Stephanie Crockett v. Mission Hospital, Inc. , 717 F.3d 348 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEPHANIE CROCKETT, 
Plaintiff-Appellant,
v.
MISSION HOSPITAL, INC., a North
Carolina corporation, a/k/a

Mission Hospital,
No. 12-1910
Defendant-Appellee,
and
CATHIE ST. JOHN-RITZEN,
Administrator CTA of the Estate
of deceased Harry Kemp,
Defendant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Martin K. Reidinger, District Judge.
(1:11-cv-00095-MR-DLH)
Argued: March 20, 2013
Decided: May 30, 2013
Before GREGORY and AGEE, Circuit Judges, and
David A. FABER, Senior United States District Judge for
the Southern District of West Virginia,
sitting by designation.
2 CROCKETT v. MISSION HOSPITAL
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Gregory joined. Senior Judge Faber wrote
a separate concurring opinion.
COUNSEL
George W. Moore, Asheville, North Carolina, for Appellant.
Jonathan Woodward Yarbrough, Asheville, North Carolina,
for Appellee.
OPINION
AGEE, Circuit Judge:
Stephanie Crockett ("Crockett") appeals the district court’s
grant of summary judgment to her former employer, Mission
Hospital, Inc. ("Mission"), on her hostile work environment
claim brought under Title VII of the Civil Rights Act of 1963,
42 U.S.C. § 2000e ("Title VII"). For the reasons that follow,
we affirm the judgment of the district court.
I.
A.
Crockett began working in a full-time capacity at Mission
in 2002 as a radiologic technologist on the second shift. In
February 2008, Crockett was reassigned and Harry Kemp
("Kemp") became her supervisor. He remained Crockett’s
supervisor until his death in March 2010. Despite his title as
a supervisor, Kemp did not have the authority to hire or fire
any employee, including Crockett.1
1
When reviewing the district court’s grant of summary judgment, we
construe the facts in the light most favorable to Crockett, the nonmoving
party. Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc).
CROCKETT v. MISSION HOSPITAL 3
In December 2009, Crockett was counseled concerning a
lack of initiative based on her documented work history and
the concerns of co-workers. In January 2010, she was cited
for a violation of the administrative policy against the use of
cellular telephones and the misrepresentation of facts to Mis-
sion representatives. On February 16, 2010, she was issued a
final warning, which required an "immediate change in
behavior and any non merit behavior or misrepresentation of
fact. Use of cellular device[s] while working and not on break
is not acceptable." (J.A. 304.) Crockett signed the final warn-
ing, which included the consequence that any further miscon-
duct would result in the termination of her employment.
Kemp was not involved in the decision to issue a final warn-
ing.
On February 18, 2010, Crockett saw Kemp in the break
room when she first clocked in to work. When Kemp took out
a copy of the final warning which had been issued to Crock-
ett, she asked if she could speak with him about the situation.
He agreed to do so but she asked if they might speak later in
a non-public area of the hospital.
Around 8:30 p.m. that evening, Kemp came to get Crockett
from the diagnostic area of the radiology department so that
they could speak. Kemp led Crockett to an office which was
no longer occupied. When Crockett asked why they were
going to that office, Kemp replied that he thought his office
had been bugged. When they entered the office, Kemp closed
and locked the door. Kemp told Crockett that she had almost
gotten him into a lot of trouble because she had complained
that her performance evaluation scores had been changed by
a supervisor in a position superior to Kemp. Further, Kemp
told Crockett that since he could no longer trust her, she
needed to prove to him that she was not wearing a wire device
and recording the conversation. Kemp said that he had some
information for Crockett regarding her job, but would not
repeat it unless she proved that she was not wearing a wire.
After about twenty minutes of discussion on the issue of
4 CROCKETT v. MISSION HOSPITAL
whether she was wearing a wire, Kemp told Crockett that he
had been given her termination papers. Crockett felt that if
she did not prove that she was not wearing a wire, Kemp
would fire her on the spot.
Finally, Kemp lifted his shirt to show that he was not wear-
ing a wire and offered to remove his trousers down to his
shorts, an offer Crockett refused. Crockett then asked why she
could not lift her shirt in front of a female technician, rather
than Kemp, but he stated he did not want to get anyone else
involved. Although Crockett did not know if Kemp had the
authority to actually fire her, she felt that he could write her
up for another corrective action which would result in her ter-
mination. Kemp told her that he was a happily married man
and they just needed to get the wire issue resolved. Crockett
began crying but finally lifted her shirt as fast as she possibly
could to expose her bra. Kemp was still not satisfied, so
Crockett finally lifted her bra to expose the underside of her
breasts. She was unsure if her nipples had been exposed.
Kemp did not make any sexual overtures to her and did not
make any comment about her breasts. He calmly stated that
they were now able to speak.
Crockett had continued to cry throughout this time. Kemp
pulled his chair in front of the chair that Crockett was sitting
in and placed his legs on the outside of her legs. Kemp reiter-
ated that Crockett was in a lot of trouble and should not have
complained to Mission’s Human Resources department
("HR") that Chris Chandler ("Chandler"), who was in a super-
visory position above Kemp, had changed the scores on her
performance evaluation. Kemp told Crockett that he was the
only person she could trust.
At the end of an approximately thirty-minute conversation,
Crockett asked what else he wanted to tell her and Kemp
replied that she should only trust him. Kemp then stated that
they should "seal it with a kiss." (J.A. 75.) Crockett refused
to kiss him, but replied, "[h]ow about a hug," while she leaned
CROCKETT v. MISSION HOSPITAL 5
forward to pat him on the back. (J.A. 76.) As Crockett turned
away, Kemp kissed her right cheek and said, "I’ve always
wanted just one kiss." (J.A. 76.) Crockett again refused. As
she turned her head, Kemp kissed her cheek again. Kemp then
said, "You’re not going to tell anybody, are you?" to which
Crockett replied that she would not. (J.A. 76.) Later that
night, Kemp again sought reassurance that Crockett would not
report the incident and on two more occasions asked for a
kiss.
Prior to the incident on February 18, 2010, Kemp had never
made any overtures of any kind toward Crockett. Nor did
Kemp make any overtures of any kind toward Crockett after
February 18, 2010.
Upset over the incident, Crockett asked Kemp if she could
leave work one hour early. Her request was granted, but she
did not contact anyone in HR or management at Mission
about the incident. Crockett then took leave pursuant to the
Family Medical Leave Act from February 19–24, 2010. On
February 19, 2010, she retained an attorney.
B.
When Crockett returned to work on February 25, 2010, she
was summoned to a meeting with Teresa McCarthy
("McCarthy") of HR and Kathy Jones ("Jones"), the director
of her department. Crockett was told that Kemp had reported
continued misuse by Crockett of her cell phone and accused
her of "flashing" him with her shirt in order to persuade him
not to report the misuse. In response to these accusations,
Crockett told them that Kemp had done something "horrific"
to her and was trying to cover it up. (J.A. 101.) Crockett,
however, refused to elaborate, stating that her attorney had
advised her not to do so. Crockett also did not tell anyone in
management at Mission about the incident. At the conclusion
of the meeting, Crockett took Jones to her locker in order to
prove that her cell phone was in the locker and had not been
6 CROCKETT v. MISSION HOSPITAL
used. Jones told Crockett that she would "get to the bottom of
this," but placed Crockett on suspension pending the conclu-
sion of the investigation. (J.A. 106.) Crockett remained on
suspension until March 8, 2010.
On February 26, 2010, McCarthy and Karen Ensley
("Ensley"), another HR representative, met with Kemp about
Crockett’s allegation that he had done something "horrific" to
her. Kemp denied that anything unusual had occurred
between them.
On March 1, 2010, McCarthy and Ensley met with Crock-
ett. Ensley asked if the incident of February 18, 2010, had
involved Kemp making sexual advances toward Crockett.
Crockett nodded yes. She refused, however, to provide any
additional details. During that meeting, Crockett was provided
with a copy of Mission’s sexual harassment policy and
advised of the process used to report a claim of harassment or
discrimination. Crockett again refused to prove any details or
to file a formal complaint.
McCarthy and Ensley also met with Chandler on March 1,
2010 to ascertain what, if any, information he had about the
February 18 and February 25, 2010 incidents. Chandler stated
that he had seen both Crockett and Kemp on February 18,
2010, but that nothing seemed to be out of the ordinary. He
also stated that Crockett had not reported any such incident to
him.
Over the next couple of days, McCarthy interviewed at
least five of Crockett’s co-workers to see if anyone had wit-
nessed or knew about the February 18, 2010 incident. None
of the co-workers had seen or heard anything unusual.
McCarthy and Ensley had another meeting with Crockett
on March 5, 2010, during which they told her that she could
return to work on March 8, 2010. Crockett was told that their
investigation had failed to substantiate Kemp’s claims of her
CROCKETT v. MISSION HOSPITAL 7
misconduct and, therefore, she was allowed to return to work.
Although Crockett thought they were going to transfer her so
that Kemp would no longer be her supervisor, she was told
that Kemp would remain her superior. When Crockett pleaded
with them not to make her work under Kemp, she was told
that if she did not report to work on March 8, 2010, she would
be terminated. Crockett acknowledged that an employee who
was in corrective action, such as she, was not eligible for a trans-
fer.2
On March 6, 2010, McCarthy, Jones, and Chandler met
with Kemp to review the allegations contained in Crockett’s
Equal Employment Opportunity Commission ("EEOC")
Charge, which had been received by that time at Mission.
Kemp continued to deny that anything unusual or inappropri-
ate had occurred between he and Crockett.
When Crockett returned to work on March 8, 2010, she was
told that both she and Kemp were instructed to conduct them-
selves as "business as usual." (J.A. 124.) Crockett asked
whether Mission had received her EEOC Charge and was told
that the complaint had been received.
On March 9, 2010, Crockett finally completed Mission’s
form complaint to report the incident with Kemp. In that
form, however, Crockett merely wrote that reference should
be made to her EEOC Charge and gave no additional informa-
tion.
After Crockett returned to work on March 8, 2010, she did
not experience any further harassing treatment from Kemp.
2
Crockett later acknowledged that the HR representatives investigated
the February 18, 2010 incident while she was under suspension and also
admitted that she refused to tell them any further details about what had
occurred. (J.A. 101–04, 106–08.) Crockett nonetheless felt that Mission
had not adequately responded to the situation because Kemp continued to
be her supervisor.
8 CROCKETT v. MISSION HOSPITAL
On March 17, 2010, Crockett had a meeting with McCarthy
during which Crockett disclosed that she had surreptitiously
tape recorded a conversation with Kemp on February 25,
2010. During that meeting, Crockett—for the first time—told
HR the complete details of the February 18, 2010 incident.
McCarthy met with Kemp a third time on March 18, 2010,
and he once again denied the allegations. After that meeting,
Kemp left work and committed suicide.
McCarthy also met with Crockett on March 18, 2010, at
which time Crockett played the tape recording she had made
on February 25, 2010. Crockett had left the recorder function-
ing while she was treating and working with patients on that
day, thereby surreptitiously recording conversations with and
statements made by her patients. Crockett had also tape
recorded, without McCarthy’s knowledge, the meeting she
had with McCarthy on March 17, 2010. At one point towards
the end of the March 18, 2010 meeting, McCarthy asked if
Crockett was recording the meeting. Crockett admitted that
she was doing so.
On March 24, 2010, Crockett’s employment was termi-
nated for tape recording her interactions with and treatment of
patients in violation of the Health Insurance Portability and
Accountability Act ("HIPAA"), and for secretly tape record-
ing her co-workers and her meeting with McCarthy. Crockett
acknowledged that Mission had a policy against such disclo-
sures which was clearly stated in Mission’s employee hand-
books. Additionally, Crockett admitted that she knew
violations of that policy could result in termination of
employment, as well as civil and criminal penalties. Crockett
also acknowledged that Mission’s harassment and discrimina-
tion policy contained a prohibition against tape recording
investigatory interviews conducted by HR and/or manage-
ment after a complaint of harassment or discrimination.
CROCKETT v. MISSION HOSPITAL 9
C.
Crockett first filed an action against Mission in North Caro-
lina state court, alleging claims for employment discrimina-
tion in the form of a hostile work environment and retaliatory
discharge in violation of Title VII, as well as a state law claim
for intentional infliction of emotional distress. Mission
removed the action to the United States District Court for the
Western District of North Carolina, where Crockett agreed to
the dismissal of her retaliatory discharge and intentional
infliction of emotional distress claims.
Mission moved for summary judgment on Crockett’s
remaining hostile work environment claim, which the district
court granted. The district court found that Crockett could not
establish that she had suffered a tangible employment action.
The district court further found that Mission was entitled to an
affirmative defense to defeat liability because it had exercised
reasonable care to prevent and promptly correct any sexually
harassing behavior, and Crockett had unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by Mission.
Crockett timely appealed, and we have jurisdiction pursu-
ant to 28 U.S.C. § 1291.
II.
A.
We review the district court’s grant of summary judgment
de novo, applying the same standard as the district court.
Nader v. Blair, 549 F.3d 953, 958 (4th Cir. 2008). Summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is enti-
tled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
10 CROCKETT v. MISSION HOSPITAL
B.
Title VII makes it unlawful for an employer "to discrimi-
nate against any individual with respect to [her] compensa-
tion, terms, conditions, or privileges of employment, because
of such individual’s . . . sex." 42 U.S.C. § 2000e-2(a)(1).
Because "an employee’s work environment is a term or condi-
tion of employment, Title VII creates a hostile working envi-
ronment cause of action." EEOC v. R&R Ventures, 244 F.3d
334, 338 (4th Cir. 2001).
To establish a hostile work environment based on sexual
harassment under this provision, a plaintiff-employee must
prove that (1) the conduct was unwelcome; (2) it was based
on the plaintiff’s sex; (3) it was sufficiently severe or perva-
sive to alter the plaintiff’s conditions of employment and to
create an abusive work environment; and (4) it was imputable
on some factual basis to the employer. Spicer v. Common-
wealth of Va., Dep’t of Corr., 66 F.3d 705, 709–10 (4th Cir.
1995) (en banc) (citing Harris v. Forklift Sys., Inc., 510 U.S.
17 (1993)). "If the plaintiff’s claim is based on the actions of
her supervisor, the employer is subject to vicarious liability
[where the harassment culminated in a tangible employment
action]. If the plaintiff did not suffer a tangible employment
action, the employer has available to it an affirmative defense
that may protect it from liability or damages." Whitten v.
Fred’s, Inc., 601 F.3d 231, 243 (4th Cir. 2010) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 807–08
(1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998)).
In analyzing Mission’s motion for summary judgment, the
district court began by acknowledging the parties had agreed
that Crockett’s forecast of evidence regarding Kemp’s con-
duct met the first and second elements of her claim by estab-
lishing that the conduct was unwelcome and based on
Crockett’s sex. As to the third element, the court found that
Crockett had presented sufficient evidence to show a material
CROCKETT v. MISSION HOSPITAL 11
question of fact as to whether Kemp’s conduct was suffi-
ciently severe to create a hostile work environment. With
respect to the fourth element, however, the court found that
Crockett had not suffered a tangible employment action and,
as such, Mission was entitled to present evidence of an affir-
mative defense. The district court then concluded that Mission
had exercised reasonable care to prevent and correct any sex-
ually harassing behavior, and that Crockett had unreasonably
failed to take advantage of those measures. For these reasons,
the district court granted summary judgment to Mission.
On appeal, Crockett contends that the district court erred in
concluding that she failed to establish that she had suffered a
tangible employment action. Crockett also contends that the
district court erred in finding that Mission was entitled to raise
an affirmative defense. As explained below, none of these
contentions have merit.
1.
We first address Crockett’s contention that the district court
erred in concluding that she failed to establish that she had
suffered a tangible employment action.3 "A tangible employ-
3
Mission argues the district court erred in finding that a material issue
of fact existed as to the third element of Crockett’s claim, a severe or per-
vasive hostile work environment. Crockett responds that Mission failed to
file a cross-appeal and we cannot therefore consider that argument, while
Mission rejoins that we can affirm the lower court’s judgment on any basis
apparent in the record. See Republican Party v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) ("[W]e may affirm a judgment for any reason appearing
on the record."). Viewing the evidence in the light most favorable to
Crockett, whether the harassment complained of here was severe enough
to create a hostile work environment is a close question. See, e.g., Whitten
v. Fred’s, Inc., 601 F.3d 231, 243 (4th Cir. 2010) (finding two-day period
consisting of verbal abuse and two incidents of supervisor pressing his
genitals against plaintiff’s body to be sufficiently severe); Mosby-Grant v.
City of Hagerstown, 630 F.3d 326, 336 (4th Cir. 2010) (finding gender-
based language, songs, and comments to be sufficiently severe). As it is
unnecessary to decide the foregoing issue because of the ultimate disposi-
tion of this case on other grounds, however, we will assume, without
deciding, that Kemp’s conduct was sufficiently "severe" to create a hostile
work environment.
12 CROCKETT v. MISSION HOSPITAL
ment action constitutes a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision caus-
ing a significant change in benefits." Ellerth, 524 U.S. at 761.
Crockett, with good reason, does not argue that her termi-
nation constituted a tangible employment action. The record
is undisputed that she was terminated for surreptitiously
recording patients and McCarthy in violation of the clear pro-
hibition in the employee handbooks, but more seriously, vio-
lating HIPAA. Crockett instead argues only that her seven-
day suspension beginning on February 25, 2010, constituted
a tangible employment action. Specifically, Crockett contends
that Kemp’s harassing conduct was not limited to the Febru-
ary 18, 2010 incident. She alleges that Kemp falsely accused
her of using her cell phone on February 25, 2010, and then
flashing him in an attempt to persuade him not to report that
usage. Crockett argues that this behavior led to her suspen-
sion, which altered the conditions of her employment.
In considering Crockett’s claim based on her seven-day
suspension, the district court noted the general rule in a Title
VII case "that the factual allegations in formal litigation must
correspond to those set forth in the administrative charge."
(J.A. 364 (citing Chacko v. Patuxent Inst., 429 F.3d 505, 509
(4th Cir. 2005)); see also Balas v. Huntington Ingalls Indus.,
Inc., No. 12-1201, ___ F.3d ___, 2013 WL 1019625, at *4
(4th Cir. Mar. 15, 2013). The district court then observed that
although the suspension and the alleged events of February
25th were "not contained within the EEOC charge. It is none-
theless considered in the interest of finality." (J.A. 367 n.9.)
Thus, the district court specifically considered all of Crock-
ett’s allegations, including those about the February 18th and
25th incidents, in arriving at its decision.
With all of Crockett’s allegations before it, the district court
articulated three distinct and independent reasons in finding
that Crockett was unable to establish that her suspension was
CROCKETT v. MISSION HOSPITAL 13
caused by Kemp’s alleged sexual harassment. While each of
these reasons would separately support the finding of the dis-
trict court, they are fully conclusive when considered in tan-
dem.
First, at the time of her suspension, Crockett had not told
anyone at Mission that Kemp had engaged in sexually harass-
ing conduct. During the February 25, 2010 meeting, Crockett
stated that Kemp had done something "horrific," but refused
to disclose what he had done. McCarthy and Jones were thus
ignorant of Crockett’s later claim of sexual harassment.
Second, at the time of her suspension, Crockett had been
given a final warning regarding her unauthorized and
improper use of cell phones. The decision to suspend her
when another allegation of unauthorized phone usage was
received was not made by Kemp, but by McCarthy and Jones.
Kemp, therefore, had no role in the decision to suspend
Crockett. See Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 291 (4th Cir. 2004) (en banc) (to survive sum-
mary judgment plaintiff "must come forward with sufficient
evidence that the subordinate employee possessed such
authority as to be viewed as the one principally responsible
for the decision or the actual decisionmaker for the
employer"). Crockett’s mere speculation that Kemp did so is
insufficient to withstand summary judgment. Othentec Ltd. v.
Phelan, 526 F.3d 135, 140 (4th Cir. 2008) ("[m]ere specula-
tion or the building of one inference upon another" will not
resist summary judgment).
Finally, although Crockett contends that she suffered a tan-
gible employment action because she was suspended without
pay, she presented no forecast of evidence to suggest that she
suffered any pecuniary loss. Crockett merely cites to a state-
ment from McCarthy that the suspension would be unpaid if
she did not have paid time off ("PTO") available to cover it.
There is no evidence in the record that Crockett did or did not
have PTO available, or that Crockett was forced to use any
14 CROCKETT v. MISSION HOSPITAL
PTO during her suspension. Crockett simply failed to carry
her burden of producing any evidence on this point.
Accordingly, we conclude that the district court did not err
in finding that Crockett failed to establish that she had suf-
fered a tangible employment action.
2.
We next consider Crockett’s contention that the district
court erred in finding that Mission was entitled to raise an
affirmative defense. "When no tangible employment action is
taken, a defending employer may raise an affirmative defense
to liability or damages, subject to proof by a preponderance
of the evidence." Faragher, 524 U.S. at 807. The defendant-
employer must prove (1) that it "exercised reasonable care to
prevent and correct promptly any sexually harassing behav-
ior"; 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." Id. As
explained above, we agree with the district court’s conclusion
that Crockett failed to establish that she suffered a tangible
employment action. The district court thus did not err in find-
ing that Mission was entitled to raise an affirmative defense.
We further conclude that Mission amply satisfied its burden
in proving both elements of its affirmative defense. Accord-
ingly, we affirm.
As to the first element of the affirmative defense, Crockett
has conceded that Mission established, disseminated, and
enforced an anti-harassment policy and complaint procedure
and took reasonable steps to prevent harassment.4 (J.A.
140–49); see also Brown v. Perry, 184 F.3d 388, 396 (4th Cir.
1999) ("[W]here, as here, there is no evidence that an
employer adopted or administered an anti-harassment policy
4
It is undisputed that Crockett received training each year in the proce-
dure for reporting sexual harassment.
CROCKETT v. MISSION HOSPITAL 15
in bad faith or that the policy was otherwise defective or dys-
functional, the existence of such a policy militates strongly in
favor of a conclusion that the employer exercised reasonable
care to prevent and promptly correct sexual harassment.")
(quotation marks omitted). Crockett, however, argues that
Mission failed to correct Kemp’s harassment promptly
because on February 25, 2010, Mission suspended Crockett
rather than investigate her vague allegation that Kemp had
done something "horrific" to her. Crockett further argues that
Mission’s failure was exacerbated when McCarthy refused to
transfer her so that Kemp would no longer be her supervisor.
We disagree. The existence of a viable anti-harassment pol-
icy is accompanied by other undisputed evidence of Mission’s
prompt and reasonable care. McCarthy, Jones, and Ensley
immediately began an intensive investigation on February 25,
2010, after Crockett accused Kemp of "horrific" behavior
toward her, despite the fact that she refused to provide any
further details or information. They interviewed numerous
employees and supervisors in Crockett’s department, but were
handicapped by Crockett’s refusal to cooperate and give Mis-
sion some clue as to her complaint. Since Crockett had
refused to provide any information, their attempts to investi-
gate her claim were unsuccessful.
Mission’s human resources and management officials con-
tinued to investigate, despite Crockett’s refusal to provide any
information. On March 1, 2010, they met with Crockett again
and attempted to elicit whether Kemp’s conduct had involved
sexual advances. Crockett nodded yes, but did not provide
any details. At that time, she was counseled in the procedure
for filing a formal complaint and provided a copy of the sex-
ual harassment policy. See Barrett v. Applied Radiant Energy
Corp., 240 F.3d 262, 266 (4th Cir. 2001) ("Distribution of an
anti-harassment policy provides compelling proof that the
company exercised reasonable care in . . . promptly correcting
sexual harassment.") (quotation marks omitted).
16 CROCKETT v. MISSION HOSPITAL
McCarthy and other Mission representatives met with
Crockett again on March 5 and 8, 2010, but she still refused
to disclose any details of the alleged February 18, 2010 inci-
dent. Crockett finally signed a Mission harassment complaint
on March 9, 2010, but merely referenced her EEOC Charge.
It was not until March 17, 2010, that Crockett finally dis-
cussed the details of the February 18, 2010 incident with
McCarthy and Jones.
In the meantime, McCarthy and Jones had interviewed
Crockett’s co-workers in an attempt to learn if anyone had
witnessed the events of February 18, 2010, heard anything, or
suspected anything based on the conduct of Kemp and Crock-
ett. McCarthy and other representatives again met with Kemp
on March 8, 2010, to review the allegations of Crockett’s
EEOC Charge. Kemp was interviewed a third time on March
18, 2010, and continued to deny Crockett’s allegations.
Throughout all of this, Crockett maintains that Mission
should have transferred her to another shift so that she would
not have any contact with Kemp. At that time, however,
Crockett had provided no facts which would have supported
her transfer.5 Moreover, Crockett was ineligible for transfer
because she was in final warning status, which she knew.
Crockett basically argues that Mission should have modified
its transfer policies at her behest based on an allegation that
she herself was unwilling to substantiate. See Matvia v. Bald
Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001)
("If Title VII’s prohibitions against sexual harassment are to
be effective, employees must report improper behavior to
company officials."). In light of a fully-functioning anti-
harassment policy and its undertaking of a prompt and thor-
ough investigation, we conclude that Mission has met its bur-
den on the first element of its affirmative defense.
5
By the time Crockett finally disclosed some facts supporting her accu-
sations on March 17, 2010, Kemp’s suicide the following day rendered it
impossible for Mission to take any further action against him.
CROCKETT v. MISSION HOSPITAL 17
As to the second element, the evidence that Mission has
met its burden is just as clear. "[P]roof that a plaintiff
employee failed to follow a complaint procedure will nor-
mally suffice to satisfy the employer’s burden under the sec-
ond element of the defense." Brown, 184 F.3d at 395(quotation marks omitted). The uncontradicted evidence
establishes that Mission met with Crockett on numerous occa-
sions in an effort to promptly correct the situation, counseled
her in the procedure for filing a formal complaint, and pro-
vided her with a copy of the sexual harassment policy, despite
Crockett’s unwillingness to cooperate with the investigation.
Even viewing this evidence in the light most favorable to
Crockett, we conclude that no reasonable factfinder could
reach any conclusion other than that Crockett "unreasonably
failed to take advantage of any preventive or corrective
opportunities." Faragher, 524 U.S. at 807. As a result, it is
unnecessary to reach the issue of whether Crockett also "un-
reasonably failed . . . to avoid harm." Id.
The undisputed facts demonstrate that Mission has satisfied
both elements of its affirmative defense. Mission thus cannot
be held vicariously liable for Kemp’s alleged harassment of
Crockett. Accordingly, we conclude that the district court did
not err in granting summary judgment to Mission.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
FABER, Senior District Judge, concurring:
I concur with the decision of the majority, but I would
decide the case on a different ground. I believe the evidence
of harassment viewed in the light most favorable to the plain-
18 CROCKETT v. MISSION HOSPITAL
tiff was insufficiently severe to create an objectively hostile
work environment.
A hostile work environment is actionable under Title VII
only when the workplace "is permeated with ‘discriminatory
intimidation, ridicule, and insult,’ that is ‘sufficiently severe
or pervasive to alter the conditions of the victim’s employ-
ment and create an abusive working environment.’" Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meri-
tor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).
The "severe or pervasive" requirement has both subjective
and objective components. See id. at 21-22. Motions for sum-
mary judgment are an appropriate vehicle for courts to "police
the baseline for hostile environment claims" Indest v. Free-
man Decorating, Inc., 164 F.3d 258, 264 n. 8 (5th Cir. 1999).
The Supreme Court has "made it clear that conduct must be
extreme to amount to a change in the terms and conditions of
employment. . . ." Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998). Furthermore, "isolated incidents (unless
extremely serious) will not amount to discriminatory changes
in the ‘terms and conditions of employment.’" Id.Crockett worked for Mission for over seven years without
incident. The alleged harassment took place over the course
of a single evening within that approximately seven-year
period. While even a single incident can be sufficiently severe
to create a hostile work environment, see Okoli v. City of Bal-
timore, 648 F.3d 216, 220 n. 5 (4th Cir. 2011), the conduct
complained of herein does not rise, in my view, to the requi-
site level of severity.
In all other respects I am in agreement with the majority
opinion.