Keeton v. Hill

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 6, 2000 Session

CHRISTA L. KEETON v. ARLYN HILL, ET AL.

Appeal from the Chancery Court for Davidson County
No. 98-298-III Ellen Hobbes Lyle, Chancellor

No. M1999-02272-COA-R3-CV - Filed October 10, 2000

Plaintiff, a former employee, appeals from the trial court’s grant of summary judgment to her former
employer on her sexual harassment claim. Because the employer successfully demonstrated the
elements required to establish the affirmative defense for employers recognized in Parker v. Warren
County Util. Dist., 2 S.W.3d 170, 175-76 (Tenn. 1999), we affirm the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.
and WILLIAM C. KOCH , JR., joined.

Leslie A. Bruce and J. Todd Faulkner, Nashville, Tennessee for the appellant, Christa L. Keeton.

Douglas R. Pierce and James A. Crumlin, Jr., Nashville Tennessee, for the appellees, Arlyn Hill,
Tom Chinander, and Cook's Pest Control.

OPINION

Plaintiff, Christa L. Keeton, worked as a pest control technician at Cook’s Pest Control
("Cook’s") from 1993 to 1997 when she was fired for falsifying company documents relating to her
work time. She sued her corporate employer, Cook's, her immediate supervisor, Tom Chinander,
and the district manager, Arlyn Hill, for retaliatory discharge, sexual harassment, sex discrimination,
outrageous conduct and invasion of privacy. After the trial court granted the defendants’ motion for
summary judgment, Ms. Keeton appealed the dismissal of the sexual harassment claim.

When Cook's Pest Control hired Ms. Keeton in 1993, she was required to review a policy and
procedures manual which delineated the company’s sexual harassment policy. She signed an
acknowledgment form indicating that she understood that she was “charged with knowledge of the
contents of this manual.” This written policy named specific individuals, a man and a woman, not
supervisors of Ms. Keeton, who were to be contacted if employees felt they were being subjected
to sexual harassment. The company's sexual harassment policy was set forth on page 717 of the
manual as follows:

It is Cook's Pest Control's policy to prohibit sexual harassment of one employee by
another employee or a supervisor.

Though it is not easy to define precisely what sexual harassment is, it is unwelcome
sexual behavior. The most blatant type of harassment takes the form of explicitly or
implicitly offering a benefit in exchange for sex. However, just as prohibited is the
more subtle sexual behavior that has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an intimidating, hostile or
offensive environment. It certainly includes unwelcome jokes or comments, sexual
advances, requests for sexual favors, unwanted touching or other verbal or physical
conduct of a sexual nature. Any employee who feels that he or she has been
subjected to sexual harassment should immediately report the matter to George
White, Personnel Director, or Lana Jones, Personnel Assistant, in the Corporate
Office (205-355-3285). Violations of this policy will not be permitted and will result
in disciplinary action up to and including discharge. Employees can be assured that
no one will be retaliated against for either filing a complaint or participating in an
investigation of sexual harassment.

The manual was kept in Mr. Hill's office.

Ms. Keeton also received sexual harassment training in March of 1995 during one of the
monthly meetings the district manager, Mr. Hill, held. During the meeting, he read the sexual
harassment policy to her and other employees. Ms. Keeton was instructed on the procedures for
reporting such harassment which included the individuals to whom she was to report. Plaintiff later
admitted that during the meeting Mr. Hill stated that sexual harassment would not be tolerated.
However, she also claimed that during the class, Mr. Hill described an incident where a female
harassed a male and commented, “If it had been me, I would have been flattered.” She also claimed
that during the meeting Mr. Chinander stated to her, “I guess I’ll have to stop sexually harassing you
now.”

After the meeting, the participants, including Mr. Hill, signed a training verification which
stated, "I went over all the materials you sent to the District Office and read page 717 [which
contained the sexual harassment policy quoted above] of the company policy to the following
named. [signed] Arlyn Hill, District Mgr." The record shows that Ms. Keeton signed this statement,
as did Mr. Chinander. The record also shows that Ms. Keeton contacted the personnel assistant, Ms.
Jones, once for an unspecified reason.

Over the years, Plaintiff had received disciplinary notices for failing to report her time and
attend required meetings. According to Ms. Keeton, during her tenure at Cook’s both Mr. Hill and
Mr. Chinander made off-color, sexually oriented remarks and gestures to her. At her deposition, Ms.

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Keeton offered the following description of an incident, at the end of January of 1997, when she
passed Mr. Hill in the hall, and he purportedly stated:

“Your beamers are on.” And that was just a snide remark, because I think I even had
on a jacket and I just said, I am so tired of hearing that, and kept on walking. This
was during the time when there was a lot of – I was getting a lot of friction from him
. . . I don’t know if he [heard my remark] or not.

Ms. Keeton was fired on February 3, 1997, ostensibly for failing to service two customers
while presenting documentation (a time card) to her employer that she had. She testified that this
was a customary practice. During the day she failed to service the customers, she made two work
related phone calls from home, but also admitted to running errands and working out at her health
club.

Ms. Keeton filed the underlying action on January 30, 1998, alleging sex discrimination,
retaliation, and sexual harassment under the Tennessee Human Rights Act as well as the common
law torts of invasion of privacy and outrageous conduct. She alleged that her supervisors, Mr. Hill
and Mr. Chinander, made lewd and sexually derogatory remarks to her. The complaint stated that
shortly after Ms. Keeton complained about the harassment to Cook’s at the end January 1997, she
was discharged. Ms. Keeton sought both compensatory and punitive damages.

Cook's Pest Control, Mr. Hill and Mr. Chinander jointly moved for summary judgment. The
trial court granted the motion in its totality. It found that summary judgment was proper on the
sexual discrimination claim because Plaintiff demonstrated no pretext in response to Defendants’
legitimate nondiscriminatory reason for firing her: that she falsified her time card. It also determined
that summary judgment was appropriate on the retaliation claim because the record contained no
proof that Defendants ever knew that Plaintiff had exercised her protected civil rights before she was
fired. Based on findings that (1) the alleged harassment did not culminate in any tangible
employment action, (2) the defendants sought to prevent and correct any sexually harassing behavior,
and (3) Ms. Keeton unreasonably failed to take advantage of the company’s preventative and
corrective procedures, the trial court granted summary judgment on the sexual harassment claim.
The court found that the invasion of privacy claim failed because Plaintiff conceded in her response
that this claim lacked merit and the outrageous conduct claim failed because the record contained
no evidence of such conduct.

I.

Because Ms. Keeton is challenging the entry of summary judgment, we review the decision
of the trial court de novo with no presumption of correctness on appeal. See Warren v. Estate of Kirk,
954 S.W.2d 722, 723 (Tenn. 1997); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). We must
consider the proof in the record in the light most favorable to the party opposing the motion. See
Berry v. Whitworth, 576 S.W.2d 351, 352-53 (Tenn. Ct. App. 1978). If, upon review, a genuine
issue exists or if there is doubt as to whether such issue exists, the summary judgment is improper

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and should be reversed. See Evco Corp. v. Ross, 528 S.W.2d 20, 24-25 (Tenn. 1975). However,
if both the facts and the conclusions to be drawn from the facts permit a reasonable person to reach
only one conclusion, summary judgment should be granted. See Robinson v. Omer, 952 S.W.2d 423,
426 (Tenn. 1997); Bain, 936 S.W.2d at 622.

II.

Ms. Keeton argues that issues of material fact on the reasonableness of the company’s sexual
harassment policy remain to be tried.1 She maintains that her written acknowledgment that she had
read and understood the company’s sexual harassment policy is overshadowed by her deposition
testimony that she never read the policy. She asserts that because the employee manual containing
the sexual harassment policy was located in Mr. Hill’s office, it was unreasonable to expect her, as
a sexually harassed employee, to go to her harasser's office to study the policy. Ms. Keeton further
argues that the sexual harassment training was a sham because of remarks made by Mr. Hill and Mr.
Chinander. Ms. Keeton maintains that the sexual harassment training intensified her anxiety about
reporting the harassment.

Recently, courts on both the state and federal levels have recognized an affirmative defense
from vicarious liability for employers whose employees assert claims of sexual harassment by
supervisors. Our Supreme Court described that defense as follows:

When no tangible employment action is taken, a defending employer may raise an
affirmative defense to liability or damages, subject to proof by a preponderance of
the evidence, . . . 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 unreasonably 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 sexual harassment culminates in a tangible employment action. . . .
Faragher, 118 S.Ct. at 2292-93; Ellerth, 118 S.Ct. at 2270.

Parker v. Warren County Util. Dist., 2 S.W.3d 170, 175 (Tenn. 1999) (citing Faragher v. City of
Boca Raton, 524 U.S. 775, 1188 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 1188 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)).

In order to fully analyze the availability of the affirmative defense to sexual harassment
recognized and adopted in Parker, we must first look to the trial court's findings with regard to Ms.
Keeton's sex discrimination claim. The trial court specifically found that:

Cook's is entitled to summary judgment on Plaintiff's sex discrimination claim
because, even assuming a prima facie case of sex discrimination, Plaintiff has not

1
On appeal, Ms. Keeton has not asserted any arguments involving her c laims against Mr. Hill or Mr. Chinander.

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 demonstrated pretext in response to Cook's legitimate nondiscriminatory reason for
terminating Plaintiff's employment: falsifying company documents relating to her
work time.

Ms. Keeton did not present this finding for review or otherwise challenge the disposition of
her sex discrimination claim on appeal, and the record supports the trial court's finding of fact. See
Tenn. R. App. P. 13(b), 36(a). This finding, and the evidence presented, establish that Ms. Keeton's
discharge was not a result of her supervisor's alleged harassment. See Ellerth, 524 U.S. at 765, 118
S. Ct. at 2270, 141 L. Ed. 2d at 655. Instead, her discharge was the result of the falsification of her
time records. This finding, which remains unchallenged, satisfies the first element of the affirmative
defense available under Parker permitting employers to avoid liability for supervisor sexual
harassment under Title VII: that a tangible employment action resulting from sexual harassment has
not occurred. See Lowry v. Powerscreen USB, Inc., 72 F. Supp. 2d 1061, 1070 n.10 (E.D. Mo.
1999) (finding that a plaintiff's admission that her discharge was due to her falsification of a work
return slip entitled her corporate employer to assert the affirmative defense).

The second element of the affirmative defense requires proof that Cook's reasonably sought
to prevent and correct any sexually harassing behavior. See Parker, 2 S.W.3d at 176. The record
shows that Cook's implemented a sexual harassment policy which was set forth in its policies and
procedures manual. This policy expressly prohibited sexual harassment, assured employees that it
would not be tolerated, and warned that there would be serious consequences for committing
prohibited behavior. It advised employees who felt that they were subjected to sexual harassment
to "immediately report the matter" to either of two specific individuals, a woman and a man. These
individuals were not Ms. Keeton’s supervisors and, in fact, worked in corporate offices in another
city. Employees were assured that no one would be retaliated against for either filing a complaint
or participating in an investigation of sexual harassment. The record shows that the policy was
disseminated to new employees, including Ms. Keeton, who were required to read the sexual
harassment policy and to sign an acknowledgment indicating that they had done so. The record also
shows that the policy was orally presented to Ms. Keeton and her coworkers by Mr. Hill.

We find that Cook's satisfied its burden of establishing by a preponderance of the evidence
that it exercised reasonable care to prevent and promptly correct sexually harassing behavior.
Employers need not prove success in preventing harassing behavior in order to demonstrate that they
exercised reasonable care in preventing and correcting sexually harassing conduct. See Caridad v.
Metro-North Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999), cert. denied sub nom. Metro-North
Commuter R.R. v. Norris, __U.S. __, 120 S. Ct. 1959, 146 L. Ed. 2d 791 (2000). Cook's efforts to
maintain and distribute a policy prohibiting sexual harassment and to provide a mechanism for
employees to report such conduct directly to the Personnel Department demonstrate its exercise of
reasonable care to prevent sexual harassment. See Faragher, 524 U.S. at ___, 118 S. Ct. at 2293,
141 L. Ed. 2d at 689 ("While proof that an employer had promulgated an antiharassment policy with
complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy
suitable to the employment circumstances may appropriately be addressed in any case when litigating
the first element of the defense."); see also Fierro v. Saks Fifth Avenue, 13 F. Supp. 2d 481, 491

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(S.D.N.Y. 1998) (noting that the existence of an anti-harassment policy with complaint procedure
is "an important, if not dispositive, consideration"). A policy meeting these parameters was found
to show the exercise of reasonable care in Montero v. AGCO Corp., 19 F. Supp. 2d 1143, 1146 (E.D.
Cal. 1998), aff'd, 192 F.3d 856 (9th Cir. 1999). See also Caridad, 191 F.3d at 295.

The third element of the Parker affirmative defense requires proof that the employee
unreasonably failed to take advantage of any preventive or corrective opportunities that were
provided by the employer or were otherwise available. See Parker, 2 S.W.3d at 176. This element,
which requires proof that

the employee failed in a coordinate duty to avoid or mitigate harm[,] reflects an
equally obvious policy imported from the general theory of damages, that a victim
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. Ford Motor Co. v.
EEOC, 458 U.S. 219, 231, n. 15, 102 S.Ct. 3057, 3065, n. 15, 73 L.Ed.2d 721 (1982)
(quoting C. McCormick, Law of Damages 127 (1935) (internal quotation marks
omitted)). An employer may, for example, have provided a proven, effective
mechanism for reporting and resolving complaints of sexual harassment, available
to the employee without undue risk or expense. If the plaintiff unreasonably failed
to avail herself of the employer's preventive or remedial apparatus, she should not
recover damages that could have been avoided if she had done so. If the victim could
have avoided harm, no liability should be found against the employer who had taken
reasonable care, and if damages could reasonably have been mitigated no award
against a liable employer should reward a plaintiff for what her own efforts could
have avoided.

Faragher, 524 U.S. at 806-07, 118 S. Ct. at 2292, 141 L. Ed. 2d at 688. Proof that an employee
failed to fulfill the corresponding obligation of reasonable care to avoid harm will normally suffice
to satisfy the employer's burden under the third element of the defense. See id., 524 U.S. at 807, 118
S. Ct. at 2293, 141 L. Ed. 2d at 689. Such proof is clearly evident here.

The record shows that Ms. Keeton began working for Cook's on November 15, 1993. On
her first day of employment, she signed a document stating that she had read the company's policy
manual. Ms. Keeton signed a second document dated March 3, 1995 which stated that Mr. Hill had
"read page 717 of the company policy" to her. The record shows that page 717 contained the
company's sexual harassment policy.

The record also shows that Ms. Keeton never provided the company with notice of the
prohibited conduct allegedly committed by Mr. Chinander and Mr. Hill. She never availed herself
of the procedures set forth in the sexual harassment policy, notwithstanding the fact that she had
contacted the one of the individuals named in the policy on a previous occasion for an unrelated,
unspecified purpose. Inasmuch as the fact that the policy and procedures manual was kept in Mr.
Hill's office did not prevent Ms. Keeton from contacting that individual on the previous occasion,

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we find it unreasonable that Ms. Keeton did not avail herself of the remedies the company made
available to victims of sexual harassment. Under these circumstances, where the company had a
reasonable, broadly disseminated policy prohibiting sexual harassment, we find that Ms. Keeton's
failure to report the alleged harassment was unreasonable. See id.

This finding is supported by other cases following Ellerth and Faragher. In Hill v. American
Gen. Fin. Corp., 218 F.3d 639 (7th Cir. 2000), the Seventh Circuit found that an employee who
complained of sexual and racial harassment by a supervisor in two letters, one anonymous and one
signed with a false name, failed to take advantage of the opportunities her employer presented to
prevent sexual harassment. The court noted that the employer had a sexual harassment policy in
place and as soon as the employee made an official complaint, the company immediately took
corrective action. Hill, 218 F.3d at 643. On these facts, the court found that the employer was
entitled to summary judgment as a matter of law. See id. at 644. In Madray v. Publix Supermarkets,
Inc., 208 F.3d 1290, 1301 (11th Cir. 2000), the two employee plaintiffs admitted that they understood
their employer's complaint procedures and knew who to contact under the sexual harassment policy.
"Yet despite knowing exactly who they should contact regarding sexual harassment, the plaintiffs
chose to complain informally to managers that were not authorized to receive such complaints under
the . . . sexual harassment policy." Madray, 208 F.3d at 1301. The Eleventh Circuit granted
summary judgment to the employer after concluding that the employees unreasonably delayed
utilizing the employer's complaint procedures. See id. at 1302; see also Montero, 192 F.3d at 863
(finding an employee's delay in utilizing an employer's established complaint procedures equated to
unreasonably failing to take advantage of the company's preventive and corrective opportunities).

Ms. Keeton asserts that the above-quoted comments she made to Mr. Hill as they passed in
the hall shortly before her firing constituted notice of the harassment. She maintains that because
Defendants had notice of the harassment, her failure to lodge a formal complaint did not preclude
Defendants’ liability. For this, Ms. Keeton relies on Hollis v. Fleetguard, Inc. 668 F. Supp. 631
(M.D. Tenn. 1987), aff’d, 848 F.2d 191 (6th Cir. 1988). She claims that this notice triggered a duty
to investigate her complaint.

We reject Ms. Keeton's contention that her comment to Mr. Hill constituted notice of her
complaint. The record contains an affidavit by Mr. Hill which states that "at no time did she ever
make known to me any complaints that she might have concerning sexual harassment. Specifically,
I never heard her state that she was 'sick' of any comments." At her deposition, Ms. Keeton admitted
that she was unsure that Mr. Hill had heard her. She has presented no evidence to counter Mr. Hill's
sworn statement. In any event, Ms. Keeton was aware that the company’s sexual harassment policy
listed individuals other than Mr. Hill as the proper person with whom to file complaints.

Moreover, her reliance on Hollis is misplaced. Hollis was issued years before the Supreme
Court released the Ellerth or Faragher cases recognizing the affirmative defense at issue here.

Ms. Keeton also asserts that her failure to avail herself of the company’s procedure for
preventing sexual harassment was not unreasonable in view of the comments made by Mr. Hill and

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Mr. Chinander during the training. We do not believe that the statements, assuming they were made,
were sufficient, in and of themselves, to make Ms. Keeton’s failure to report the alleged sexual
harassment reasonable. She never attempted to contact the personnel officers, never informed them
of her experiences during the training, and had no reasonable basis for ignoring the company’s
pledge to investigate and eliminate sexual harassment. While we agree that a good written policy
cannot save an employer from liability in the face of facts demonstrating the employer’s disregard
for the policy or its implementation, Ms. Keeton has simply failed to provide any such facts.

III.

Accordingly, we affirm the trial court's decision to grant the motion for summary judgment
asserted by Arlyn Hill, Tom Chinander, and Cook's Pest Control. This case is remanded for any
further proceedings which may be necessary. Costs of this appeal are taxed to the Appellant, Christa
L. Keeton, for which execution may issue if necessary.

____________________________________
PATRICIA J. COTTRELL, JUDGE

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