Hardage v. CBS ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUGH HARDAGE, 
Plaintiff-Appellant,
v. No. 03-35906
CBS BROADCASTING INC., a New D.C. No.
York Corporation; VIACOM
TELEVISION STATIONS INC., a  CV-02-01303-JCC
ORDER AND
Delaware Corporation; VIACOM
AMENDED
BROADCASTING OF SEATTLE INC., a
OPINION
Delaware Corporation; KATHY
SPARKS, an individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Chief Judge, Presiding
Argued and Submitted
May 3, 2005—Seattle, Washington
Filed November 1, 2005
Amended January 6, 2006
Second Amendment February 8, 2006
Before: J. Clifford Wallace, Barry G. Silverman, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Wallace;
Partial Dissent by Judge Paez
1447
HARDAGE v. CBS BROADCASTING INC. 1451
COUNSEL
Claudia Kilbreath, Short Cressman & Burgess PLLC, Seattle,
Washington, for the plaintiff-appellant.
1452 HARDAGE v. CBS BROADCASTING INC.
Harry J. F. Korrell and Kathryn S. Loppnow, Davis Wright
Tremaine LLP, Seattle, Washington, for the defendants-
appellees.
ORDER
The panel opinion filed January 6, 2006, is amended as fol-
lows:
Add as a new paragraph after footnote 1 (slip op. 82):
There may be circumstances where an employer’s
“remedial obligation kicks in,” Fuller, 47 F.3d at
1528, regardless of the employee’s stated wishes. In
other words, the mere fact that the employee tells the
employer not to take any remedial action may not
always relieve that employer of the obligation to do
so. See, e.g., Torres v. Pisano, 116 F.3d 625, 639 (2d
Cir. 1997). Here, however, it is uncontested that
Hardage did not want Falcone to take further action,
and that Hardage’s wishes were not insincere or
uninformed. Moreover, Hardage did not disclose to
Falcone the details of the harassment, so Falcone had
no way to know of its severity.
The petition for panel rehearing has been previously
denied. Judge Silverman votes to deny the Petition for
Rehearing En Banc and Judge Wallace so recommends. Judge
Paez would grant the petition. The full court has been advised
of the Petition for Rehearing En Banc and no judge of the
court has requested a vote on whether to rehear the matter en
banc. Fed. R. App. P. 35.
Appellant’s Petition for Rehearing En Banc is therefore
DENIED. No further petitions may be filed.
HARDAGE v. CBS BROADCASTING INC. 1453
OPINION
WALLACE:
The district court entered summary judgment dismissing
Hardage’s sexual harassment and retaliation claims against
CBS Broadcasting Inc., Viacom Television Stations Inc., and
Viacom Broadcasting of Seattle Inc. (collectively, CBS), pur-
suant to Title VII of the 1964 Civil Rights Act and the Wash-
ington Law Against Discrimination (WLAD). The district
court concluded that CBS was entitled to assert an affirmative
defense to liability based on the Supreme Court’s decisions in
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and
Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and it
accordingly denied Hardage’s motion for partial summary
judgment on that issue. In addition, the court declined to exer-
cise supplemental jurisdiction over Hardage’s WLAD claims
against Kathy Sparks (the alleged harasser) and dismissed
those claims without prejudice. See 28 U.S.C. § 1367(c). The
court also dismissed Hardage’s Title VII claims against
Sparks with prejudice, and Hardage does not appeal this por-
tion of the court’s judgment. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
I.
In the summer of 1998, Hardage began working as an
advertising account executive for KSTW-TV, a television sta-
tion owned by Viacom Television Stations, Inc. and managed
by CBS Broadcasting Inc. He was promoted to Local Sales
Manager in February of 2000, and in this position he worked
with another Local Sales Manager, Nadene Stauffer, to man-
age and supervise the account executives. Both Hardage and
Stauffer were supervised by Patty Dean, the General Sales
Manager, who was in turn supervised by defendant Sparks,
the station’s General Manager. Until about a month before
Hardage resigned in August of 2001, he worked in the Seattle
1454 HARDAGE v. CBS BROADCASTING INC.
sales office whereas Sparks worked in the management office
in Tacoma.
Hardage contends he was sexually harassed by Sparks on
several occasions and subjected to retaliation after he rejected
her advances. He alleges that during Sparks’ visits to the Seat-
tle office, she repeatedly flirted with him and made inappro-
priate comments — such as “[y]ou need somebody that’s
older and more stable that can take care of you.” Leo Elbert,
another employee at KSTW, stated that Sparks would “camp
out” in Hardage’s office, kick back in his chair with her feet
on his desk, and smile and giggle in a flirtatious manner.
Hardage asserts that he never flirted with Sparks, but that he
is a “flirtatious person by nature” and that there was “playful
banter from the git-go” with Sparks, some of which he con-
cedes could have been perceived as mutually flirtatious. He
has also stated that he referred to Sparks as “Sparkalicious,”
“Baskin Robbins 32nd Flavor” and “Driving Ms. Sparky.” He
also agreed in his deposition that his love life in general was
“[d]efinitely” part of the “watercooler talk” and “a big topic
of conversation around the office.”
In addition to the charged workplace harassment, Hardage
alleges more serious harassment on five occasions outside of
the office. First, on Easter Sunday in 2000, Hardage, Sparks,
Dean, Dean’s husband, and a few others attended a brunch at
the Sorrento Hotel. Hardage believes that he might have been
the person who invited Sparks to the event. The group con-
sumed alcoholic beverages and eventually relocated to a
sports bar. Hardage drove Sparks in her car. After a few more
drinks, Sparks allegedly asked Hardage if her hands were
pretty, and then put her foot on an air hockey table while
Hardage was playing and asked if he thought she had cute
feet. Later, while Hardage was on a skateboard game, Sparks
allegedly got up on the skateboard behind him, put her arms
around his waist and told him that he had a “cute ass.”
After the sports bar, the group went to the Paragon restau-
rant for dinner and continued drinking alcoholic beverages.
HARDAGE v. CBS BROADCASTING INC. 1455
Sparks sat across the table from Hardage and allegedly took
off her shoe, slid under the table, and put her foot in Hard-
age’s crotch. At the end of the dinner, many people com-
mented that Sparks was too drunk to drive home, and Sparks
asked if she could stay at Hardage’s apartment for the night.
Hardage declined her request and, according to one witness,
Sparks became “livid” and “stormed off” to drive herself
home.
The second incident of harassment outside the workplace
allegedly occurred two days after the Easter Sunday events.
Sparks called Hardage and invited him to the Icon Grill res-
taurant for drinks after work. At the restaurant, she allegedly
told Hardage she had not been able to sleep and “was having
orgasms in her sleep.” She asked Hardage if he felt the same
way about her; Hardage replied that he did not want to dam-
age his career by having a relationship and wanted to go no
further than friendship. Hardage asserts that Sparks responded
with a snide comment along the lines of, “Don’t forget who
got you to where you are.”
Third, in August of 2000, Hardage and Sparks were both
traveling to Texas to visit their respective families. Sparks
arranged her travel plans so that she and Hardage sat next to
each other on the same flight. Hardage alleges that Sparks
took off her shoe and started rubbing her foot on his leg. After
he asked her to stop, she began rubbing his back “in a kind
of a weird manner.” Sparks later referred to Hardage as her
boyfriend as she was ordering drinks from a flight attendant,
and as they were consuming their drinks, she grabbed his
hand and made explicit sexual advances. Hardage contends
that she offered him oral sex and told him that one experience
of sexual intercourse with her would be life-altering for him.
Hardage told her that nothing physical would happen between
them.
The fourth incident of alleged harassment occurred in Octo-
ber of 2000, when Hardage and Sparks took some of KSTW’s
1456 HARDAGE v. CBS BROADCASTING INC.
clients to a baseball game. This is the only alleged instance of
harassment outside the workplace that occurred during a
work-related event. Hardage and Sparks sat next to each
other, and Sparks began rubbing his leg with her foot. Hard-
age responded, “Kathy, cut it out, you know, we got clients
sitting next to us, it’s inappropriate.” Later, Sparks allegedly
took off her rain poncho, put it over Hardage’s lap and
reached under it for Hardage’s crotch. Hardage states he
elbowed her hand away and told her to stop.
After the game, Hardage invited Sparks to join him for
drinks with his friends at the Pesos bar. Sparks allegedly
glared at Hardage while he greeted his friends, including sev-
eral women, and shouted, “Who haven’t you f—ed in here?”
Hardage states he pointed to one woman and responded jok-
ingly, “I haven’t f—ed anybody in here, you know, but hope-
fully she’s next.” Sparks became very upset, asked to be taken
back to her car, and shouted obscenities to Hardage. One wit-
ness, Leo Elbert, has stated that Sparks told Hardage, “Don’t
f—ing talk to me. You’re finished.”
The day after the Pesos incident, Hardage complained to
Dean and told her that “[l]ast night, things went way too far”
and that Sparks had lost her temper. However, Hardage has
stated that he did not tell her “specifics about sexual contact”
and never told Dean that Sparks had touched him in an inap-
propriate way, nor did he share any details of the harassment
with anyone else at work.
Hardage also testified that Dean later suggested something
“to the effect of . . . ‘Why don’t you just do it and get it over
with. It may put her in a better mood.’ ” However, when
Hardage told Dean about the Pesos incident, Dean promptly
contacted Ray Rajewski, an executive vice president, who in
turn called Hardage to let him know that he would be con-
tacted by Paul Falcone, a representative from the company’s
human resources department. Falcone called Hardage the
HARDAGE v. CBS BROADCASTING INC. 1457
same day of Hardage’s complaint and arranged to meet with
him in person the following week.
During their subsequent meeting — which occurred while
Hardage drove Falcone to the airport — he did not give Fal-
cone details about the harassment; indeed, he “didn’t share
any of the so-called gory details with anybody.” Instead, he
gave Falcone “[j]ust the broad statement . . . that [Sparks] had
made . . . unwanted sexual advances that were denied,” that
he was uncomfortable with the situation, and that Sparks had
lost her temper and was “jeopardizing . . . the success of the
team.” Hardage did not tell Falcone about any of the alleged
physical contact or groping by Sparks.
It is also undisputed that although Falcone offered to talk
to Sparks and treat Hardage’s complaint as an anonymous
complaint, Hardage insisted on handling the situation by him-
self. Hardage explained in his deposition that he did not think
the complaint could be handled truly anonymously, because
Sparks would know the source, and that he “prided [him]self
in handling [his] own business affairs.” Approximately two
weeks after their meeting, Falcone called Hardage to follow
up, and Hardage informed Falcone that nothing new had hap-
pened and that he still did not want Falcone to intervene.
In addition to sexual harassment, Hardage contends he was
subjected to retaliation. Sparks made snide comments, such
as, “your number’s up” and, “It’s not going to be me that
loses my job, it’s going to be you.”
About the same time, Hardage’s performance was called
into question. When Hardage and another Local Sales Man-
ager, Stauffer, repeatedly failed to meet sales goals due to a
slump in the advertising market, Dean counseled them on sev-
eral occasions and sent them joint memoranda discussing their
performance issues. Furthermore, on August 6, 2001, Dean
sent Hardage a memorandum which cited problems with his
work performance, including his insubordination in failing to
1458 HARDAGE v. CBS BROADCASTING INC.
return to work after attending a charity event. Hardage has
conceded that he had in fact been insubordinate. The memo-
randum indicated that Hardage and Dean would have a formal
meeting to reevaluate his performance in approximately thirty
days, and it warned that a “[f]ailure to see significant
improvement could result in [his] termination.”
On August 31, 2001, Hardage submitted his letter of resig-
nation. He testified that adverse market conditions had created
a “pretty intense environment” and had “deflated [him] to the
point that . . . was the end of [his] rope.”
II.
Hardage asserts Title VII and WLAD claims of sexual
harassment and retaliation against CBS. “Washington’s Law
Against Discrimination tracks federal law, and thus our analy-
sis will cite only federal law,” but our analysis applies with
equal force to Hardage’s WLAD claims against CBS. Ander-
son v. Pac. Mar. Ass’n, 336 F.3d 924, 925 n.1 (9th Cir. 2003),
citing Payne v. Children’s Home Soc’y, Inc., 892 P.2d 1102,
1105-06 (Wash. Ct. App. 1995); see also Little v. Windermere
Relocation, Inc., 301 F.3d 958, 966, 969 (9th Cir. 2002)
(Washington courts look to federal law when considering sex
discrimination and retaliation claims).
We review the district court’s summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the non-moving party, there are any genuine
issues of material fact and whether the district court correctly
applied relevant substantive law. Kohler v. Inter-Tel Techs.,
244 F.3d 1167, 1171 (9th Cir. 2001). “[T]here is no issue for
trial unless there is sufficient evidence favoring the nonmov-
ing party for a jury to return a verdict for that party. If the evi-
dence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
HARDAGE v. CBS BROADCASTING INC. 1459
III.
[1] Title VII provides that it is “an unlawful employment
practice for an employer . . . to discriminate against any indi-
vidual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). This anti-discrimination
principle is violated when sexual harassment is sufficiently
severe or pervasive to “alter the conditions of [the victim’s]
employment and create an abusive working environment.”
Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999)
(alteration in original), quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986), quoting Henson v. Dundee,
682 F.2d 897, 904 (11th Cir. 1982).
[2] An employer is vicariously liable “for an actionable
hostile environment created by a supervisor with immediate
(or successively higher) authority over the employee.” Id. at
861. However, the Supreme Court has established an affirma-
tive defense to vicarious liability:
When no tangible employment action is taken, a
defending employer may raise an affirmative defense
to liability or damages, subject to proof by a prepon-
derance of the evidence, see Fed. Rule Civ. Proc.
8(c). The defense 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 unrea-
sonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or
to avoid harm otherwise. . . . No affirmative defense
is available, however, when the supervisor’s harass-
ment culminates in a tangible employment action,
such as discharge, demotion, or undesirable reassign-
ment.
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08. Thus,
even if we assume that Hardage was sexually harassed, CBS
1460 HARDAGE v. CBS BROADCASTING INC.
can avoid liability if it can show that (1) it took no “tangible
employment action” against Hardage, (2) it exercised reason-
able care to prevent and correct harassment, and (3) Hardage
unreasonably failed to take advantage of preventive or correc-
tive opportunities. We must determine whether, even viewing
the evidence in the light most favorable to Hardage, he has
failed to raise a triable factual issue as to each element of this
defense, thus entitling CBS to summary judgment.
A.
[3] A “tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsi-
bilities, or a decision causing a significant change in bene-
fits.” Ellerth, 524 U.S. at 761. A tangible employment action
“requires an official act of the enterprise, a company act,” and
“in most cases inflicts direct economic harm.” Id. at 762.
While employed at KSTW-TV, Hardage never experienced
any decrease in compensation, hours, title, duties or benefits.
He contends, however, that he was constructively discharged
as a result of a hostile work environment, and this construc-
tive discharge constitutes a tangible employment action. See
Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342,
2351 (2004) (holding that constructive discharge precipitated
by a supervisor’s official act can constitute a “tangible
employment action”). He cites the sexual harassment by
Sparks as well as allegedly retaliatory actions — namely, the
adverse performance memoranda he and Stauffer received,
Sparks’ snide remarks, and the August 6, 2001 memorandum
warning Hardage that his performance would be reevaluated
after a thirty-day period. He contends that after “enduring the
severe and pervasive harassment . . . and retaliation,” he “fi-
nally came to the conclusion that CBS would not take his
complaints seriously” and saw “no way out” but to resign. He
also argues he was constructively discharged by being placed
HARDAGE v. CBS BROADCASTING INC. 1461
on “the same kind of probation under which [he] had seen
other employees consistently lose their jobs.”
[4] These arguments miss the mark. In order to survive
summary judgment on a constructive discharge claim, a plain-
tiff “must show there are triable issues of fact as to whether
‘a reasonable person in [his] position would have felt that [he]
was forced to quit because of intolerable and discriminatory
working conditions.” Steiner v. Showboat Operating Co., 25
F.3d 1459, 1465 (9th Cir. 1994); see also Suders, 124 S. Ct.
at 2347. In Montero, 192 F.3d at 861, we held that the plain-
tiff was not constructively discharged in part because the sex-
ually harassing behavior had ceased three to four months
before the plaintiff’s resignation. See also Steiner, 25 F.3d at
1465-66; Manatt v. Bank of Am., NA, 339 F.3d 792, 804 (9th
Cir. 2003). Hardage concedes that the last time Sparks made
inappropriate sexual advances or comments was in March of
2001, yet he did not resign until five months later, on August
31, 2001. As a result, even if Sparks’ sexual harassment cre-
ated a hostile work environment, such harassment ceased well
in advance of Hardage’s resignation.
[5] Nor do the allegedly retaliatory actions taken against
Hardage amount to a constructive discharge. CBS has prof-
fered legitimate, non-retaliatory reasons for the adverse per-
formance memoranda, which were addressed to both Hardage
and Stauffer. See Brooks v. City of San Mateo, 229 F.3d 917,
930 (9th Cir. 2000) (“[C]onstructive discharge occurs when
the working conditions deteriorate, as a result of discrimina-
tion, to the point that they become ‘sufficiently extraordinary
and egregious’ ” (citation omitted) (emphasis added)). Indeed,
it is undisputed that Hardage was insubordinate and failed to
meet sales goals in his last few months as a Local Sales Man-
ager.
[6] For this reason, even if we consider the memoranda as
tangible employment actions in and of themselves, rather than
as components of a constructive discharge, they do not bar
1462 HARDAGE v. CBS BROADCASTING INC.
CBS from asserting the Ellerth/Faragher defense. See Elvig
v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir.
2004) (“[E]ven if a tangible employment action occurred, an
employer may still assert the affirmative defense if the tangi-
ble employment action ‘was unrelated to any harassment or
complaint thereof’ ” (quoting Nichols v. Azteca Rest. Enter.,
Inc., 256 F.3d 864, 877 (9th Cir. 2001))); Kohler, 244 F.3d at
1180 (“Kohler cannot connect any of the alleged employment
actions she experienced to her rejection of [her supervisor]’s
advances. Therefore, Kohler has failed to demonstrate a dis-
puted factual issue as to whether she suffered a tangible
employment action”).
[7] As for the allegedly snide remarks, the Supreme Court
has emphasized that only a constructive discharge which is
precipitated by an “official act” can constitute a “tangible
employment action.” Suders, 124 S. Ct. at 2355. An official
act is “ ‘the means by which the supervisor brings the official
power of the enterprise to bear on subordinates.’ ” Id. at 2353,
quoting Ellerth, 524 U.S. at 762. Sparks’ occasional com-
ments clearly are insufficient under this standard. Thus, Hard-
age has failed to establish a material factual dispute as to
whether he was constructively discharged, and he has not
alleged any other “tangible employment action.”
B.
In order to assert the Ellerth/Faragher defense success-
fully, CBS must have “exercise[d] reasonable care to prevent
and correct promptly any sexually harassing behavior.”
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. In Koh-
ler, 244 F.3d at 1180-81, we construed this standard to require
both preventive and remedial measures.
[8] As for the former, we held that an employer’s adoption
of an anti-harassment “policy and its efforts to disseminate
the policy to its employees establish that [the employer] exer-
cised reasonable care to prevent sexual harassment in the
HARDAGE v. CBS BROADCASTING INC. 1463
workplace.” Id. at 1180; see also Ellerth, 524 U.S. at 765. In
this case, it is undisputed that CBS has an anti-harassment
policy, with which Hardage had familiarity. As a supervisor,
he was responsible for reporting sexual harassment to the
human resources department, and he understood that sexual
harassment was prohibited. Thus, CBS fulfilled its duty to
take preventive measures as a matter of law by adopting and
promoting awareness of its anti-harassment policy.
In addition, however, CBS must have taken steps to correct
Hardage’s particular situation promptly. See Kohler, 244 F.3d
at 1181 (“The [reasonable care] prong of the affirmative
defense also requires [the employer] to demonstrate that it
exercised reasonable care to promptly correct sexually harass-
ing behavior”); see also Montero, 192 F.3d at 862. After
Hardage complained to Dean in October 2000, Dean immedi-
ately contacted Rajewski, who in turn notified Falcone. Fal-
cone called Hardage the same day he made his complaint, and
shortly thereafter, they met in Seattle. At their meeting, Fal-
cone discussed Hardage’s options. Hardage asserted that he
wanted to “handle it by [him]self.” Approximately two weeks
later, Falcone followed up with Hardage by telephone, and
Hardage indicated that he still did not want Falcone to inter-
vene. This would appear to end any debate on this issue, but
Hardage makes two arguments as to why there is a triable fac-
tual dispute regarding this requirement.
[9] First, he emphasizes Falcone’s “inexplicabl[e]” failure
to investigate his complaint or discipline Sparks. In Swenson
v. Potter, 271 F.3d 1184 (9th Cir. 2001), we explained that
“[n]otice of the sexually harassing conduct triggers an
employer’s duty to take prompt corrective action that is ‘rea-
sonably calculated to end the harassment.’ ” Id. at 1192 (cita-
tions omitted). “The reasonableness of the remedy depends on
its ability to: (1) ‘stop harassment by the person who engaged
in harassment;’ and (2) ‘persuade potential harassers to refrain
from unlawful conduct.’ ” Nichols, 256 F.3d at 875. Although
an “investigation is a key step,” Swenson, 271 F.3d at 1193,
1464 HARDAGE v. CBS BROADCASTING INC.
we “consider the overall picture” to determine whether the
employer’s response was appropriate. Id. at 1197.
To be sure, CBS’s anti-harassment policy states that
“[f]ollowing a complaint, a thorough investigation will be
made” and the “matter will be handled in the strictest of confi-
dence.” Hardage was convinced, however, that there was “ab-
solutely no way that [his complaint] could be handled
anonymously,” and he therefore told Falcone he wanted to
handle the situation by himself. Indeed, he stated that when
Sparks later mentioned the words “sexual harassment” to him,
he “felt like [his] trust had been possibly violated by corporate
and — leaking information, because [he had] stated [he]
wanted to handle the case on [his] own.”
[10] In addition, although Hardage did put CBS on notice
of Sparks’ “unwanted sexual advances,” he did not tell Fal-
cone the “gory details” or apprise Dean of the “specifics about
sexual contact.” Instead, he was vague about the extent and
nature of Sparks’ advances. Thus, even if a more thorough
investigation and disciplinary measures for the harasser could
in some circumstances be essential in spite of a harassed
employee’s request to handle the situation, there can be no
such duty in this case. See Ellison v. Brady, 924 F.2d 872, 882
(9th Cir. 1991) (“[R]emedies should be ‘assessed proportion-
ately to the seriousness of the offense’ ”); cf. Nichols, 256
F.3d at 870-71 (employer failed to meet remedial obligations
after employee “reported and described the specifics of the
harassment” to a human resources director, and “expressed
concern that the harassment would continue to be ignored”).
Dean’s alleged comment to Hardage that “Why don’t you just
do it and get it over with. It may put her in a better mood” is
certainly troubling. However, it cannot singularly serve to
transform CBS’s response into an unreasonable one, nor can
it erase the legal significance of his specific request not to
investigate his admittedly minimal and vague complaint. Con-
HARDAGE v. CBS BROADCASTING INC. 1465
sidering the “overall picture,” CBS’s response was both
prompt and reasonable as a matter of law.1
There may be circumstances where an employer’s “reme-
dial obligation kicks in,” Fuller, 47 F.3d at 1528, regardless
of the employee’s stated wishes. In other words, the mere fact
that the employee tells the employer not to take any remedial
action may not always relieve that employer of the obligation
to do so. See, e.g., Torres v. Pisano, 116 F.3d 625, 639 (2d
Cir. 1997). Here, however, it is uncontested that Hardage did
not want Falcone to take further action, and that Hardage’s
wishes were not insincere or uninformed. Moreover, Hardage
1
The dissent accuses us of “depart[ing] from well-settled case law
requiring an employer to conduct an investigation and take prompt correc-
tive action once it is on notice of alleged harassment.” This “well-settled
case law” appears to consist of a single out-of-circuit case, Malik v. Car-
rier Corp., 202 F.3d 97 (2d Cir. 2000). Malik, however, addressed a sig-
nificantly different legal context.
In Malik, the Second Circuit considered state law claims by a man
accused of harassment. Malik filed suit for negligent infliction of emo-
tional distress and negligent misrepresentation arising out of the investiga-
tion of complaints against him. 202 F.3d at 99. Malik’s accusers never
requested that their complaints not be investigated. See id. at 100-02. Thus
Malik bears little resemblance to the present action and the quoted lan-
guage is at best dicta from another circuit.
There is thus no precedent to support the dissent’s claim (at 1475) that
“even if a complainant requests that the employer take no action, an
employer still must fulfill its duty” to investigate the complaint. It is there-
fore the dissent that would “depart from well-settled” precedent by requir-
ing an investigation in all circumstances no matter how strenuously or
repeatedly the alleged victim asked the company to forego investigation.
The dissent also analyzes the potential legal effect of EEOC enforce-
ment guidance. This guidance was never cited by Hardage in any of his
briefs. “Our circuit has repeatedly admonished that we cannot ‘manufac-
ture arguments for an appellant’ and therefore we will not consider any
claims that were not actually argued in appellant’s opening brief.” Indep.
Towers v. Washington, 350 F.3d 925, 929 (9th Cir. 2003), quoting Green-
wood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). For that reason, we will
not manufacture an argument on Hardage’s behalf and then rule on it in
his favor. This argument was waived. See Greenwood, 28 F.3d at 977.
1466 HARDAGE v. CBS BROADCASTING INC.
did not disclose to Falcone the details of the harassment, so
Falcone had no way to know of its severity.
Alternatively, Hardage contends there is a triable factual
dispute as to whether CBS was on notice prior to his com-
plaint to Dean in October of 2000. He alleges that he made
“numerous complaints” to Dean and repeatedly told her he
did not want to be left alone with Sparks. Yet when counsel
for CBS asked Hardage during his deposition to state every
time he could recall speaking to Dean about Sparks’ behavior,
Hardage vaguely suggested a barbeque event and a concert at
the Mercer Coliseum, but he could not remember the dates or
what he told Dean about why he did not want to attend the
events. Hardage recalled that he may have told Dean he did
not want to be alone with Sparks — which Hardage asserts
was “an ongoing joke” — but such a statement would hardly
have given Dean notice of ongoing sexual harassment. Even
drawing all reasonable inferences in favor of Hardage, these
undetailed allegations are “merely colorable” and insignifi-
cantly probative to create a genuine factual dispute about
whether CBS’s response was reasonable. See Anderson, 477
U.S. at 249-50; see also McPherson v. City of Waukegan, 379
F.3d 430, 441 n.7 (7th Cir. 2004) (“ ‘When . . . the only possi-
ble source of notice to the employer . . . is the employee who
is being harassed, she cannot withstand summary judgment
without presenting evidence that she gave the employer
enough information to make a reasonable employer think
there was some probability that she was being sexually
harassed.’ ” (quoting Zimmerman v. Cook County Sheriff’s
Dep’t, 96 F.3d 1017, 1019 (7th Cir. 1996))).
Hardage also argues that CBS was on notice of the harass-
ment because Dean personally observed some of Sparks’
harassing behavior. Yet, Hardage has stated that Dean also
witnessed “some flirtation,” and he concedes that the mutual
“banter” between Sparks and him could have been perceived
as flirtatious. Taken in context, Dean did not unreasonably
HARDAGE v. CBS BROADCASTING INC. 1467
fail to report the incident to CBS management, thereby trig-
gering CBS’s duty to remedy the situation promptly.
In addition, Hardage suggests Dean “had the opportunity to
observe the harassment on a daily basis in the workplace.”
However, until July 2001 — approximately ten months after
Hardage complained to Dean in October 2000 — Hardage
worked in Seattle and Sparks worked in Tacoma. Accord-
ingly, Dean had limited opportunities to observe Hardage and
Sparks together. Furthermore, given Hardage’s playful names
for Sparks such as “Sparkalicious” and their “playful banter
from the git-go,” his repeated invitations to Sparks to social-
ize with him outside of work, and his failure to inform Dean
that Sparks’ flirtations were unwelcome harassment, Dean did
not unreasonably fail to report any flirtatious behavior by
Sparks when she was visiting the Seattle office.
C.
[11] We now turn to the third Ellerth/Faragher require-
ment: that Hardage unreasonably failed to take advantage of
preventive or corrective opportunities. As a local sales man-
ager in charge of supervising approximately ten employees,
Hardage was well aware of CBS’s anti-harassment policy and
the procedure for initiating a complaint. Indeed, he testified
he understood that “all actual sexual harassment in [his]
workplace [was] dealt with in a serious manner.” He contends
that he “informally and formally reported the harassment on
several occasions,” and therefore he did not unreasonably fail
to make use of remedial and preventive opportunities.
[12] Yet, although Hardage contends the harassment com-
menced in April 2000, his first complaint to Dean that he has
identified with specificity was in October 2000 — approxi-
mately half a year later. “[W]hile proof that an employee
failed to fulfill the . . . obligation of reasonable care to avoid
harm is not limited to showing any unreasonable failure to use
any complaint procedure provided by the employer, a demon-
1468 HARDAGE v. CBS BROADCASTING INC.
stration of such failure will normally suffice to satisfy the
employer’s burden under [this] element of the defense.”
Ellerth, 524 U.S. at 765; Faragher, 124 U.S. at 807-08; see
also Suder, 124 S. Ct. at 2354 (the Ellerth/Faragher defense
requires “plaintiffs reasonably to stave off avoidable harm”);
Kohler, 244 F.3d at 1181-82. In addition to waiting half a year
to make a complaint, when Hardage finally made his com-
plaint he specifically asked the company not to investigate it.
By specifically requesting the company not make use of its
remedial and preventative procedures, Hardage unreasonably
failed to make use of CBS’s anti-harassment policies and pro-
cedures.
[13] Thus, Hardage has failed to establish a material factual
dispute regarding any of the three elements of CBS’s affirma-
tive defense. The district court properly entered summary
judgment for CBS and denied partial summary judgment for
Hardage on his sexual harassment claim.
IV.
[14] Title VII prohibits retaliation against an employee for
opposing unlawful discrimination. 42 U.S.C. § 2000e-3(a). To
make out a prima facie case of retaliation, Hardage must show
that (1) he engaged in a protected activity, such as the filing
of a complaint alleging sexual harassment; (2) CBS subjected
him to an adverse employment action; and (3) a causal link
exists between the protected activity and the adverse action.
See Manatt, 339 F.3d at 800, quoting Ray v. Henderson, 217
F.3d 1234, 1240 (9th Cir. 2000); Brooks, 229 F.3d at 928. If
Hardage makes a prima facie case, the burden shifts to CBS
to articulate a legitimate, nondiscriminatory reason for the
adverse action, and Hardage then bears the ultimate burden of
demonstrating that this reason is pretextual. Manatt, 339 F.3d
at 800.
[15] Hardage contends he was subjected to retaliation in the
form of adverse performance memoranda and being placed on
HARDAGE v. CBS BROADCASTING INC. 1469
a thirty-day probation period. In Ray, we recognized that “un-
deserved performance ratings, if proven, would constitute
‘adverse employment decisions.’ ” 217 F.3d at 1241 (empha-
sis added), quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376
(9th Cir. 1987). Here, by contrast, it is undisputed that Hard-
age failed to meet sales goals and disobeyed Dean’s instruc-
tion that he return to work after a charity event. Hardage
therefore failed to prove a causal link between the memoranda
and Hardage’s sexual harassment complaint. Furthermore,
even if we assume that Hardage has established a prima facie
case, we conclude he has failed to rebut CBS’s legitimate rea-
sons for the memoranda. See Manatt, 339 F.3d at 801. More-
over, except for the August 6 memorandum addressing
Hardage’s insubordination, Stauffer received the same perfor-
mance memoranda. “Absent a showing of disparate treatment,
the [employer’s action] cannot be deemed retaliatory.”
Brooks, 229 F.3d at 929.
In addition, Hardage asserts that Sparks retaliated by mak-
ing “snide remarks” and threats, such as “your number’s up”
and “don’t forget who got you where you are.” However, we
have held that “only non-trivial employment actions that
would deter reasonable employees from complaining about
Title VII violations will constitute actionable retaliation.” In
Kortan v. California Youth Authority, 217 F.3d 1104, 1112
(9th Cir. 2000), we held that a supervisor’s laughing and stat-
ing that the plaintiff “got him on sexual harassment charges,”
the supervisor’s hostile stares, and increased criticism were
insufficient to preclude summary judgment dismissing the
plaintiff’s retaliation claim. See also Brooks, 229 F.3d at 929(stating that badmouthing an employee outside the job refer-
ence context does not constitute adverse employment action);
Manatt, 339 F.3d at 803 (“Mere ostracism in the workplace
is not grounds for a retaliation claim . . . .”); cf. Ray, 217 F.3d
at 1243 (definition of “adverse employment action” “does not
cover every offensive utterance by co-workers, because offen-
sive statements by co-workers do not reasonably deter
employees from engaging in protected activity”).
1470 HARDAGE v. CBS BROADCASTING INC.
Moreover, even if Sparks’ remarks collectively created a
hostile work environment that constituted retaliation, such
harassment “is actionable only if it is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.’ ” Ray, 217 F.3d
at 1245. quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993). Considering the totality of circumstances, we hold
that Sparks’ comments are insufficiently severe to support a
retaliation claim. See Faragher, 524 U.S. at 788 (“ ‘[S]imple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes
in the ‘terms and conditions of employment.’ ” (citation omit-
ted)).
V.
[16] Because Hardage appeals from the district court’s dis-
missal of his state WLAD claims against Sparks only by argu-
ing they should be reinstated if summary judgment for CBS
is reversed, we affirm the district court’s dismissal of this
claim as well. See 28 U.S.C. § 1367(c); Acri v. Varian
Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc)
(“ ‘[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors . . . will point
toward declining to exercise jurisdiction over the remaining
state-law claims’ ” (omission in original) (quoting Carnegie-
Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988))).
AFFIRMED.
PAEZ, Circuit Judge, dissenting in part:
I agree that the district court properly granted summary
judgment on Hardage’s constructive discharge and retaliation
claims, and that Hardage did not raise a triable issue of fact
as to whether he suffered a tangible employment action. I can-
HARDAGE v. CBS BROADCASTING INC. 1471
not agree, however, with the majority’s conclusion that CBS
established as a matter of law the Faragher/Ellerth defense to
vicarious liability for Sparks’ sexual harassment. In reaching
its conclusion, the majority departs from well-settled case law
requiring an employer to conduct an investigation and take
prompt corrective action once it is on notice of alleged harass-
ment. Because a reasonable jury readily could find that CBS
is vicariously liable for sexual harassment, I would reverse the
grant of summary judgment and remand for a trial. Accord-
ingly, I dissent from Parts III.B and III.C of the majority’s
opinion.
To establish the Faragher/Ellerth affirmative defense, an
employer must prove by a preponderance of the evidence 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 unrea-
sonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or
to avoid harm otherwise.
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).
An employer is not entitled to summary judgment on this
issue unless there are no genuine disputes of material fact as
to either element of the defense. That is, summary judgment
must be denied if a rational jury could conclude either that (1)
the employer failed to exercise reasonable care to prevent and
promptly correct any sexually harassing behavior, or that (2)
the employee did not unreasonably fail to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise. Here, the record reveals
genuine factual disputes as to both elements.
1472 HARDAGE v. CBS BROADCASTING INC.
1. Whether CBS Acted Reasonably to Prevent and
Correct the Harassment
It is well-established that “[n]otice of the sexually harassing
conduct triggers an employer’s duty to take prompt corrective
action that is reasonably calculated to end the harassment.”
Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (inter-
nal quotation marks omitted). The reasonableness of the rem-
edy depends on the employee’s ability to stop the harassment
and to deter potential harassers, as well as the promptness of
the response. McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1120 (9th Cir. 2004). Once an employer is on notice of a sex-
ual harassment complaint, it must conduct an investigation.
Swenson, 271 F.3d at 1193. An employer’s remedial “obliga-
tion actually has two parts. The first consists of the temporary
steps the employer takes to deal with the situation while it
determines whether the complaint is justified. The second
consists of the permanent remedial steps the employer takes
once it has completed its investigation.” Id. at 1192.
Contrary to our case law, the majority holds that an
employer’s response to a harassment complaint may be
deemed reasonable as a matter of law even though the
employer conducted no investigation and took no action to
address the harassing behavior. The majority relies on our
statement in Swenson that “we consider the overall picture” in
determining the adequacy of the employer’s response to a
harassment complaint. Id. at 1197. In Swenson, however, we
never suggested that an investigation was not required. In
fact, we specifically stressed the importance of an investiga-
tion, stating:
The most significant immediate measure an
employer can take in response to a sexual harass-
ment complaint is to launch a prompt investigation
to determine whether the complaint is justified. An
investigation is a key step in the employer’s
response, and can itself be a powerful factor in deter-
HARDAGE v. CBS BROADCASTING INC. 1473
ring future harassment. By opening a sexual harass-
ment investigation, an employer puts all employees
on notice that it takes such allegations seriously and
will not tolerate harassment in the workplace. An
investigation is a warning, not by words but by
action.
Id. at 1193 (citation omitted).
In Swenson, we held that the investigation conducted by the
employer was competent. We noted, however, that even if the
investigation were “less than perfect,” the employer’s
response was reasonable in light of the “overall picture,” id.
at 1197, which included the fact that the employer immedi-
ately warned the harasser that his conduct was sexual harass-
ment and ordered him to keep away from the complainant,
promptly separated him from the complainant pending the
outcome of the investigation, and the harassment stopped as
a result of the employer’s intervention. Id. at 1192-98. We did
not hold, nor have we ever held, that an employer may be
deemed to have reasonably responded to a harassment com-
plaint when it altogether fails to conduct an investigation.
Indeed, we have stated that “the ‘fact of investigation alone’
is not enough. An investigation that is rigged to reach a pre-
determined conclusion or otherwise conducted in bad faith
will not satisfy the employer’s remedial obligation.” Id. at
1193 (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1529
(9th Cir. 1995)).
Here, the majority acknowledges that Hardage told CBS’s
human resources representative, Ray Falcone, that Sparks had
made “ ‘unwanted sexual advances.’ ” Maj. op. at 1457. Yet,
Falcone conducted no investigation and took no corrective
action. Nor did he even inform Sparks that a complaint had
been made, much less discipline her.1 Nonetheless, the major-
1
Falcone testified in his deposition as follows:
1474 HARDAGE v. CBS BROADCASTING INC.
ity concludes as a matter of law that CBS exercised reason-
able care to correct Sparks’ harassment. The majority relies
on two facts: Hardage told Falcone he would handle the mat-
ter himself, and Hardage did not offer Falcone specific details
about Sparks’ sexually harassing behavior. Maj. op. at 1464.
Neither is a valid reason for absolving CBS of its duty to
investigate and correct Sparks’ harassment.
First, a harassment complainant’s request that an employer
take no action does not relieve the employer of its obligation
under the law to investigate and remedy the harassing con-
duct. The Equal Employment Opportunity Commission’s
(“EEOC”) Enforcement Guidance on Vicarious Liability for
Supervisor Harassment speaks precisely to this point:
A conflict between an employee’s desire for confi-
dentiality and the employer’s duty to investigate may
Q: “Just to confirm, . . . based on your conversation with Mr.
Hardage, you didn’t conduct any investigation —
A: Correct.
Q: — of these claims?
A: Yes.
Q: And I take it that Ms. Sparks was never disciplined in any
way?
A: No. I never even — my recommendation to Ray Rajewski
was that it didn’t even need to be brought to Kathy Sparks’ atten-
tion.
Further, Patty Dean testified:
Q: Did Mr. Falcone ever contact you or interview you in any
way regarding Mr. Hardage’s complaints about Ms. Sparks?
A: No, I believe not.
Q: Okay. Did anyone at KSTW or CBS, the broader entity, ever
contact you, ask you any questions, interview you, anything of
that kind regarding Mr. Hardage’s complaints about Ms. Sparks?
A. No.
HARDAGE v. CBS BROADCASTING INC. 1475
arise if an employee informs a supervisor about
alleged harassment, but asks him or her to keep the
matter confidential and take no action. Inaction by
the supervisor in such circumstances could lead to
employer liability. While it may seem reasonable to
let the employee determine whether to pursue a com-
plaint, the employer must discharge its duty to pre-
vent and correct harassment.
EEOC Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, § V.C.1.d, No.
915.002 (June 18, 1999) [hereinafter EEOC Enforcement Guid-
ance].2 This same concern was expressed by the Second Cir-
cuit in Malik v. Carrier Corp., 202 F.3d 97, 105-06 (2d Cir.
2000). Although addressing slightly different circumstances,
the Second Circuit in Malik noted the importance of an
employer’s investigation of sexual harassment complaints,
even when the victim employee desires to drop the matter:
[A]n employer’s investigation of a sexual harass-
ment complaint is not a gratuitous or optional under-
taking; under federal law, an employer’s failure to
investigate may allow a jury to impose liability on
the employer. . . . Nor is the company’s duty to
investigate subordinated to the victim’s desire to let
the matter drop. Prudent employers will compel
harassing employees to cease all such conduct and
will not, even at a victim’s request, tolerate inappro-
priate conduct that may, if not halted immediately,
create a hostile environment.
Thus, contrary to the majority’s holding, even if a complain-
ant requests that the employer take no action, an employer
still must fulfill its duty to prevent and correct the alleged
harassment.
2
We have held that the EEOC’s interpretations of Title VII as expressed
in this Enforcement Guidance “are entitled to respect.” Holly D. v. Cal.
Inst. of Tech., 339 F.3d 1158, 1172 (9th Cir. 2003).
1476 HARDAGE v. CBS BROADCASTING INC.
Moreover, while the majority purports to consider the
“overall picture,” its account of CBS’s response to Hardage’s
complaint ignores critical facts indicating that CBS failed to
act reasonably. The majority’s summary of these events is
brief: “[A]lthough Falcone offered to talk to Sparks and treat
Hardage’s complaint as an anonymous complaint, Hardage
insisted on handling the situation by himself.” Maj. op. at
1476. This account leaves out key aspects of Hardage’s dis-
cussion with Falcone. After Hardage told Falcone that Sparks
had made unwanted sexual advances, Falcone asked Hardage,
“What would you like me to do?” In response, Hardage said
he “really d[id]n’t know,” and asked, “What are my options?
How do you usually handle these things?” Falcone testified
that he then told Hardage he had three choices: (1) Hardage
could “do absolutely nothing and hope it solves itself,” (2)
Hardage could talk to Sparks on his own, or (3) Falcone could
“very nicely talk with” Sparks and ask her to “just lay back
on this a little bit,” but he assured Hardage he would not “yell
at her and get her in trouble.”
Notably, not one of these options fulfilled CBS’s legal duty
to investigate and correct the harassing behavior. The first two
options flouted CBS’s obligation to take prompt corrective
action. See Fuller, 47 F.3d at 1529 (“[I]naction [cannot] fairly
be said to qualify as a remedy ‘reasonably calculated to end
the harassment.’ Title VII does not permit employers to stand
idly by once they learn that sexual harassment has occurred.
To do so amounts to ratification of the prior harassment.”
(citation omitted)). The second option also inappropriately put
the burden on Hardage to correct the harassment. See Nichols
v. Azteca Rest. Enters., Inc., 256 F.3d 864, 876 (9th Cir. 2001)
(holding that an employer unreasonably responded to a
harassment complaint when it “placed virtually all of its
remedial burden on the victimized employee”). Finally, the
third option—the only one proposing any action by CBS at all
—improperly included a guarantee that CBS would not disci-
pline Sparks in any way. See McGinest, 360 F.3d at 1120
HARDAGE v. CBS BROADCASTING INC. 1477
(“Remedial measures must include some form of disciplinary
action.”).
It was only after Falcone presented these three legally inad-
equate options that Hardage said he would handle the situa-
tion himself. Even if an employer could be relieved of its duty
to investigate and correct harassing behavior by virtue of a
complainant’s request to address it on his own—which it
cannot—this certainly cannot be true where, as here, “the
overall picture” reveals that CBS affirmatively misled Hard-
age about its own legal duty and offered him no meaningful
alternative to handling the situation on his own. An employer
may not shield itself from liability by erroneously telling a
complainant that doing “absolutely nothing” is a valid
response to harassment, and then justifying its inaction by
stating it was merely respecting the employee’s “choice.”
Second, the majority incorrectly holds that “there can be no
duty” to investigate or correct harassment where an employee
fails to offer specific details of the harassing behavior in the
course of making his initial complaint. The majority notes that
Hardage said he “did not tell [Dean] ‘specifics about sexual
contact’ ” and did not tell Falcone the “ ‘gory details’ ” of
Sparks’ behavior. Maj. op. at 1464. The majority, however,
acknowledges that “Hardage did put CBS on notice of
Sparks’ ‘unwanted sexual advances.’ ”3 Id. This is all that is
required to trigger CBS’s duty to investigate and correct the
harassment.
There is simply no authority for the proposition that an
employer who is on notice of unwanted sexual advances is
relieved of the duty to investigate and take corrective action
merely because the employee did not volunteer the details of
3
Indeed, Hardage testified that he told both Dean and Falcone that
Sparks had made unwanted sexual advances, and Dean herself testified
that she understood that Hardage was complaining about sexual harass-
ment.
1478 HARDAGE v. CBS BROADCASTING INC.
the harassing conduct during his initial complaint to the
employer, especially where—as here—the employer never
asked for specifics. The very point of an investigation is to
gather the details about the alleged harassment. See EEOC
Enforcement Guidance § V.C.1.e.i (providing examples of
appropriate questions to ask the complainant during an inves-
tigation, including, “Who, what, when, where, and how: Who
committed the alleged harassment? What exactly occurred or
was said? When did it occur and is it still ongoing? Where did
it occur? How often did it occur? How did it affect you?”).
To support its conclusion that an employer has no duty to
investigate where the complainant is “vague about the extent
and nature” of a supervisor’s sexual advances, the majority
cites Ellison v. Brady, where we held that “remedies should
be assessed proportionately to the seriousness of the offense.”
924 F.2d 872, 882 (9th Cir. 1991) (internal quotations omit-
ted). In Ellison, however, we did not suggest that an investi-
gation is a remedy that may or may not be imposed depending
on the seriousness of the offense; indeed, there, the employer
promptly investigated the complaint and requested that the
harasser refrain from discriminatory conduct, yet we held that
there was a genuine dispute of fact regarding the reasonable-
ness of the remedy. Id. at 882-83. As we have made clear, “an
investigation is principally a way to determine whether any
remedy is needed and cannot substitute for the remedy itself.”
Fuller, 47 F.3d at 1529.
The majority also cites Nichols, where we stated that the
complainant had reported “the specifics of the harassment.”
256 F.3d at 870. In Nichols, however, we noted this fact in the
context of holding that the district court clearly erred in find-
ing that the complainant had not reported the harassment at all
and in support of our conclusion that the complainant subjec-
tively perceived his workplace to be hostile. Id. at 873(“Sanchez told Serna, in considerable detail, about the fact
and nature of the verbal abuse. Sanchez also complained to
the Southcenter general manager and an assistant manager,
HARDAGE v. CBS BROADCASTING INC. 1479
though in less detail. It was clearly erroneous to find, as did
the district court, that Sanchez had not complained about his
harassment. . . . That Sanchez complained about the frequent,
degrading verbal abuse supports our conclusion that the con-
duct was unwelcome”).
Moreover, Nichols actually undermines the majority’s con-
clusion. There, we noted that the plaintiff’s complaints did not
comply with the formal reporting requirements of the employ-
er’s anti-harassment policy; nonetheless, we held that the
plaintiff’s complaints “were sufficient to place the company
on notice of the harassment.” 256 F.3d at 876 n.10. Because
the employer did nothing to investigate or remedy the harass-
ment despite this notice, we held that the employer did not
exercise reasonable care and could not assert the affirmative
defense to vicarious liability. Id. at 877. As in Nichols, the
critical point here is that CBS was on notice of Sparks’
unwanted sexual advances, yet failed to investigate or remedy
the harassment.
Notice of Sparks’ unwanted sexual advances triggered
CBS’s duty to investigate and take steps reasonably calculated
to end the harassment. CBS’s inaction in the face of Hard-
age’s complaint not only violated its legal duty, it also vio-
lated its own written policy on sexual harassment. This policy
states:
Following a complaint, a thorough investigation will
be made by interviewing the individual(s) allegedly
responsible for the harassment, and any witnesses.
After the investigation, should it be determined that
the allegations are true, then appropriate action will
be taken, including, but not limited to, written repri-
mand, warning, suspension, demotion, or dismissal.
As noted, CBS admittedly never conducted an investigation
of Hardage’s complaint and never took any disciplinary action
against Sparks. Indeed, Falcone testified that his “recommen-
1480 HARDAGE v. CBS BROADCASTING INC.
dation . . . was that it didn’t even need to be brought to Kathy
Sparks’ attention.” On this record, a rational trier of fact read-
ily could conclude that CBS failed to exercise reasonable care
to correct Sparks’ harassing behavior. See Fuller, 47 F.3d at
1529 (“An employer whose sole action is to conclude that no
harassment occurred cannot in any meaningful sense be said
to have ‘remedied’ what happened.”).
The majority’s contrary conclusion marks a dramatic
departure from our case law establishing that an employer
breaches its duty of reasonable care when it fails to ade-
quately investigate, and take steps to correct, harassing con-
duct. See Nichols, 256 F.3d at 876-88 (holding that employer
did not exercise reasonable care to promptly correct sexually
harassing behavior where it “made no effort to investigate
Sanchez’s complaint; it did not discuss his allegations with
the perpetrators; it did not demand that the unwelcome con-
duct cease; and it did not threaten more serious discipline in
the event the harassment continued”); Fuller, 47 F.3d at 1529(holding that employer could not be shielded from liability for
sexual harassment where its investigation was inadequate, its
offer to transfer victim improperly targeted the victim rather
than the harasser, and the employer “failed to take any appro-
priate remedial steps once it learned of the harassment”);
Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th
Cir. 1994) (reversing grant of summary judgment in favor of
employer on vicarious liability where employer “was consis-
tently slow to react to Steiner’s claims, and did not seriously
investigate them or strongly reprimand” the harasser until
after Steiner filed a complaint with the state equal rights com-
mission); Ellison, 924 F.2d at 882 (holding that genuine
issues of fact precluded summary judgment for the employer
even though it “promptly investigated” the harassment allega-
tion, where it “did not express strong disapproval of Gray’s
conduct, did not reprimand Gray, did not put him on proba-
tion, and did not inform him that repeated harassment would
result in suspension or termination”).
HARDAGE v. CBS BROADCASTING INC. 1481
CBS’s conduct here is a far cry from actions that we have
held fulfilled an employer’s duty of reasonable care. For
example, in Kohler v. Inter-Tel Tech., 244 F.3d 1167, 1181
(9th Cir. 2001)—where we stated that the facts “present a par-
adigm of the ‘reasonable efforts’ the Supreme Court sought to
encourage when it established the affirmative defense”—the
employer “responded by promptly hiring a neutral third party
to investigate Kohler’s allegations,” and even though the
investigator did not confirm the harassment claim, the
employer nonetheless reviewed its antiharassment policy with
the alleged harasser, reprimanded him for his behavior, and
conducted mandatory sexual harassment trainings for the
entire workforce. Id.; see also Holly D., 339 F.3d at 1177-78(holding that employer acted reasonably as a matter of law
where it “promptly convened an investigatory committee,
which impartially interviewed every witness” suggested by
the complainant and the alleged harasser; the employer
reminded the harasser of its sexual harassment policy despite
an initial determination that there was insufficient evidence of
harassment; and once evidence came to light substantiating
the victim’s complaint, the employer asked the harasser to
resign); Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir.
1999) (holding that employer exercised reasonable care where
it promptly investigated the allegations, interviewed the com-
plainant, the alleged harassers, and other employees at the
facility, met with all employees “and made clear that the com-
pany would tolerate no retaliation against Plaintiff,” termi-
nated one of the harassers, and disciplined the two others). In
contrast, CBS did nothing to investigate or remedy Sparks’
behavior.
Even apart from CBS’s inaction following Hardage’s Octo-
ber 2000 complaint, Hardage raised a triable issue of fact
regarding the reasonableness of CBS’s response to his earlier
complaints to Patty Dean. Hardage testified that he com-
plained to Dean “numerous times” about Sparks’ unwanted
sexual advances and that Dean personally observed Sparks’
harassment. He also testified that Dean responded to Hard-
1482 HARDAGE v. CBS BROADCASTING INC.
age’s complaints by suggesting, “Why don’t you just do it and
get it over with. It may put her in a better mood.” This piece
of evidence alone is sufficient to establish a genuine factual
dispute as to whether CBS exercised reasonable care in
responding to Hardage’s complaint. It is difficult to imagine
how any reasonable juror could conclude that an employer
who suggests that the complainant have sex with a harassing
supervisor has acted reasonably to end the harassment. In con-
cluding that Dean was not on notice of Sparks’ harassment
and that “[t]aken in context, Dean did not unreasonably fail
to report the incident to CBS management, thereby triggering
CBS’s duty to remedy the situation promptly,” Maj. op. at
1466-67 the majority improperly credits CBS’s account and
fails to draw all inferences in favor of Hardage by dismissing
his claims as “minimal and vague.” Id. at 1464.
2. Whether Hardage Unreasonably Failed to Take
Advantage of Corrective Opportunities
As noted above, the existence of a genuine factual dispute
regarding either prong of the affirmative defense precludes
summary judgment in favor of CBS. Because a reasonable
jury could find that CBS failed to exercise reasonable care,
Hardage is entitled to a trial even if CBS could establish as
a matter of law that Hardage unreasonably failed to take
advantage of CBS’s corrective opportunities. See Nichols, 256
F.3d at 877. Nonetheless, it is clear that on this record, a rea-
sonable jury could find for Hardage on this second element as
well.
In Faragher, the Supreme Court held that harassment vic-
tims have “a duty to use such means as are reasonable under
the circumstances to avoid or minimize the damages that
result from violations of [Title VII].” 524 U.S. at 806 (internal
quotation marks omitted). The “burden [is] squarely on the
defendant to prove that the plaintiff unreasonably failed to
avoid or reduce harm.” Penn. State Police v. Suders, ___,
U.S. ___, 124 S. Ct. 2342, 2354 (2004).
HARDAGE v. CBS BROADCASTING INC. 1483
[W]hile proof that an employee failed to fulfill the
corresponding obligation of reasonable care to avoid
harm is not limited to showing an unreasonable fail-
ure to use any complaint procedure provided by the
employer, a demonstration of such failure will nor-
mally suffice to satisfy the employer’s burden under
the second element of the defense.
Faragher, 524 U.S. at 807-08. An employer who exercised
reasonable care will not be liable “if the aggrieved employee
could have avoided all of the actionable harm. . . . [I]f the
employee unreasonably delayed complaining, and an earlier
complaint could have reduced the harm, then the affirmative
defense could operate to reduce damages.” EEOC Enforce-
ment Guidance § V.D.
Here, the majority concludes as a matter of law that Hard-
age unreasonably failed to take advantage of CBS’s corrective
opportunities because “his first complaint to Dean that he has
identified with specificity” was not until about six months
after Sparks’ harassment began. Maj. op. at 1467. In so hold-
ing, the majority fails to view the facts in the light most favor-
able to Hardage. Hardage testified that he reported Sparks’
harassing conduct to Dean on “numerous occasions” and told
her, “I don’t want to be alone with her.” He also testified that
Dean personally observed Sparks’ harassing behavior, and
that in response to Hardage’s complaints about Sparks’
unwanted sexual advances, Dean suggested that he “just do it
and get it over with.” Viewing the evidence in the light most
favorable to Hardage, a reasonable jury could find that Hard-
age did not unreasonably delay in reporting Sparks’ harass-
ment. Unlike in Kohler, where the victim never complained
about her supervisor’s harassment, 244 F.3d at 1181, here,
Hardage repeatedly complained about Sparks’ behavior.
Moreover, even if Hardage had not complained until Octo-
ber 2000, such a delay could not be deemed unreasonable as
a matter of law. As the EEOC Enforcement Guidance
1484 HARDAGE v. CBS BROADCASTING INC.
explains, “An employee should not necessarily be expected to
complain to management immediately after the first or second
incident of relatively minor harassment. . . . An employee
might reasonably ignore a small number of incidents, hoping
that the harassment will stop without resort to the complaint
process.” EEOC Enforcement Guidance § V.D.1. Here, Hard-
age testified that the incident in October 2000 was “over the
line” and that he went into Dean’s office the very next day
and told her, “Last night, things went way too far.” He
explained in his deposition, “When it spilled over to where it
affects the team that reports directly to me that I’m responsi-
ble for — that’s — you know, . . . I felt that it was detrimen-
tal, over the line, uncalled for.”4 Finally, even if Hardage’s
delay in reporting the harassment can be viewed as unreason-
able in light of the circumstances, this is a matter for a jury
to decide.
The majority also concludes that Hardage’s claim fails as
a matter of law because “[i]n addition to waiting half a year
to make a complaint, when Hardage finally made his com-
plaint he specifically asked the company not to investigate it.”
Maj. op. at 1468. The majority omits, however, that Hardage
opted to handle the matter himself only after Falcone pro-
vided him with the aforementioned legally inadequate
response options. Under these circumstances, it can hardly be
said that Hardage’s decision to deal with Sparks’ sexually
harassing actions himself is per se unreasonable in light of his
other options that were “do absolutely nothing” or have Fal-
cone, who promised not to take any disciplinary actions
against Sparks, “very nicely talk with her . . . and ask [her]
to please, let’s just lay back on this a little bit.”
In sum, Hardage complained numerous times to his imme-
4
Notably, the incident in October 2000 is the only incident of harass-
ment that CBS characterizes as “work related.” If this is correct, then
Hardage could not be deemed unreasonable in failing to report Sparks’
earlier conduct to CBS.
HARDAGE v. CBS BROADCASTING INC. 1485
diate supervisor, who personally observed the harassing
behavior, yet she ignored his concerns and even suggested
that Hardage sleep with Sparks “to put her in a better mood.”
Moreover, it is undisputed that Hardage formally complained
the day after the incident in October 2000, when he felt
“things went way too far.” Contrary to the majority’s conclu-
sion, CBS has not established as a matter of law that Hardage
unreasonably failed to take advantage of its corrective oppor-
tunities.
***
An employer who is on notice of alleged harassment has a
duty to adequately investigate and take prompt corrective
action reasonably calculated to end the harassing behavior.
Despite having notice of Sparks’ unwanted sexual advances,
CBS did nothing. Accordingly, I would reverse the grant of
summary judgment and remand for a trial.