant Eddy Potash has
met its burden of proving both of these matters
by a preponderance of the evidence, then you
should find for Defendant Eddy Potash.
If, on the other hand, you find that Defendant
Eddy Potash has not met its burden of proving
both of these matters by a preponderance of the
evidence, then you should find for Plaintiff
Jeanne Harrison. (Appendix E, p. 33a)
The jury returned a verdict in favor of Harrison and against
EPI on the issue of EPI being vicariously liable for Brown’s
sexual harassment of Harrison. EPI appealed to the Tenth Circuit.
On April 30, 2001, the Tenth Circuit rendered its decision
affirming the District Court. (Appendix 1a) In its opinion, the
Tenth Circuit ruled: (1) That EPI was not entitled to its requested
jury instruction Number 7 because the second prong of the
Ellerth/Faragher affirmative defense requires the complaining
employee wait an unreasonable period of time before availing
herself of preventive or corrective opportunities. The Tenth
Circuit stated that Ellerth/Faragher had, in a straight forward
manner addressed the issue. The Tenth Circuit refused to adopt
the concept that where both the employer and the employee
had acted reasonably, the employer should not be liable.
(Appendix A, p. 1a)
Following the receipt of the April 30, 2001 Tenth Circuit
decision, EPI filed a Petition for Rehearing. The Tenth Circuit
denied that Petition on May 31, 2001. (Appendix C, p. 30a)
ee ee ee eee a en ee
11
REASONS FOR GRANTING THE WRIT
I. THE ISSUE OF WHETHER AN EMPLOYER
SHOULD BE HELD VICARIOUSLY LIABLE WHERE
THAT EMPLOYER HAS ACTED REASONABLY AND
THE EMPLOYEE HAS ACTED REASONABLY BY
PROMPTLY COMPLAINING OF THE HARASSMENT
(AVAILING ONESELF OF AVAILABLE PREVEN-
TATIVE OR CORRECTIVE MEASURES) SHOULD BE
ADDRESSED BY THIS COURT
With the creation of the two-prong affirmative defense,
Ellerth/Faragher results in a regrettable situation where
employers are held liable when they do all that they can to
prevent sexual harassment, which nonetheless occurs and the
employee reports it. They are liability free, however, when they
do a lesser job of preventing harassment, and they happen to be
fortuitous enough to employ someone who fails to take
reasonable steps to report his or her claim.
The Ellerth/Faragher decisions are an attempt to carry out
the intent of Title VII, which is to alleviate sexual harassment
in the workplace. Unfortunately, the affirmative defense crafted
in the decisions is imprecise and unclear. It is arguable that the
affirmative defense does not address issues presented in this
case. If the affirmative defense addresses the issues in this case,
then the application of the affirmative defense creates a result
opposite of the announced goal in Ellerth/Faragher.
The affirmative defense actually creates a disincentive for the
employer to vigorously set up policies against harassment and
enforce those policies. The affirmative defense should be
modified or re-crafted to put the burden, and reward, upon the
employer for reasonable compliance. Such a modification will
best achieve the goals of Title VII which is to have a workplace
free of sexual harassment and in this way, the employee will
likewise benefit. For the following reasons, this Court should
grant EPI’s petition for a Writ of Certiorari:
1. The question presented by EPI to the District Court,
the Tenth Circuit, and now to this Court is of such great
12
importance to the federal law that this Court should
address the issue. The issue arises directly out of this
Court’s decisions in Ellerth/Faragher. The Ellerth/
Faragher decisions have had impac‘ on every employer
in the United States. Those decisions addressed the issue
of vicarious liability of an employer for its supervisor’s
sexual harassment, which was, and is, an issue of
nationwide importance. It cannot be of any less
importance to address issues arising from the Ellerth/
Faragher decisions where there is a great lack of clarity,
confusion and much uncertainty in how to apply the
Ellerth/Faragher affirmative defense. It is important
to have this Court re-examine the affirmative defense
because it is becoming ever more clear that the
affirmative defense is having an impact that discourages
employer aggressiveness in combating sexual
harassment in the workplace.
. Though the Ellerth/Faragher decisions are relatively
new, the lack of clarity and uncertainty in the application
of the affirmative defense has led to uncertainty and
conflict in the circuits. Legal scholars who have recently
examined the affirmative defense have called for a
re-examination and modification of the affirmative
defense. Because it is of extreme importance to have
consistency in labor and employment policy throughout
this country, this Court needs to resolve the
inconsistencies by revisiting, clarifying and, if
necessary, modifying the Ellerth/Faragher affirmative
defense.
13
Il. THE ELLERTH/FARAGHER AFFIRMATIVE
DEFENSE (1) FAILS TO ADDRESS THE ISSUE OF
VICARIOUS LIABILITY WHERE THE EMPLOYER
HAS ACTED PROPERLY AND REASONABLY AND
(2) DEFEATS THE GOAL OF ENCOURAGING
EMPLOYER ACTION TO PREVENT SEXUAL
HARASSMENT BY IMPOSING LIABILITY UPON AN
EMPLOYER WHERE IT HAS ACTED REASONABLY
AND THE EMPLOYEE HAS LIKEWISE ACTED
REASONABLY, BUT CONVERSELY, LEAVING THE
EMPLOYER NOT VICARIOUSLY LIABLE WHERE
THE EMPLOYEE HAS NOT ACTED REASONABLY
The Ellerth/Faragher decisions recognize the laudable goal
of imposing responsibilities upon both the employer and the
employee to take action to prevent sexual harassment in the
workplace. The cases recognize the goal of Title VII is
prevention of harassment, not simply imposition of liability upon
an employer through litigation. Unfortunately, the affirmative
defense has created increased difficulties and uncertainties that
are now becoming clear and are the subject of ever increasing
commentary by courts and legal scholars. The Ellerth/Faragher
decisions are not clear as to exactly what an employer must do
to escape liability for the sexually harassing behavior of a
supervisor. In Barrett v. Applied Radiant Energy, 70 F. Supp.2d
644 (W.D. Va. 1999), aff'd in part, vacated in part, 240 F.3d
262, 85 Fair Empl.Prac.Cas. (BNA) 253, 80 Emp.Prac.Dec.
140,418 (4th Cir. (Va.) Feb. 13, 2001) (Number 99-2597,
99-2634), the District Judge stated: “No court has sought to
establish a bright line as to what is or is not reasonable as the
term is contemplated in Faragher and Ellerth.” In a series of
law review and law journal articles, the Ellerth/Faragher
affirmative defense has been closely scrutinized and severely
criticized with calls for this Court to clarify and modify the
affirmative defense. Because the articles calling for clarification
or modification of the Ellerth/Faragher affirmative defense
address fundamental principles of federal law and the goals of
Title VII, the various articles’ analysis and criticism of the
14
Ellerth/Faragher affirmative defense merit review. Each shows
the need for this Court to grant EPI’s Petition and address the
issues raised in this case.
A. Defense Counsel Journal Article (April, 2001)
In an article entitled “Let's be Reasonable” — Resolving
the Ambiguities of the Faragher/Ellerth Affirmative Defense, ”
68 Def. Counsel J. 211 (April, 2001), the author argues that if
an employer has acted reasonably to stop and correct supervisor
harassment, the employer should be entitled to the defense of
having acted reasonably. The author observes that in addition
to the lack of clarity in the affirmative defense, employers’
chances of prevailing are limited because the reasonableness
standard set by the Court is generalized and aspirational.
The affirmative defense not only creates additional litigation
but also deals a blow to judicial economy. Because Title VII is
a federal question claim, and many defendant employers are
subject to in personam jurisdiction in multiple jurisdictions, the
lack of a uniform standard of reasonableness and liability allows
plaintiffs to forum shop for the interpretation most favorable to
their case. A uniform pronouncement of a specific standard of
vicarious liability for sexual harassment would eliminate much
confusion and restore judicial economy without threatening due
process.
The Defense Counsel Journal article points out that, in
particular, the second prong of the affirmative defense is of
utmost importance in showing the problems with the affirmative
defense. The second prong of the affirmative defense places a
responsibility upon the employee being subjected to sexual
harassment to complain within a reasonable time and if the
employee fails to do so, the employee cannot impose vicarious
liability upon the employer. Because the primary objective of
Title VII is not to provide redress, but to avoid harm, it is a
victim’s duty to mitigate damages and avoid harm altogether
when possible. If the victim could have avoided harm, the
employer, who had taken reasonable care to avoid such harm
but for the victim’s actions, should escape liability. Yet, under
eee) ee ae ee eee >
15
the affirmative defense that does not happen, the opposite occurs.
The author argues it is logical that when an employer with
reasonable measures to prevent and correct promptly sexually
harassing behavior, of which the alleged victim reasonably avails
herself, promptly corrects such behavior, the employer should
escape vicariously liability. The Ellerth/Faragher decisions
noticeably omitted addressing the issue.
The author argues that although this Court did not clearly
enunciate a rule regarding the effect on an employer’s liability
of prompt and effective corrective action when both the
employer and the alleged victim have acted reasonably, there
should be an amendment to the affirmative defense that makes
such corrective action a complete defense to liability. The author
proposes adoption of the rule that when an employer
independently remedies a hostile working environment, thereby
ridding its workplace of sexual harassment in accordance with
Title VII, a plaintiff employee should not be entitled to recovery
under Title VII, because Title VII’s goal is the end to
discrimination in employment, not the provision of personal
compensation. The author argues this approach would not only
reward employers who comply with Title VII in good faith, but
it also would alleviate some of the strain on the justice system.
Justice Thomas’s dissent anticipated such a problem with
the affirmative defense not addressed by Ellerth/Faragher Court
in that, “employers will be liable notwithstanding the affirmative
defense, even though they acted reasonably, so long as the
plaintiff in question fulfilled her duty of reasonable care.
In practice, therefore, employer liability may well be the rule.
But as the Court acknowledges, this is one result that it is clear
Congress did not intend.” The problem so accurately predicted
by Justice Thomas must be addressed and corrected to
successfully carry out the goals of Title VII.
B. University of San Francisco Law Review Article (Spring
2001)
In an article entitled, Indest v. Freeman Decorating, Inc.:
Dealing with Vicarious Liability for Sexual Harassment by a
16
Supervisor, Daniel N. Raytis, 35 U.S.F.L. Rev. 623 (Spring
2001), the author criticizes the current affirmative defense
and offers an alternative that he argues would better achieve
Title VII’s goals. The author uses a hypothetical fact pattern
equivalent to the situation involving Harrison and EP] in this
case. The author concludes that under the Ellerth/Faragher
affirmative defense, the employer would be liable even though
both the employer and the employee had acted reasonably. This
is because an employee who has acted reasonably in reporting
harassing conduct eliminates the possibility of the employer
proving the second element of the affirmative defense, which
makes the first element of the affirmative defense, an employer’s
conduct to prevent or remedy a harassing situation, irrelevant.
This Court in Ellerth stated that “[w]ere employer liability
to depend in part on an employer’s effort to create [grievance]
procedures, it would effect Congress’ intention to promote
conciliation rather than litigation in the Title VII context.”
The author points out that ironically, a strict application of the
affirmative defense established in Ellerth/Faragher would have
the opposite result. An employee who acts reasonably in
reporting harassing conduct, thereby destroying the employer’s
ability to prove the second element of the affirmative defense,
will be encouraged to litigate. In regard to the second element
of the affirmative defense, this Court reasoned, “[t]o the extent
[that] limiting employer liability could encourage employees
to report harassing conduct before it becomes severe or
pervasive, it would also serve Title VII’s deterrent purpose.”
The author also concludes that while this element encourages
employees to report harassing conduct after it has already
occurred, it does not appear to deter harassing conduct before it
occurs. In fact, it may actually deter employers from creating
effective grievance policies, because the more effective a
company policy is in encouraging an employee to report
harassment, the less likely an employer will be able to prove
the second element of the affirmative defense.
17
In essence, this Court is asking employers to create policies
that will leave them vicariously liable if harassment does occur.
An analysis of the affirmative defense supports that conclusion.
In order to escape vicarious liability, an employer must prove
both of the following elements: “(a) that the employer exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid
harm otherwise.” The crux of the problem involves the second
element, and the fact that this Court requires the employer to
prove the existence of both elements. When an employee
promptly reports a harassing situation, the first element of the
defense becomes irrelevant, because the employer will be unable
to establish the second element. Therefore, in nearly all situations
where a harassed employee reports the conduct, or “avoids harm
otherwise,” the employer will be automatically liable, a result
this Court claimed it was seeking to avoid.
The author proposes an alternative to the current affirmative
defense. Under the proposed alternative defense, an employer
could escape liability for a supervisor’s creation of a hostile
work environment by proving both of the following elements:
(1) the employer exercised reasonable care by creating and
maintaining preventative and remedial programs relating to
sexual harassment; and (2) the employer exercised reasonable
care in responding to notice that harassment has occurred.
Because this alternative approach focuses primarily on the
behavior of the employer, it does not permit the situation created
by the Ellerth/Faragher defense, where the actions of an
employee alone effectively eliminate the possibility of the
employer proving the elements of the affirmative defense.
The proposed alternative defense focuses on the actions of the
employer, the party most effectively equipped to deal with
harassment, thereby encouraging the employer to deal with
harassment before, while, and after it occurs. The author argues
the proposed alternative defense would urge both the employer
and the employee to act reasonably, and would reward both for
18
their respective conduct. Unlike the Ellerth/Faragher defense,
the second element of the proposed defense focuses on the
employer’s response to the employee’s notice of harassment
rather than the employee’s actions.
The author argues, and EPI agrees, that this proposed
defense also demonstrates how it would both serve the
deterrence goals of Title VII and promote conciliation rather
than litigation. The first element, proof of reasonable programs
dealing with sexual harassment, encourages the employer to
create and maintain sexual harassment programs that will be
likely to have a deterrent effect. Because the employer’s liability
would partially be determined by the effectiveness of it’s
programs under the second element, the alternative proposed
defense will promote conciliation by encouraging employers to
rectify harassment when it does occur. Because the effectiveness
of the employer’s program would be relevant to the analysis,
the employer would be encouraged not only to create sexual
harassment programs, but also to systematically educate
employees regarding the program’s existence and to encourage
employees to report harassment through the program’s
procedures. Lastly, the author argues this alternative approach
would eliminate the problem exposed by Judge Jones’s opinion
in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (Sth Cir.
1999). The employer would be able to prove the elements of
the proposed defense by focusing on the existence of a
harassment program and the fact that the harassing situation
was immediately eradicated. Courts would not be faced with
situations that require liability to be imposed on an employer
who has taken conscientious steps to prevent and eradicate
harassment. Instead, courts would be able to reward such
behavior by allowing the employer to be absolved of any liability.
The alternative approach proposed in the University of
San Francisco Law Review article would clarify the situation
in which all parties act reasonably, which was left muddy. by
Ellerth/Faragher, as evidenced by IJndest v. Freeman
Decorating, Inc., supra.
19
The law review article concludes by urging Congress or
the Supreme Court to revisit employer liability for sexual
harassment. In doing so, the emphasis should be placed on the
employer, that is, on the party being faced with the prospect of
lability.
C. Fordham Law Review (March 2001)
In an article entitled Dont Train Your Employees and
Cancel your “1-800” Harassment Hotline: An Empirical
Examination and Correction of the Flaws in the Affirmative
Defense, 69 Fordham L. Rev. 1265 (March 2001), the authors
in this study actually examined and analyzed prior case law in
relation to the affirmative defense. The authors conclude that
based on the courts’ treatment of employees reporting and failing
to report sexual harassment, it seems clear that the current
affirmative defense does not accomplish the goals and principles
set forth by Ellerth and Faragher. It makes little sense that
employers whose employees fail to report are entitled to the
windfall benefit of the affirmative defense, while employers
who do more to encourage complaints and respond properly to
such allegations are denied the defense. In addition to this
anomalistic result, the authors conclude that such a policy
encourages the undesirable behavior of trying to prevent
employees from using reporting procedures. The authors also
find equally troubling the courts’ practice of deciding against
victims who delay their reports because they attempted to resolve
a situation informally or because they needed time to work
through such an undesirable workplace situation. One way to
encourage employers to eliminate sexual harassment is to change
the nature of the affirmative defense by eliminating its second
prong. The authors contend the affirmative defense should focus
exclusively on employer conduct. To avoid vicarious hability,
employers would have to exercise reasonable care to prevent
and to stop sexual harassment. Employers would not have to
prove that the employee acted unreasonably. The authors contend
that “reasonable care” should consist of proscriptive measures
that both prevent sexual harassment and encourage, or, at the
20
very least, do not discourage its reporting. In addition,
“reasonable care” should also be measured by how an employer
reacts to complaints of sexual harassment. The article contends
that employers should be held liable for all harassment, whether
the employee complained after three days or even three years,
if the employer failed to respond to the complaint properly.
Conversely, employers that properly respond to complaints
should be able to avoid liability. Thus, employees would be
under no undue time pressure to report harassment before they
were ready, and an employer’s liability would not be determined
by an employee’s decision whether to report.
The authors sharply criticize the Ellerth/Faragher
affirmative defense because the two cases created a regrettable
situation with the articulation of the two-prong affirmative
defense. Employers are held liable when they do all that they
can to prevent sexual harassment, but it nonetheless occurs and
the employee reports it. They are liability free, however, when
they do a lesser job of preventing harassment, and they happen
to be fortuitous enough to employ someone who fails to take
reasonable steps to report his or her claim.
The authors also argue that the dilemma created by the
Ellerth/Faragher affirmative defense leaves employers trying
to avoid liability with some rather uncomfortable guidance on
how to do so. The authors contend the guidance given employers
would now seem to be the following. First, an employer’s entire
effort to prevent sexual harassment should be limited to enacting
and disseminating an anti-harassment policy. Employers should
not engage in or should eliminate extensive preventative efforts
such as expensive sexual harassment sensitivity training, or more
particularly, harassment-reporting hotlines. While such measures
may have positive effects such as reducing incidents of
harassment, they could render unavailable the affirmative
defense if such measures encourage employees to report.
Because an employee’s failure to report harassment is considered
to be “unreasonable,” and because some courts hold that
21
employers cannot prevail if the employee reports’, employers
seeking to limit liability have an incentive to do anything lawful
to discourage employees from reporting. This incentive
contradicts the purpose of the affirmative defense, which is to
encourage employers to take measures to discourage harassment
and to encourage employees to report all such incidents.
The authors also contend that employers now have an incentive
to hire and retain unreasonable employees. A prudent employer
should invest the money saved by eliminating harassment
sensitivity training and the harassment hotline into extensive
background checking and personality screening of applicants.
Another problem the article raises with the affirmative defense
is that employees must report harassment before they are
comfortable doing so because a delay may extinguish their
claims. These incentives are clearly undesirable if the ultimate
goal is to eliminate or reduce sexual harassment in the
workplace. The article proposes a revised standard for the
affirmative defense which places greater emphasis on the
employer’s actions so as to avoid creating perverse employer
incentives, and simultaneously to increase prophylactic efforts
to curb workplace harassment.
D. Various Courts’ Commentary on the Problems with the
Ellerth/Faragher Affirmative Defense
An examination of lower courts’ treatment of the issue
reveals that although this Court did not clearly enunciate a rule
regarding the effect on an employer’s liability of prompt and
effective corrective action when both the employer and the
alleged victim have acted reasonably, there should be an
amendment to the affirmative defense that makes such corrective
action a complete defense to liability. Though not always
addressing the issue in the same manner as EPI has in this case,
the lower courts sometimes skirt around or manipulate their
analysis to reach conclusions that in reality show the need for
an amendment or modification to the affirmative defense.
2. Which is the situation arising in this case involving EPI
and Harrison.
22
In Marsicano v. American Society of Safety Engineers, 1998
WL 603128 (N.D. III. 1998), the employee reasonably availed
herself of the employer’s complaint procedures, the employer
counseled the alleged offender, and the employer offered the
employee an immediate reassignment. The employee chose to
stay home from work and left voice-mail messages during non-
working hours stating that she would not return to work.
The district court found that by failing to return to work on
reasonable terms and refusing to discuss alternate terms, she
adopted an “unduly inflexible stance,” leading to the conclusion
that she unreasonably failed to take advantage of the preventive
and corrective opportunities provided by the employer. In reality,
the court was finding that the employer had reasonably acted
and dealt with the problem.
In Barua v. Credit Lyonnais — U.S. Branches, 1998
WL 915892 (S.D. N.Y. 1998), a federal district court determined
that if a victim complains of harassment on termination of the
employment relationship, the victim has acted unreasonably if
the employer reasonably attempts to correct the allegedly
harassing behavior on the victim’s complaint.
In Coates v. Sundour Brands Inc., 164 F.3d 1361
(1ith Cir. (Ga.) 1999), the Eleventh Circuit explained that
without the victims’ cooperation, the problem of workplace
discrimination cannot be corrected. In a per curiam opinion,
the court concluded that no genuine issue of material fact existed
to support a finding that the plaintiff employee reasonably put
her employer on notice of the harassment, or that when she did
provide the employer with notice that the employer responded
unreasonably to her complaint. Summary judgment for the
defendant employer was affirmed. The pleadings in Coates
predated the Supreme Court’s decisions. The Eleventh Circuit
did not apply the Ellerth/Faragher analysis and did not discuss
whether the harasser was deemed the employee’s supervisor
for the purposes of vicarious liability. Circuit Judge Barkett’s
special concurrence, however, applied the Ellerth/Faragher
analysis as controlling. The analysis in ilie special concurrence
is based on the language of Faragher and Ellerth. The special
23
concurrence, which is often cited by other circuit and district
courts, interprets the affirmative defense as a three-part inquiry:
A court’s assessment as to whether a defendant has proved
this defense requires, first, an analysis of whether the
employer has exercised reasonable care in preventing sexual
harassing behavior. The court next directs its inquiry to
whether the employee made reasonably sufficient use of
available avenues to put the employer on notice of the
problem. Finally, the court refocuses on the employer to
determine whether the employer or its authorized agent,
after receiving notice of the harassment, took adequate steps
to abate it and prevent its recurrence.
Similar to the approach of Coates, the Fourth Circuit’s
support of an employer’s attempt to resolve sexual harassment
incidents independently of the courts, is demonstrated in Watkins
v. Professional Security Bureau Ltd.,201 F.3d 439 (4th Cir. 1999)
in which the court found that an employee had acted
unreasonably in refusing to pursue the employer’s corrective
efforts by not reporting a rape by her supervisor. The court noted,
however, that even if the employee had acted reasonably, the
employer would have been excused from liability, reasoning
that while the Supreme Court did not speak to this issue,
we cannot conceive that an employer that satisfies
the first element of the affirmative defense and that
promptly and adequately responds to a reported
incident of sexual harassment ... would be held
liable for the harassment on the basis of an inability
to satisfy the literal terms of the second element of
the affirmative defense. * * * * *
In a plurality opinion authored by Judge Jones, the
Fifth Circuit has held that if a defendant employer takes
prompt remedial action as soon as the harassing conduct is
brought to its attention, it should be absolved of liability.
In Indest v. Freeman Decorating, Inc., 164 F.3d 258 (Sth Cir.
1999) (Indest I), the court was faced with a situation where the
employer had exercised reasonable care in preventing and
24
promptly correcting sexual harassment and the plaintiff likewise
had fulfilled her duty to complain promptly about the alleged
harassment. Under these circumstances, the court concluded
that judgment in the employer’s favor was proper. The court
based its conclusion on the following considerations:
(1) Aplaintiff receives the benefit that Title VII was meant
to provide by promptly complaining about
inappropriate sexual harassment, thereby preventing
the creation of a hostile work environment;
(2) An employer that promptly responds to complaints
should be shielded from vicarious liability from the
harassment because it has prevented the creation of a
hostile work environment;
(3) In Faragher and Ellerth, the Supreme Court left intact
its earlier ruling in Meritor that an employer is not
automatically liable for a hostile work environment.
To impose vicarious liability on an employer who takes
prompt corrective action would undermine Meritor and
Title VII’s deterrent policy;
(4) Faragher s discussion of the avoidable consequences
doctrine and an employee’s duty to mitigate damages
supports relieving the employer from liability. Jndest,
164 F.3d at 265-66.
The Fifth Circuit noted that in deciding Faragher, the
Supreme Court approved a group of cases in which courts had
held employers liable for sexual harassment by a supervisor
where the employers or their high-level agents or alter egos had
actual knowledge of the harassment but did nothing to stop it.
The Fifth Circuit distinguished those cases from the one before
it. Judge Jones concluded that Faragher and Ellerth do not
directly speak to the circumstances it had before it which was a
case in which the plaintiff quickly resorted to [the employer’s]
policy and grievance procedure against sexual harassment, and
the employer took prompt remedial action. While there was
discussion of a case presenting only incipient hostile work
environment, Judge Jones reasoning clearly addressed the
25
concept that an employer who promptly responds to complaints
should not be subjected to vicarious liability. Judge Jones
opinion also makes clear the conclusion that Ellerth/Faragher
did not address the situation the Fifth Circuit had before it, which
is the same issue that is involved in this case with EPI and
Harrison.
Other courts have taken the Jndest approach to an
employer’s vicarious liability for sexual harassment by a
supervisor. In Neal v. Electronic Data Systems Corp., 1999 U.S.
Dist. Lexis 9732 (W.D. N.C. 1999) the North Carolina federal
district court pointed out that the defendant employer had a
reasonable policy in place, and took steps “reasonably calculated
to result in cessation of the conduct” as soon as it had received
a formal complaint, indicating that the defendant employer
would not tolerate sexual harassment. Because of the employer’s
actions, the federal district court concluded the employee’s
failure to file her complaint earlier was unreasonable, and the
employer was allowed summary judgment on the Title VI claim.
In Todd v. Ortho Biotech, Inc., 175 F.3d 595 (8th Cir. 1999),
the Eighth Circuit discussed the application of the Ellerth/
Faragher affirmative defense to single instances of “severe,
unanticipatable [sic]” sexual harassment. Although the case was
remanded, the court, citing /ndest, noted that an employer might
escape automatic liability in such cases if the harassment “does
not ripen into an actionable hostile work environment claim
until the employer learns that the harassment has occurred and
fails to take proper remedial action.”
III. THERE EXISTS CONFLICT BETWEEN THE
UNITED STATES CIRCUIT COURTS OF APPEAL ON
THE APPLICATION AND IMPLEMENTATION OF THE
ELLERTH/FARAGHER AFFIRMATIVE DEFENSE
Since this Court rendered it decisions in Ellerth/Faragher
and crafted the affirmative defense available to employers in
supervisor sexual harassment situations where no tangible
employment action was taken, the circuit courts have struggled
with the application of the affirmative defense. The lack of clarity
26
and uncertainty of the affirmative defense, particularly in
situations of the type involved in this case with EP] and Harrison
have led to conflict. The conflict becomes obvious with an
examination of circuit court opinions.
Fourth Circuit: Watkins v. Professional Security Bureau,
Limited, 201 F.3d 439, 1999 WL 1032614 (4th (Med.) 1999).
In this case, the Fourth Circuit concluded that the PSB, the
employer, had established the second prong of the affirmative
Defense. In discussing the issue, the Fourth Circuit in Footnote
16 stated:
Even if Watkin’s [the employee] disclosure of the
harassment to Dowling [employer] were adequate
to establish that she took advantage of available
preventive or corrective opportunities, our result
would be the same. Although the Supreme Court
did not speak to this issue in Burlington
Industries, we cannot conceive that an employee
that satisfies the first element of the affirmative
defense and that promptly and adequately
responds to a reported incident of sexual
harassment — as PSB did here, . . . — would be
held liable for the harassment on the basis of an
inability to satisfy the literal terms of the second
element of the affirmative defense.
The Fourth Circuit indicates that its conclusion regarding
employer liability in the Footnote 16 is consistent with the
“laudable purpose behind limitations on employer liability
identified by this Court in Burlington Industries.”
Fifth Circuit: Indest v. Freeman Decorating, Inc., 164 F.3d
258 (Sth Cir. 1999) (Indest I). Indest has been discussed under
point I above. That discussion will not be repeated other than to
again point out that Judge Jones concluded the Ellerth/F: aragher
affirmative defense did not address the fact pattern the Fifth
Circuit had before it and that an employer that promptly responds
to complaints should be shielded from vicarious liability from
the harassment because it has prevented the creation of a hostile
27
work environment. Judge Jones’s opinion and analysis would
be applicable to any situation where an employer had acted
reasonably irrespective of whether the employee had complained
in a reasonably timely manner.
It should be noted that /ndest is a plurality opinion in the
Fifth Circuit. The other two judges on the panel did not join in
Judge Jones’s opinion. Judge Weiner issued his own opinion at
Indest v. Freeman Decorating, Inc., 168 F.3d 795, 796 (Sth Cir.
1999) (Indest II) He disagreed with Judge Jones: “I cannot agree
with Judge Jones’s conclusion that the Supreme Court’s
remarkably straightforward and perfectly consistent twin
opinions in [Faragher and Burlington } do not control the
present case-and, indeed all cases in which the plaintiff seeks
to hold his employer vicariously liable for a supervisor’s sexual
harassment.”
Sixth Circuit: Williams v. General Motors Corp., 187 F.3d 553,
561 (6th Cir. 1999). The Sixth Circuit stated: “it is no longer
enough for an employer to take corrective action; employers
now have an affirmative duty to prevent sexual harassment by
supervisors.”
Tenth Circuit: Harrison v. Eddy Potash, Inc., 248 F.3d 1014,
85 Fair Emp.Prac.Cas.(BNA) 990, 80 EmpI.Prac.Dec. $40,506,
2001 DJCAR 228 (10th Cir. (NM) April 30, 2001). The conflict
between the Tenth Circuit and the Fifth Circuit is readily
apparent in this case. In Harrison v. Eddy Potash, EPI argued
to the Tenth Circuit the reasoning in Jndest should be followed
in this case because the issue of EPI having acted reasonably
and having alleviated the sexual harassment was a part of the
case. EP] had submitted a jury instruction patterned after Indest,
which was refused by the Trial Court. In discussing whether
Judge Jones’s reasoning in Jndest should be adopted, the Tenth
Circuit openly disagreed with Judge Jones. At 248 F.3d pages
1025-26, the Tenth Circuit stated:
-+. we have effectively rejected the modified
employer defense enunciated in Indest.
In Gunnell v. Utah Valley State College, 152 F.3d
28
1253 (10th Cir. 1998), the plaintiff filed suit
against her employer under Title VII alleging, in
part, that she had been subjected to sexual
harassment by her supervisor. The district court
(prior to the issuance of Faragher and Burlington)
granted summary judgment in favor of the
employer on the grounds that “the sexual
harassment stopped after [plaintiff] complained”
about it to the employer’s personnel director.
Id. at 1259. We reversed and remanded with
directions to the district court to apply the two-
pronged defense set forth in Faragher and
Burlington. In doing so, we effectively rejected
the position advanced in Jndest, i.e., that an
employer’s prompt corrective action can be
sufficient by itself to avoid vicarious liability
under Title VII for sexual harassment committed
by a supervisory employee.
Third, even assuming that Gunnell did not
resolve the issue, the reasoning of Indest is highly
suspect and, in our view, should not be adopted.
As outlined in Jndest II, there is no reason to
believe that the “remarkably straightforward”
framework outlined in Faragher and Burlington
does not control all cases in which a plaintiff
employee seeks to hold his or her employer
vicariously liable for a supervisor’s sexual
harassment. Indest II, 168 F-3d at 796.
Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir.
1998):
See the Tenth Circuit’s discussion of Gunnell in
Harrison v. Eddy Potash.
Eleventh Circuit: Coates v. Sundor Brands, Inc., 164 F.3d
1361, 1369 (11th Cir. 1999). The Eleventh Circuit did not decide
the case on the basis of Ellerth/Faragher, however Judge Barkett
‘5 _ ee -
29
wrote a specially concurring opinion in which he addressed the
application of the Ellerth/Faragher affirmative defense.
Under the framework established by the Court
in Faragher and Burlington Industries, a prompt
response by an authorized agent to halt reported
harassment is sufficient to relieve the employer
liability under Title VII in cases where the
harassment has not culminated in the taking by
a supervisor of a tangible employment action
against the victim.
As the cases indicate, the circuits differ in their application
of the Ellerth/Faragher affirmative defense in situations where
the employer has acted reasonably in addressing sexual
harassment and remedying sexual harassment that has
manifested itself in the workplace. Circuit courts such as the
Fourth, Fifth, and Eleventh are troubled by a literal reading and
application of the second prong of the affirmative defense which
will result in imposing liability upon an employer that has acted
reasonably in the face of an employee’s reasonably timely
complaint. Those circuits clearly feel such a result is contrary
to the goals of Title VII. Such a result is also contrary to the
goals this Court stated in the Ellerth/F, aragher decisions.
Because of the very nature of the issue in this case, its nationwide
importance to all employers and the obvious need for uniformity
throughout the nation, this Court needs to grant EPI’s Petition.
IV. THE NEED FOR CONSISTENCY ON A
NATIONWIDE BASIS AND THE IMPORTANCE OF THE
FEDERAL LAW APPLICABLE TO THIS CASE
WARRANT THE GRANTING OF A WRIT
The implementation of the laudable goals of Title VII are
of paramount importance. The effect Title VII has on
employment throughout this country cannot be underestimated.
Consistency is a recurring principle in the employment arena.
Uniformity of federal law, as it affects the workplace, is likewise
critical for both the employer and the employee. For employers
engaged in business throughout the circuits, that expectation
30
should include a uniform application of employment rules under
Title VII. With the uniform application of employment rules,
the employer can, with consistency, implement policies that
comply with those uniform rules and not face possible liability
in one circuit for actions that would not create liability in another
circuit. -
Of equal importance is the question of whether the goals
of Title VII are being achieved by the Ellerth/Faragher
affirmative defense as it is currently formulated. EPI submits
that it is not achieving that goal, but instead is having, and will
continue to have, an opposite effect. Read literally, the
affirmative defense places liability upon an employer in
situations where both the employer and the employee have acted
reasonably. Did this Court intend to create such a consequence?
EPI thinks not. EPI submits the affirmative defense does not
address situations such as the one involved in this case. If the
affirmative defense does address such situations, it creates
disincentive for employers to attack sexual harassment with the
vigor expected. The affirmative defense needs to be re-examined
and modified. This Court should grant EPI’s Petition for that
purpose.
CONCLUSION
For the reasons stated in this Petition, EPI’s Petition for
Wnit of Certiorari should be granted on the issues presented.
Respectfully submitted,
W. T. MartTwn, JR.
Counsel of Record
Law Orrices OF W. T. Martin, Jr., P.A.
509 W. Pierce St.
P.O. Box 2168
Carlsbad, NM 88221-2168
(505) 887-3528
Attorney for Petitioner
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
DATED AND FILED APRIL 30, 2001
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 00-2221
JEANNE HARRISON,
Plaintiff-Counter-Defendant-
Appellee,
V.
EDDY POTASH, INC., a New Mexico corporation,
Defendant-Counter-Claimant-
Appellant,
and
ROBERT L. BROWN,
Defendant-Counter-Claimant.
Appeal from United States District Court
for the District of New Mexico
(D.C. No. CIV-94-691-JP)
* * *
2a
Appendix A
Before SEYMOUR, GIBSON,* and BRISCOE, Circuit
Judges.
BRISCOE, Circuit Judge.
Defendant Eddy Potash, Inc., (EPI) appeals from the
district court’s entry of partial summary judgment, as well .
as the district court’s final judgment after trial, in favor of
plaintiff Jeanne Harrison on her claim of Title VII sexual
harassment. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
a
The relevant underlying facts of this case were set forth
in detail in our opinion in Harrison v. Eddy Potash, Inc.,
112 F.3d 1437 (10th Cir. 1997) (Harrison 1):
Plaintiff is a resident of Carlsbad, New
Mexico. Defendant Eddy Potash, Inc., is a New
Mexico corporation doing business in Eddy
County, New Mexico. Defendant Robert L.
Brown is a supervisor employed by Potash.
Plaintiff began working for Potash as an
underground potash miner in May 1992 and was
the only female working with a crew of
approximately 30 men [and was one of only two
women miners in the entire operation]. Brown,
who worked as the underground shift foreman,
was plaintiffs supervisor and was in charge of
* The Honorable John R. Gibson, Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
3a
Appendix A
delegating duties and assigning work to plaintiff.
According to plaintiff, Brown was the first person
she was required to call if she was sick or wanted
to take vacation. Brown was also involved in the
disciplinary process.
The miners at Potash had a “buddy system”
where each miner was assigned a “buddy” and
each set of “buddies” worked together in a section
of the mine away from other members of his or
her crew. If a miner was not assigned a “buddy”
on a particular shift, he or she was designated the
“extra person” and was typically assigned to
perform miscellaneous duties.
On May 4, 1993, Brown approached plaintiff
in an isolated portion of the mine and attempted
to kiss her on the mouth. She “pushed him away
and told him he was crazy and to get the hell out
of there.” On the following day, Brown ordered
plaintiff to leave her work station and accompany
him to an abandoned unlit section of the mine to
look for empty oil barrels he had allegedly
previously noticed. After driving around the mine
for awhile, Brown stopped the vehicle and walked
around to the side where plaintiff was sitting. He
tried to kiss plaintiff, to put his hands on her
breasts and between her legs, and to unzip her
pants. At the same time, Brown made various
sexually suggestive comments to plaintiff,
including asking her if she wanted to have
intercourse or oral sex. Plaintiff pushed Brown
4a
Appendix A
away and said “No” to each question. Erown
“unbuttoned his pants and exposed his penis, put
[plaintiff's] hand on his penis, and he ejaculated.”
Brown then drove plaintiff back to the section of
the mine where she normally worked.
On May 15, 1993, plaintiff was working with
her “buddy” to fix a broken machine. Brown
arrived where they were working and ordered
plaintiff to accompany him to the shop to look
for a part for the machine. Before arriving at the
shop, Brown stopped the vehicle in an unoccupied
section of the mine, walked around to plaintiffs
side of the vehicle, and again attempted to kiss
her, to touch her, and to unzip her pants. Plaintiff
repeatedly told Brown “No.” Brown started
walking back to his side of the vehicle, but turned
around and returned to where plaintiff was sitting.
He unzipped his pants and said, “ ‘Well, at least I
can be happy.’” He then forced plaintiff to
masturbate him. Brown then drove plaintiff to the
shop and ordered the mechanic to drive her back
to where she had been working.
On May 24, 1993, plaintiff was working a
“graveyard” shift and was designated as the “extra
person.” Brown ordered her to accompany him
to a section of the mine where they were
experiencing a high methane gas reading, stating
they needed to check the readings and make sure
the section had been curtained off correctly. After
they completed the work described, Brown drove
Sa
Appendix A
to a nearby section of the mine that was
unoccupied, unlit, and had a low ceiling. As in
the previous incidents, Brown walked around to
plaintiff's side of the vehicle and attempted to kiss
her, touch her, and unzip her pants. He also made
various sexually suggestive comments. Plaintiff
again told him “No” and attempted to push him
away. Ultimately, Brown exposed himself and
forced plaintiff to masturbate him.
On June 7, 1993, Brown ordered plaintiff to
clean up around the shifter’s office. After she had
finished, Brown ordered her to accompany him
in taking a load of materials to a section of the
mine. On the way, Brown stopped the vehicle at
an old unoccupied section of the mine and told
plaintiff, “Look, I made us a bed out of [burlap]
cloth.” Brown asked plaintiff to lie down with him
and she did. Brown repeatedly asked her to have
sex with him and attempted to kiss and touch her,
but plaintiff said “No.” Brown then forced
plaintiff to masturbate him.
During the period of time in which the
incidents took place, plaintiff was aware of rumors
indicating Brown was going to replace Larry
Robertson, who was retiring in the safety office.
The safety office was located on the surface and
plaintiff believed if Brown went to that position
she would not be in contact with him or under his
supervision. However, when plaintiff returned to
work on June 21, 1993, after a three-day break,
6a
Appendix A
she learned Brown would not be replacing
Robertson. At that point, she knew the “problem
wasn’t going to go away,” and she “was going to
have to do something to put an end to it.” However,
she was scared that no one in management would
believe her and that she would lose her job.
On June 26, 1993, plaintiff arrived at work
and learned her usual “buddy” had been assigned
to work with another miner and she was the “extra
person.” Afraid Brown would again attempt to
harass her, she completed a few of her assigned tasks
and told Brown she was sick and was going home.
On June 27, 1993, plaintiff was again
designated the “extra person.” Brown ordered her
to accompany him to shovel some tunnels in the
mine. When they arrived, Brown again began
harassing her in the identical manner as in the
previous incidents. Plaintiff refused his advances
and refused to masturbate him. Brown drove
plaintiff back to his office and told her to go to
her machine and work through lunch. Later that
same day, Brown ordered plaintiff to help him
clean his office. When they were alone, he again
began harassing plaintiff, touching her, and
repeatedly asking her to have sex. Plaintiff refused
Brown’s advances.
On June 28, 1993, plaintiff called the line
foreman and told him she was having some
problems and needed to take some vacation days
Ja
Appendix A
to finish out the remainder of her eleven-day shift.
On her next scheduled work day (July 5, 1993),
plaintiff called in sick. She also called in sick the
following day.
On July 7, 1993, plaintiff called Dale Janway,
a manager in the safety office, and told him what
had happened with Brown. Janway told plaintiff
“this is pretty big,” and he would have to talk with
Ken Leivo, the human resources manager. Later that
afternoon, Leivo telephoned plaintiff and informed
her she would be on administrative leave pending
the outcome of his investigation. Leivo also asked
plaintiff to prepare a written statement outlining
what had happened. Plaintiff and Leivo talked on
the telephone several times between July 7 and July
12. Leivo told plaintiff that Brown had admitted
everything but said the incidents were consensual.
On July 14, 1993, Leivo issued a three-page
“Determination and Disposition,” noting
plaintiff's and Brown’s versions of what happened
were substantially similar, with the exception that
Brown alleged the encounters were consensual.
*** [T]he document indicated that plaintiff
would be “made whole for all work time lost as a
result of the matter,” that she would be provided
with counseling services and necessary medical
treatment and prescription drugs, that she would
be moved to a different crew in the mine, that
Brown would be formally reprimanded for his
involvement in the incident, that Brown would
8a
Appendix A
“be placed on permanent probation for any future
activity of this type,” and that Brown would be
- ordered to have no contact with plaintiff “other
than that which might be absolutely necessary as
part of his required duties.”
Although plaintiff remained on the Potash
payroll for approximately one year, she never
returned to work. On June 17, 1994, her
employment was terminated due to a reduction
in force at the mine.
Id. at 1440-42 (internal citations omitted).
Harrison filed suit against EPI and Brown alleging
hostile work environment sexual harassment under Title VII
of the Civil Rights Act of 1964 and violations of New Mexico
tort law. A jury returned a verdict in favor of Harrison and
against Brown on her state law claims of intentional infliction
of emotional distress and battery, and awarded her
compensatory damages of $102,500 and punitive damages
of $40,000. The jury found against Harrison, however, with
respect to her Title VII claim against EPI.
Harrison appealed from the judgment on her Title VII
claim, arguing that the district court erroneously instructed
the jury as to the requirements for imposing liability on an
employer for sexual harassment perpetrated by one of its
supervisory employees.' We agreed with Harrison and
reversed and remanded for further proceedings on the Title
1. Brown did not appeal from the judgment entered against
him.
9a
Appendix A
VII claim. Harrison J, 112 F.3d at 1451. Following issuance
of its companion decisions in Faragher v. City of Boca Raton,
524 U.S. 775 (1998), and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998), the Supreme Court granted
EPI’s petition for writ of certiorari, summarily vacated the
decision in Harrison I, and remanded the action to this court
for further consideration. Eddy Potash, Inc. v. Harrison, 524
U.S. 947 (1998). On remand, we again concluded that the
district court improperly instructed the jury with respect to
the standards for imposing liability on an employer for sexual
harassment perpetrated by one of its supervisory employees.’
Harrison v. Eddy Potash, Inc., 158 F.3d 1371, 1377 (10th
Cir. 1998) (Harrison II). Accordingly, we reversed the
judgment in favor of EPI and against Harrison on her Title
VII claim and remanded the case to the district court for
further proceedings.
On remand to the district court, the parties filed cross-
motions for summary judgment. EPI asserted in its motion
that it was entitled to summary judgment on Harrison’s Title
VII claim because, in its view, the uncontroverted facts
developed at the first trial demonstrated that it could satisfy
the affirmative defense outlined in Faragher and Burlington.
Harrison, in her motion, argued that she was entitled to partial
summary judgment on the issue of whether Brown’s conduct
was severe or pervasive enough to constitute actionable
sexual harassment under Title VII. In support of her motion,
Harrison asserted that the jury in the first trial, by finding in
her favor on the two tort/claims against Brown, effectively
2. We also rejected EPI’s argument that it was entitled to
judgment as a matter of law with respect to the affirmative defense
outlined in Faragher and Burlington. Harrison II, 158 F.3d at 1377.
10a
Appendix A
found that one or more of the encounters between herself
and Brown were non-consensual. Harrison asserted that EPI
was bound by the jury’s finding in this regard because,
“(although the judgment in [her] favor [wa]s only against
_. .Brown, EPI and Brown [we]re privies . . . witha complete
identity of interests.” App. at 112. Harrison emphasized that
“EP]’s liability was predicated on the conduct of Brown,”
and that both Brown and EPI “were represented by the same
counsel” and “put on a single, unified defense” during the
first trial. Jd. Finally, Harrison asserted that the two
defendants shared a single, common defense during the first
trial, i.e., that the encounters between Brown and Harrison
were consensual. Thus, Harrison asserted, “the only liability
issue left for the jury’s determination [wa]s whether or not
EPI [wa]s itself liable for... Brown’s sexual harassment.”
Id.
The district court issued an initial order granting in part
Harrison’s motion for partial summary judgment and
granting in part and denying in part EPI’s motion for
summary judgment. With respect to Harrison’s motion, the ©
district court concluded that EPI was “collaterally estopped
from denying Harrison’s lack of consent to Brown’s physical
sexual contact.” Jd. at 280. More specifically, the district
court concluded that “[b]ecause one of the elements of battery
is that it be non-consensual, and because the jury returned a
verdict in favor of Harrison on her battery claim against
Brown, the issue of Harrison’s consent ha{d] already been
fully litigated and necessarily decided.” Id. With respect to
EPI’s motion, the district court concluded that, consistent
with the opinion in Harrison II, there was “a genuine issue
of material fact concerning EPI’s affirmative defenses under
lla
Appendix A
Faragher.” Id. at 279. Because, however, Harrison conceded
she was not entitled to punitive damages, the district court
granted summary judgment in favor of EPI on the issue of
punitive damages.
At the direction of the district court, the parties submitted
proposed jury instructions on the issue of unwelcome sexual
advances. After reviewing the parties’ proposed jury
instructions, the district court issued an order granting in its
entirety Harrison’s motion for partial summary judgment.
In doing so, the court noted that EPI had conceded at the
May 1999 pretrial conference “that the only physical contact
between Brown and Harrison was of a sexual nature, so there
[wa]s no genuine issue of material fact regarding the
requirement that the conduct be sexually orientated.” Jd. at
285J. Thus, the court concluded, “the issues to be decided
[we]re whether there [wa]s a genuine issue of material fact
regarding the ‘unwelcome’ element of Harrison’s hostile
work environment claim, and whether Brown’s conduct was
sufficiently severe or pervasive as to alter the conditions of
Harrison’s employment and create an abusive working
environment under both an objective and subjective
standard.” Jd. After examining “the jury instructions, jury
verdict, [and] trial transcript” from the first trial, the district
court concluded “there [wa]s no genuine issue of material
fact regarding Harrison’s claim that Brown’s conduct created
a hostile work environment,” and that the only issue to be
decided at trial was “whether the affirmative defense set forth
in Faragher and Burlington insulate[d] EPI from ‘liability
for Brown’s conduct.” Jd.
12a
_ Appendix A
At trial, the jury rejected EPI’s affirmative defense and
found in favor of Harrison on her Title VII claim. Because
the parties had agreed, prior to trial, to be bound by the
damage figures assessed in the first trial, the jury in the
second trial did not consider or assess damages. EPI
subsequently filed a motion for judgment notwithstanding
the verdict or, in the alternative, for new trial. EPI argued,
in part, that the district court erred in granting partial
summary judgment in favor of Harrison “on the elements of
sexual harassment.” Jd. at 339. The district court denied EPI’s
post-trial motion.
Il.
Entry of partial summary judgment
EPI contends the district court erred in granting partial
summary judgment in favor of Harrison on the issue of
whether she was subjected by Brown to actionable sexual
harassment. EPI forwards two arguments in support of its
position. First, EPI contends that our mandate in Harrison II
required the district court to conduct a trial de novo on all
factual issues relevant to Harrison’s Title VII claim, and thus
effectively precluded the district court from granting
summary judgment on any aspect of the Title VII claim.
Second, and alternatively, EPI argues that it was improper
for the district court, in granting partial summary judgment
in favor of Harrison, to “rely upon any factual determination
made by the jury in the first trial on any issue of liability.”
Aplt. Br. at 20.
13a
Appendix A
We review de novo the district court’s grant of summary
judgment, applying the same legal standard as the district
court. E.g., Trujillo v. Univ. of Colo. Health Sciences Ctr.,
157 F.3d 1211, 1213 (10th Cir. 1998). Summary judgment
is appropriate only if the admissible evidence shows “there
is NO genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). We also review de novo the district court’s
application of the doctrine of collateral estoppel. See Dodge
v. Cotter Corp., 203 F.3d 1190, 1197 (10th Cir.), cert. denied,
121 S. Ct. 71 (2000); see also Gonzales v. Hernandez, 175
F.3d 1202, 1204 (10th Cir. 1999) (reviewing de novo a
district court’s entry of summary judgment barring claims
under the doctrine of collateral estoppel).
Addressing EPI’s arguments in order, we note that EPI
failed to argue in the district court that our mandate in
Harrison II precluded the district court from considering
dispositive motions relevant to Harrison’s Title VII claim.
Indeed, EPI filed its own dispositive motion on remand.
Thus, EPI has waived the argument for purposes of appeal.
See Vitkus v. Beatrice Co., 127 F.3d 936, 946-47 (10th Cir.
1997) (deeming issue raised first time on appeal waived).
Even if we were willing to overlook EPI’s waiver, we are
not persuaded there is any merit to its argument. Nothing in
the mandate of Harrison I] precluded the district court from
considering dispositive motions on any or all issues relevant
to Harrison’s Title VII claim. See Guidry v. Sheet Metal
Workers Int'l Assoc., 10 F.3d 700, 706 (10th Cir. 1993) (“When
further proceedings follow a general remand, the lower court
is free to decide anything not foreclosed by the mandate
issued by the higher court.”) (internal quotations omitted).
14a
Appendix A
EPI’s second argument, i.e., that it was improper for the
district court to grant summary judgment based upon any
determination made by the jury in the first trial, is more
difficult. In its initial order discussing Harrison’s motion for
partial summary judgment, the district court concluded that,
based on the jury’s verdict against Brown in the first trial,
EPI was “collaterally estopped from denying Harrison’s lack
of consent to Brown’s physical sexual contact.” App. at 280.
In its second order discussing Harrison’s motion, the district
court analyzed whether, as a matter of law, Brown’s actions
created an actionable hostile environment for purposes of
Title VII. The district court noted that EPI had conceded
during a May 1999 pretrial conference that the only physical
contact between Brown and Harrison was of a sexual nature.
Based upon this concession, the court concluded there was
no genuine issue of material fact concerning whether
Brown’s conduct was sexually oriented. The court then
reviewed the essential elements of the two tort claims against
Brown and concluded, based upon the jury’s findings on
those tort claims, that Harrison had established as a matter
of law that Brown’s conduct was both “unwelcome” and
objectively hostile. The court noted it was uncontroverted
that Harrison subjectively believed that Harrison’s conduct
was hostile. Thus, the court concluded “there [wa]s no
genuine issue of material fact regarding Harrison’s claim
that Brown’s conduct created a hostile work environment,”
and the only issue of fact to be decided at trial was whether
EPI was entitled to prevail on the Faragher/Burlington
affirmative defense. Id. at 285J. :
Although there are some conflicting statements in the
district court’s second order, it is clear that the district court
g 2 pene id eh Fe eee ye Cram VON Opa ty pet ast PERS BSR RSS PAS er et eg AP ONE een PE LED ee eee De POSER LF pea ey Ee Meret a ME MINS rae s y Ee ELe ee BOS ees
hey ELAS Re OES Ra RS ETO RAEN Re Me eee Pee Peres pi bei a ile . agit Ba eT SA ey te NER Ne Ee ee ree ee Nar Ee tse ae Ny
15a
Appendix A
relied, to some degree, on the doctrine of collateral estoppel.
As the Supreme Court has noted:
“Collateral estoppel” is an awkward phrase,
but it stands for an extremely important principle
in our adversary system of justice. It means simply
that when an issue of ultimate fact has once been
determined by a valid and final judgment, that
issue cannot again be litigated between the same
parties in any future lawsuit.
Ashe v. Swenson, 397 U.S. 436, 443 (1970). To apply
collateral estoppel, the following elements must be
established: (1) the issue previously decided is identical with
the one presented in the action in question, (2) the prior action
has been finally adjudicated on the merits, (3) the party
against whom the doctrine is invoked was a party, or in
privity with a party, to the prior adjudication, and (4) the
party against whom the doctrine is raised had a full and fair
opportunity to litigate the issue in the prior action. Dodge,
203 F.3d at 1198.
EPI has challenged only the first element — whether
the issue previously decided is identical with the one now
presented.’ In deciding this question, the jury instructions
from the first trial are the “blueprint for determining the
parameters of the first jury’s verdict.” Jd. The jury at the
first trial was instructed that, to recover on her claim of
outrage, Harrison had to prove: (1) “[t]hat the conduct of
3. At no time, either in the district court or in this appeal, has
EPI argued that it was not in privity with Brown for purposes of
collateral estoppel.
l6a
Appendix A
_ Brown was extreme and outrageous under the
circumstances,” (2) “[t]hat . .. Brown acted intentionally or
recklessly,” and (3) “[a]s a result of the conduct of . . . Brown,
[she] experienced severe emotional distress.” App. at 285K.
With respect to the battery claim, the jury at the first trial
was instructed that Harrison had to prove: (1) “[t]hat ...
Brown intentionally touched or struck [her],” (2) “(t]hat such
contact by [Brown] was harmful or offensive,” and (3) “[t}hat
the contact was without consent of the plaintiff.” Jd. As the
district court correctly concluded, the jury’s verdict in favor
of Harrison on these two claims means the jury necessarily
found “that Brown intentionally touched or struck Harrison
without her consent, that the contact was harmful or offensive
to Harrison, that Brown’s conduct was extreme and
outrageous, that Brown acted intentionally and recklessly,
and that Brown’s conduct caused Harrison severe emotional
distress.” Jd. at 285L.
The next question is whether any of the issues decided
by the first jury are identical to those presented in Harrison’s
Title VII case against EPI. To prevail on her Title VII claim,
Harrison had to establish, in part, that Brown’s conduct
toward her was (1) unwelcome, (2) based upon her sex, and
(3) sufficiently severe or pervasive as to alter the conditions
of her employment and create an abusive working
environment. See Faragher, 524 U.S. at 787-89; Harris v.
Forklift Sys., Inc., 510 U.S. 17, 20-23 (1993); Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 65-73 (1986). Obviously,
although there is some common ground between these issues
and those decided by the jury in the first trial, they are not
identical. Nevertheless, as the district court noted, EPI’s only
defense to the Title VII claim, apart from its assertion of the
PRS ALE Ot
PEARLS.
IPM ERIN LEIA GE GG BEEN IO DNLIIY A DIAM INGE
17a
Appendix A
Faragher/Burlington affirmative defense, was that Harrison
consented to Brown’s sexual advances. Because the jury in
the first trial decided this issue of fact against Brown and
EPI, we conclude the district court was correct in determining
that the doctrine of collateral estoppel prohibited EPI from
relitigating that issue. In other words, the doctrine of
collateral estoppel did not bar EPI from relitigating any of
the essential elements of Harrison’s Title VII claim, but it
did prohibit EPI from relitigating the more narrow factual
issue of whether Harrison consented to Brown’s sexual
advances.‘
Having concluded that Harrison’s lack of consent was
established and controlling for purposes of her Title VII
claim, the remaining question is whether there was a basis
for granting partial summary judgment in Harrison’s favor
on any of the essential elements of that claim. The details of
the encounters between Brown and Harrison, except for the
consent issue, were unchallenged by EPI. Combined with
the collateral estoppel effect of the first jury’s resolution of
the consent issue, it was therefore uncontroverted that, on
several occasions over a seven-week period, Brown made
aggressive sexual advances to Harrison and, against her will,
4. The district court concluded that the verdict on the tort claims
in the first trial established that, “on at least one occasion,” Harrison
did not consent to Brown’s conduct. App. at 285M. Our view is
somewhat different. In light of the testimony of Harrison and Brown,
we believe the jury could only have reasonably reached one of two
conclusions: either that Harrison consented to all of the advances,
or that she consented to none of them. By finding against Brown on
the tort claims, we believe the jury necessarily found that a// of the
incidents described by Harrison were nonconsensual.
18a
Appendix A
intimately touched her body and forced her to masturbate
him. In short, it was uncontroverted that Brown sexually
assaulted Harrison on multiple occasions over a relatively
brief period.
Based upon this uncontroverted evidence, we agree with
the district court that Harrison was entitled to summary
judgment on three elements of her Title VII claim. First, it
was undoubtedly established that Brown’s conduct was
unwelcome, i.e., unwanted and distasteful. Second, there is
no doubt that Brown’s conduct was based on Harrison’s sex.
E.g., Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th
Cir. 1987) (discussing “based on sex” element and noting it
includes sexual advances). Third, there were no genuine
issues of material fact concerning whether Brown’s conduct
was sufficiently severe or pervasive as to alter the conditions
of Harrison’s employment and create an abusive working
environment. In Harris, the Supreme Court concluded that,
for purposes of this third element, the conduct in question
must be judged by both an objective and a subjective
standard-the conduct must be “severe or pervasive enough
to create . . . an environment that a reasonable person would
find hostile or abusive,” and the victim must “subjectively
perceive th[at] environment to be abusive.” 510 U.S. at 21.
Harris further concluded that, in determining whether a work
environment is hostile or abusive, all of the circumstances
of the case must be examined, including: (1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it
is physically threatening or humiliating, or a mere offensive
utterance; (4) whether the conduct unreasonably interfered
with the plaintiff's work performance; and (5) what
psychological harm, if any, resulted. See id. at a.
oA uN a tai 7 1 aa
19a
Appendix A
Here, it was uncontroverted that Harrison subjectively
perceived Brown’s assaults as severe enough to create a
hostile and abusive working environment. From an objective
standpoint, it appears clear that a jury could only have agreed.
Although the assaults occurred over a relatively short period,
they were extreme in nature, they were physically threatening
and humiliating to Harrison (and would have been to any
reasonable person in her position), they clearly interfered
with her work performance (causing her to call in sick on
several occasions to avoid contact with Brown), and it was
uncontroverted that they caused psychological harm to
Harrison.°
EPI’s requested jury instructions
EPI contends the district court erred in refusing two of
its tendered jury instructions. We review a district court’s
refusal to give a requested jury instruction under an abuse
of discretion standard. Dodoo v. Seagate Tech., Inc., 235
F.3d 522, 529 (10th Cir. 2000). In doing so, we consider de
novo whether the instructions, as a whole, accurately
informed the jury of the issues and the governing law.
5. Although it is arguable that even one of the incidents, viewed
alone, would have been sufficient to create a hostile or abusive
working environment for purposes of Title VII, see Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (indicating that a
Title VII plaintiff can establish actionable sexual harassment based
upon “a single incident [of sexual harassment that] was
extraordinarily severe”); Torres v. Pisano, 116 F.3d 625, 631 n.4
(2d Cir. 1997) (“Of course, even a single episode of harassment, if
severe enough, can establish a hostile work environment.”), we need
not decide this issue.
20a
Appendix A
See Fed. Deposit Ins. Corp. v. Schuchmann, 235 F.3d
1217, 1221 (10th Cir. 2000).
Indest instruction. EPI tendered, but the district court
refused to give, the following instruction: “You are instructed
that if you find that Plaintiff Jeanne Harrison promptly
complained of Robert L. Brown’s harassing conduct and that
Eddy Potash promptly responded, disciplined appropriately,
and stopped the harassment, then you should find for Eddy
Potash.” App. at 106. EPI contends that the tendered
instruction, which was based upon Jndest v. Freeman
Decorating, Inc., 164 F.3d 258 (Sth Cir. 1999), correctly
stated the law and should have been given to the jury.
The sole issue at trial in this case was whether EPI could
avoid vicarious liability for Brown’s misconduct by
establishing its entitlement to the affirmative defense outlined
in Faragher and Burlington. The Faragher/Burlington
affirmative defense can only be raised if “no tangible
employment action [wa]s taken” by the harassing supervisor
against the plaintiff employee. Faragher, 524 U.S. at 807.
If this preliminary requirement is met, the employer must
establish, by a preponderance of the evidence, that (1) it
“exercised reasonable care to prevent and correct promptly
any sexually harassing behavior,” and (2) “the plaintiff
employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” /d. EPI argued in the
district court, and continues to assert on appeal, that Jndest
correctly modified the Faragher/Burlington affirmative
defense and that the district court should have recognized
and adopted this modification.
2la
Appendix A
In Jndest, the plaintiff employee filed suit against her
employer under Title VII alleging she had been sexually
harassed by a member of the employer’s upper management.
More specifically, the plaintiff alleged that at a week-long
convention where she was working, the alleged harasser on
five occasions made crude sexual comments and sexual
gestures to her. Following the fifth incident, plaintiff reported
the harasser’s conduct to her supervisor. In turn, the employer
swiftly investigated the incidents and reprimanded the
harasser. Although the harassment ceased, plaintiff filed suit
against the employer alleging actionable sexual harassment
under Title VII. The district court granted judgment as a
matter of law in favor of the employer.
On appeal, a divided panel of the Fifth Circuit affirmed.
The authoring judge purported to distinguish the case from
Faragher and Burlington on the grounds that, “for purposes
of imposing vicarious liability, a case presenting only an
incipient hostile environment corrected by prompt remedial
action should be distinct from a case in which a company
was never called upon to react to a supervisor’s protracted
or extremely severe acts that created a hostile environment.”
Indest, 164 F.3d at 265. The authoring judge offered four
reasons for doing so: (1) “when a plaintiff promptly
complains about a supervisor’s inappropriate sexual actions,
she can thwart the creation of a hostile work environment”;
(2) a “company’s swift response to the plaintiff's complaint
should have consequences for its vicarious liability exposure
precisely because the company forestalled the creation of a
hostile environment”; (3) “[i]mposing vicarious liability on
an employer for a supervisor’s ‘hostile environment’ actions
despite its swift and appropriate remedial response to the
victim’s complaint would . . . undermine not only Meritor
22a
Appendix A
but Title VII’s deterrent policy”; and (4) “Faragher implies
that a plaintiff should not wait as long as it usually takes for
a sexually hostile working environment to develop when the
company has an effective grievance mechanism.” /d. at
265-67. The authoring judge then proceeded to craft her own
standard under which, if a plaintiff employee promptly
complains of harassing conduct and the employer promptly
responds, disciplines the harasser and stops the harassment,
the employer is relieved of Title VII vicarious liability for
the harasser’s conduct. Jd. at 267.
There are several major problems with Jndest. First, it
represents the views of only one member of the three-judge
panel that decided the case. The other two members of the
panel concurred in the judgment only, and one of the
concurring judges wrote a separate, subsequently published
concurring opinion expressly rejecting the analytical framework
enunciated in Indest.° Indest v. Freeman Decorating, Inc.,
168 F.3d 795, 796 (Sth Cir. 1999) (Indest II) (“I cannot agree
with Judge Jones’s conclusion that the Supreme Court’s
remarkably straightforward and perfectly consistent twin
opinions in [Faragher and Burlington] do not control the
present case — and, indeed all cases in which the plaintiff
seeks to hold his employer vicariously liable for a supervisor’s
sexual harassment.”). Because, as pointed out in Indest II,
the third member of the panel did not join either opinion,
“neither enjoys a quorum and thus neither writing constitutes
precedent in [the Fifth] Circuit.” Jd. at 796 n.1.
6. Indest I] proposed affirming the district court’s judgment
on the grounds that the conduct was not severe or pervasive enough
to constitute actionable sexual harassment under Title VII. 168 F.3d
at 796. :
23a
Appendix A
Second, we have effectively rejected the modified
employer defense enunciated in Jndest. In Gunnell v. Utah
Valley State College, 152 F.3d 1253 (10th Cir. 1998), the
plaintiff filed suit against her employer under Title VII alleging,
in part, that she had been subjected to sexual harassment by her
supervisor. The district court (prior to the issuance of Faragher
and Burlington) granted summary judgment in favor of the
employer on the grounds that “the sexual harassment stopped
after [plaintiff] complained” about it to the employer’s
personnel director. Jd. at 1259. We reversed and remanded
with directions to the district court to apply the two-pronged
defense set forth in Faragher and Burlington. In doing so,
we effectively rejected the position advanced in Jndest, i.e.,
that an employer’s prompt corrective action can be sufficient
by itself to avoid vicarious liability under Title VII for sexual
harassment committed by a supervisory employee.
Third, even assuming that Gunnell did not resolve the
issue, the reasoning of Jndest is highly suspect and, in our
view, should not be adopted. As outlined in Jndest IJ, there
is no reason to believe that the “remarkably straightforward”
framework outlined in Faragher and Burlington does not
contro] all cases in which a plaintiff employee seeks to hold
his or her employer vicariously liable for a supervisor’s
sexual harassment. /ndest II, 168 F.3d at 796.
Finally, even ignoring all of the problems already cited,
the facts of Harrison’s case are so far removed from the facts
of Jndest that the modified employer defense announced
therein would not be applicable here. Jndest involved a
handful of crude sexual comments and gestures made during
the course of a week-long seminar; in the words of the Jndest
court, it “was neither severe nor pervasive,” Jndest, 164 F.3d at
24a
Appendix A
264, and, at most, created what that court characterized as “an
incipient hostile environment.” Jd. at 265. Here, in contrast,
Brown’s misconduct was most certainly “severe,” and
undoubtedly created a hostile work environment for Harrison.
We therefore conclude the district court did not abuse
its discretion in rejecting EPI’s tendered instruction. In short,
the tendered instruction was not an accurate statement of
the governing law, and would have misled the jury in its
determination of the issues.
Generalized fear of retaliation instruction. EPI asked
the district court to give the following instruction: “Generalized
fear of retaliation or repercussions related to reporting to an
employer of sexual harassment in the workplace does not
constitute reasonable grounds for an employee’s failure to
raise a complaint of harassment with her employer.” App. at
107. The district court rejected the tendered instruction on
the grounds that it “unduly emphasize(d] one narrow area of
the law that [wa]s adequately covered” in the court’s other
instructions. Jd. at 577.
The instruction tendered by EPI appears to be a correct
statement of federal law. Although we have never addressed
the issue, other circuit courts have expressly stated that, for
purposes of applying the Faragher/Burlington affirmative
defense, “[a] generalized fear of retaliation does not excuse
a failure to report sexual harassment.” Barrett v. Applied
Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001);
see Shaw v. Autozone, Inc., 180 F.3d 806, 813 (7th Cir. 1999)
(“[W]e conclude 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
25a
Appendix A
the allegedly hostile environment.”), cert. denied, 528 U.S.
1076 (2000); Madray v. Publix Super Mkts., Inc., 30 F. Supp.
2d 1371, 1375 (S.D. Fla. 1998) (“An employee’s generalized
fear of repercussions cannot form the basis for an employee’s
failure to complain to his or her employer.”), aff'd 208 F.3d
1290 (11th Cir. 2000).
” The question, then, is whether the subject matter of the
requested instruction was adequately covered in the district
court’s general instructions. See Schuchmann, 235 F.3d at
1222. Consistent with Faragher and Burlington, the district
court instructed the jury that EPI would be liable for Brown’s
sexual harassment of Harrison unless EPI could prove, by a
preponderance of the evidence, that (1) it “exercised
reasonable care to prevent and correct promptly any sexually
harassing behavior,” and (2) “Harrison unreasonably failed
to take advantage of any preventive or corrective
opportunities provided by [EPI] or to avoid harm otherwise.”
App. at 314. Although the district court did not provide any
further explanation of either prong of the affirmative defense,
we conclude that this general instruction, considered together
with the court’s other instructions, properly conveyed to the
jury the issues to be decided and the governing law. The
instruction precisely tracked the Supreme Court’s description
of the employer’s affirmative defense in Faragher and
Burlington. See Burlington, 524 U.S. at 765; Faragher, 524
U.S. at 807. Thus, we are unable to conclude the district
court abused its discretion in rejecting the tendered
instruction. See generally United States v. Cerrato-Reyes,
176 F.3d 1253, 1262 (10th Cir. 1999) (citing various cases
in which it may have been preferable to give a tendered
instruction, but where the district court did not err in refusing
26a
Appendix A
“to do so because the jury was not otherwise misled by the
district court’s general instructions).
EPI’s motion for judgment as a matter of law
EPI contends the district court erred in denying its
motion for judgment as a matter of law. According to EPI,
the evidence presented at trial unequivocally demonstrated
that it was entitled to prevail on the affirmative defense
outlined by the Supreme Court in Faragher and Burlington.
We review de novo a district court’s disposition of a motion
for judgment as a matter of law, applying the same standard
as the district court. Ballard v. Muskogee Reg’l Med. Ctr.,
238 F.3d 1250, 1252 (10th Cir. 2001). Such a judgment is
warranted only if the evidence points but one way and is
susceptible to no reasonable inferences supporting the party
opposing the motion. Jd.
Focusing on the first prong of the Faragher/Burlington
affirmative defense, we conclude the jury could reasonably
have found that EPI failed to exercise reasonable care to
prevent any sexually harassing behavior. On October 4, 1989,
EPI drafted and disseminated to its supervisory personnel a
written “policy statement on sexual discrimination and sexual
harassment.” App. at 702. At that time, EPI (through its
Human Resource Manager, Kenny Leivo) instructed its
supervisory personnel to “hold . .. meeting[s] with [their
respective] crew[s] and read the policy statement to them,”
and “[pjost the Policy on the bulletin board{s] after your
meeting|s].” Jd. Although there is no indication in the record
that EPI’s supervisory personnel failed to comply with these
directions, the evidence indicates that non-supervisory
personnel were not provided with copies of the policy, nor
—
27a -
Appendix A
were copies of the policy posted on all of the bulletin boards
in the mine. In particular, it was uncontroverted that a copy
of the policy was not posted in the changing room used by
the women miners. More importantly, the evidence strongly
suggests that, subsequent to October 4, 1989, the policy was
largely ignored. Brown, the harasser in this case, testified
without contradiction that no mention was made of the policy
by EPI management after October 1989, and that no seminars
on the subject of sexual harassment were ever held by EPI.
Further, it was uncontroverted that, when Harrison began
working for EPI in May 1992,’ she was neither informed of
the policy nor was a written copy of the policy included in
the folder of written materials provided to her by EPI during
orientation. Taken together, this evidence clearly would have
allowed the jury to conclude that EPI exercised less than
reasonable care in preventing sexual harassment by its
employees. See Brown v. Perry, 184 F.3d 388, 396 (4th Cir.
1999) (noting “that mere promulgation of-... a [sexual
harassment] policy may well fail to satisfy the employer’s
burden” under the first prong of Faragher); cf. Shaw, 180
F.3d at 811-12 (concluding that employer exercised
reasonable careto prevent sexual harassment where employer
adopted an anti-harassment policy which it distributed to
each of its employees, each employee was required as a
condition of employment to read and comply with the policy,
employer regularly trained managers regarding the policy,
and supervisors were not isolated from higher management).
The judgment of the district court is AFFIRMED.
7. Harrison had previously worked for EPI on two separate
occasions, once in 1987 and once in 1988. At neither of those times
did EPI have an official policy in place regarding sexual harassment.
28a
APPENDIX B — JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF
NEW MEXICO DATED AND FILED MARCH 30, 2000
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 94-691 JP/WWD
JEANNE HARRISON,
Plaintiff,
Vs.
EDDY POTASH, INC., a New Mexico corporation,
and ROBERT L. BROWN,
Defendants.
JUDGMENT
On February 22-23, 2000, this case was tried by a jury
on the sole issue of whether Defendant Eddy Potash, Inc.
was liable for the sexual harassment of Plaintiff Jeanne
Harrison by Eddy Potash, Inc.’s supervisor, Robert L. Brown.
The jury found in favor of Plaintiff Jeanne Harrison and
found that Defendant Eddy Potash, Inc. was liable for the
sexual harassment committed by Robert L. Brown. The
compensatory damages for which Eddy Potash, Inc. is liable
had been previously established by a judgment against
Defendant Robert L. Brown entered on February 8, 1996, as
$102,500.00. Based on the jury’s verdict rendered at the
conclusion of the February 22-23, 2000 trial and the damage
award established by the February 8, 1996 judgment,
29a
Appendix B
JUDGMENT is hereby entered in favor of Plaintiff
Jeanne Harrison and against Defendant Eddy Potash, Inc. in
the amount of $102,500.00, plus interest at the rate of 6.197%
per year from the date of entry of this judgment.
Plaintiff, the prevailing party, will be awarded allowable
costs and reasonable attorney fees; Plaintiff must submit her
motion to tax costs and her application for award of attorney
fees in accordance with Fed. R. Civ. P. 54 and
D.N.M.LR-Civ. 54.
s/ James A. Parker
UNITED STATES DISTRICT
JUDGE
30a
APPENDIX C — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
DENYING PETITION FOR REHEARING
DATED AND FILED MAY 31, 2001
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
No. 00-2221
JEANNE HARRISON,
Plaintiff-Counter-Defendant-
Appellee,
Vv.
EDDY POTASH, INC., a New Mexico corporation,
Defendant-Counter-Claimant-
Appellant,
and
ROBERT L. BROWN,
Defendant-Counter-Claimant.
ORDER
Filed May 31, 2001
3la
Appendix C
Before SEYMOUR, GIBSON*, and BRISCOE, Circuit
Judges.
Appellant’s petition for rehearing is denied.
The petition for rehearing en banc was transmitted to all
of the judges of the court who are in regular active service
as required by Fed. R. App. P. 35. As no member of the
panel and no judge in regular active service on the court
requested that the court be polled, that petition is also denied.
Entered for the Court
PATRICK FISHER,
Clerk of Court
by: s/ K. Fabrizio
Deputy Clerk
: * The Honorable John K. Gibson, Circuit Judge, United States
Court of Appeals for the Eighth Circuit, sitting by designation.
32a
APPENDIX D — RELEVANT STATUTE
The pertinent provision of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.
(“Title VII’) as set forth below:
Section 2000e-2. Unlawful employment practices
(a) Employer practices. It shall be an unlawful
employment practice for an employer —
(1) to fail or refuse to hire or to
discharge any individual, or otherwise
to discriminate against any individual
-with respect to his compensation, terms,
conditions, or privileges of employment,
because of such individual’s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment
in any way which would deprive or tend
to deprive any individual or employment
opportunities or otherwise adversely
affect his status as an employee, because
of such individual’s race, color, religion,
sex, or national origin. |
33a
APPENDIX E — RELEVANT JURY INSTRUCTIONS
DEFENDANT’S REQUESTED
INSTRUCTION NO. 7
You are instructed that if you find that Plaintiff Jeanne
Harrison promptly complained of Robert L. Brown’s
harassing conduct and that Eddy Potash promptly responded,
disciplined appropriately, and stopped the harassment, then
you should find for Eddy Potash.
COURT’S INSTRUCTION NO. 5
Defendant Eddy Potash, Inc. is liable for Robert L.
Brown’s sexual harassment of Plaintiff Jeanne Harrison
unless Defendant Eddy Potash can prove each of the
following elements of its defense by a preponderance of the
evidence:
First: Defendant Eddy Potash exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior, and
Second: Plaintiff Jeanne Harrison unreasonably failed
to take advantage of any preventive or corrective
opportunities provided by Defendant Eddy
Potash or to avoid harm otherwise.
If you find that Defendant Eddy Potash has met its burden
of proving both of these matters by a preponderance of the
evidence, then you should find for Defendant Eddy Potash.
34a
Appendix E
If, on the other hand, you find that Defendant Eddy
Potash has not met its burden of proving both of these matters
by a preponderance of the evidence, then you should find
for Plaintiff Jeanne Harrison.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.