United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 4, 2005 Decided May 24, 2005
No. 04-7063
LINDA ROEBUCK,
APPELLANT
v.
ODIE WASHINGTON, DIRECTOR, D.C. DEPARTMENT OF
CORRECTIONS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01564)
Linda M. Correia argued the cause for appellant. With
her on the briefs were Susan L. Brackshaw and Jonathan C.
Puth.
David A. Hyden, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellee. With him on the brief were Robert J. Spagnoletti,
Attorney General, and Edward E. Schwab, Deputy Attorney
General.
Before: GINSBURG, Chief Judge, and HENDERSON and
RANDOLPH, Circuit Judges.
2
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Linda Roebuck sued her
employer, the District of Columbia Department of Corrections,
under Title VII of the Civil Rights Act of 1964, and her
supervisor, Larry Corbett, under 42 U.S.C. § 1983, alleging
Corbett had sexually harassed her. The jury found Corbett but
not the Department liable. The Department prevailed by
proving (1) it had “exercised reasonable care to prevent and
correct promptly any sexually harassing behavior,” and (2)
“Roebuck [had] unreasonably failed to take advantage of ...
preventive or corrective opportunities provided by the
[Department],” Special Verdict at 2; those findings made out an
affirmative defense pursuant to Faragher v. City of Boca Raton,
524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998).
Roebuck appeals, arguing principally that the
Department had taken a “tangible employment action” against
her and thereby forfeited the Faragher-Ellerth affirmative
defense. Alternatively, Roebuck argues first that the district
court’s instruction on the affirmative defense misled the jury
about the Department’s burden to prove she acted unreasonably
in failing to complain earlier and, second, that the Department
did not produce evidence sufficient to carry its burden. We
affirm the judgment of the district court.
I. Background
Linda Roebuck began working for the D.C. Department
of Corrections in 1986. In 1993 she was assigned to work as an
administrative assistant in the Office of the Major at the D.C.
Jail. In 1995 Larry Corbett was promoted to the position of
Major, making him Roebuck’s direct supervisor; soon thereafter,
Corbett began sexually harassing her “off and on.” In August
3
1997 Corbett was promoted to Deputy Warden, and later that
same month he asked Roebuck to transfer to the Office of the
Warden and continue serving as his administrative assistant.
Roebuck agreed but when she resumed working for Corbett in
September, he resumed harassing her.
In October Corbett asked Roebuck out to dinner and,
when she refused, he began to question her about her previous
relationship with his brother. In November Corbett’s father died
and Roebuck reluctantly agreed to have dinner with Corbett in
order to console him, but she brought her son along to avoid
being alone with Corbett. After dinner they returned to
Roebuck’s residence, where Corbett invited himself in and
remained for over an hour. When Roebuck finally told Corbett
to “go home to your wife” and showed him to the door, Corbett
unexpectedly grasped Roebuck and tried to kiss her. Roebuck
refused, saying, “I told you no, I don’t date married men.”
Corbett left, but the next day at work, he expressed his
displeasure by sticking his tongue out at Roebuck.
In mid-December Corbett showed up unannounced at
Roebuck’s house and asked her to accompany him on an
overnight shopping trip to Williamsburg, which invitation
Roebuck declined. Sometime before Christmas, Corbett again
stopped by Roebuck’s house, but Roebuck’s son, per her
instructions, told Corbett she was asleep.
On Christmas Day Corbett summoned Roebuck to his
office and again grabbed her and tried to kiss her. Lieutenant
James Clark, who witnessed Corbett’s unwanted groping,
reported the incident to the Warden that same day. A couple
days later, Corbett left a note reading “Sexy” on top of
Roebuck’s work assignments. When Roebuck asked Corbett
about the meaning of the note, Corbett responded, “You,
Roebuck,” making the shape of an hourglass with his hands.
4
The next day Corbett warned Roebuck: “Don’t let me find out
you’re taking sides with Lieutenant Clark.”
Sometime in January 1998 Corbett told Roebuck she
should wear her hair up “because [she] was sexier” that way,
and that she should wear pants instead of skirts because her legs
were distracting. On January 16 Corbett called Roebuck into his
office with what Roebuck characterized as “bedroom music”
playing and simply stared at her, saying nothing; when Roebuck
asked, “Well, what do you want,” Corbett just kept staring.
Roebuck eventually left, disgusted, but Corbett immediately
called her back to his desk and repeated the silent-staring
routine. That was apparently the last straw as far as Roebuck
was concerned; on January 21 she complained to Lieutenant
Clark of sexual harassment by Corbett.
The next day Roebuck discovered the lock on Corbett’s
office door had been changed. Another administrative assistant,
Violet Hicks, had a key to the new lock, and she let Roebuck
into the office to retrieve her assignments.
On February 6 the Warden of the D.C. Jail, Mario
Randall, met with Corbett to discuss Roebuck’s complaint.
Thereafter Randall sent a memorandum up the departmental
chain of command recommending that Roebuck be reassigned
to the “relief pool,” which was by all indications not a desirable
transfer. Before Roebuck was ever apprised of the proposed
transfer, however, Randall changed his mind, concluding “the
action to move her back to the correctional force ... gave the
appearance of being retaliatory.” On February 10 he instead
informed Roebuck she would be switching duties with Violet
Hicks. Roebuck said she did not want to make the switch.
The change in her duties never took place because
Roebuck went on sick leave for six weeks, during which time
5
she sought psychological counseling for the stress and anxiety
Corbett had caused her. In the meantime Corbett was demoted
and transferred to another facility. When Roebuck returned she
resumed her old job with a new boss, and her sick leave was
restored.
Roebuck later sued both Corbett and the Department.
The district court concluded the Department had not taken any
“tangible employment action” against Roebuck and therefore
could present the affirmative defense to vicarious liability
established in Faragher and Ellerth. The case was tried to a
jury, which found Corbett individually liable, pursuant to 42
U.S.C. § 1983, and awarded damages against him in the amount
of $5,000. In a special verdict, the jury also found the
Department had made out the Faragher-Ellerth affirmative
defense. Special Verdict at 2. Roebuck moved for judgment as
a matter of law, which the district court denied.
II. Analysis
On appeal Roebuck contends the district court erred in
allowing the Department to defend on the ground it had taken no
“tangible employment action” against her. In the alternative,
Roebuck argues that the district court’s instruction to the jury
was misleading and contrary to law with respect to the
affirmative defense. Finally, Roebuck contends the Department
failed to produce legally sufficient evidence to support the jury’s
finding that Roebuck acted unreasonably in failing earlier to
report Corbett’s sexual harassment.
A. Tangible Employment Action
The Supreme Court held in Faragher that “when the
supervisor’s harassment culminates in a tangible employment
6
action” against the plaintiff employee, the employer is
vicariously liable for the harassment. 524 U.S. at 808. In
Ellerth, decided the same day, the Court elaborated: “A tangible
employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” 524 U.S. at
761. Roebuck argues the Department took three tangible
employment actions against her, namely, (1) Corbett changing
the locks on his office door; (2) Warden Randall writing and
sending up the chain of command a memorandum requesting
Roebuck’s transfer to the relief pool; and (3) Randall telling
Roebuck she would be swapping duties with Violet Hicks.
The district court held, and the Department contends,
that Corbett’s changing the locks does not amount to a tangible
employment action. The only consequence identified by
Roebuck was that on one occasion she had to ask Ms. Hicks to
open the door to Corbett’s office so she could get her work
assignments. Even if Roebuck had to get someone to let her in
every day from January 22 through February 10 -- upon which
the record is silent -- she still fails to make out a tangible
employment action because, as the district court stated, she did
“not provide [any] evidence that changing the locks in fact
interfered with [her] ability to perform her job.”
Roebuck argues the district court “incorrectly focused on
whether [her] compensation was affected or whether she
sufficiently proved the degree of impact that such an action had
on her ability to perform her job.” According to Roebuck “[t]he
focus of the Faragher/Ellerth standard of vicarious liability is
on the fact of the official action, not on the degree of the impact”
it had.
Roebuck’s asserted “focus” is far different from that of
7
the Supreme Court. Indeed, in defining “tangible employment
action,” the Court could hardly have been more clear that it is
not “the fact of the official action,” as Roebuck would have it,
but its effect upon the plaintiff that matters. See Ellerth, 524
U.S. at 761 (tangible employment action entails “a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits”). Because Roebuck points to no effect, let alone a
significant effect, that Corbett’s changing the locks had upon her
employment status, her work, or her benefits, we conclude it
was not a tangible employment action.
Roebuck next argues that Warden Randall’s proposal to
transfer her to the relief pool, which he sent up the departmental
chain of command, was a tangible employment action. Randall
testified that he changed his mind about the transfer and, as
Roebuck concedes, the transfer never took place; indeed,
Roebuck did not even know about the possibility of being
transferred when she left work on sick leave. The proposal
therefore had no effect upon Roebuck’s employment status, her
work, or her benefits. The district court aptly put the matter in
context: “the internal machinations of [the Department] are
insufficient to constitute a tangible employment action where no
aspect of plaintiff’s actual employment was altered as a result.”
Finally, Roebuck contends the Department took a
tangible employment action against her when Warden Randall
informed Roebuck she would be switching duties with Violet
Hicks. Again as Roebuck acknowledges, in the event her duties
never were changed. Even if the transfer were deemed effective
when the Warden informed Roebuck of it -- a point upon which
we express no opinion -- swapping duties with Violet Hicks,
another administrative assistant in the Office of the Warden,
would hardly have worked a “significant” change in Roebuck’s
8
employment. The only difference seems to be that Hicks
reported to Warden Randall whereas Roebuck reported to
Deputy Warden Corbett. As this court explained in Brown v.
Brody,
A plaintiff who is made to undertake ... a lateral transfer
-- that is, one in which she suffers no diminution in pay
or benefits -- does not suffer an actionable injury unless
there are some other materially adverse consequences
affecting the terms, conditions, or privileges of her
employment or her future employment opportunities.
199 F.3d 446, 457 (1999).* Although Roebuck did not want to
swap duties with Ms. Hicks, she never identified any way in
which the change would have made her worse off; as the court
made clear in Brown, “[m]ere idiosyncracies of personal
preference are not sufficient.” 199 F.3d at 457.
Robinson v. Sappington, 351 F.3d 317 (7th Cir. 2003),
upon which Roebuck relies, is not to the contrary. The plaintiff
in that case was a secretary for a judge who, she alleged, was
sexually harassing her. When the plaintiff complained to the
Chief Judge of the district, he proposed to reassign her to a like
position with another judge, at the same time advising her the
other judge was not at all happy about the transfer, and “her first
six months [in the new post] probably would be [such] ‘hell’”
that it would be in her “best interest to resign.” 351 F.3d at 324.
Thus, although the plaintiff was ostensibly offered a lateral
transfer, the change in that case, unlike the proposed swap of
*
The court in Brown assumed, see id. at 456-57, and we have
no reason in this case to doubt, that a “materially adverse action” in a
case alleging a discrete act of discrimination, and a “tangible
employment action” in a case such as this, alleging a hostile work
environment, are one and the same.
9
Roebuck’s and Hicks’ duties, entailed “materially adverse
consequences affecting the terms, conditions, or privileges of
her employment,” Brown v. Brody, 199 F.3d at 457; it was
therefore a “tangible employment action.”
B. The Instruction to the Jury
Roebuck argues the district court erred in instructing the
jury with regard to the second element of the Faragher-Ellerth
affirmative defense, to wit, the employer’s burden of proving
“the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Ellerth, 524 U.S. at 765.
As the Supreme Court explained,
[W]hile proof that an employee failed to fulfill the
corresponding 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 demonstration of such failure will normally
suffice to satisfy the employer’s burden under the second
element of the defense.
Id. In this case, the district court instructed the jury as follows:
You must find for the defendant District of
Columbia if you find defendant has proved by a
preponderance of the evidence first that defendant
District of Columbia exercised reasonable care to
prevent and correct promptly any sexually harassing
behavior; and second, that Roebuck unreasonably failed
to take advantage of any preventive or corrective
opportunities provided by the District of Columbia to
avoid harm.
10
...
[P]roof that plaintiff Roebuck did not follow a
complaint procedure provided by defendant District of
Columbia as employer will ordinarily be enough to
establish that plaintiff Roebuck unreasonably failed to
take advantage of a corrective opportunity.
Roebuck argues the district court erred when it instructed
the jury that the Department could meet its burden with “proof
that plaintiff Roebuck did not follow a complaint procedure
provided by defendant.” The Department had not argued that
Roebuck failed to follow its complaint procedure. On the
contrary, there was no dispute that on January 21, 1998 Roebuck
filed with Lieutenant Clark a complaint against Corbett for
sexual harassment. The only issue before the jury was that of
timeliness -- or as Roebuck, quoting Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999), succinctly states, “whether ‘a
reasonable person in [her] place’ would have complained
earlier.”
The court twice instructed the jury, correctly, that the
Department had to prove “Roebuck unreasonably failed to take
advantage of any preventive or corrective opportunit[y].” The
only “unreasonable failure” at issue was Roebuck’s failure to
complain earlier. The court’s further instruction about “proof
that plaintiff Roebuck did not follow a complaint procedure
provided by defendant” was therefore surplusage; it would better
have been omitted, but we see no reason to think the jury could
have been confused by the instruction and somehow concluded
that Roebuck never complained at all.
C. Sufficiency of the Evidence
Lastly, Roebuck challenges the sufficiency of the
11
evidence that she unreasonably delayed complaining to her
employer. She faces an uphill battle, for this court must affirm
if there was evidence in the record from which a jury reasonably
could infer that Roebuck failed to exercise due care to avoid the
harassment of which she complained. See Sparshott v. Feld
Entertainment Inc., 311 F.3d 425, 429 (D.C. Cir. 2002).
Recall that Corbett resumed harassing her in October
1997, yet Roebuck did not complain until late January 1998.
Roebuck argues here, as she did before the jury, that she delayed
in reporting Corbett’s sexual harassment in part because she was
afraid of reprisal and in part because she was unsure whether the
harassment that occurred outside the workplace was covered by
the Department’s anti-harassment policy. Whether fear and
uncertainty made Roebuck’s delay in complaining reasonable
was for the jury to decide.
As the Department points out, “[t]he jury heard
testimony that [Roebuck] had filed as many as ten sexual
harassment complaints between 1986 and 1995.” Surely that
could have led a reasonable jury to discount Roebuck’s
explanation for delaying.
Upon this record, a reasonable jury certainly could have
found in Roebuck’s favor, but we cannot say the same jury
could not find that Roebuck unreasonably delayed in reporting
Corbett’s harassment. Therefore Roebuck’s challenge to the
sufficiency of the evidence fails.
III. Conclusion
We conclude Roebuck did not suffer a tangible
employment action, and the district court did not err materially
in instructing the jury concerning her duty of reasonable care.
Because the Department put on sufficient evidence for a
12
reasonable juror to infer that Roebuck in fact failed to exercise
due care in avoiding the harm she sustained, the judgment of the
district court is
Affirmed.