United States Court of Appeals
For the First Circuit
No. 07-2694
BONNIE CHALOULT,
Plaintiff, Appellant,
v.
INTERSTATE BRANDS CORPORATION,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Guy D. Loranger with whom Nichols, Webb & Loranger, PA were on
brief for appellant.
Robert W. Kline for appellee.
August 28, 2008
LYNCH, Chief Judge. Bonnie Chaloult sued her former
employer, Interstate Brands Corporation ("IBC"), alleging she had
suffered sexual harassment by her supervisor, Kevin Francoeur, in
the six months before she quit her job. The district court entered
summary judgment for the employer.
The issue on appeal turns on the affirmative defense
available to employers when the harassment is by the plaintiff's
supervisor.
Under Title VII, an employer is subject to vicarious
liability for sexual harassment by an employee's supervisor which
does not constitute a tangible employment action. But the employer
may prevail if it demonstrates a two-part affirmative defense:
that its own actions to prevent and correct harassment were
reasonable and that the employee's actions in seeking to avoid harm
were not reasonable. See Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998). This case turns on the Faragher-Ellerth affirmative
defense.
The question here concerns the employer's affirmative
defense that it is not vicariously liable because on summary
judgment it has established that (i) the employee's own actions
were not reasonable (here plaintiff did not herself complain to
management); (ii) the employer had reasonably set up and educated
employees on appropriate procedures for handling sexual harassment
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allegations; (iii) the employer did reasonably investigate the
original allegation plaintiff made to management at the time of her
resignation; (iv) no one at a managerial level equal to or superior
to the harasser had notice of the different allegations of
harassment made in the lawsuit; and (v) the co-worker who had some
notice of some of the different allegations did not consider the
conduct he knew of to be harassment and did not call it to the
attention of management.
The plaintiff-employee argued that as a matter of law the
knowledge of a co-worker with the title of supervisor, who was in
fact a peer of the plaintiff's and who also reported to the
harasser, was attributed to the employer under the company's policy
and that defeats the Faragher-Ellerth defense. The district court
rejected the plaintiff's argument.
Conducting our independent review of the record, we find
the employer made out its Faragher-Ellerth defense to vicarious
liability. We affirm the entry of summary judgment for the
employer.
I.
We describe the facts, drawing all inferences in the
plaintiff's favor, as we must do in summary judgment. Mellen v.
Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir. 2007).
Bonnie Chaloult began working at IBC's Biddeford, Maine
production plant in June 1999. In July 2004, when an entry-level
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bread supervisor position opened up, Chaloult applied for and
received it, and she began working as a bread supervisor in
September 2004. When she first started working as a supervisor,
she was in production, then she was moved to wrapping, and then
back to production. When she was moved back to production in
February 2005, her immediate supervisor became Kevin Francoeur, who
was the assistant production manager. At that time, Chaloult's
shift was the night shift, from 10 p.m. to 8 a.m.
On June 8, 2005, Chaloult and other supervisors attended
a "WARN meeting," under the Worker Adjustment Rehearing
Notification Act, at which they were put on notice that their
positions could potentially be eliminated in sixty days. This was
occasioned by the company's going into bankruptcy. Chaloult
understood that this could mean she was out of a job as of August
12, 2005. Chaloult conceded at deposition that her attendance at
work "deteriorated" after this meeting, and other evidence supports
this.
At no time prior to her resignation did Chaloult complain
about sexual harassment.
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After an incident with a co-worker,1 on August 4, 2005,
Chaloult submitted a letter of resignation. Chaloult was pregnant
when she left IBC in August 2005, and was not re-employed until
June 30, 2006. The letter of resignation stated, verbatim:
I respectfully request to give forth my
two week notice, in accordance with the
companies involuntary leave slip, my last date
of work will be 8/19/05.
I would like to take the time to thank
you, (Paul) and IBC for the experience I now
have under management.
However, when I filled out my
application for employment with IBC, it never
stated that at any time would my supervisors
above me, have the right to question my
personal affairs and demand information.
This I learned from yet another
supervisor being accused of fore-play.
Is this company Policy? I tried to
change shifts, told I had day hours for 6-
strap production then I was denied. I no
1
The record shows that Chaloult was having a dispute with
an oven operator named Dobre in late July 2005. Sue Bisson wrote
a "To whom it may concern" letter, dated August 3, noting two
incidents: on July 28, Chaloult told Dobre not to call a mechanic
regarding a problem with the oven because he was causing the
problem, but it turned out that a mechanic was needed and the
mistake was not Dobre's. On July 29, Chaloult told Bisson that
Dobre was making another mistake involving machinery, which Bisson
informed Chaloult was not Dobre's fault, at which point Chaloult
"proceeded to walk out of the office and leave." On July 30 or 31,
Chaloult wrote a report stating that Dobre had shoved equipment and
made a loud noise as she walked by.
The parties have not argued that the tension between
Chaloult and Dobre (and apparently Bisson) is related to her
problems with Francoeur, but it does suggest that she was unhappy
at work for reasons unrelated to Francoeur in the days before she
wrote her letter of resignation on August 4.
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longer feel comfortable working for this
supervisor.
The letter did not directly accuse her supervisor of harassing her,
but of questioning her personal affairs with another supervisor, a
situation she learned about from the supervisor who, she said, was
accused of having a sexual relationship with her. The letter did
state she no longer felt comfortable working for her own
supervisor.
Chaloult put her letter into the mailbox of her
department manager, Paul Santos. Santos met with her the first day
he was back at work after receiving the letter. Before meeting
with Chaloult, Santos discussed her letter with Joseph Cabral,
Assistant Human Resources Manager, and gave a copy of the letter to
Human Resources so they could put it on file. Cabral and Santos
decided that Santos should ask her what the letter meant, since
they did not know to what she was referring.
At the meeting, Chaloult said she was referring to an
incident that had taken place on July 15, in which Francoeur had
approached a co-worker, Jim Anderson, and demanded to know whether
Anderson and Chaloult were having sexual relations. Chaloult, who
had a fiancé at the time, had not been present during this
conversation and said that Anderson had told her about it the
following morning.
When asked why she did not come forward sooner, she told
Santos that she was worried about issues "coming back at me." She
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did not say to Santos that there had been any other incidents of
concern involving Francoeur. At deposition she admitted there was
nothing that prevented her from reporting other instances to the
company.
Santos told her that he would follow up with both
Anderson and Francoeur and report the incident to Human Resources.
Santos did what he promised. Immediately after his meeting with
Chaloult, Santos called Cabral and briefed him. Santos then called
Francoeur into his office; they met for about half an hour. He
told Francoeur what Chaloult had said. Francoeur said that was not
what happened. Francoeur explained his version of what happened to
Santos as follows:
[H]e explained to me that he had been calling
for both [Anderson and Chaloult], he had tried
calling for her, tried calling for him on the
radio, neither one of them were responding on
the radio. He was walking from the six strap
makeup area going towards the wrap office. He
had passed Bonnie in transit or she was going
-- he noticed her going one way towards
makeup, and he was going towards wrapping. He
walked into the wrap office and said, Jim,
what, are you and Bonnie fucking with me,
screwing with me? And he said that Jim
started laughing. He was like, no, we didn't
hear the calls on the radio. And that's
pretty much it.
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Santos made Francoeur write down his version of events. The
document was submitted into evidence and is consistent with
Santos's description of the meeting.2
Santos then met with Anderson. Anderson told Santos:
[Francoeur] just came in and was like, what,
are you and Bonnie trying to fuck me? I was
like, okay. I go, what else was said? He was
like, nothing. We just laughed and he wanted
some numbers, and I went out on the floor and
that was it. He says he was trying to call
us. I didn't hear him. Maybe our radios were
down, and that was it.
During the interview Santos also asked Anderson what he
said to Chaloult. Santos described his conversation with Anderson
as follows:
[I asked] what did Kevin say to you? What do
you recall Kevin saying to you? He said, he
just came in and he was like, what, are you
and Bonnie trying to fuck me? I was like,
okay. I go, what else was said? He was like,
nothing. We just laughed and he wanted some
numbers, and I went out on the floor and that
was it. He says he was trying to call us. I
didn't hear him. Maybe our radios were down,
and that was it. I go, so he didn't come in
and ask if you guys were fucking? He said,
no. No, he just came in and he wanted to know
if we were fucking with him.
. . . .
I said, Bonnie is saying that you went to her
and told her that Kevin asked you if you and
her were having sex. He was like, oh, I don't
remember what I told her. I go, well, you
2
At his deposition, Francoeur confirmed Santos's account
of their meeting and of his statement to Anderson. There is no
evidence to the contrary.
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just told me that he came in and asked if you
two guys were fucking with him and then you
turn around and went to Bonnie and told Bonnie
that Kevin asked if you and her were fucking.
I go, so which one is it? He was like, no, he
just came in and he said if we were fucking
him. I was like, so then why did you go to
Bonnie and tell her something different? And
he made a comment about, oh, Bonnie and I were
just laughing about it, we were joking about
it, and that was it. I was like, well, it's
not a joking matter because this is where
we're at right now.
When he received Francoeur's statement, Santos discussed
the matter with Cabral. They concluded that what Francoeur had
said to Anderson was "are you guys fucking with me?" As a result,
Francoeur was given a letter, dated September 1, 2005, warning
about the use of inappropriate language ("fuck") and language which
could be taken out of context in the workplace. The letter stated:
"While our investigation to date shows that the broad allegations
made by the employee may not be 100% confirmed, it is clear that,
based on your admission, that your comment was inappropriate and
unwarranted." It also made clear that "[a] manager must never
discriminate, harass, or retaliate against any employee. If a
Manager knowingly condones discrimination, harassment, or
retaliation by another, the Manager will be considered to have
personally engaged in the conduct."
After Chaloult gave her two week's notice on August 4,
she worked only a few more days and did not show up to work after
August 8. As a result, IBC did not have the opportunity to conduct
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its usual exit interview. On November 11, Chaloult met, at his
request, with Joseph Cabral; no specific information is provided
about this meeting, and there is no evidence that Chaloult told
Cabral the allegations she later made. Chaloult also filed an exit
comment form, dated November 11, 2005, in which she made the
comment: "Sexual harassment from upper management for an ongoing
period with other people . . . involved." Santos stated that he
did not see this exit comment form. He said he first became aware
of Chaloult's other allegations after she filed suit.
On October 10, 2006, more than a year after she left her
employment, Chaloult filed suit in federal district court against
IBC, alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000(e), and the Maine Human Rights Act. She
sought general, non-economic, and punitive damages. Chaloult
alleged that she was sexually harassed by her superior, Francoeur,
from February 5, 2005, when she first reported to Francoeur, to
August 2005, when she left the company. For the first time she
related a number of very specific complaints about other
statements.
Chaloult's testimony at deposition included the following
specific allegations, which she had not mentioned to Santos or in
her November 11, 2005 exit comment form.3 One claim of harassment
3
For summary judgment purposes, we use her testimony at
deposition. Her testimony is materially different from some
allegations in her unverified complaint. For example, Chaloult
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is that Francoeur frequently complained about his wife and his lack
of sexual relations with her. At deposition, Chaloult said
Francoeur made these comments openly to supervisors and also said
he wished he could murder his wife. Chaloult did not report the
comments to anyone.
Further, there were comments about breasts. On several
occasions when they were outside on break during the winter,
Francoeur asked Chaloult about the distance between her nipples and
told her to go home and measure this distance. He also at one
point asked if her nipples chafed or stood out like headlights.
She walked away and shook her head but did not report the comments
to anyone. At some point Chaloult walked into an office where
Francoeur was in conversation with another worker named Steve
Leclair and, without using her name but looking right at her,
Francoeur indicated that Chaloult's breasts were "melons. Big
hooters." Chaloult did not report this incident and stated that
nothing prevented her from doing so.
Once, when they were alone in his office Francoeur asked
Chaloult to hold her breath and push her chest out. She did not
understand why he made the comment. She shook her head and walked
off, saying nothing to Francoeur and not reporting the incident.
testified that Francoeur never asked to see her nipples although
that was alleged in the complaint. Chaloult's complaint stated
that Francoeur would tell her that "she looked like she needed to
get laid," but at deposition she said that it was a female co-
worker who made that comment.
-11-
She said she did not report it because she did not "want any
retaliation coming back."
She said statements about her relationship with her
boyfriend were harassing. Chaloult had broken up with her
boyfriend in January of 2005. She got back together with him in
April and they became engaged in May 2005. Francoeur made comments
to her to the effect she should not get back together with her
boyfriend. The more serious allegation is that toward the end of
spring, Francoeur offered to come over to her house and have sex
with her; specifically that "he'd come to my house and show me what
fucking was about." Chaloult said that Anderson and a few
maintenance people were in the area at the time Francoeur made this
comment. Chaloult walked away, spurning the offer. Chaloult did
not report the incident.
Another time, Chaloult joined Francoeur and Anderson on
a patio for a smoke. Chaloult and Anderson were discussing a
motorcycle trip that Chaloult had made with her boyfriend.
Francoeur made the statement, "well, girls who ride motorcycles
normally like it from the back side, huh? Is that true, Bonnie[?]"
Chaloult turned and walked off, and shook her head. She did not
report Francoeur for that statement; nothing kept her from
reporting it.
In another instance, Chaloult, another supervisor named
Dan Lariviere, and Francoeur were sitting in an office and
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Lariviere was eating an eclair. Francoeur said he wanted to see
how far Chaloult could stick the eclair down her throat. Lariviere
said he would also like to see that. Then Francoeur said "[i]f
there isn't enough cream in there, . . . I have plenty." Chaloult
said nothing to either of them or to anyone in management above
Francoeur about this.4 She "may have" told Anderson about the
incident.
At some time in May, Chaloult had picked up a piece of
dough off the machinery, and Francoeur made a comment to her that
"if the dough ball wasn't enough for me to play with, he had some
balls that I could play with." Chaloult stated that a production
employee named Amy Ramsell was present when Francoeur made this
comment, but she is not sure whether Ramsell heard it. Chaloult
walked off and did not report the incident; she stated that nothing
prevented her from reporting it.
In another instance, Chaloult was apparently in a bit of
a frenzy in the presence of other workers over having misplaced her
key card to get into the building. A female employee in the
office, Sue Bisson, said "it looks like somebody needs to get laid.
Kevin [Francoeur] turns around and goes yeah, I guess so. Because
4
Francoeur also denied making the statements plaintiff
attributes to him as evidence of harassment, including the offer to
go home with her, but we take plaintiff's version as true for
summary judgment purposes. As to the eclair statement, Francoeur
said it was made by another supervisor, Dan Lariviere, and that
afterwards he told Lariviere that the statement was inappropriate.
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I was apparently a little too hyper." Chaloult did not complain to
either of them or report them and nothing prevented her from doing
so.
Finally, on July 15, as discussed above, Francoeur
allegedly walked into an office where Anderson was doing some
paperwork and yelled at him, "so how long have you and Bonnie been
fucking?"
There were no objectionable statements by Francoeur
between July 15 and Chaloult's letter of resignation on August 4.5
IBC had in place anti-sexual-harassment policies which
included methods for reporting harassment. The company's Equal
Employment Opportunity Policy stated:
Interstate strictly prohibits sexual
harassment. . . . Examples of the prohibited
conduct include unwelcome sexual advances,
requests for sexual favors, and gender slurs
or other offensive, derogatory, or demeaning
comments, jokes, graffiti, or other verbal or
physical conduct and written or taped
materials relating to gender.
. . . .
5
Chaloult decided to keep a contemporaneous diary of
Francoeur's comments. In that diary, she made no mention of
Francoeur's comments about coming over to her house to have sex; no
mention of the alleged incident involving dough balls; no mention
of Francoeur's gestures about melons, which she took to be about
her breasts; nothing about Sue Bisson's comments; and nothing about
Francoeur's comment about girls who ride motorcycles.
The diary did include references to Francoeur's
complaining about his wife, but nothing about comments regarding
his sexual relations with his wife. The diary also did refer to
Francoeur's comments about the distance between Chaloult's nipples,
chafed nipples, and the eclair incident.
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Any person who believes that the person has
been subjected to discrimination,
harassment, or retaliation or who knows of
possible discrimination, harassment, or
retaliation against anyone else should
immediately report it to supervision or to
Richard W. Morgano, [phone number redacted] or
to Rhonda Tracy, [phone number redacted]. Do
not wait until a situation is severe or
pervasive; report any possible discrimination
or harassment or retaliation as soon as you
know of it.
Chaloult signed an updated version of this policy on September 16,
2003, indicating that "I . . . have read and understand IBC's Equal
Employment Opportunity Policy and have participated in 'In this
Together' Harassment Training."
Chaloult had also signed, when she first began working
for the company on June 10, 1999, the company's Sexual Harassment
Policy, which included the following provisions:
II. Awareness
A. Supervisors must be sensitive to the
problem of sexual harassment.
B. Employees shall be encouraged to
report an incident of sexual harassment
to their supervisor.
C. If a supervisor becomes aware of any
violation or possible violation of the
EEOC guidelines, the incident should be
reported immediately to the human
resources manager or plant general
manager.
D. Supervisors have an affirmative duty
to keep their work area free from
sexual harassment of any kind and shall
take appropriate steps to prevent and
eliminate such harassment.
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Chaloult was also aware that IBC had a confidential toll-free
complaint line for employees.
Chaloult admittedly did not at any time before submitting
her letter of resignation make any complaint about Francoeur to the
Human Resources manager, the plant manager, or to any other person
who was superior or equal to Francoeur's level at the company.
When asked at deposition why she did not come forward
sooner with her complaints, Chaloult responded, "I had talked with
Jim Anderson, and Jim Anderson knew about these comments." When
asked whether she had asked Anderson to report her concerns to
management, Chaloult stated that she had not. She asserted that
Anderson was present at the time of Francoeur's comment about
measuring the distance between nipples, when Francoeur made the
comment about girls who ride motorcycles, and when Francoeur told
Chaloult that he wanted to come over to her house and have sex with
her, and that he told her about Francoeur's comment suggesting that
Chaloult and Anderson were having a sexual relationship on July 15.
Chaloult and Anderson were peers; they, along with one
other person, were entry-level supervisors on the overnight shift
in the bread department; Francoeur, as the assistant bread
production manager in charge of the overnight shift, was their
direct supervisor. There were also three other entry-level
supervisors in the bread department who worked during a second
shift.
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At deposition, Anderson confirmed that it is his
understanding that if supervisors receive a complaint of sexual
harassment, they are supposed to report it right away. However,
when asked whether he was ever aware of behavior which could have
violated the company's sexual harassment policy, he said that he
was not. When asked whether anyone had ever complained to him
about conduct that could have been construed as sexual harassment,
Anderson said no.
Anderson further testified that he was never present when
anyone objected to something that Francoeur said, nor did he ever
get the impression that something Francoeur said upset someone.
Anderson testified that the group of supervisors of whom he and
Chaloult were part got along "pretty good. I mean, we were loosey
goosey. We joked around with each other."
As to Chaloult's specific allegations of harassment,
Anderson said that one day Francoeur said to other workers during
a smoke break that he had heard people on a radio program referring
to the distance between nipples as "spread points," and "we all got
a laugh out of it." Anderson said that Francoeur asked a group of
people, not just Chaloult, to measure their "spread points." More
specifically, "[h]e made a general statement for all of us to go
home and do it. . . . I didn't think nothing of it at the time. I
didn't think there was nothing wrong because we all just laughed
about it and we left the office." When asked whether he thought
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that Francoeur violated the company's sexual harassment policy when
he made comments about "spread points" to a group of people that
included women, Anderson stated, "I didn't read nothing into it
because we all had a chuckle about it. So, I mean, I don't think
any of us read anything into it because we all laughed and went
on . . . ." Chaloult has not called this testimony into question.
Anderson had a different recollection of the incident
involving an eclair. He stated that one day he, Francoeur,
Chaloult, and Lariviere were eating a box of eclairs they had
brought back from the shipping dock, something that they did fairly
often. On this particular occasion: "Bonnie would take a bite of
one and Kevin [Francoeur] made a noise out of his mouth. Then Dan
had said, like, how far can it go. And we all laughed, and that
was the end of that. We finished eating, and we all went back out
on the floor." Anderson testified that of all the times when they
ate eclairs, this was the only occasion when a comment was made
about someone putting an eclair in their mouth. He did not
consider this to be sexual harassment.6
Anderson also testified that Francoeur once in a while
talked about his own nipples being chafed or irritated. One time,
when Chaloult as well as others, both male and female, were
6
When asked whether he knew if Lariviere had been
disciplined for his comment, Anderson stated that was "none of
[his] business . . . as far as an entry-level supervisor. Only
upper management would know if something like that happened."
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present, Francoeur asked if other people had hard nipples.
Anderson said that he heard Francoeur talk about the breasts of
female employees "once or twice," but never about Chaloult's in
particular, and never in her presence. When asked why he did not
report to management Francoeur's comments about breasts, Anderson
replied that Francoeur "was talking to me -- I mean, at that point
I felt it was a guy to guy talk. I mean, you just talk; and I
didn't really think nothing of it. I mean, it was just me and him
in the office or outside." Again, Anderson did not consider this
to be harassment. Chaloult has not rebutted this testimony.
With respect to the incident Chaloult referred to in her
letter of resignation, Anderson testified that Francoeur did not
ask him whether he and Chaloult were having sexual relations.
Rather, Francoeur came into the office where Anderson was sitting
and asked whether Anderson and Chaloult were "f[]ing with him" by
not answering their radios because Francoeur had unsuccessfully
been trying to get a hold of them. Anderson said that he told
Chaloult about the episode a few days later: "[I]t got worked into
the conversation . . . . I was telling her, Kevin came in the
office and he was pretty mad that we weren't answering our radios
and he asked if we were F-ing, if we were F-ing with him and stuff
like that." Chaloult also has not called this testimony into
question.
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Anderson testified that Chaloult never asked him to do
anything with, or about, Francoeur's comments. There is no
testimony from Chaloult that she ever used the term "sexual
harassment" in her conversations with Anderson about Francoeur.
II.
The Supreme Court has rejected the idea that an employer
is strictly liable for a hostile environment created by a
supervisor when the employer neither knew nor reasonably could have
known of the alleged misconduct. Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 70-72 (1986).
In Faragher and Ellerth, the Court adopted as an
alternative to an automatic liability rule an affirmative
"composite" defense under which an employer may show, under the
first prong, that "the employer had exercised reasonable care to
avoid harassment and to eliminate it when it might occur," and,
under the second prong, that "the complaining employee had failed
to act with like reasonable care to take advantage of the
employer's safeguards and otherwise to prevent harm that could have
been avoided." Faragher, 524 U.S. at 805.
We separately evaluate the two prongs, recognizing that
there may be a relationship between the two. For example, if the
company has not provided information about a complaint procedure,
that may affect whether the employee's failure to use the procedure
is reasonable, and vice versa. Reasonable effort is required on
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both sides. As we said in Reed v. MBNA Marketing Systems, Inc.,
333 F.3d 27 (1st Cir. 2003), the Supreme Court "certainly knew[]
its regime necessarily requires the employee in normal
circumstances to make [the effort to put the company on notice] if
the employee wants to impose vicarious liability on the employer
and collect damages under Title VII." Id. at 35; see also, e.g.,
Freytes-Torres v. City of Sanford, No. 05-15805, 2008 WL 763216, at
*3 (11th Cir. Mar. 25, 2008); Nurse "BE" v. Columbia Palms W. Hosp.
Ltd. P'ship, 490 F.3d 1302, 1309-12 (11th Cir. 2007); Hardage v.
CBS Broad., Inc., 427 F.3d 1177, 1186 (9th Cir. 2005).
Plaintiff does not contest that IBC has met the second
prong of the Faragher-Ellerth defense. The district court found
that Chaloult had waived any challenge to the company's claim that
she had not acted reasonably by failing to report the harassment.
We take it as true7 then that Chaloult "unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
7
Clearly Chaloult's behavior in not complaining was not
reasonable. There is absolutely no evidence of Chaloult's having
"more than ordinary fear or embarrassment," as Reed v. MBNA
Marketing Systems, Inc., 333 F.3d 27, 35 (1st Cir. 2003), requires.
To the contrary, Chaloult was a supervisor herself who had worked
for the company for over five years.
In Reed, this circuit held that a jury question was
presented on the second prong regarding whether it was unreasonable
for a seventeen-year-old plaintiff to fail to complain about her
supervisor's sexual assault when the supervisor was twice her age
and told her that they would both be fired if she reported and that
his father was good friends with the company's owner. Id. at 37.
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the employer or to avoid harm otherwise." Faragher, 524 U.S. at
807.
Chaloult has posed the question as one under the first
prong of Faragher-Ellerth, that is, whether the company acted
reasonably. We agree that, depending on the facts, there may be
instances in which the employee acted unreasonably, but the
employer also did not exercise reasonable care. But that is not
the case. Chaloult concedes that IBC did have an acceptable sexual
harassment policy and complaint process in place, that the company
had trained its employees regarding its policies, and that Chaloult
knew of these policies. Chaloult thus concedes that the employer
has met the initial aspect of the first prong -- that the employer
took reasonable care to avoid sexual harassment. She argues that
the employer failed to meet the second aspect -- that the employer
failed to take reasonable care to eliminate harassment when it
might occur.
Specifically, Chaloult argues that Anderson's putative
knowledge of Chaloult's being harassed in the manner described in
the lawsuit must be attributed to IBC, and that given the
attributed knowledge, IBC failed to take appropriate corrective
actions. It is important to note that there is no claim of any
actual knowledge on the part of any IBC personnel who were superior
to Francoeur, or anyone superior to Chaloult, other than Francoeur.
Nor is there a claim the company routinely ignored harassment
-22-
complaints or that there were prior complaints against others.
Moreover, Chaloult does not claim that the company acted
unreasonably in responding to a complaint after she submitted her
letter of resignation and put it on notice of Francoeur's comments
regarding an alleged sexual relationship between Chaloult and
Francoeur.
Chaloult argues that case law requires imputation to a
company of a co-worker's knowledge so long as the co-worker had any
obligation to report harassment, and that the scope of the
Faragher-Ellerth defense is defined, as a matter of law, by the
company's own sexual harassment policies. Here, because the
company voluntarily required all supervisors to report any
harassment, as a matter of law the knowledge of anyone bearing the
title of supervisor must be attributed to the company for purposes
of the company's obligation to eliminate harassment.
We disagree with the plaintiff's argument. Given the
combination of factors from the events in this case, we think that
the company was entitled to summary judgment under Faragher-
Ellerth. Here, the employer had an appropriate policy, it was
widely known and disseminated, it was known to the plaintiff, and
the plaintiff failed to use the complaint procedures for the
matters at issue. It is also clear, as to the second aspect of the
first prong, that as to the one matter reported to the employer by
plaintiff's August 4 letter, the company did act reasonably in
-23-
response. The employer promptly interviewed Chaloult, Francoeur,
and Anderson and concluded that Chaloult's account of what
Francoeur said to Anderson was inaccurate, but that Francoeur
should be punished for using inappropriate language. Further, the
complaint Chaloult made in her letter of resignation actually had
to do with invasion of personal privacy and reasonably could be
viewed as not being about sexual harassment. The employer also
reasonably viewed the matter as closed since Chaloult had raised no
other issues in her letter or in her meeting with Santos. Thus the
employer was fully in compliance with the second aspect of the
first prong of Faragher-Ellerth as to information of which
management had actual notice.
Nor is there knowledge that should be imputed to the
company that would render unreasonable its response under the
second aspect of the first Faragher-Ellerth prong. Chaloult argues
that whatever Anderson knew must be attributed to the company and
that what Anderson knew was the full range of behavior that
Chaloult complains about in her lawsuit. We outline our reasoning
for rejecting Chaloult's proposition that the employer here was on
adequate notice and failed to take appropriate steps.
Chaloult's position is not supported by the case law.
Chaloult relies on cases which she characterizes as holding that
the unreported knowledge of sexual harassment by any employee
bearing the title supervisor, even peers with no authority over the
-24-
harasser, is sufficient itself to attribute knowledge to the
employer. As a general proposition this cannot be consistent with
the defense outlined by the Supreme Court, which provides
incentives for employers to develop sexual harassment reporting
policies and to educate employees about and promote compliance with
such procedures in order to avoid vicarious liability.
Chaloult relies heavily on Dees v. Johnson Controls World
Services, Inc., 168 F.3d 417 (11th Cir. 1999), a case which is not
at all like this. Dees concerned the adequacy of evidence that the
harasser's supervisors had knowledge of the harassment and did
nothing. In Dees, there was evidence that superiors of the
harasser had actual knowledge of harassment prior to plaintiff's
complaint. Specifically, a Human Resources employee told plaintiff
that the employer was aware of prior sexual harassment in
plaintiff's department, and plaintiff's superior informed her on
multiple occasions that he had reported the harassment up the
ladder "because he realized that [plaintiff] could not file a
complaint herself." Id. at 422-23.
Chaloult's argument about attribution to the company
turns on the fact that Anderson's title was supervisor. In fact,
that was plaintiff's title as well. Anderson was her co-worker,
and they both reported to the alleged harasser. This situation is
unlike other cases in which people in management at levels above or
at the same level as the harasser either observed directly or were
-25-
told of the harassment. Cf., e.g., Arrieta-Colon v. Wal-Mart P.R.,
Inc., 434 F.3d 75, 81-82 (1st Cir. 2006); Dees, 168 F.3d at 423;
Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir.
1999); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir.
1998).
This raises the question of whether the company's
voluntary adoption of a policy requiring all supervisors,
regardless of whether they are co-workers, to report sexual
harassment increases the scope of the company's legal liability as
a matter of law under Title VII. We think not, although one
circuit has adopted such an approach. See Clark v. United Parcel
Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005).8 Adoption of this
view would set a legal standard different from the Supreme Court's
reasonableness approach in Faragher-Ellerth. It would also
discourage and penalize voluntary efforts which go beyond what the
law requires. And it would be inconsistent with approaches to
voluntary efforts in other areas of Title VII law. See, e.g.,
Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1279
(11th Cir. 2002) (an employer's deviation from a voluntarily
8
The case Clark cites in support of this proposition,
Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), says
no such thing. The language from Coates, that a company "itself
answered the question of when it would be deemed to have notice of
the harassment," was used in the context of whether an employee had
sufficiently reported harassment to the company, not whether the
company was liable for a co-worker supervisor's knowledge. Id. at
1364.
-26-
adopted affirmative action policy cannot be used as evidence of
pretext); Long v. Runyon, No. 92-6078, 1993 WL 264669, at *3 (6th
Cir. July 12, 1993) (same).9
Even if all of Anderson's knowledge were imputed to IBC,
this would not make IBC's actions unreasonable, since it is clear
that Anderson did not consider himself on notice of harassment.
Anderson testified that he did hear several comments by Francoeur
which Chaloult attributed to Francoeur, but Anderson believed the
comments were not harassing, and so there was no basis to report.
As to the most suggestive of the alleged comments, i.e., that
Francoeur offered to go and have sex with Chaloult, Anderson says
he did not hear them. Chaloult did not testify that Anderson did
hear them or that he must, of necessity, have heard them.10
Anderson also testified that had he observed or known of any claims
by Chaloult of harassment, he would have reported them up the
chain.
9
This does not mean that Anderson had no duty to report
harassment under IBC's policy. But the existence of any such duty
does not, as a matter of law, automatically impute to IBC all of
Anderson's knowledge for the purpose of determining the
reasonableness of IBC's actions under Faragher-Ellerth.
10
In an affidavit accompanying her opposition to summary
judgment, Chaloult added new information: that after Francoeur made
the offer to go to her house and have sex with her, Anderson "said
that Mr. Francoeur's behavior was getting worse, and, it would get
him into trouble at some point." Since this statement is
inconsistent with Chaloult's deposition testimony, we disregard it.
Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir.
2008); Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001).
-27-
The effect of the acceptance of plaintiff's argument
would be to undercut the policy judgment the Supreme Court made in
Faragher-Ellerth. The defendant met the reasonableness standard.
This is not an instance in which the employer is trying to utilize
its sexual harassment reporting chain to immunize itself from
knowledge it actually had of the harassment allegations.11 Varner
v. Nat'l Super Markets, Inc., 94 F.3d 1209, 1213-14 (8th Cir.
1996). Rather, this is a case where the company was deprived of
the opportunity to take remedial action because -- with the
exception of the one incident Chaloult reported, which Santos
promptly investigated and acted on -- Chaloult did not make
allegations of sexual harassment until she filed suit over a year
after leaving her job at IBC.
We affirm the entry of summary judgment for defendant.
-Dissenting Opinion Follows-
11
This is also not a case where the employer was aware of
prior instances of Francoeur's harassment through complaints made
by other people. There is no indication that any complaints were
made about Francoeur by anyone else at any time.
-28-
LIPEZ, Circuit Judge, dissenting. Three propositions
underlie the decision of the majority to affirm summary judgment
for IBC: (1) the terms of the sexual harassment policy that IBC
chose to adopt should not be applied as written, (2) with the
policy cast aside, Chaloult's unreasonable failure to take
advantage of any preventive or corrective opportunities provided by
IBC's sexual harassment policy (the second element of the Faragher-
Ellerth affirmative defense) becomes the decisive factor in
determining that IBC exercised reasonable care to prevent and
correct promptly sexually harassing behavior (the first element of
the Faragher-Ellerth affirmative defense), and (3) there is no
genuine issue of material fact about whether Anderson was aware of
the sexual harassment of Chaloult.
I disagree with each of these propositions. Therefore,
I respectfully dissent.
I.
IBC's sexual harassment policy states without
qualification:
If a supervisor becomes aware of any violation or
possible violation of the EEOC guidelines, the incident
should be reported immediately to the human resources
manager or plant general manager . . . . Supervisors have
an affirmative duty to keep their work area free from
sexual harassment of any kind and shall take appropriate
steps to prevent and eliminate such harassment.
Although the majority acknowledges that Anderson was a supervisor,
it insists that his awareness of sexual harassment could not be
-29-
attributed to IBC because Chaloult also was a supervisor on the
same level as Anderson, and both reported to Francoeur, the alleged
harasser. The majority also notes that no one in management at
Francoeur's level or above had knowledge of the harassment.
Therefore, according to the majority, IBC should be entitled to the
affirmative defense.
The majority has added its own gloss to the company's
clearly stated policy. As drafted, the policy did not qualify
Anderson's obligations under the company's sexual harassment policy
simply because he and Chaloult were supervisors at the same
employment level. Likewise, as drafted, the policy did not qualify
Anderson's obligations because the alleged harasser was the
immediate supervisor of both Anderson and Chaloult.
Indeed, that policy demonstrates that IBC knew how to
distinguish between a particular category of supervisor and
supervisors generally. The "Awareness" section of the company's
sexual harassment policy reads in its totality as follows:
II. Awareness
A. Supervisors must be sensitive to the problem
of sexual harassment.
B. Employees shall be encouraged to report an
incident of sexual harassment to their
supervisor.
C. If a supervisor becomes aware of any
violation or possible violation of the EEOC
guidelines, the incident should be reported
immediately to the human resources manager or
plant general manager.
D. Supervisors have an affirmative duty to keep
their work area free from sexual harassment of
-30-
any kind and shall take appropriate steps to
prevent and eliminate such harassment.
(emphases added).
Pursuant to this policy, employees experiencing
harassment are specifically "encouraged to report an incident of
sexual harassment to their supervisor." However, supervisors
generally "must be sensitive to the problems of sexual harassment,"
and must "report immediately to the human resources manager or
plant general manager" any violation or possible violation of the
EEOC guidelines. They also "have an affirmative duty to keep their
work area free from sexual harassment of any kind and shall take
appropriate steps to prevent and eliminate such harassment."
Anderson understood that these obligations of a
supervisor to deal with sexual harassment applied to him. As the
majority points out, Anderson confirmed at his deposition that "it
is his understanding that if supervisors receive a complaint of
sexual harassment, they are supposed to report it right away."
Although Chaloult never said to Anderson "I am being sexually
harassed by Francoeur and I want you to help me," she alleges that
she did complain to Anderson about Francoeur's conduct and she
asserts that Anderson was aware of many of her encounters with
Francoeur independently of any complaint by her. Yet the majority
insists that Anderson had no legal obligation to do anything - and
the company thus could not be found to have acted unreasonably -
because IBC's policy requires more than Title VII demands. The
-31-
majority simply ignores as improvident or legally irrelevant IBC's
policy choice to imbue all supervisors with the responsibility for
reporting and preventing sexual harassment.12
Other courts have agreed that a company's stated sexual
harassment policy is critical to an evaluation of the question
posed by the first element of the affirmative defense -- whether
"the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior." Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998). In Clark v. United Parcel
Serv., Inc., 400 F.3d 341 (6th Cir. 2005), the court rejected the
employer's argument that, as a matter of law, supervisors who "were
not high enough in the company hierarchy and had no authority to
control [the harasser]" had no duty to convey their knowledge of
harassment to higher management. Id. at 350. The court observed
that "[t]his argument might have merit but for the fact that UPS
itself has, through its sexual harassment policy, placed a duty on
12
In footnote 9 of its opinion, the majority states that it
is not saying that Anderson had no duty to report harassment under
IBC's policy. Rather, the majority insists that Anderson had no
duty to report Francoeur's harassment of Chaloult under the
circumstances of this case. Those circumstances include two
indefensible legal propositions put forth by the majority. First,
as explained above, the majority says that Anderson's status as a
supervisor under the IBC policy does not matter here because
Chaloult was a supervisor at the same level as Anderson and because
the harasser, Francoeur, was the supervisor for both of them.
Second, as I explain more fully in Parts II and III of the dissent,
the majority says that Anderson's knowledge of Francoeur's
treatment of Chaloult did not constitute awareness of sexual
harassment as a matter of law.
-32-
all supervisors and managers to 'report[] incidents of sexual
harassment to the appropriate management people.'" Id. (emphasis
in original); see also Coates v. Sundor Brands, Inc., 164 F.3d
1361, 1364 (11th Cir. 1999).13
The majority justifies its decision not to enforce IBC's
policy as written on the ground that to do so would "set a legal
standard different from the Supreme Court's reasonableness approach
in Faragher-Ellerth." According to the majority, allowing
knowledge of sexual harassment by "any employee bearing the title
supervisor" to be sufficient to attribute knowledge to the employer
is inconsistent with the Faragher-Ellerth affirmative defense,
which "provides incentives for employers to develop sexual
harassment reporting policies and to educate employees about and
promote compliance with such procedures."
The majority misapprehends Title VII's "basic policies of
encouraging forethought by employers and saving action by objecting
employees." Faragher, 524 U.S. at 807. The animating principle of
13
In Coates, the court held that when an employer's sexual
harassment policy designates the people responsible for reporting
misconduct, the company "itself answered the question of when it
would be deemed to have notice of the harassment sufficient to
obligate it or its agents to take prompt and appropriate remedial
measures." 164 F.3d at 1364. The majority correctly notes that
the court in Coates was considering whether an employee had
sufficiently reported harassment to the company and did not address
the issue of whether a company was liable for a co-worker
supervisor's knowledge. Even with this factual distinction, the
central point remains the same -- a company's own harassment policy
answers the question of who within the company is responsible for
reporting and responding to known incidences of harassment.
-33-
Title VII is "not to provide redress [for employment
discrimination] but to avoid harm." Faragher, 524 U.S. at 806. By
involving supervisors at all levels in the reporting and prevention
of sexual harassment, IBC's sexual harassment policy seeks
comprehensively to avoid harm. If the failures of a particular
supervisor in the reporting of sexual harassment belie the promise
of that comprehensive policy, a court should not forgive the
failure of the supervisor by declaring the policy too ambitious.
Not surprisingly, I can find no other cases in which an
employer prevailed on the first element of the Faragher-Ellerth
affirmative defense because a court thought its sexual harassment
policy imposed a broader reporting obligation than the law
required. If the majority believes that IBC's policy states the
reporting responsibilities of supervisors too broadly to justify
vicarious liability, IBC should rewrite that policy, not the court.
II.
I agree with the majority that there may be instances in
which there is a relationship between the two prongs of the
Faragher-Ellerth affirmative defense. That is, facts relevant to
an assessment of the unreasonableness of the employee in not taking
advantage of any preventive or corrective opportunities afforded by
a company's sexual harassment policy may also be relevant to an
assessment of the reasonable care taken by an employer to prevent
and correct promptly sexual harassment. Some of the cases cited by
-34-
the majority present such scenarios. For example, in Nurse "BE" v.
Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302 (11th Cir.
2007), an employee explicitly "requested that [her supervisor] not
report the incident [of sexual harassment] and premised the
complaint on [the supervisor]'s promise of confidentiality." Id.
at 1310. Similarly, in Hardage v. CBS Broad., Inc., 427 F.3d 1177
(9th Cir. 2005), the employee told the supervisor with whom he had
discussed the allegedly harassing behavior that he wanted to
"handle the situation by himself." Id. at 1186. In Nurse "BE" and
Hardage, the employee's conduct -- telling the supervisor not to
address the harassment -- appropriately affected the court's
inquiry into the reasonableness of the measures taken by the
employer. However, those cases are inapplicable here because there
the employees took affirmative steps to thwart their supervisors'
compliance with the reporting requirements. Here, Chaloult merely
failed to act. That is often the case in sexual harassment cases
for many different reasons. That failure has no relationship to
Anderson's responsibilities as a supervisor if he was aware of the
harassing conduct by Francoeur.
The majority sees it differently. With its disregard of
IBC's sexual harassment policy, it seeks to minimize the importance
of Anderson's knowledge of Francoeur's conduct notwithstanding the
obligation to report imposed on him by IBC's policy, and it makes
Chaloult's failure to use the complaint procedures of the company
-35-
the decisive factor in deciding that the company acted reasonably.
In effect, the majority double counts Chaloult's failure to report
sexual harassment to higher management (once in each element of the
affirmative defense). It gives little or no weight at all to
Anderson's awareness of Chaloult's encounters with Francoeur. For
this approach, the majority cites language from Reed v. MBNA Mktg.
Sys., Inc., 333 F.3d 27 (1st Cir. 2003), where we said that the
Supreme Court "certainly knew [] its [Faragher-Ellerth] regime
necessarily requires the employee in normal circumstances to make
[the effort to report sexually offensive conduct] if the employee
wants to impose vicarious liability on the employer and collect
damages under Title VII." Id. at 35 (emphasis in original).
This statement is merely an explanation of why there is
a second element of the Faragher-Ellerth affirmative defense that
focuses on the reporting responsibilities and conduct of the
employee. That statement did not mean, because it could not mean,
that the unreasonable failure of the employee to report sexual
harassment trumps the failure of the employer to exercise
reasonable care to prevent and correct promptly sexual harassment
in a case where the employer has knowledge of the sexual harassment
independently of any reporting by the employee. It is only because
of the majority's insistence that Anderson's knowledge of
Francoeur's treatment of Chaloult cannot be imputed to IBC under
element one of the Faragher-Ellerth affirmative defense that the
-36-
majority can rule as a matter of law that IBC prevails on that
defense.
III.
Near the end of its opinion, the majority qualifies its
insistence that Anderson's knowledge of Francoeur's treatment of
Chaloult cannot be imputed to IBC. The majority says that “[e]ven
if all of Anderson's knowledge were imputed to IBC, this would not
make IBC's actions unreasonable, since it is clear that Anderson
did not consider himself on notice of harassment.” I do not
understand how the majority can ascribe such dispositive
significance to Anderson's alleged insensitivity to sexual
harassment. Chaloult describes a number of encounters with
Francoeur that Anderson admittedly witnessed. She also describes
other encounters which she says Anderson was aware of and he denies
it. Those encounters are central to my view that we must vacate
the district court's grant of summary judgment. Taking the facts
in the light most favorable to Chaloult - as we must - Anderson was
aware of a series of episodes that a jury could view as sexual
harassment. Even accepting only what Anderson acknowledges he
heard and observed, a jury could still find that he should have
reported the conduct to IBC and that his failure to do so is
properly imputed to the company. The majority looks at those same
encounters and sees grounds for affirming summary judgment.
-37-
It does so by the misapplication of the summary judgment
standard. That misapplication includes an inappropriate effort to
undermine Chaloult's credibility. The majority notes that
Chaloult's contemporaneous diary of Francoeur's comments did not
include all of the incidents alleged in the complaint; that she
conceded in a deposition that her work deteriorated after she was
put on notice that her position could be eliminated; and that she
acknowledged her displeasure with her job for reasons unrelated to
the alleged sexual harassment. Although these details are fair
game for a trial, they have no place in the summary judgment
analysis, where we are not permitted to draw negative inferences
about Chaloult's credibility. That is a job for the jury at trial.
Then there is the majority's curious treatment of
Chaloult's insistence that Anderson knew of some incidents that he
does not acknowledge. For example, Chaloult alleges that Anderson
and a few maintenance people were in the area when Francoeur told
her that he was going to come to her house to show her what
“fucking was about.” The obvious import of Chaloult's statement is
that Anderson overheard the remark. In response, the majority
observes that Anderson says that he did not hear those comments.
The majority apparently accepts Anderson's denial. In so doing,
the majority distorts the summary judgment standard that requires
us to take all facts in the light most favorable to Chaloult.
-38-
Finally, there is the majority's odd treatment of
undisputed portions of the summary judgment record. It is
undisputed that Anderson heard Francoeur: remark that women who
rode motorcycles enjoyed sex from the backside after he learned
that Chaloult had recently taken a motorcycle trip; make an
inappropriate noise while Chaloult ate an eclair and another
supervisor "asked how far can it go"; state that he had heard a
radio program that discussed "spread points" between breasts; and
ask other employees to measure their "spread points." With respect
to this spread points incident, the majority recounts in detail
Anderson's version, including his insistence that he "read nothing
into it because we all had a chuckle about it." The majority then
says that "Chaloult has not called this testimony into question,"
without explaining how or why Chaloult has to challenge Anderson's
statement that he did not view this particular conduct as sexual
harassment.
Anderson's dismissal of such conduct as "guy talk" and
funny incidences that provoked laughter may only mean that he was
a company supervisor who did not understand the nature of sexual
harassment. Contrary to the inapt observation of the majority that
Chaloult never "used the term 'sexual harassment' in her
conversations with Anderson about Francoeur," Chaloult had no
obligation to explain to Anderson the significance of what he was
seeing. The testimony about those encounters described by Chaloult
-39-
should have been heard by a jury charged with determining whether
Anderson was placed on notice of sexual harassment, which would
then be imputable to IBC under the terms of its own sexual
harassment policy. Therefore, I respectfully dissent from the
decision of the majority to terminate this case.
-40-