Equal Employment Opportunity Commission v. General Motors Corp.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 12, 2008

No. 07-60886 Charles R. Fulbruge III
Clerk

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff–Appellant,
v.

GENERAL MOTORS CORPORATION,

Defendant–Appellee.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:06-CV-19

Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Appellant Equal Employment Opportunity Commission, on behalf of
Kristin Paige McGee, appeals a grant of summary judgment in favor of appellee
General Motors Corporation (General Motors). The district court ruled that
McGee’s claims based on Title VII of the Civil Rights Act of 19641 failed because
General Motors established, as a matter of law, the affirmative defense

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
42 U.S.C. § 2000e et seq.
No. 07-60886

enunciated in Burlington Industries, Inc. v. Ellerth2 and Faragher v. City of Boca
Raton.3
The parties are familiar with the facts of this “hostile environment” case.4
After considering the district court’s decision, the briefing, and the oral
arguments, we hold:
1. The district court correctly concluded that there is a genuine issue of
material fact as to whether the alleged harassment was sufficiently severe or
pervasive so as to alter the conditions of McGee’s employment as a temporary
employee and create an abusive working environment.5
2. We are bound by this court’s prior precedent, Watts v. Kroger Co.,6
regarding the reasonableness of an employee’s actions in response to an alleged
hostile environment. Although McGee’s employer, Kelly Services (Kelly),
provided her with a copy of Kelly’s sexual-harassment policy and General Motors
conspicuously posted its own sexual-harassment policy and responded to

2
524 U.S. 742, 765 (1998) (holding that when there has not been a tangible
employment action, a defending employer may raise an affirmative defense to liability or
damages “comprise[d] [of] 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”).
3
524 U.S. 775, 807 (1998) (reiterating the holding in Ellerth).
4
See Casiano v. AT&T Corp., 213 F.3d 278, 283 (5th Cir. 2000) (“At the first stop on
the Ellerth/Faragher road map, courts are required to determine whether the complaining
employee has or has not suffered a ‘tangible employment action.’ If he has, his suit is classified
as a ‘quid pro quo’ case; if he has not, his suit is classified as a ‘hostile environment’ case.”
(footnote omitted)).

5
See Faragher, 524 U.S. at 787-88 (“[T]o determine whether an environment is
sufficiently hostile or abusive,” lower courts must “‘look[] at all the circumstances,’ including
the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993))).
6
170 F.3d 505, 510 (5th Cir. 1999).

2
No. 07-60886

McGee’s sexual-harassment complaint in a prompt and reasonable manner,
there exists a genuine issue of material fact as to whether McGee unreasonably
failed to take advantage of any preventive or corrective opportunities provided
by General Motors or Kelly to avoid harm otherwise.7 Accordingly, the district
court’s judgment is REVERSED AND REMANDED.

7
See id. (“[A] jury could find that waiting until July . . . before complaining [about
harassment intensifying in the spring] is not unreasonable.”).