Ola Jackson v. AR Dept of Education ( 2001 )


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  •                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________
    
                                    No. 00-1789
                                    ___________
    
    Ola Jackson,                           *
                                           *
                 Appellant,                *
                                           *
           v.                              *
                                           *
    Arkansas Department of Education,      *
    Vocational and Technical Education     * Appeal from the United States
    Division; Lonnie McNatt, Director,     * District Court for the
    Individually and in his official       * Eastern District of Arkansas
    capacity; Roy Wood, Dr., Associate     *
    Director, Individually and in his      *
    official capacity,                     *
                                           *
                 Appellees.                *
                                      ___________
    
                              Submitted: June 11, 2001
    
                                   Filed: December 4, 2001
                                    ___________
    
    Before McMILLIAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
                              ___________
    
    
    McMILLIAN, Circuit Judge.
           Ola Jackson appeals from a final order entered in the District Court1 for the
    Eastern District of Arkansas granting summary judgment in favor of her former
    employer, the Arkansas Department of Education, Vocational and Technical
    Education Division (“the Department”) and her supervisors in their official and
    individual capacities. The district court dismissed Jackson’s claims of sexual
    harassment, race discrimination and constructive discharge brought pursuant to Title
    VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and 42
    U.S.C. § 1981. Jackson v. Arkansas Department of Education, No. LR-C-97-422
    (E.D. Ark. Mar. 6, 2000) (memorandum and order). For reversal, Jackson argues that
    the district court erred in granting summary judgment because there were outstanding
    issues of material fact regarding: (1) whether the Department was entitled to the
    affirmative defense against vicarious employer liability for sexual harassment claims
    and (2) whether Jackson was constructively discharged. For the reasons discussed
    below, we affirm the judgment of the district court.
    
                                       Jurisdiction
    
          Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331 and
    1343. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of
    appeal was timely filed pursuant to Fed. R. App. P. 4(a).
    
    
    
    
          1
           The Honorable James M. Moody, United States District Judge for the Eastern
    District of Arkansas.
    
                                            -2-
                                      Background
    
           The following facts are based upon the district court order.2 Jackson was
    employed by the Department as a Secretary II from November 23, 1993 until
    September 12, 1995. From the first day of her employment, Jackson’s supervisor,
    Robert Gwatney, made unwelcome and unsolicited remarks to her about sexual favors
    and hugged and touched her inappropriately. On August 31, 1994, Jackson’s fiancé
    phoned one of Jackson’s supervisors, Ruth Deaton, to inform her of the sexual
    harassment. Deaton immediately informed her supervisor, Roy Wood, who began an
    investigation of the allegations.
    
          During the investigation, Wood and the personnel director, Dianne Farquhar,
    met with Jackson to hear her complaints. Wood and Farquhar agreed to change
    Jackson’s working hours so that she would not be alone in the office with Gwatney.
    They also assured Jackson that Gwatney’s offensive behavior would stop immediately
    and asked her to inform them if it continued. Wood and Farquhar then met with
    Gwatney, who admitted hugging Jackson but denied the rest of the allegations.
    Gwatney agreed to avoid any further contact with Jackson that might be interpreted
    as improper. Although the investigation was considered inconclusive, Wood and
    Farquhar assured Jackson that Gwatney would not hug or touch her in any manner,
    nor would he discuss sexual matters with her again.
    
          Pursuant to the Department’s formal anti-harassment grievance process, Wood
    and Farquhar attempted to schedule a meeting with both Jackson and Gwatney.
    Jackson declined the Department’s offer and instead stated her intent to file a
    
    
          2
           Because Jackson did not respond to the original motion for summary judgment
    filed by the Department, the district court adopted the Defendants’ Statement of
    Undisputed Facts Admitted by the Plaintiff per Local Rule 56.1(c). Jackson does not
    dispute any of these facts on appeal.
    
                                            -3-
    grievance with the EEOC. Jackson informed Wood and Farquhar that her new
    working hours conflicted with her child care arrangement, so they arranged for
    Gwatney to leave the office at 4:30 p.m. every day, to avoid the possibility of being
    alone with Jackson during the time in which the harassment had occurred. For two
    weeks afterwards, Wood stopped by Jackson’s office daily to ask how she was doing
    and to ensure that Gwatney had left the office by 4:30. Jackson did not complain
    again about Gwatney’s conduct.
    
           On June 23, 1995, the Department learned that Gwatney had lied during the
    investigation about his conduct toward Jackson. Gwatney was immediately
    terminated.
    
          On June 27, 1995, Jackson complained to Wood that she had been asked to
    perform data entry, which she claimed was not included in her job responsibilities.
    Wood arranged for Jackson to meet with Farquhar on June 29, 1995, to discuss her
    job duties. However, Jackson left work on June 27 for a doctor’s appointment and
    remained on leave for “job-related stress” until July 26, 1995.
    
           On July 5, 1995, Lonnie McNatt, a Department director, sent Jackson a letter
    reinstating all of the sick leave time she had used during the period of time following
    her complaints of Gwatney’s harassment until his termination. The letter also invited
    her to submit for payment any medical bills that she believed had resulted from the
    harassment.
    
           Jackson returned to work on July 26, 1995. Wood temporarily reassigned her
    data entry duties to other employees. Three days later, Jackson took another extended
    leave. On August 24, 1995, Jackson was notified that she had exhausted all of her
    paid leave time on August 7, 1995, but that she was entitled to 196 hours of unpaid
    leave under the Family Medical Leave Act. On August 29, 1995, Jackson received
    a summary of her remaining leave time. On September 12, 1995, Jackson was
    
                                             -4-
    terminated because she had exhausted all of her leave time and had failed to return
    to work.
    
           On May 22, 1997, Jackson sued the Department and her supervisors in their
    individual and official capacities for sexual discrimination and constructive discharge
    in violation of her rights under Title VII and 42 U.S.C. § 1981, alleging that the
    Department (1) was vicariously liable for Gwatney’s sexual harassment of her and
    (2) had constructively discharged her by firing her after Gwatney’s hostile work
    environment sexual harassment prevented her from returning to work. On May 13,
    1998, the district court granted summary judgment in favor of Gwatney and dismissed
    him in his individual capacity from the lawsuit. On May 27, 1998, the district court
    granted summary judgment in favor of the remaining defendants, including Gwatney
    in his official capacity, and dismissed them in their official and individual capacities
    from the lawsuit, thus terminating the action.
    
           Jackson timely appealed the district court’s order and judgment pro se. On
    December 11, 1998, this court reversed the district court’s order and remanded the
    case for further consideration in light of Burlington Industries, Inc. v. Ellerth, 
    524 U.S. 742
     (1998) (Ellerth), and Faragher v. City of Boca Raton, 
    524 U.S. 775
     (1998)
    (Faragher). On March 6, 2000, after re-briefing by the parties, the district court again
    granted summary judgment in favor of the defendants. The district court assumed for
    purposes of analysis that Gwatney’s conduct was severe or pervasive enough to alter
    Jackson’s working conditions and thus created a hostile work environment.
    Nonetheless, the district court found that, in the absence of a tangible employment
    action, the Department was entitled to the affirmative defense provided by Faragher
    and Ellerth because the Department had demonstrated effectively that: (1) it had
    exercised reasonable care to prevent and promptly correct any sexually harassing
    behavior and (2) Jackson had unreasonably failed to take advantage of any preventive
    or corrective opportunities provided by the Department or to otherwise avoid harm.
    
    
    
                                              -5-
    Jackson timely appealed, and this court appointed counsel to represent her on appeal.
    
           Jackson’s new counsel unsuccessfully attempted to obtain a copy of Jackson’s
    original deposition in this case from opposing counsel, the district court, and this
    court. On June 5, 2001, Jackson moved to strike from the record on appeal excerpts
    of her deposition included in the Department's appendix on the grounds that the
    complete deposition was unavailable. On June 12, 2001, the Department opposed the
    motion to strike. On June 8, 2001, this court entered an order taking the motion with
    the case, which was argued and submitted on June 11, 2001.
    
                                          Discussion
    Standard of Review
    
           We review the district court's grant of summary judgment de novo to determine
    whether "there is no genuine issue as to any material fact and . . . the moving party
    is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Randolph v.
    Rogers, 
    170 F.3d 850
    , 856 (8th Cir. 1999). As the nonmoving party, Jackson bears
    the burden “of presenting evidence sufficiently supporting disputed material facts that
    a reasonable jury could return a verdict in [her] favor.” Gregory v. City of Rogers,
    
    974 F.2d 1006
    , 1010 (8th Cir. 1992). However, summary judgment will be improper
    only if the factual dispute in question affects the outcome of the suit under governing
    law. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986).
    
    Availability of Affirmative Defense
    
            Faragher and Ellerth provide an affirmative defense to an employer’s vicarious
    liability under Title VII for an employee’s hostile work environment claim based on
    a supervisor’s harassment:
    
          When no tangible employment action is taken, a defending employer
          may raise an affirmative defense to liability or damages . . . [which]
                                          -6-
          comprises two necessary 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.
    
    Faragher, 524 U.S. at 807; see also Todd v. Ortho Biotech, Inc., 
    175 F.3d 595
    , 597
    (8th Cir. 1999) (Todd).
    
           Jackson contends that the district court erred in granting summary judgment
    because there are genuine issues of material fact regarding whether the Department
    was entitled to the affirmative defense articulated in Faragher. Specifically, Jackson
    claims that (1) the Department’s anti-harassment prevention policy was ineffective,
    as evidenced by the eight months it took to expose Gwatney’s lies about the sexual
    misconduct, and (2) as a result of the policy’s ineffectiveness, it was not unreasonable
    for her to disregard it. Jackson further asserts that a jury is best qualified to resolve
    the issue. The Department responds, based on the undisputed facts, that (1) its
    harassment prevention policy was effective, because it immediately acted upon
    Jackson’s complaint by rescheduling Gwatney’s work hours, conducting an
    investigation, encouraging Jackson to inform her supervisors of further harassment,
    and regularly checking with Jackson to ensure that no continued harassment had
    occurred; and (2) Jackson unreasonably failed to take advantage of the preventive and
    corrective opportunities the Department provided by failing to report the harassment
    until August 31, 1994, and by electing to file a grievance with the EEOC rather than
    comply with the Department’s formal anti-harassment procedures. We agree with
    the Department.
    
           In the present case, the Department fulfilled the “primary objective” of Title
    VII, which is “not to provide redress but to avoid harm.” Faragher, 524 U.S. at 806
    (quoting Albemarle Paper Co. v. Moody, 
    422 U.S. 405
    , 418 (1975)); see also Ellerth,
    524 U.S. at 764 (“Title VII is designed to encourage the creation of antiharassment
    policies and effective grievance mechanisms.”); Todd, 175 F.3d at 598 (“The
                                             -7-
    Supreme Court’s new affirmative defense was adopted to avoid ‘automatic’ employer
    liability and to give credit to employers who make reasonable efforts to prevent and
    remedy sexual harassment.”). Upon notification of Gwatney’s improper behavior, the
    Department immediately activated its anti-harassment prevention policy to investigate
    Jackson’s complaint and to avoid any situation in which Gwatney might repeat the
    behavior. The Department conscientiously solicited Jackson to ensure that the
    harassment had ended and encouraged her to inform her supervisors if the harassment
    continued. As a result, we agree with the district court that the undisputed facts show
    that the Department acted promptly and effectively to remedy the past sexual
    harassment and to avoid any future incidents, thus satisfying the first prong of the
    affirmative defense articulated in Faragher.
    
           In addition, the Department fulfilled the second prong of the affirmative
    defense by showing beyond genuine dispute that Jackson unreasonably failed to take
    advantage of the Department’s preventive or corrective opportunities through her
    failure to report the harassment for more than nine months after it began and her
    refusal to participate in the proposed meeting with the Department and Gwatney. See
    Faragher, 524 U.S. at 807-08 (recognizing that an employee’s failure to use the
    employer’s complaint procedure will normally satisfy the employer’s burden
    regarding the second element of the affirmative defense).
    
           For these reasons, we hold that the district court did not err in concluding that
    there were no genuine issues of material fact regarding whether the Department was
    entitled to the Faragher affirmative defense against vicarious liability for supervisor
    sexual harassment.
    
    Constructive Discharge
    
           The Department would not be entitled to the affirmative defense against
    vicarious employer liability for sexual harassment if a tangible employment action
    
                                              -8-
    was taken as a result of the harassment. See Faragher, 524 U.S. at 807 (only “when
    no tangible employment action is taken [may] a defending employer . . . raise an
    affirmative defense”). Jackson argues that the district court erred in granting
    summary judgment because an outstanding issue of material fact exists regarding
    whether she was constructively discharged. If Jackson was in fact constructively
    discharged, then the constructive discharge would constitute a tangible employment
    action and prevent the Department from utilizing the affirmative defense. See Ellerth,
    524 U.S. at 765 (“No affirmative defense is available, however, when the supervisor’s
    harassment culminates in a tangible employment action, such as discharge, demotion,
    or undesirable reassignment.”); see also Phillips v. Taco Bell Corp., 
    156 F.3d 884
    ,
    889 n.6 (8th Cir. 1998) (Phillips) (noting that “no affirmative defense is available to
    an employer when a supervisor’s harassment culminates in a tangible employment
    action”).
    
           “Constructive discharge occurs ‘when an employer deliberately renders the
    employee’s working conditions intolerable and thus forces [her] to quit [her] job.’”
    Phillips, 156 F.3d at 890 (quoting Johnson v. Bunny Bread Co., 
    646 F.2d 1250
    , 1256
    (8th Cir. 1981)). To be liable, the employer must have intended to force the employee
    to quit, or at least have reasonably foreseen the employee’s resignation as a
    consequence of the unlawful working conditions it created. See id.; see also Tidwell
    v. Meyer’s Bakeries, Inc., 
    93 F.3d 490
    , 494 (8th Cir. 1996) (“To constitute a
    constructive discharge, the employer must deliberately create intolerable working
    conditions with the intention of forcing the employee to quit and the employee must
    quit.”). Furthermore, the employee must also show that a reasonable person, from an
    objective viewpoint, would find the working conditions intolerable. See Phillips, 156
    F.3d at 890; Allen v. Bridgestone/Firestone, Inc., 
    81 F.3d 793
    , 796 (8th Cir. 1996).
    To be reasonable, an employee must give her employer a reasonable opportunity to
    correct the problem. See Phillips, 156 F.3d at 890.
    
    
    
    
                                             -9-
          Jackson alleges that the Department constructively discharged her because she
    was exposed to hostile work environment sexual harassment for the eight months it
    took the Department to discover that Gwatney had lied during the investigation.
    During those eight months she allegedly experienced emotional distress that
    prevented her from returning to work. The Department counters that, because
    Jackson’s medical leave began after Gwatney was terminated, Jackson’s reason for
    leaving the workplace could not be attributed to Gwatney’s harassment. As a result,
    the Department argues, Jackson was not constructively discharged and there was no
    tangible employment action to negate the affirmative defense.
    
           We agree with the district court that the Department’s expectation that Jackson
    would return to work, especially after Gwatney had been terminated, does not rise to
    the level of an objectively intolerable working condition. Moreover, Jackson did not
    provide the Department with a reasonable opportunity to correct the alleged problem
    because she did not notify it until nine months after the harassment started and
    because she refused to participate in the Department’s formal sexual harassment
    correction procedure. Furthermore, the Department did reasonably correct the
    problem of Jackson’s harassment, by changing Gwatney’s schedule, reimbursing her
    sick leave time, checking on her continued state of mind, and ultimately firing
    Gwatney.
    
           As a result, we hold that the district court did not err in concluding that there
    were no genuine issues of material fact concerning the reasonableness of the working
    conditions created by the Department. Therefore, we further hold that the district
    court was correct in dismissing Jackson’s constructive discharge claim because her
    working conditions were not so intolerable that she was forced to resign. Our
    holding thus necessitates the conclusion that the district court properly determined
    that, due to the absence of the Department’s tangible employment action, the
    Department was entitled to the affirmative defense articulated in Faragher.
    
    
    
                                             -10-
    Motion To Strike Jackson’s Deposition
    
           Jackson argues that, pursuant to Fed. R. Civ. P. 32(a)(4) and Fed. R. Evid. 106,
    when part of a deposition is offered, the adverse party must be able to access any
    other part of the deposition in order to place the excerpt in an accurate context. The
    Department responds that, because the deposition was properly filed with the district
    court in support of its original motion for summary judgment, it was properly part of
    the record on appeal according to Fed. R. App. P. 10(a).
    
           After carefully reviewing the record, we find that the excerpted portions of
    Jackson’s deposition are not relevant to the arguments asserted in this appeal.
    Furthermore, the district court did not rely upon Jackson’s deposition in compiling
    its findings of fact.3 In any event, pursuant to Local Rule 56.1(c), Jackson forfeited
    her ability to contest the facts presented in the Department’s original summary
    judgment motion by her failure to respond to the Department’s motion. As a result,
    we deny Jackson’s motion to strike her deposition from the record.
    
    
    
          Accordingly, the judgment of the district court is affirmed.
    
          A true copy.
    
                 Attest:
    
                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    
    
          3
           The only potential conflict between the district court’s undisputed statement
    of facts and Jackson’s own responses to the Department’s interrogatories is
    substantiated by affidavits from the Department’s employees and not Jackson’s
    deposition.
    
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