UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOYCE M. REESE,
Plaintiff-Appellant,
and
JAMES STEVEN REESE,
Plaintiff,
v. No. 00-1604
MERITOR AUTOMOTIVE, INCORPORATED,
Defendant-Appellee,
and
JOHN ROBERT PARR, Individually,
Defendant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-99-56-1-T)
Argued: January 24, 2001
Decided: March 8, 2001
Before MOTZ and TRAXLER, Circuit Judges, and
Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
2 REESE v. MERITOR AUTOMOTIVE, INC.
COUNSEL
ARGUED: Patricia Michelle Rippon, VAN WINKLE, BUCK,
WALL, STARNES & DAVIS, P.A., Asheville, North Carolina, for
Appellant. Margaret Hutchins Campbell, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, P.C., Atlanta, Georgia, for Appellee.
ON BRIEF: A. Bruce Clarke, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joyce M. Reese appeals from a grant of summary judgment in
favor of Meritor Automotive, Inc. ("Meritor") on her Title VII sexual
harassment claim and her state-law negligent infliction of emotional
distress claim. We affirm.
I.
Meritor is a corporation that manufactures automotive components.
In 1993, Meritor hired Reese as a machinist. The incidents giving rise
to the present case, viewed in the light most favorable to Reese, began
in October 1997 when John Parr, Meritor’s maintenance facility man-
ager, approached Reese about his suspicions that she was using drugs.
Parr and Reese had been on friendly terms before this meeting, often
chatting about automobile racing and fishing. Reese described Parr as
a person with whom she could "talk . . . about almost anything." J.A.
277. Parr informed Reese that he was aware she was using the
methamphetamine "crank," but assured Reese that he would not
report her because he was fond of her. Reese interpreted Parr’s
remarks as a demand for sexual favors in exchange for Parr’s silence.
Approximately one week later, at Parr’s behest, Reese accompa-
nied Parr to his office. Parr then turned off the lights and made
REESE v. MERITOR AUTOMOTIVE, INC. 3
advances which included pulling down Reese’s coveralls and fondling
her. After this incident Parr began to visit Reese at her work station.
He often took her to secluded parts of the plant where he would kiss
and fondle her. Parr told Reese that he loved her, promised to leave
his wife, and asked Reese to leave her husband. Parr even promised
to kill Reese’s husband if she would just make the request.
Reese contacted Meritor’s Employee Assistance Program about her
drug addiction and entered an area hospital for drug rehabilitation on
November 3, 1997. Reese was placed on paid leave and did not return
to work until February 23, 1998. While Reese was undergoing inpa-
tient and outpatient treatment Parr continued to express interest in her.
Parr even arranged for Reese’s paycheck to be delivered to him so he
would have an excuse to see her. Parr also called Reese at home and
had forced her vehicle off the highway so he could talk with her.
Parr’s involvement with Reese continued upon her return to work.
Reese frequently found love letters from Parr in her locker and his
visits to her work station increased. In early April 1998 Mark Turner,
Reese’s direct supervisor, confronted Reese about her poor time man-
agement. Turner informed Reese that her lengthy breaks were ham-
pering her productivity and that she needed to modify her behavior.
Fearing for her job, Reese explained that she was unable to stop
Parr’s constant visits; however, she did not mention that Parr’s inter-
est in her was unwelcome.
Having identified Parr as a contributor to Reese’s poor time man-
agement, Turner spoke with him and asked him to visit Reese less
often. Parr complied with this request for a short while, but then
resumed his previous pattern of behavior. Consequently, Reese’s time
away from her work station again caught management’s eye.
On May 14 Turner spoke with Reese about her recurrent problems
with time management. During this conversation Reese began to cry,
showed Turner a letter Parr had given her, and asked that Parr be kept
away from her. Turner forwarded the letter to Meritor’s manufactur-
ing manager Fred Harbinson, and Meritor suspended Parr the next
day. Approximately one month later, Parr and Meritor entered into a
separation agreement under which Parr took early retirement and
4 REESE v. MERITOR AUTOMOTIVE, INC.
agreed never to "contact, communicate with, or approach . . . Joyce
Reese or any member of her immediate family." J.A. 1101.
During the time which Parr beset Reese, Meritor had in place a
written policy against sexual harassment. Meritor’s employee hand-
book, which was given to Reese when she was hired, prohibited "un-
welcome sexual advances, requests for sexual favors and other verbal
or physical conduct of a sexual nature." J.A. 597. The policy encour-
aged employees to report harassment to management, and Meritor
conducted annual classes on sexual harassment in the workplace.
Reese was well-versed in Meritor’s sexual harassment policy. In
1995, she had reported a co-worker to Turner for making sexual
advances. Meritor promptly dealt with the situation and the harass-
ment ceased. In 1996, Reese herself was reported for telling an off-
color joke that offended a co-worker. Meritor reprimanded Reese for
this behavior.
Reese filed suit against Meritor and Parr in March 1999.* As to
Meritor, Reese alleged a violation of Title VII and negligent infliction
of emotional distress. At the close of discovery the district court
granted Meritor’s motion for summary judgment. Viewing the evi-
dence in a light most favorable to Reese, the district court concluded
that Meritor had established both prongs of the affirmative defense
outlined in Faragher v. City of Boca Raton, 524 U.S. 775, 807-08
(1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-
65 (1998). In addition, the court found that Meritor was not negligent
in its handling of the harassment complaint. Reese appeals.
II.
A summary judgment motion should be granted only if there is no
genuine dispute as to an issue of material fact and the moving party
is entitled to judgment as a matter of law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court must consider
the evidence in the light most favorable to the non-moving party and
draw all reasonable inferences from the facts in the non-movant’s
favor. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
*This appeal concerns only the claims against Meritor.
REESE v. MERITOR AUTOMOTIVE, INC. 5
To prevail on a Title VII hostile work environment claim, Reese
must establish four elements: (1) unwelcome conduct, (2) based on
Reese’s gender, (3) sufficiently pervasive or severe to alter the condi-
tions of employment and to create a hostile work environment, and
(4) some basis for imputing liability to Meritor. See Smith v. First
Union Nat’l Bank, 202 F.3d 234, 241 (4th Cir. 2000). The district
court assumed the first three elements had been established, but
granted summary judgment on the fourth element. Accordingly, this
case hinges on whether liability for Parr’s conduct is imputable to
Meritor.
The affirmative defense of Faragher and Ellerth permits an
employer to avoid strict liability for a supervisor’s sexual harassment
of an employee if no adverse tangible employment action was taken.
See Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765. Examples
of adverse tangible employment action include "discharge, demotion,
or undesirable reassignment." Faragher, 524 U.S. at 808; Ellerth, 524
U.S. at 765. If entitled to raise the affirmative defense, the employer
must establish two elements: "(a) that the employer exercised reason-
able care to prevent and correct promptly any sexually harassing
behavior, and (b) that the plaintiff employee unreasonably failed to
take advantage of any preventative or corrective opportunities pro-
vided by the employer or to avoid harm otherwise." Faragher, 524
U.S. at 807; Ellerth, 524 U.S. 765. Because Reese does not claim that
Meritor took adverse tangible employment action against her, Meritor
is permitted to raise the affirmative defense.
A.
Reese argues that Meritor did not take reasonable care to prevent
and correct sexually harassing behavior because Meritor’s anti-
harassment policy was not an effective preventative program. In this
circuit, dissemination of "an effective anti-harassment policy provides
compelling proof" that an employer has exercised reasonable care to
prevent and correct sexual harassment. Lissau v. Southern Food Serv.,
Inc., 159 F.3d 177, 182 (4th Cir. 1998). Evidence that the policy was
adopted or implemented in bad faith or that the policy was deficient
rebuts this proof. See Brown v. Perry, 184 F.3d 388, 396 (4th Cir.
1999).
6 REESE v. MERITOR AUTOMOTIVE, INC.
Reese concedes that Meritor had in place a written policy against
sexual harassment that prohibited "unwelcome sexual advances,
requests for sexual favors and other verbal or physical conduct of a
sexual nature." J.A. 597. The policy encouraged an employee experi-
encing sexual harassment to "bring it to the attention of his or her
supervisor, the Personnel Department or any other member of man-
agement." J.A. 597. In case the employee felt uncomfortable reporting
the harassment to officials inside the plant, Meritor provided a toll-
free hotline for employees to report the harassment to corporate head-
quarters.
Furthermore, Reese’s experience with Meritor’s sexual harassment
policy indicates that it was quite effective. In 1995, Reese reported a
co-worker to Turner for making sexual advances. Though Reese
described the co-worker as merely "infatuated" with her and did not
believe she was being harassed, Meritor recognized the unwelcome
conduct as sexual harassment. J.A. 837. Turner explained to Reese
that the co-worker’s conduct was inappropriate and violated Meritor’s
policy against such harassment. Meritor promptly dealt with the situa-
tion and the harassment ceased. In 1996, Reese was reported for tell-
ing an off-color joke that offended a co-worker. Meritor reprimanded
Reese for this behavior and explained that the workplace was an
improper setting for ribald humor.
In an effort to paint Meritor’s policy as dysfunctional, Reese offers
the declarations of three former Meritor employees. In the main, the
affidavits state that those who report sexual harassment are ostracized
by co-workers and that management somehow creates an environment
conducive to harassment. Replete with hearsay and often conclusory,
the affidavits cannot create a genuine issue of material fact. See Evans
v. Technologies Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.
1996) (noting that conclusory affidavit cannot defeat summary judg-
ment); Maryland Highways Contractors Ass’n v. Maryland, 933 F.2d
1246, 1251 (4th Cir. 1991) (noting that "hearsay evidence, which is
inadmissible at trial, cannot be considered on a motion for summary
judgment"); see also Anderson, 477 U.S. at 251 (a scintilla of evi-
dence is insufficient to bar summary judgment). In light of the written
policy in effect and Reese’s experience with the policy, we conclude
that Meritor took reasonable steps to prevent sexual harassment.
REESE v. MERITOR AUTOMOTIVE, INC. 7
Reese also alleges that Meritor did not act promptly to correct
Parr’s behavior. According to Reese, Meritor knew about the sexual
harassment for months but did nothing to stop it. However, at deposi-
tion Reese admitted that May 14 was the first time she ever alerted
management that Parr’s attentions were unwelcome. On that day Tur-
ner spoke with Reese about her continued problems with time man-
agement. During this conversation Reese was overcome with emotion
and indicated that Parr’s attentions were unwanted. Meritor sus-
pended Parr the next day and approximately one month later Parr took
early retirement conditioned on his promise to never again approach
Reese or her family.
In the face of this evidence of swift corrective action, Reese argues
that Meritor should have suspected sexual harassment from the fact
that Parr was taking her away from her work station for extended
periods. At the very least, Reese asserts, Meritor should have inquired
whether her relationship with Parr was consensual. We disagree that
Meritor’s knowledge that Parr and Reese were spending time together
gave rise to a duty to inquire about their relationship. The questions
Reese insists that Meritor should have asked are intrusive and might
easily entangle Meritor with the private lives of its employees. See
Ellerth, 524 U.S. at 770 (Thomas, J., dissenting) (concerns of privacy
dictate that in the quest to prevent sexual harassment an employer
should not be required to take "extraordinary measures" and intrusive
measures "that would revolutionize the workplace in a manner incom-
patible with a free society"). The simple fact that two people spend
an inordinate amount of time together does not give rise to a duty on
the part of the employer to pry into the nature of the relationship. This
is especially true in this case when Parr and Reese, long before the
alleged harassment began, were on very friendly terms and conversed
"about almost anything." J.A. 277. Accordingly, we conclude that
Meritor took reasonable care to correct promptly the inappropriate
behavior.
B.
Reese argues that her reluctance to report Parr’s conduct was not
unreasonable. Reese again avers that Meritor was aware of the harass-
ment because Reese was spending so much time with Parr and there-
fore her going to management would have accomplished nothing. In
8 REESE v. MERITOR AUTOMOTIVE, INC.
this circuit, "evidence that the plaintiff failed to utilize the company’s
complaint procedure will normally suffice to satisfy [the company’s]
burden under the second element of the defense." Barrett v. Applied
Radiant Energy Corp., No. 99-2597(L), 2001 WL 121142, at *4 (4th
Cir. Feb. 13, 2001) (internal quotation marks omitted) (alteration in
original). For Title VII’s prohibitions against sexual harassment to
function properly, it is incumbent upon employees to report improper
behavior. See Faragher, 524 U.S. at 806 (observing "that a victim [of
sexual harassment] has a duty to use such means as are reasonable
under the circumstances to avoid or minimize the damages that result
from violations of the statute") (internal quotation marks omitted);
Parkins v. Civil Constructors, Inc., 163 F.3d 1027, 1038 (7th Cir.
1998) (explaining that "the law against sexual harassment is not self-
enforcing and an employer cannot be expected to correct harassment
unless the employee makes a concerted effort to inform the employer
that a problem exists") (internal quotation marks omitted).
We understand that an employee might be embarrassed to discuss
sexual harassment with company officials. Such matters are of a deli-
cate nature, making the employee hesitant to broach the subject.
"Nevertheless, this ‘inevitable unpleasantness’ cannot excuse an
employee from taking advantage of [the] employer’s complaint proce-
dure." Barrett, No. 99-2597(L), 2001 WL 121142, at *5 (4th Cir. Feb.
13, 2001). The effects of excusing failures to report would be far
reaching and inconsistent with Title VII’s goal of purging the work-
place of sexual harassment. The harasser’s conduct would continue
unabated, leading the harasser and other employees to conclude that
such behavior is acceptable.
Though Parr’s advances began in October 1997, Reese did not
inform Meritor that Parr’s attention was unwelcome until May 14,
1998. Reese was very familiar with the complaint procedure, yet over
six months passed before she advised Meritor of the problem. As pre-
viously discussed, Meritor’s knowledge that Reese and Parr were tak-
ing extended breaks together does not give rise to constructive notice
of sexual harassment. Accordingly, Meritor has established the sec-
ond prong of the affirmative defense.
III.
The district court also granted summary judgment on Reese’s neg-
ligent infliction of emotional distress claim. Reese alleges that her
REESE v. MERITOR AUTOMOTIVE, INC. 9
emotional distress is causally connected to Parr’s harassment as well
as Meritor’s failure to investigate her complaints and take corrective
action. Under North Carolina law, to prove negligent infliction of
emotional distress a plaintiff must establish "that (1) the defendant
negligently engaged in conduct, (2) it was reasonably foreseeable that
such conduct would cause the plaintiff severe emotional distress . . .,
and (3) the conduct did in fact cause the plaintiff severe emotional
distress." Johnson v. Ruark Obstetrics & Gynecology Assocs., 395
S.E.2d 85, 97 (N.C. 1990).
Like the district court, we see no evidence that Meritor acted negli-
gently. Meritor exercised reasonable care to prevent and correct sexu-
ally harassing behavior, and Reese unreasonably failed to take
advantage of preventative or corrective opportunities to avoid the
harm. Hence, Reese cannot establish the first element of her negligent
infliction of emotional distress claim.
IV.
For the foregoing reasons, we affirm the district court’s decision
granting summary judgment to Meritor on Reese’s Title VII claim
and her negligent infliction of emotional distress claim.
AFFIRMED