ENGEL, J., delivered the opinion of the court. MERRITT (p. 875), and RYAN (pp. 875-77), JJ., delivered separate concurring opinions.
OPINION
Plaintiff Leanna Blankenship appeals the district court’s grant of summary judgment to defendants Parke Care Centers, Inc., and Westchester Management Company (collectively “Pai’ke”) in her suit based on claims of sexual harassment, assault and battery, and intentional infliction of emotional distress. Blankenship alleged that the conduct of a fellow Parke employee created a hostile work environment. The district court held that regardless of the severity of that employee’s conduct, Blankenship failed to establish the element of “respondeat superior” necessary to hold Parke liable. We affirm.
I.
Blankenship, then 17, was employed as a dietary aide at one of Parke’s nursing homes as part of a work-study program through her high school. She started work on September 13, 1993, six weeks after Parke hired Walter Malcom, 37, as a janitor for the same nursing home. Parke knew that Malcom had a history of substance abuse and that he had once been convicted of carrying a concealed weapon. Soon after Blankenship started working, she experienced several unwanted sexual advances by Malcom. On October 3, she complained to her immediate supervisor, Jacquelyn Sullivan. At Sullivan’s request, Blankenship prepared a written statement on October 4 that noted, in five separate incidents, a total of four kisses on the cheek, a tickle, three hugs, and a declaration by Malcom that he was “falling in love.”
In response, Sullivan asked all the members of the dietary department if they had witnessed any of this behavior; they all said no. She met with Judith Fadden, the director of nursing, and Mamie Lee, Malcom’s immediate supervisor. This group formulated an “observation network” designed to separate Malcom and Blankenship and to keep
Within a week or so, Blankenship suffered a further incident in which Maleom grabbed her breasts from behind. She mentioned this to Sullivan, who said she would see what could be done.1 Then, apparently at a separate time, Maleom asked Blankenship if he could take her out; she declined.
On October 17, when she returned to work after a few days off, Blankenship filed another written .complaint with Sullivan, in which she mentioned only that Maleom had asked her out — not the breast-grabbing incident. On the same day, Sullivan received a complaint from another dietary aide, Amy Marshall. Marshall complained of lewd touching, gestures, and language on the part of Mal-eom. Responding to these complaints, Aice Kalota, the chief administrator of the nursing home, along with Fadden and Lee, met with Maleom, who denied any wrongdoing. The administrators issued him the following warning on October 18:
We have had two written complaint[s] against you for harassment by females. This is your one & only warning. Harassment of any kind by an employee to another employee absolutely will not be tolerated. Any further occurr[e]nce will result in your immediate termination.
(J.A. at 406.)
On October 22, Blankenship became upset at work because Maleom “kept coming around” her. She spoke with Sullivan, who gave her permission to leave early. Blankenship’s mother came to pick her up and unsuccessfully tried to discuss the situation with Kalota. Kalota ended up meeting with Blankenship, Fadden, and Sullivan. Blankenship said that no specific incident had occurred since Maleom asked to take her out but that he was “around” her and she did not want to be near him. Kalota told Blankenship that she could not guarantee that Blankenship could work without ever coming into contact with Maleom. If she could not accept that, Kalota said, Blankenship would have to resign. Blankenship chose to resign, and she went home for good.
Blankenship sued Parke on federal and state claims of sexual harassment based on a hostile work environment, and on state claims of assault and battery and intentional infliction of emotional distress; she did not sue for wrongful termination or constructive discharge. The district court granted Parke’s motion for summary judgment, holding that even if Blankenship could prove the substantive elements of a hostile work environment claim, she could not establish Parke’s Lability under the respondeat superi- or doctrine. The district court found no evidence to support the purely state law claims. Blankenship does not contest that finding; she appeals the court’s holding only as to sexual harassment.
II.
We review the district court’s grant of summary judgment de novo. Kauffman v. Allied Signal, Inc., 970 F.2d 178, 182 (6th Cir.1992). Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying Rule 56(c), we view the evidence in the light most favorable to the nonmoving party and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). Courts have recognized two types of workplace sexual harassment as constituting discrimination on the basis of sex: quid pro quo harassment, in which a supervisor requests sexual favors in exchange for job benefits, and “hostile work environment” harassment, in which a pervasive atmosphere of sexual harassment creates an objectively hostile work environment. Rabidue v. Osceola Refining Co., 805 F.2d 611, 618-19 (6th Cir.1986).2 Blankenship has alleged the hostile work environment strain of sexual harassment. Hostile work environment cases distinguish between harassment by supervisors and harassment by co-workers. Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803-04 (6th Cir.1994). Because Malcom had no supervisory power over Blankenship, we will apply the law of co-worker harassment.
To prevail on her claim against Parke, Blankenship must show that (1) she is a member of a protected class; (2) she was subject to unwelcomed sexual harassment; (3) the harassment was based on her sex; (4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and (5) Parke “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.” Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir.) (quoting Rabidue, 805 F.2d at 621), cert. denied, — U.S. —, 117 S.Ct. 170, 136 L.Ed.2d 112 (1996).
Although the district court strongly suggested that Blankenship’s claim might fail on the fourth element, it rested its grant of summary judgment on the fifth element (hereinafter “the Rabidue standard”), which it labeled as “respondeat superior liability.” We used to describe an employer’s liability in this situation as arising under the respondeat superior doctrine, but now we have noted the inaccuracy of that characterization. Pierce, 40 F.3d at 804 n. 11. In co-worker harassment cases, the employer is liable, if at all, directly, not derivatively. Id.; see also Fleenor, 81 F.3d at 50.
The Rabidue standard has two distinct parts. We need not concern ourselves with whether Parke “knew or should have known” of the alleged harassment. It is undisputed that Parke knew about Blankenship’s complaints, with the possible exception of the breast-grabbing incident. We instead focus on whether Parke “failed to implement prompt and appropriate corrective action.” The promptness of Parke’s various responses to Blankenship’s complaints was evident; the dispute centers on their appropriateness.
We find little guidance in Rabidue as to what standard we should use to measure the appropriateness of the corrective action, other than a directive to proceed on a case-by-case basis. 805 F.2d at 621. The origin of the phrase “appropriate corrective action” is an EEOC regulation that does not describe what sort of action is appropriate. 29 C.F.R. § 1604.11(d). Rabidue also relied on decisions from several other circuits. One of those, Katz v. Dole, 709 F.2d 251 (4th Cir.1983), provided some guidance, noting that the corrective action must be “reasonably calculated to end the harassment.” Id. at 256.
In Bell v. Chesapeake & Ohio Railway, 929 F.2d 220 (6th Cir.1991), we applied the “prompt and appropriate corrective action” standard to a case of alleged racial harassment by an employee’s co-workers. We noted that the appropriateness of a response depends on the frequency and severity of the alleged harassment. In affirming the dismissal of the plaintiffs case, we stated that although the employer’s reaction to the alleged harassment was weaker than the plaintiff would have liked, the employer’s actions did not manifest “culpable indifference” to
In defining the employer’s duties in the present case, we must keep in mind that the alleged harasser was not plaintiffs supervisor. When the harasser is a co-worker, the standard for determining employer liability is “markedly different” from that applicable to supervisors, and is not based upon the doctrine of respondeat superior. See Pierce, 40 F.3d at 803-04. As discussed above, the employer’s liability in cases of co-worker harassment is direct, not derivative; the employer is being held directly responsible for its own acts or omissions. Pierce, 40 F.3d at 804 n. 11. Thus, when an employer responds to charges of co-worker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known. The act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment. Upon the facts before the district court, the employer’s good-faith response was entirely sufficient to escape liability under the Rabidue standard. See also Spicer v. Commonwealth of Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir.1995) (en banc) (employer liable for co-worker sexual harassment “only if no adequate remedial action is taken.”); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995) (employer generally not liable unless “the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.”). There is a singular lack of evidence to refute the employer’s claim that its actions were in good faith. Given the circumstances before it, there was little else, if anything it could do.
We recognize that our conclusion creates some tension with the first part of the Rabidue test, which asks whether the employer “knew or should have known” of the charged harassment. That language establishes an objective standard as to the employer’s awareness. In essence, it equates negligent ignorance of the existence of harassment with intentional discrimination. When Rabidue was written, we still viewed the employer’s liability in co-worker harassment cases as arising under the respondeat superior doctrine, so the awkward equation of negligence with intent was not present: if the employer was negligent, it was held responsible for its employees’ intentional discrimination, even if it had not itself intentionally discriminated. Now that we understand an employer’s liability to be direct, however, the continued validity of the “knew or should have known” language in Rabidue relies on a sort of legal fiction: because harassment is an especially invidious form of discrimination, as to which employers should be particularly vigilant, negligence as to the existence of harassment can be serious enough to constitute an intentional act of discrimination.
Once an employer is aware of and responds to charges of sexual harassment, though, mere negligence as to the content of the response cannot be enough to make the employer liable. When an employer responds with good-faith remedial action, we cannot say that the employer has itself committed an act of discrimination. In sum, although negligence as to the existence of harassment may be enough, under Rabidue, for an employer to incur liability for discrimination, negligence in the fashioning of a remedy is not. When an employer implements a remedy, it can be liable for sex discrimination in violation of Title YII only if that remedy exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination.
A. The October 4 and October 17 complaints
As to her two written complaints, Blankenship asserts that Parke should have taken more drastic action to separate her from Malcom. It should have confronted Malcom right away, she argues, and either transferred or terminated him. As Parke
After the first complaint, Parke took several steps to protect Blankenship. Although hindsight shows that these measures may not have been sufficient, they were appropriate at the time and easily satisfy the “good faith” standard we have discussed above. See Mullholand v. Harris Corp., No. 94-3725, 1995 WL 730466, at *3 (6th Cir. Dec. 8, 1995) (“Given that this was the first complaint ..., it would hardly have been sensible to take serious action without investigation at this time.”), cert. denied, — U.S. —, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996). After the second complaint and the intervening breast-grabbing incident, Parke threatened Maleom with termination. This response was both prompt and appropriate. See Fleenor, 81 F.3d at 50-51; Barrett v. Omaha Nat’l Bank, 726 F.2d 424, 427 (8th Cir.1984) (finding that investigation into alleged harassment was “appropriate corrective action” and that employer was not required to fire harasser).
B. Blankenship’s resignation
The most troubling facts of this case are those surrounding Blankenship’s resignation. Blankenship argues that Parke unreasonably forced her to resign. Because she has not alleged wrongful termination or constructive discharge, this argument at first glance appears out of place. The events of October 22 can, however, be analyzed under Rabidue. Blankenship complained to Sullivan and to Kalota that day that Maleom was “around” her and that she did not want to work in the same building with him. Parke’s response was that Blankenship had either to accept the status quo or to resign. That response, as such, was prompt; we must decide whether it was appropriate under the good-faith standard. Plainly it was.
The only thing that Blankenship could complain about with respect to Maleom on October 22 was that he was “around” her. No misconduct was cited on that day and therefore there was nothing to merit further censure by Parke. The workplace involved here was relatively intimate in all events and Kalota could very well have concluded that it was at least difficult if not impossible to guarantee that the two could never escape an occasional contact. Perhaps Kalota could have handled the meeting with Blankenship and her mother more adroitly, but clearly the parties had reached an impasse. She had already implemented several steps in good faith to correct the problem; the confrontation on October 22, since it did not involve any untoward conduct on Malcom’s part, could not occasion any further disciplinary action against Maleom himself.
While our holding can, we are satisfied, stand on its own, it is fortified by one other circumstance in this case which we believe could not realistically be ignored by Parke. Blankenship was female and white. Malcom was male and black. As supervisor, Parke was charged by Title VII with a duty not to discriminate against employees either on account of sex or on account of race. This duty would extend both to Blankenship and to Malcom. Not one of the actions alleged as harassment on Malcom’s part was supported by an independent eyewitness. For his part, Malcom denied the acts charged. It is true that by the time of Blankenship’s second complaint, co-employee Marshall had also claimed she was harassed by Malcom. Again, however, there was no independent eyewitness corroboration that we are aware of and Malcom denied these charges also. Although we do not attempt to quantify this circumstance in a legal way, it would be unfair indeed to ignore the very practical dilemma which presented itself to Sullivan. The propriety of her conduct, her good faith, and her freedom from any intent to discriminate are manifest. Considering the facts of this case up to and including October 22, we find that Parke’s response did not, as a matter of law, evidence the kind of discriminatory conduct on its part necessary to support the charge against it. Parke was aware of Blankenship’s complaints and had already implemented several steps in good faith to correct the problem. Preventing Malcom from coming near Blankenship was not yet a
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
1.
Parke disputes that this event happened and that Blankenship reported it to Sullivan, but recognizes that because the district court granted it summary judgment, the facts must be considered in the light most favorable to Blankenship.
2.
One part of Rabidue was abrogated by Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), but the rest of the case is still valid law. See, e.g., Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir.), cert. denied, - U.S. -, 117 S.Ct 170, 136 L.Ed.2d 112 (1996).