dissenting.
I must respectfully dissent from the majority opinion in this case.
The district court and the majority opinion both assume that the facts of this case create a jury question as to whether there *775is actionable sexual harassment. Although I believe that is a very close call, for all the reasons set forth in footnote number 6 of the majority opinion, my analysis proceeds on the same assumption.
I do not believe that the majority opinion can be squared with the Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), as well as our own precedents interpreting those two Supreme Court decisions. It is my reading of those cases that the only defense to liability by an employer for supervisor harassment is to establish both prongs of the affirmative defense set forth in Faragher and Ellerth. That is, the employer must show that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. See Burlington Industries, Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher v. City of Boca Raton, 524 U.S. at 807-08, 118 S.Ct. 2275. In this case, the evidence clearly shows that the Arkansas State Police met the first element of the two prong test. It had a policy and took prompt and effective remedial action against Mr. Hall. Like the majority, I applaud the ASP for its swift and effective response to McCurdy’s report of the sexual harassment. However, because ASP cannot establish the second prong of the Ellerth/Faragher affirmative defense, I must conclude that it still remains liable if a jury ultimately concludes that Hall’s conduct does rise to the level of sexual harassment.
It may be that the Supreme Court did not have a situation like this case in mind when it decided Faragher and Ellerth. In many, if not most cases, a single incidence of harassment, or as in this case, incidences that occur over less than an hour’s time, will not normally rise to the level of being sufficiently severe and pervasive to constitute actionable harassment. However, I cannot read anything in Ellerth/Far-agher that creates an exception to the two prong affirmative defense for those cases of single incident harassment that do rise to the level of actionable sexual harassment. As I read the Supreme Court cases, if there is supervisory harassment, whether it is a single or multiple incident, and the employer cannot prove the plaintiff employee unreasonably failed to take advantage of any corrective opportunities, the employer will be liable, regardless of how effective and prompt its remedial action might have been.
The district court found that ASP had established the Ellerth/Faragher affirmative defense as a matter of law and relied primarily on the reasoning of a single member of the Fifth Circuit in Indest v. Freeman Decorating, Inc., 164 F.3d 258 (5th Cir.1999) (Indest I). The district court recognized that Indest I is not binding precedent in the Fifth Circuit because it represents the views of only a single member of the three-judge panel. The other two members of the panel concurred in the judgment only. In Indest v. Freeman Decorating, Inc., 168 F.3d 795 (5th Cir.1999) (Indest II), one of the concurring judges, Judge Wiener, wrote a separate, concurring opinion and specifically rejected Indest I’s reasoning insofar as it modified the Supreme Court’s clear pronouncement of the twin elements of the Ellerth/Faragher affirmative defense. Judge Wiener characterized the Supreme Court’s Ellerth and Faragher opinions as “remarkably clear.” Id. at 796. He stated, “Under the Ellerth/Faragher rubric, an employer is vicariously liable for a supervisor’s actionable hostile environment sexual *776harassment of an employee unless the employer can prove both elements of the one and only affirmative defense now permitted by the Court.” Id. (footnote omitted).
Similarly, the EEOC takes the position that the Ellerth/Faragher defense requires proof of both elements, even though this result may appear “harsh to a law ábiding employer.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, June 18, 1999. This result, however, is tempered with the requirement that harassing conduct be severe and pervasive, because “[i]n most circumstances, if employers and employees discharge their respective duties of reasonable care, unlawful harassment will be prevented and there will be no reason to consider questions of liability.” Id.
I believe the cases from our court interpreting the Ellerth/Faragher affirmative defense, lend further support for my position. In Moisant v. Air Midwest, Inc., 291 F.3d 1028, 1030 (8th Cir.2002) the court discussed circumstances under which an employer may be held liable under Title VII for the acts of a supervisory employee whose sexual harassment created a hostile work environment. The court held that an employer is vicariously liable unless the employer can affirmatively show, among other things, that the employee unreasonably failed to take advantage of any preventive or corrective opportunities that may have been provided. The court went on to state:
Although, Air Midwest acted promptly to provide appropriate remedies for the events of which Ms. Moisant complained, that does not immunize them from the vicarious liability that Faragher imposes. ■ In granting judgment as a matter of law, perhaps the district court had in mind the rule that prompt remedial action will shield an employer from liability when the complaint against it is bottomed on acts committed by a plaintiffs co-worker rather than a supervisor. See e.g., Bailey v. Anchor Packaging, 216 F.3d 720, 720 (8th Cir.2000) (per curiam). But that is not this case. The present case was tried, at least partly, on the theory that Mr. Stillwell was Ms. Moisant’s supervisor, and there was ample evidence in the record that he was her supervisor as that term is defined in the relevant cases. See Faragher, 524 U.S. at 807, 118 S.Ct. 2275, 141 L.Ed.2d 662; see also Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir.1999). It follows that the district court erred with respect to Ms. Moisant’s hostile environment claim and that the court’s judgment must in this respect be reversed.
Id. at 1031; Granted, Moisant dealt with the situation involving three incidents of sexual harassment, two of which were reported to the employer. However, I see nothing in Moisant which would indicate that a different result would obtain if there had only been one incident of sexual harassment that was promptly reported to the employer.
In sum, I must respectfully dissent from the majority opinion. Unlike the majority, I Believe that Judge Richard S. Arnold correctly analyzed the Ellerth/Faragher affirmative defense in his concurrence in Todd v. Ortho Biotech, Inc., 175 F.3d 595, 599-600 (8th Cir.1999) (Arnold, Richard S., concurring). Like Judge Arnold, I believe the taking of prompt and effective remedial action may mitigate damages; however, it does not create a complete defense to liability.