Nichols v. Azteca Restaurant Enterprises, Inc.

WARDLAW, Circuit Judge,

concurring in part and dissenting in part:

I concur in parts I, II, III, IVA, and V of the majority opinion but respectfully dissent from part IVB. Unlike the majority, I believe that the district court correctly concluded that Azteca successfully established an affirmative defense to Sanchez’s claims of a hostile work environment based on vicarious liability for the acts of its managers under Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Azteca created and implemented the type of anti-harassment policy that Title VII was designed to encourage. See Shaw v. AutoZone, Inc., 180 F.3d 806, 811 (7th Cir.), cert. denied, 528 U.S. 1076, 120 S.Ct. 790, 145 L.Ed.2d 666 (2000) (“Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.”) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 764, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). First, Azteca took no tangible employment action against Sanchez. Second, Azteca had a written sexual harassment policy, which Sanchez admitted receiving, and required that employees attend sexual harassment training sessions, which Sanchez admitted attending. The policy instructs employees to take their complaints *879directly to corporate headquarters to ensure prompt, objective responses as well as to remove managers, who might be a part of the problem, from the complaint reporting process. Sanchez complained only once to Serna, the Human Resources Director, and it is unclear from the record whether, during that discussion, Sanchez specifically complained that, in addition to co-workers, his managers were involved in the harassment. Because the meeting culminated in a plan, agreed upon by Serna, Sanchez and the Southcenter General Manager Jose Sanchez, to address the complaint of harassment within the managerial structure of the restaurant, it would have been inherently contradictory for Sanchez to have complained of harassment by his managers during that meeting. Furthermore, although Sanchez was instructed to notify Serna if the solution did not work, he never did. Complaining to the restaurant managers of further name-calling was not only contrary to Ser-na’s instructions and company policy, it was inherently unreasonable given Sanchez’s claim that the managers themselves were participating in the harassment. Thus, Sanchez “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise,” Faragher, 524 U.S. at 807, 118 S.Ct. 2275, and Azteca cannot be held liable for Sanchez’s failure to follow its publicized anti-harassment policy.