Barrett v. Applied Energy , 240 F.3d 262 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LYNNE H. BARRETT, 
Plaintiff-Appellant,
v.
THE APPLIED RADIANT ENERGY
CORPORATION,  No. 99-2597
Defendant-Appellee,
and
RICHARD L. RAMSEY,
Defendant.

LYNNE H. BARRETT, 
Plaintiff-Appellee,
v.
THE APPLIED RADIANT ENERGY
CORPORATION,  No. 99-2634
Defendant-Appellant,
and
RICHARD L. RAMSEY,
Defendant.

Appeals from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CA-98-69)
Argued: December 5, 2000
Decided: February 13, 2001
2 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion.
Chief Judge Wilkinson wrote the opinion, in which Judge Traxler and
Senior Judge Hamilton joined.
COUNSEL
ARGUED: Gary Mitchell Coates, FRALIN, FEINMAN, COATES &
KINNIER, P.C., Lynchburg, Virginia, for Appellant. Bayard Easter
Harris, WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke,
Virginia, for Appellee. ON BRIEF: Daniel C. Summerlin, WOODS,
ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia, for Appel-
lee.
OPINION
WILKINSON, Chief Judge:
Lynne Barrett sued her employer, the Applied Radiant Energy Cor-
poration (ARECO), for sexual harassment under Title VII as well as
for violations of state law. The district court dismissed Barrett’s state
law claims on summary judgment. After a two day trial, the jury
found for Barrett on the Title VII claim. The district court, however,
ruled for ARECO notwithstanding the verdict because ARECO had
satisfied the requirements of the Faragher/Ellerth affirmative
defense. Barrett v. Applied Radiant Energy Corp., 70 F. Supp.2d 644(W.D. Va. 1999). Because the district court properly held that Barrett
unreasonably failed to take advantage of an effective corporate sexual
harassment policy, its judgment with respect to the Title VII claim is
affirmed. Barrett’s state law assault and battery claim, however, is
remanded in light of two intervening decisions by the Virginia
Supreme Court. The rest of Barrett’s state law claims were properly
dismissed.
BARRETT v. THE APPLIED RADIANT ENERGY CORP. 3
I.
ARECO is a Virginia corporation that manufactures flooring.
Lynne Barrett has been an ARECO employee since early 1997.
ARECO concedes that Richard Ramsey, Barrett’s former supervisor
and a former vice president at ARECO, sexually harassed Barrett. The
harassment began in June 1997, while Barrett and Ramsey were on
a business trip to Atlantic City. At dinner, Ramsey told Barrett sexu-
ally provocative stories and unsuccessfully attempted to engage her
in sexually explicit conversation. Throughout the rest of the trip Ram-
sey harassed Barrett by propositioning her, grabbing her, and kissing
her on the mouth. He also directed vulgar, threatening, and offensive
comments to her.
In the months following the Atlantic City trip, Ramsey’s harass-
ment continued. He repeatedly propositioned Barrett, showed her por-
nographic pictures, attempted to engage her in sexually explicit
conversation, and touched her without permission. Barrett told a num-
ber of individuals of Ramsey’s behavior, including at least seven
other ARECO employees, the CEO’s son, a counselor, a police offi-
cer, and two lawyers. At no point, however, did Barrett report Ram-
sey’s conduct to any of ARECO’s twelve managers.
ARECO’s anti-harassment policy prohibits all forms of harass-
ment. It states that the company does "not tolerate harassment of any
of our employees. Any form of harassment related to an individual’s
race, color, sex, religion, marital status, national origin, citizenship
status, age or disability is a violation of this policy." The policy
defines sexual harassment as "sexual advances, requests for sexual
favors, unwelcome or offensive touching and other verbal, graphic or
physical conduct of a sexual nature." The policy also prohibits the
posting of calendars, cartoons, posters and other material which have
sexual overtones in places where they can be viewed by others.
Finally, the policy gives employees the option of approaching any
supervisor or manager, stating:
If you do not feel that the matter can be discussed with your
supervisor, you should contact any member of the manage-
ment team, male or female, with whom you feel comfortable
discussing the situation including the President. You may be
4 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
assured that your complaint will be dealt with immediately
and will be kept as confidential as possible. You will not be
penalized in any way for reporting a harassment problem.
Barrett knew about this policy and signed a form acknowledging that
she received it. Indeed, she consulted the policy after Ramsey started
harassing her. Ramsey’s behavior continued until November 1997. In
November, ARECO independently discovered that Ramsey was
harassing Barrett as a part of an investigation of Ramsey’s phone use.
Upon making this discovery, ARECO immediately retained an out-
side firm to investigate. As soon as the investigation was complete
and Ramsey’s harassment confirmed, ARECO fired Ramsey. Less
than a week elapsed between ARECO’s discovery of Ramsey’s
harassment and his termination.
On October 2, 1997, Barrett filed a complaint with the Equal
Employment Opportunity Commission (EEOC). She subsequently
received a right-to-sue letter and filed this action in district court. Bar-
rett’s suit asserted various state and federal claims, including viola-
tions of Title VII, negligent retention, intentional infliction of
emotional distress, and assault and battery.
Although the district court granted ARECO summary judgment on
Barrett’s state law claims, it denied summary judgment on Barrett’s
Title VII claim. The district court held that ARECO could not estab-
lish, as a matter of law, that it met both prongs of the affirmative
defense outlined in Faragher v. City of Boca Raton, 524 U.S. 775,
807-08 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 764-65 (1998). A two day trial followed to determine if ARECO
was liable under Title VII. A jury returned a verdict in Barrett’s favor,
awarding $5,000 in damages. ARECO subsequently renewed its
motion for judgment as a matter of law. The district court granted this
motion, holding that Barrett’s failure to report Ramsey’s conduct to
ARECO management was unreasonable under the circumstances. Id.
at 655. Barrett now appeals.
BARRETT v. THE APPLIED RADIANT ENERGY CORP. 5
II.
A.
The Faragher/Ellerth affirmative defense allows an employer to
avoid strict liability for one employee’s sexual harassment of another.
The defense is only available, however, if no adverse tangible
employment action was taken by the company. Faragher, 524 U.S.
at 808; Ellerth, 524 U.S. at 765. If this preliminary requirement is
met, then the company must prove that it exercised reasonable care
in preventing and promptly correcting any sexually harassing behav-
ior. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. It also must
show that "the plaintiff employee unreasonably failed to take advan-
tage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 765. Since Barrett does not claim that ARECO
took any adverse action against her, ARECO has satisfied the prereq-
uisite to asserting the Faragher/Ellerth defense.1
B.
Barrett first argues that because ARECO never did anything more
than distribute its anti-harassment policy, it did not exercise reason-
able care to prevent and promptly correct any sexually harassing
behavior. This argument is incompatible with the law of this circuit.
Distribution of an anti-harassment policy provides "compelling proof"
that the company exercised reasonable care in preventing and
promptly correcting sexual harassment. Lissau v. Southern Food Ser-
vice, Inc., 159 F.3d 177, 182 (4th Cir. 1998); accord Brown v. Perry,
184 F.3d 388, 396 (4th Cir. 1999). The only way to rebut this proof
1
ARECO cross appeals on jurisdictional grounds. It claims that
because Barrett failed to file a complaint with the Virginia Commission
on Human Rights, and thus failed to exhaust her state administrative
remedies, this court does not have jurisdiction over Barrett’s Title VII
claim. See 42 U.S.C. § 2000e-5(c) (requiring a plaintiff to exhaust both
state and federal administrative remedies before filing suit under Title
VII). After the briefs in this case were filed, however, this court issued
a decision rejecting a materially indistinguishable claim. See Puryear v.
County of Roanoke, 214 F.3d 514 (4th Cir. 2000).
6 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
is to show that the "employer adopted or administered an anti-
harassment policy in bad faith or that the policy was otherwise defec-
tive or dysfunctional." Brown, 184 F.3d at 396 (quoting Faragher,
524 U.S. at 808). Barrett claims that ARECO’s policy was adopted
in bad faith. Barrett, however, presents no evidence to support this
claim and we can find none in the record.
There is also no evidence that the policy was in any way defective
or dysfunctional. To the contrary, ARECO’s policy allowed Barrett
to bypass Ramsey by stating that harassment could be reported
directly to ARECO’s President. The policy also encouraged Barrett to
"contact any member of the management team, male or female, with
whom" Barrett felt "comfortable discussing the situation." The policy
explicitly stated that such complaints would "be dealt with immedi-
ately" and would "be kept as confidential as possible." And the policy
stated that no employee would "be penalized in any way for reporting
a harassment problem." By providing clear direction as to how to
report sexual harassment and by including a confidentiality and anti-
retaliation provision, ARECO’s policy was reasonably calculated to
prevent and promptly correct any sexually harassing behavior.
The conclusion that ARECO exercised reasonable care to prevent
sexual harassment is buttressed by examining the facts of Faragher.
In that case, the Supreme Court held that Boca Raton had failed to
exercise reasonable care to prevent sexual harassment because it
failed to distribute its anti-harassment policy and because the harassed
employees and their harassing supervisors were completely separated
from higher management. Faragher, 524 U.S. at 808. Conversely, in
this case ARECO not only distributed the policy, but many of its
managers worked in the same building and were readily accessible
had Barrett chosen to complain. The Seventh Circuit has held that a
company’s distribution of an anti-harassment policy and the availabil-
ity of higher management to receive complaints satisfies the first
prong of the affirmative defense. Shaw v. AutoZone, Inc., 180 F.3d
806 (7th Cir. 1999). We have little difficulty, therefore, in concluding
that ARECO took reasonable steps to prevent sexual harassment.
Barrett also claims that ARECO did not act promptly to correct
Ramsey’s behavior. According to Barrett, ARECO did nothing about
the sexual harassment even after the company knew about the allega-
BARRETT v. THE APPLIED RADIANT ENERGY CORP. 7
tions. Barrett alleges that ARECO must have known that Ramsey was
harassing her because she told so many of her co-workers about Ram-
sey’s behavior. Barrett has no evidence, however, that her conversa-
tions with her colleagues filtered up to management. And it is
undisputed that she never told management herself. See Shaw, 180
F.3d at 812 ("Because Shaw never informed AutoZone of Noble’s
alleged harassment . . . there was nothing for AutoZone to respond
to."). Moreover, Barrett’s claim is rebutted by ARECO’s response
after independently uncovering Ramsey’s harassment. ARECO
immediately launched an investigation and then fired Ramsey within
a week of making the discovery and confirming that he had in fact
harassed Barrett. ARECO thus took reasonable care to promptly cor-
rect any sexually harassing behavior. See Brown, 184 F.3d at 398(immediate investigation and subsequent suspension of harassing
employee sufficient to establish that company exercised reasonable
care to correct promptly any sexually harassing behavior).
C.
Barrett further argues that her failure to report Ramsey’s harass-
ment to company management was reasonable. She admits that she
received a copy of ARECO’s sexual harassment policy and even con-
sulted it after Ramsey started harassing her. Barrett also concedes that
she never complained to any of ARECO’s twelve managers. Accord-
ing to Barrett, she never told any of the managers because she feared
retaliation and she doubted that her complaints would be taken seri-
ously. Neither of these explanations, however, justifies Barrett’s fail-
ure to report Ramsey’s harassment.
Barrett’s first explanation for her decision not to report Ramsey’s
behavior is that she feared Ramsey would find out and retaliate
against her. According to Barrett, she could not report Ramsey’s
behavior to ARECO’s president, Wayne Zeigler, because Zeigler and
Ramsey were good friends. She claims she could not report Ramsey
to any of ARECO’s managers because they all reported to Zeigler.
This argument too runs contrary to the case law of this circuit. In
Lissau, we noted that any evidence that the plaintiff failed to utilize
the company’s complaint procedure "will normally suffice to satisfy
[the company’s] burden under the second element of the defense."
8 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
159 F.3d at 182; see also Faragher, 524 U.S. at 808; Ellerth, 524 U.S.
at 765. A generalized fear of retaliation does not excuse a failure to
report sexual harassment. Instead, the law is specifically designed to
encourage harassed employees to turn in their harasser because doing
so inures to everyone’s benefit.
Reporting the harasser benefits the victim by allowing the company
to halt future harassment. It benefits others who might be harassed by
the same individual, and it benefits the company by alerting it to the
disruptive and unlawful misconduct of an employee. Thus, the report-
ing requirement serves the "primary objective" of Title VII which "is
not to provide redress but to avoid harm." Faragher, 524 U.S. at 806.
By advancing a speculative "fear of retaliation" excuse for remaining
silent, Barrett’s argument would undermine the primary objective of
Title VII and could result in more, not less, sexual harassment going
undetected.
Furthermore, Title VII expressly prohibits any retaliation against
Barrett for reporting Ramsey’s harassment. 42 U.S.C. § 2000e-3(a).
It is for this reason that the courts have refused to recognize a nebu-
lous "fear of retaliation" as a basis for remaining silent. Madray v.
Publix Super Mkts., Inc., 30 F. Supp.2d 1371, 1375 (S.D. Fla. 1998),
aff’d 208 F.3d 1290 (11th Cir. 2000) ("An employee’s generalized
fear of repercussions cannot form the basis for an employee’s failure
to complain to his or her employer."); Shaw, 180 F.3d at 813 (same);
Hylton v. Norrell Health Care of New York, 53 F. Supp.2d 613, 618
(S.D.N.Y. 1999) (same); Jones v. USA Petroleum Corp., 20 F.
Supp.2d 1379, 1386 (S.D. Ga. 1998) (same). And as the district court
noted, there was no evidence in this case "that ARECO had ever taken
any adverse tangible employment action against complaining employ-
ees as that term is defined by the Supreme Court." Barrett, 70 F.
Supp.2d at 652.
Barrett’s second explanation for her decision not to report Ram-
sey’s behavior is that she did not think it would do any good. This
argument is based on Barrett’s belief that ARECO’s senior manage-
ment was itself guilty of sexual harassment and thus would ignore her
complaints. Specifically, Barrett alleges that two of ARECO’s twelve
managers had harassed other employees and had not been disciplined.
ARECO disputes these allegations, and points out in any case that
BARRETT v. THE APPLIED RADIANT ENERGY CORP. 9
they relate to events that occurred five years before Barrett started
working for ARECO and two years before the anti-harassment policy
was adopted. Regardless, we do not think Barrett’s allegations are
sufficient to relieve her of the obligation to report serious misconduct.
"[T]he law against sexual harassment is not self-enforcing and an
employer cannot be expected to correct harassment unless the
employee makes a concerted effort to inform the employer that a
problem exists." Shaw, 180 F.3d at 813 (internal quotations omitted).
An employee’s subjective belief in the futility of reporting a harass-
er’s behavior is not a reasonable basis for failing to take advantage
of any preventive or corrective opportunities provided by the
employer. See Lissau, 159 F.3d at 182.
We cannot accept the argument that reporting sexual harassment is
rendered futile merely because members of the management team
happen to be friends. Crediting this view would impose an impermis-
sible burden on any company, especially small businesses. People
who start and manage small businesses together frequently do so in
part because of their pre-existing friendships. Barrett claims that these
friendships should relieve an employee of her reporting obligation
and effectively impose automatic liability on the employer. Automatic
liability, however, is precisely what the Supreme Court sought to
avoid in fashioning the Faragher/Ellerth affirmative defense.
Faragher, 524 U.S. at 804.
We acknowledge that discussing such matters as sexual harassment
with company managers often puts the harassed employee in an awk-
ward and uncomfortable situation. Nevertheless, this "inevitable
unpleasantness" cannot excuse an employee from taking advantage of
her employer’s complaint procedure. Shaw, 180 F.3d at 813. Little
can be done to correct this objectionable behavior unless the victim
first blows the whistle on it. "[A]n employee’s subjective fears of
confrontation, unpleasantness or retaliation thus do not alleviate the
employee’s duty under Ellerth to alert the employer to the allegedly
hostile environment." Id. Allowing subjective fears to vitiate an
employee’s reporting requirement would completely undermine Title
VII’s basic policy "of encouraging forethought by employers and sav-
ing action by objecting employees." Faragher, 524 U.S. at 807;
Ellerth, 524 U.S. at 764 (emphasis added). Of course, in this case
10 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
Barrett cannot even avail herself of the argument that she did not want
to discuss Ramsey’s harassment with anyone. Indeed, she told a num-
ber of friends and colleagues about Ramsey’s harassment. If Barrett
could bring herself to tell two lawyers, seven colleagues, and the
CEO’s son about Ramsey’s harassment, there is no reason why she
could not inform one of the many managers designated to receive a
sexual harassment complaint.2
III.
Having addressed Barrett’s Title VII claims, all that remains are
her state law claims of negligent retention, intentional infliction of
emotional distress, and assault and battery.
A.
Virginia law recognizes a cause of action for negligent retention.
See Phillip Morris, Inc. v. Emerson, 368 S.E.2d 268 (Va. 1988). In
order to prove that ARECO is liable for the negligent retention of
Ramsey, Barrett must show that ARECO knew or should have known
that Ramsey was dangerous and likely to harm others. Southeast
Apartments Mgmt., Inc. v. Jackman, 513 S.E.2d 395 (Va. 1999). As
discussed above, there is no evidence that ARECO had actual or con-
structive knowledge of Ramsey’s misconduct before independently
discovering it in November 1997. Moreover, once Ramsey’s behavior
was uncovered, ARECO swiftly investigated and terminated Ramsey.
Under these circumstances, ARECO was entitled to summary judg-
ment on Barrett’s negligent retention claim.
B.
Barrett’s intentional infliction of emotional distress claim is simi-
larly without merit. In order to prove her claim, Barrett must show,
inter alia, that she suffered severe emotional distress. Womack v.
Eldridge, 210 S.E.2d 145, 148 (Va. 1974) (setting out Virginia’s four-
2
In light of our conclusion that Barrett unreasonably failed to take
advantage of the preventive or corrective opportunities provided by
ARECO, we need not reach the question of whether she also unreason-
ably failed to avoid harm under Brown. 184 F.3d at 397.
BARRETT v. THE APPLIED RADIANT ENERGY CORP. 11
part test for an emotional distress claim). A showing of severe emo-
tional distress, as opposed to generalized emotional distress, is
required because "the injuries in such cases are too hard to determine
with any reasonable certainty — are more often assumed than real —
and the suit too liable to be wholly speculative. If everyone was
allowed damages for injuries to his feelings caused by someone else,
the chief business of mankind might be fighting each other in the
courts." Ruth v. Fletcher, 377 S.E.2d 412, 415 (Va. 1989). This is
why "such torts are ‘not favored’ in the law." Id. (quoting Bowles v.
May, 166 S.E. 550, 555 (Va. 1932)).
In Russo v. White, 400 S.E.2d 160, 161-62 (Va. 1991), the Virginia
Supreme Court addressed an emotional distress claim where the
plaintiff alleged she suffered from "nervousness, sleeplessness, stress
and its physical symptoms, withdrawal from activities . . . and lack
of concentration at work to the point where she received a repri-
mand." In rejecting Russo’s claim, the Virginia Supreme Court held
that "the alleged effect on the plaintiff’s sensitivities is not the type
of extreme emotional distress that is so severe that no reasonable per-
son could be expected to endure it." Id. at 163.
Although Barrett claims that she suffered severe emotional distress,
her specific allegations do not reach the high threshold of severe and
specific injury required to make out this claim. Id. For example, she
does not allege any interference with work or outside activities, nor
does she allege that she suffered any physical symptoms of stress.
Barrett’s allegations, even if proven, are thus insufficient to satisfy
Virginia’s severe emotional distress requirement.
C.
Barrett’s final state law claim is for assault and battery. According
to the district court, since Ramsey was not acting within the scope of
his employment when he harassed Barrett, ARECO could not be held
liable for his misconduct. After the district court issued its decision,
however, the Virginia Supreme Court decided two cases that speak
directly to the scope of employment question raised by Barrett. See
Majorana v. Crown Cent. Petroleum Corp., 539 S.E.2d 426 (Va.
2000); Gina Chin Assoc., Inc. v. First Union Bank, 537 S.E.2d 573(Va. 2000). In light of these two recent cases, we shall remand Bar-
12 BARRETT v. THE APPLIED RADIANT ENERGY CORP.
rett’s assault and battery claim to the district court. We express no
opinion on whether these cases should change the decision; this is for
the district court or a state court to determine in the first instance.
IV.
Ramsey’s behavior towards Barrett was boorish and unacceptable.
The Supreme Court has made clear, however, that the severity of an
employee’s transgressions are not a basis for automatically imputing
liability to the employer. ARECO did everything it was obligated to
do under Title VII and thus cannot be held liable for Ramsey’s sexu-
ally harassing behavior. Barrett’s state law claims of negligent reten-
tion and intentional infliction of emotional distress were also properly
dismissed. The assault and battery claim, however, must be remanded
in light of the Virginia Supreme Court’s recent decisions concerning
respondeat superior liability as it relates to the scope of employment
inquiry. Accordingly, the judgment of the district court is affirmed in
part, vacated in part, and remanded with instructions to proceed in a
manner consistent with this decision.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED