A casual observer of contemporary American workplaces would quickly conclude that sexual harassment complaints are among any company’s highest operational priorities. Courts expect personnel departments to drop whatever else they are doing, launch an immediate investigation, and wrap up that investigation within two weeks. Since companies can be equally faulted (and found liable) for delayed investigations that reach the proper conclusion, the correct identification of sexual harassment complaints is itself an essential priority.
The December 1999 Employment Law Alert, after surveying cases and the EEOC’s latest interpretative guidance, advised: “Start as early as you can and be certain to finish in two weeks.” That advice was underscored by the Eighth Circuit’s decision in Dhyne v. Meiners Thriftway, 184 F.3d 983 (8th Cir., July 21, 1999), rehearing denied, 1999 U.S. App. LEXIS 20299 (August 24, 1999). Kristen Dhyne, a checker at a family-owned grocery store in Kansas City, complained that a coworker, Rodney Davis, a grocery sacker, subjected her to “quiet but persistent sexual harassment and abuse.” Dhyne claimed Davis called her offensive names, commented cruelly on parts of her body, propositioned her, pinched her, brushed against her, and lifted the legs of her shorts. Dhyne repeatedly complained to the store’s assistant manager. After each complaint, the assistant manager confronted Davis who denied the allegations. The assistant manager told Davis “if this is happening, you better cut it out or you’ll lose your job.” After Dhyne’s fourth complaint, the store transferred Davis to the night shift where he would have no further contact with Dhyne.
The store didn’t know what to do. Davis denied the allegations, claiming Dhyne had something against him. No one corroborated Dhyne’s allegations. Finally, Davis was African-American and accused Dhyne of making racially motivated comments to him.
The store argued it was entitled to summary judgment as a matter of law because, by transferring Davis to the night shift, it took prompt remedial action reasonably calculated to end the harassment. The district court and the Eighth Circuit disagreed because “there was evidence of unacceptable delay.” Although the assistant manager confronted Davis after each of Dhyne’s four complaints, it took him two months to bring Dhyne’s complaints to his superior so effective action could finally be taken.
The appeals court said “This is a close question.” The store’s transfer action was applauded but “[t]he problem with this remedial action is [the] delay in taking it.” The court acknowledged “some” delay must be tolerated in many sexual harassment cases. It pointed, as an example, to the store’s dilemma:
Here, for example, Davis denied the alleged harassment, and no other employee corroborated Dhyne’s complaints of verbal rather than physical harassment. An employer must be allowed some time to gauge the credibility of the complainant and the seriousness of the situation if we are to observe the Supreme Court’s caution that Title VII is not ‘a general civility code for the American workplace.’
The store’s dilemma, of course, was compounded by the fact that Davis was asserting Dhyne had a reason to lie and was also subjecting him to racial harassment. Nevertheless, the two-month delay between Dhyne’s first complaint and the store’s decision to transfer Davis to the night shift was “unacceptable” as a matter of law and blocked summary judgment in the store’s favor.
Even where the sexual harassment evidence is inconclusive, the court expected the store to separate Davis and Dhyne. The store made the right decision by transferring Davis. The store’s only problem was the “unacceptable” two-month delay before the transfer and before Dhyne’s repeated complaints were brought to the attention of higher management.
Many companies promise in writing to investigate every workplace harassment complaint. Before that promise can be fulfilled, however, a company must determine that a proper harassment complaint has been made. There can be circumstances where an employee fails to make a proper complaint. Although companies are well-advised to err on the side of accepting the “complaint,” they should know when they do not have to launch an immediate investigation.
A supervisor who sees sexual graffiti must investigate authorship even though no individual employee actually complained. Waltman v. International Paper, 875 F.2d 468 (5th Cir. 1989). A complaining employee must also provide specifics. In Hollis v. Fleetguard, 668 F. Supp. 631 (M.D. Tenn. 1987), aff’d, 848 F.2d 191 (6th Cir. 1988), the employee provided only vague allegations and refused to give the company names or other details. The company decided only to monitor the situation and was not required to launch an investigation. Even in those “no details” cases, the company should note the employee’s failure to cooperate, take appropriate interim corrective actions, and follow up with the complaining employee.
The Second Circuit addressed a “no details” sexual harassment situation in Caridad v. Metro-North Commuter Railroad, 1999 U.S. App. LEXIS 17892 (2d Cir., July 29, 1999). Veronica Caridad was the only female electrician on her shift, which included twelve men. She alleged her male supervisor sexually harassed her over a six-month period. Caridad also alleged she was treated “hostilely” by her male coworkers. The problem, however, was that, despite knowing Metro-North had a readily available sexual harassment complaint procedure, Caridad never complained until a disciplinary hearing focused on her own excessive absenteeism. Even then, she did not provide “specifics” and, indeed, “never mentioned” her male supervisor’s conduct. Caridad said she did not want Metro-North to investigate her “harassment” complaint because “she did not think an investigation would improve matters” and she “did not trust” either the railroad or its equal employment office.
Metro-North did not investigate Caridad’s “complaint.” It offered to transfer her to another shift. She declined on the ground that the other work site would also be “predominantly male.” Several weeks later, she resigned. The affirmative action officer then wisely sent her a letter advising the railroad was “administratively closing her complaint as of today” based on her “failure to contact [it] regarding the investigation/resolution of your internal discrimination complaint.”
District Judge Jed Rakoff dismissed Caridad’s sexual harassment claims because “she refused to cooperate with the investigation commenced by Metro-North into her allegations.” The Second Circuit unanimously affirmed summary judgment for Metro-North on this point. It held Caridad had indeed unreasonably failed to take advantage of the preventive and corrective opportunities provided under Metro-North’s anti-harassment policy. Her reasons for not cooperating were “insufficient to preclude summary judgment in favor of Metro-North” because her reluctance to provide specific details was “not based on a credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint.” The EEOC’s June 18, 1999 vicarious liability policy guidance agrees that the second prong of the Supreme Court’s Faragher affirmative defense (i.e., the employee’s unreasonable failure to take advantage of available complaint procedures) is satisfied if the employee, even after filing a harassment complaint, “provides no information to support his/her allegation, gave untruthful information or otherwise failed to cooperate in investigating the complaint . . . .”
Complaining to the Wrong Person
Like the proverbial tree that falls in the forest with no one around to hear the noise, a harassment complaint made to the wrong person is not a valid harassment complaint requiring company action. The EEOC notwithstanding, complaints made to union representatives are not proper complaints to the company. Similarly, Guerra v. Editorial Televisa-USA, 80 FEP Cases 463 (S.D. Fla. June 4, 1999), held that harassment complaints made to low-level employees in derogation of the reporting options set forth in a company’s harassment policy do not require company action.
Nuris Geurra worked as Circulation Inspector for Editorial Televisa-USA, an international publisher of Spanish-language magazines. She claimed she was continuously harassed by her immediate supervisor and trainer during their frequent visits together to various retail stores. The company’s sexual harassment policy told new employees (such as Guerra) they “should report such actions as soon as possible to the appropriate supervisor or to the Human Resources Director.” Although Guerra denied receiving the employee handbook containing this complaint procedure, she knew who she should complain to because she warned her harassing supervisor she “was going to talk to the personnel director” about him.
Guerra never actually complained to the company’s Human Resources Director. She complained to the company’s receptionist and switchboard operator, Diana Molinares. She also went to the Human Resources office and complained to Yolanda Romero, the assistant to the Human Resources Director. Romero told Guerra to be firm and clear and tell her supervisor to stop the harassment. After another incident with her supervisor, Guerra again visited the Human Resources office but found only Molinares and the company’s accountant there. Molinares told Guerra to denounce her supervisor “and not to take any abuse.” Despite these two trips to the Human Resources office, Guerra did not ask for an appointment with the Director, leave any message, or try to call him. Following a further incident with her supervisor, she contacted Romero who immediately scheduled her for an appointment the next day with the Director. When she told the Director about her supervisor’s harassment, he immediately told the supervisor not to work with Guerra. When the Director interviewed the supervisor the following day, the supervisor admitted several “sexual interactions” with Guerra but insisted they were consensual. A few days later, the supervisor was suspended and then terminated. There was no further sexual harassment after Guerra finally met with the Human Resources Director.
Guerra’s first argument was that the company’s complaint procedure was legally defective because it did not provide “gender-friendly” reporting mechanisms. This failed because the policy actually permitted reporting to any “appropriate supervisor.” It did not restrict Guerra to a report to her immediate supervisor, the alleged harasser, or even to male supervisors, as her “gender-friendly” argument contended. She then tried to impute to the company the knowledge of her earlier complaints to the receptionist and switchboard operator and the Human Resources Director’s assistant. District Judge Ursula Ungaro-Benages rejected this argument because those individuals were neither part of “higher management” nor employed as the employer’s “agents.” Those complaints did not place the employer on notice of the alleged harassment. Furthermore, there was no proof those individuals had any duty or authority to take any action with respect to harassment complaints, including relaying them to higher management.
This was a fact-intensive result. If the corporate anti-harassment policy had stated complaints could be made “to Human Resources” (instead of “to the Human Resources Director”) or that “employees” receiving complaints had an obligation to pass them on to management, the result may have been different. One also wonders why the Human Resources Director’s assistant did not make an appointment for Guerra as soon as she complained to her, but the district court did not require that response.
Courts are understandably reluctant to hold companies liable where an employee does not use available and well-known harassment complaint procedures. This is particularly true when a complaint that follows those published procedures is made and quickly resolves the matter. Complaints are supposed to make companies aware of harassing conduct so they can take prompt remedial action. Complaints that are vague and lacking details or complaints that are lodged with the wrong people do not put a company on notice of anything. They are insufficient as a matter of law. We do not recommend that these “non-complaints” be ignored because a court or jury may much later find they are legally insufficient. Prudent companies will have strategies in place to deal with both the undocumented complaint and the complaint made to lower-level individuals including those who just happen to work in the personnel department.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.