UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ________________________ No. 06-1851 ________________________ CHRISTINE BRENNEMAN, Plaintiff-Appellant, v. FAMOUS DAVE'S OF AMERICA, INC., Defendant-Appellee. _______________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA Civil Action No. 04-cv-90001-RP The Hon. Robert W. Pratt, U.S.D.J., Presiding _______________________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT CHRISTINE BRENNEMAN IN SUPPORT OF REVERSAL _______________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney U.S. EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 TABLE OF CONTENTS page TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 A. Proceedings Below. . . . . . . . . . . . . . . . . . .2 B. Statement of Facts . . . . . . . . . . . . . . . . . .3 C. District Court Decision. . . . . . . . . . . . . . . .7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. The District Court Misapplied the Faragher/Ellerth Affirmative Defense. . . . . . . . . . . 12 II. The Eighth Circuit's Constructive Discharge Standard Does Not Survive Suders.. . . . . . . . . . . . . . . . . 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF SERVICE APPENDIX: Collette v. Stein-Mart, 126 Fed.Appx. 678 (6th Cir. 2005) 1a Anderson v. Dillard's, 18 Fed.Appx. 460 (8th Cir. 2001) (per curiam) (unpub.). . . . . . . . . . . . . . . .10a TABLE OF AUTHORITIES Federal Cases page Anderson v. Dillard's, 109 F. Supp. 2d 1116 (E.D. Mo. 2000), aff'd o.b., 18 Fed.Appx. 460 (8th Cir. 2001) (per curiam) (unpub.)19 Beard v. Flying J, Inc., 266 F.3d 792 (8th Cir. 2001). .7, 12, 19 Bourque v. Powell Elec. Mfg., 617 F.2d 61 (5th Cir. 1980). . . 26 Brenneman v. Famous Dave's of Am., 410 F. Supp. 2d 828 (S.D. Iowa 2006). . . . . . . . . passim Burlington Indus. v. Ellerth, 524 U.S. 742 (1998). . . . . passim Clark v. United Parcel Serv., 400 F.3d 341 (6th Cir. 2005) 14, 17 Collette v. Stein-Mart, 126 Fed. Appx. 678 (6th Cir. 2005) (unpub.)27 Davis v. KARK-TV, 421 F.3d 699 (8th Cir. 2005) . . . . . . .8, 27 Delph v. Dr. Pepper Bottling, 130 F.3d 349 (8th Cir. 1997) .8, 27 Derr v. Gulf Oil, 796 F.2d 340 (10th Cir. 1986). . . . . . . . 26 EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920 (8th Cir. 2002). 21 EEOC. v. Univ. of Chic. Hosps., 276 F.3d 326 (7th Cir. 2002) . 25 Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) . . . . . . . . 18 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . passim Ferraro v. Kellwood Co., 440 F.3d 96 (2d Cir. 2006) . 13, 15, 22 Federal Cases (cont'd) page Garner v. Wal-Mart Stores, 807 F.2d 1536 (11th Cir. 1987). . . 25 Goss v. Exxon Office Sys., 747 F.2d 885 (3d Cir. 1984) . . . . 26 Guess v. Bethlehem Steel, 913 F.2d 463 (7th Cir. 1990) . . . . 19 Hardage v. CBS Broad., 427 F.3d 1177 (9th Cir. 2005), cert. pet. pending (S.Ct. No. 05-1399). . . . . . . . 18, 21 Harrison v. Eddy Potash, 248 F.3d 1014 (10th Cir. 2001). . . . 22 Hukkanen v. Int'l Union of Operating Eng'rs, 3 F.3d 281 (8th Cir. 1993). . . . . . . . . . . . . . 29, 30 Hurley v. Atlantic City Police Dep't, 174 F.3d 95 (3d Cir. 1999)14, 17 Indest v. Freeman Decorating, 168 F.3d 795 (5th Cir. 1999), (Wiener, J., concurring). . . . . . . . . . . . . . . . . 22 Jackson v. Cintas Corp., 391 F. Supp. 2d 1075 (M.D. Ala. 2005)18, 19 Johnson v. Bunny Bread, 646 F.2d 1250 (8th Cir. 1981). . . . . 26 Martin v. Cavalier Hotel, 48 F.3d 1343 (4th Cir. 1995) 26, 29, 30 McCoy v. Mass. Inst. of Tech., 950 F.2d 13 (1st Cir. 1991) . . 28 McCurdy v. Ark. State Police, 375 F.3d 762 (8th Cir. 2004), cert. denied, 543 U.S. 1121 (2005). . . . . . . . . . 22, 23 Moisant v. Air Midwest, 291 F.3d 1028 (8th Cir. 2002). . . . . 23 Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005). . . . . . . 28 Federal Cases (cont'd) page Patterson v. Tenet Healthcare, 113 F.3d 832 (8th Cir. 1997).2, 28 Pa. State Police v. Suders, 542 U.S. 129 (2004). . . . . . passim Petrosino v. Bell Atl., 385 F.3d 210 (2d Cir. 2004). . . . . . 27 Phillips v. Taco Bell, 156 F.3d 884 (8th Cir. 1998). . . . . . 19 Ramos v. Davis & Geck, 167 F.3d 727 (1st Cir. 1999). . . . . . 25 Steiner v. Showboat Operating, 25 F.3d 1459 (9th Cir. 1994). . 18 Ternullo v. Reno, 8 F. Supp. 2d 186 (N.D.N.Y.1998) . . . . . . 26 Varner v. Nat'l Super Markets, 94 F.3d 1209 (8th Cir. 1996). . 17 Watson v. Nationwide Ins., 823 F.2d 360 (9th Cir. 1987). . . . 25 West v. Marion Merrell Dow, 54 F.3d 493 (8th Cir. 1995). . . . .8 Wright v. Rolette County, 417 F.3d 879 (8th Cir. 2005), cert. den. sub nom Sims v. Wright, 126 S.Ct. 1338 (2006). 27 Yates v. AVCO Corp., 819 F.2d 630 (6th Cir. 1987). . . . . 26, 27 Federal Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.1 Miscellaneous Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (6/18/99), EEOC Compliance Manual (BNA)14, 17, 19 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the primary agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises important issues concerning proof of an employer's affirmative defense to liability under Title VII for a supervisor's sexual harassment under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). The appeal also raises an important issue concerning the requirements for proving a claim of constructive discharge under Title VII in light of the Supreme Court's ruling in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). This Court's articulation of the proper standards for establishing both the Faragher/Ellerth affirmative defense and Title VII claims of constructive discharge will affect not only Plaintiff Brenneman, but other Title VII plaintiffs, as well. To assist this Court in addressing these important issues, the Commission offers its views. STATEMENT OF THE ISSUES AND APPOSITE CASES<1> 1. Whether the district court misapplied the Faragher/Ellerth affirmative defense. Apposite cases: Faragher v. City of Boca Raton, 524 U.S. 725 (1998) Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) 2. Whether the district court's requirement of "employer intent" or "reasonable foreseeability" to establish a claim of constructive discharge was improper in light of the Supreme Court's pronouncement of a different standard. Apposite cases: Pa. State Police v. Suders, 542 U.S. 129 (2004) Patterson v. Tenet Healthcare, 113 F.3d 832 (8th Cir. 1997) STATEMENT OF THE CASE A. Proceedings Below On January 2, 2004, Plaintiff Christine Brenneman filed suit against Famous Dave's of America alleging, among other things, claims of hostile work environment based on sex and retaliation in violation of Title VII of the Civil Rights Act of 1964. R.1.<2> On January 23, 2006, the district court granted Famous Dave's motion for summary judgment on Brenneman's Title VII claims. R.29. This appeal followed. B. Statement of Facts Christine Brenneman began working for Famous Dave's as an assistant restaurant manager on January 20, 2003. Brenneman v. Famous Dave's of Am., 410 F. Supp. 2d 828, 832 (S.D. Iowa 2006). After training for four to five weeks under Chuck LeCorgne, the general manager at a Famous Dave's restaurant in Lincoln, Nebraska, Brenneman was assigned in mid-February to work at the company's West Des Moines, Iowa, location under general manager Dave Ryburn. Id. at 832-33. Brenneman asserts that within one to two weeks, Ryburn began making frequent, unwanted sexual advances and inappropriate comments. Id. at 832. Brenneman alleges that Ryburn, among other things, slapped her on the buttocks several times, pulled the elastic cord on her badge, which she wore attached to the front of her belt, "[a]t least a couple times a day," and winked at her and blew kisses in her direction on a daily basis. Id. at 832-33. Brenneman says Ryburn made numerous comments involving express sexual references or sexual innuendo. Id. According to Brenneman, another employee, Meredith Brewer, said Ryburn had also touched her inappropriately. Id. at 833. See also R.23-3 (Plaintiff's Response to Defendant's Statement of Undisputed Facts) #13 (JA305-06); R.23-4 (Plaintiff's Statement of Material Facts in Dispute) ("PSMFD") ## 6-18 (JA313-14). Ryburn reported to Dave Henson, the company's area director. 410 F. Supp. 2d at 832-33. On one occasion, Ryburn opened the door to the office shared by the members of the management team and Brenneman observed Henson in the office looking at pornography on a laptop computer. Ryburn saw the pornographic image, closed the door, and then apologized several times to Brenneman. Id. at 833. When LeCorgne, the general manager who originally trained Brenneman, came to the West Des Moines location on April 2 to conduct a review of the restaurant, Brenneman told him about Ryburn's inappropriate physical contact and comments. LeCorgne noted that Ryburn and his wife had just had a baby and "maybe [Ryburn] needed a little attention and . . . was looking in the wrong place." Id. According to Brenneman, LeCorgne appeared to shift the blame to her, suggesting Ryburn's attentions were because Brenneman was "a nice-looking lady" and "fun-loving" and that she should just "keep her distance" and "kind of stay away." Id.; PSMFD #24 (JA315). Although LeCorgne said he was "there as a friend and not [as] a representative of Famous Dave's," he advised Brenneman to see if this had happened to anyone else, told her about the company's employee hotline, and said he would contact the human resources department for her (although apparently he never did). 410 F. Supp. 2d at 833; Brenneman deposition ("dep.") at 158-59 (JA349). Ryburn continued his offensive behavior over the next few days. On April 7, Brenneman left a message on Famous Dave's' employee hotline and shared her concerns with Rob Vawter, a co-manager at the West Des Moines restaurant. Vawter immediately contacted Karen Schindler, a member of Famous Dave's' human resources office in Minneapolis. Within five or ten minutes after receiving Vawter's call, Schindler called Brenneman to discuss her complaints. Brenneman detailed her interactions with Ryburn and, according to Brenneman, Schindler characterized Ryburn's actions as "blatant sexual harassment." 410 F. Supp. 2d at 834; see PSMFD #31 (Brenneman reported each incident of harassment to Schindler) (JA316). Since Ryburn was out of the office the week of April 7, Schindler waited until Ryburn' s return to conduct an investigation. On April 14, Schindler traveled to the West Des Moines restaurant. 410 F. Supp. 2d at 834. Before speaking to Ryburn, Schindler contacted Brenneman and suggested she and Brenneman meet with Ryburn to "work this out." Id.; PSMFD #35 (JA317). Brenneman had previously told Schindler that she feared repercussions from Ryburn, and she told Schindler "she was not comfortable meeting face-to-face with Ryburn." Id. ##32, 35 (JA316-17). Nevertheless, according to Brenneman, the only remedy Schindler offered was for Brenneman to meet with Ryburn and "work it out" or be moved to a different restaurant. Although Schindler offered belatedly to meet with Brenneman alone, see Brenneman dep. at 202 (JA57), Schindler never indicated that Ryburn might be transferred or, indeed, that Ryburn would incur any consequences for his conduct, some of which he admitted. PSMFD ## 36-41 (JA317). Schindler later acknowledged that by April 14 she had already made up her mind that Ryburn had done nothing inappropriate. Id. #39; Schindler dep. at 70, 73 (JA390, 392). Brenneman declined Schindler's requests to meet that day or the next "[b]ecause it was obvious that nothing was going to change if she went back to Famous Dave's," and she "did not feel safe in returning to her position." PSMFD #42 (JA317). Instead, on April 15, Brenneman e-mailed her resignation letter to Famous Dave's human resources director, Matt Reed. 410 F. Supp. 2d at 835. Famous Dave's later e-mailed Brenneman inviting her to return to work, and Ryburn sent Brenneman an apology letter stating he would "do everything possible to ensure [Brenneman felt] comfortable" if she did. Id. On April 24, Reed sent Brenneman a letter again inviting her to return to work and informing her that Famous Dave's had instructed Ryburn to refrain from inappropriate behavior in the workplace. The letter did not disclose any other corrective action taken by Famous Dave's. Id. It was only during discovery that Famous Dave's revealed it had issued a written warning to Ryburn and required him to attend anti-harassment training. Id. at 843. Brenneman never returned to work. On January 2, 2004, she filed this lawsuit alleging, among other things, sexual harassment, constructive discharge and retaliation in violation of Title VII and state civil rights laws. Id. at 835. Famous Dave's moved for summary judgment, and the district court granted the motion. C. District Court Decision The district court concluded that although the precise nature and severity of Ryburn's conduct was in dispute, id. at 838, Brenneman had alleged sufficient facts to demonstrate that Ryburn's harassing conduct affected a term, condition or privilege of Brenneman's employment. Id. at 837-39 (relying on Beard v. Flying J, Inc., 266 F.3d 792, 798 (8th Cir. 2001)). The district court nevertheless granted summary judgment on the ground that Famous Dave's had established the Faragher/Ellerth affirmative defense. The district court first rejected Brenneman's argument that Famous Dave's could not assert an affirmative defense under Faragher and Ellerth because Brenneman was constructively discharged. The district court observed that "constructive discharge is a tangible employment action . . . only when an official act underlies the constructive discharge." Id. at 840 (citing Suders, 542 U.S. 129). In this instance, "Ryburn's [harassing] actions were not tied to his official role as Brenneman's supervisor, and . . . did not involve a direct exercise of company authority." Id. at 840-41. Since no official act had led to Brenneman's constructive discharge, Famous Dave's was not vicariously liable as a matter of law. The district court concluded, in any event, that Brenneman did not assert sufficient facts to prove a claim of constructive discharge. Id. at 841-42. The district court noted that in the Eighth Circuit, a claim of constructive discharge requires proof, first, "that a reasonable person in the same position would have found the working conditions intolerable" and, second, that "the employer has created an intolerable working environment in a deliberate attempt to compel [the employee's] resignation" or that the resignation "‘was a reasonably foreseeable consequence' of the hostile environment." Id. at 841 (quoting Davis v. KARK-TV, 421 F.3d 699, 706 (8th Cir. 2005), and Delph v. Dr. Pepper Bottling, 130 F.3d 349, 354 (8th Cir. 1997) (other citations omitted)). The district court stated that "[p]art of an employee's obligation to be reasonable is an obligation not to assume the worst and not to jump to conclusions too fast," and that "an employee who quits without giving her employer a reasonable chance to work out a problem is not constructively discharged." Id. (quoting West v. Marion Merrell Dow, 54 F.3d 493, 498 (8th Cir. 1995) (internal quotations omitted)). Applying these standards, the district court noted that Brenneman did not assert that Ryburn's actions were a deliberate attempt to compel her to resign, nor, according to the court, did she present any facts indicating that Famous Dave's sought to force her to quit. Id. The court further concluded that Brenneman did not demonstrate, alternatively, that her sudden resignation, before discussing her options with Schindler in person, was reasonably foreseeable. Id. On this basis, the district court reasoned that Brenneman could not prevail on her contention that she was constructively discharged. Id. at 841-42. The district court further concluded that Famous Dave's had demonstrated the absence of disputed material facts on both prongs of the Faragher/Ellerth affirmative defense. Id. at 842-45. As the district court explained, the affirmative defense the Supreme Court made available to employers in Faragher and Ellerth requires a defendant to prove, first, that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and, second, that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities" provided by the defendant or "to avoid harm otherwise." Id. at 842. With respect to the first prong, the district court concluded that Famous Dave's demonstrated the requisite "reasonable care to prevent" sexually harassing behavior by having an anti- harassment policy that contains a reporting procedure and by having trained Brenneman on the policy when she initially began working for the company. Id. at 842. The district court noted that Famous Dave's never indicated whether Ryburn had received similar training, an omission the court considered "significant." Id. The district court nevertheless found the first part of the first prong satisfied on the grounds that "Famous Dave's had a sexual harassment policy in place, along with a reporting procedure." Id. The district court found "more difficult" the question of whether Famous Dave's had "exercised reasonable care to correct the harassing behavior once Brenneman reported it," id., but ultimately concluded that Famous Dave's had done "everything that was required of it under the circumstances." Id. at 843. The district court noted that Famous Dave's had "acted swiftly to correct the harassment" as soon as Vawter contacted the HR department. Id. Even assuming as true Brenneman's assertions that all Schindler offered was to rearrange her schedule or transfer her to another location, "these solutions would have been acceptable." Id. In response to Brenneman's assertion that Ryburn should have been moved to another store, id. at 843 n.4, the district court stated that "[t]he Eighth Circuit has never held that an employer must terminate or transfer an employee who is accused of harassment" and that suspensions, anti-harassment training and formal warnings have been held to be adequate responses to harassment charges. Id. at 843. The district court concluded that Famous Dave's also met its burden as to the second prong of the affirmative defense – whether Brenneman unreasonably failed to take advantage of the corrective opportunities Famous Dave's offered. The district court acknowledged the parties' disputed facts on this point. Famous Dave's contended that Brenneman's refusal to meet with Schindler before resigning was unreasonable. Id. at 844. Brenneman, on the other hand, contended that Schindler had essentially indicated her investigation was completed and she did not believe Ryburn had done anything wrong. As a result, Brenneman concluded nothing would be done to address the situation, and she did not feel safe returning to work. Id.; see R. 23-2 (Plaintiff's Resistance to Defendants' Motion for Summary Judgment) at 15- 16; PSMFD ##36-42 (JA317). Despite the parties' dispute on these material facts, the district court concluded as a matter of law that Brenneman unreasonably failed to take advantage of the corrective opportunities Famous Dave's offered after she reported the harassment, by declining to meet with Schindler or to explore any other possible resolutions. 410 F. Supp. 2d at 845. The district court noted that "the purpose of Title VII is to avoid harm," id. at 844 (citing Faragher, 524 U.S. at 806), and concluded, therefore, that "the law affords Famous Dave's the opportunity to remedy [a hostile] environment and requires that Brenneman take advantage of Famous Dave's remedial attempts." Id. The district court thus found that Famous Dave's met its burden on both prongs of the Faragher/Ellerth affirmative defense and, on this basis, granted summary judgment on Brenneman's hostile work environment claim. Id. ARGUMENT I. The District Court Misapplied the Faragher/Ellerth Affirmative Defense. The district court properly determined that Brenneman's allegations of harassment by Ryburn satisfied the "severe or pervasive" test for a claim of hostile work environment in violation of Title VII. Brenneman, 410 F. Supp. 2d at 838-40.<3> As the district court noted: [T]he alleged harassment began just one to two weeks after she began working and continued throughout the duration of her employment, a period of approximately two months. Moreover, the harassment was instigated by her supervisor, increasing the probability that the situation would be an intimidating one. Id. at 839-40. Acknowledging that the same number of incidents spread over a longer period of time might not be sufficiently severe or pervasive, here "the conduct pervaded Brenneman's entire working relationship with Famous Dave's." Id. at 840. On this basis, the district court properly concluded that Brenneman alleged sufficient facts that there was a hostile work environment to withstand summary judgment. The district court, however, erroneously applied the elements of the Faragher/Ellerth affirmative defense to conclude that Famous Dave's established an affirmative defense as a matter of law. In Faragher and Ellerth, the Supreme Court ruled that employers are presumptively vicariously liable for the sexually-harassing conduct of managers and supervisors who have "immediate (or successively higher) authority over the employee," subject to an affirmative defense that is available "[w]hen no tangible employment action is taken." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08. As the Court explained: The defense comprises 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. Ellerth, 524 U.S. at 765; accord Faragher, 524 U.S. at 807; see also Suders, 542 U.S. at 137-38. The two prongs are intended to work together to further Title VII's purpose of preventing harm where possible. See Faragher, 524 U.S. at 805-07; Suders, 542 U.S. at 145-46; Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006) (the affirmative defense "provides incentives to both employees and employers in furtherance of the conciliatory and deterrent purposes of federal antidiscrimination law"). The Court explained in Ellerth that the adequacy of an employer's particular preventive and corrective measures is addressed appropriately in individual cases. Ellerth, 524 U.S. at 765. Courts of appeals have since clarified that satisfying the first prong requires an employer to prove more than just the mere existence of an anti- harassment policy and complaint procedure; it also requires proof the employer took appropriate steps to implement the policy. See, e.g., Clark v. United Parcel Serv., 400 F.3d 341, 349 (6th Cir. 2005); Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 118 (3d Cir. 1999); see also Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002 (6/18/99), EEOC Compliance Manual (BNA), at 615.0107 & n.54 (having an anti-harassment policy and complaint procedure "will not alone satisfy the burden of proving reasonable care if, in the particular circumstances of a claim, the employer failed to implement its process effectively.") (citing Hurley, 174 F.3d at 118). As the Sixth Circuit recently observed, "[p]rong one of the affirmative defense requires an inquiry that looks behind the face of a policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior." Clark, 400 F.3d at 349. In particular, "[t]he effectiveness of an employer's sexual harassment policy depends upon the effectiveness of those who are designated to implement it." Id. Having an antiharassment policy and complaint procedure does not further Title VII's purpose of preventing harm unless employees advise their employers of workplace harassment so the employer can take corrective steps. See Faragher, 524 U.S. at 805-07. To ensure this happens, the Supreme Court, borrowing from tort law "the avoidable consequences doctrine," Suders, 542 U.S. at 146 (quoting Ellerth, 524 U.S. at 764), fashioned the second prong of the affirmative defense to encourage employees "to stave off avoidable harm" by reporting harassment promptly, since the failure to do so without adequate justification is now a possible bar to the employee's claim. See Ferraro, 440 F.3d at 103 (employer established second prong of affirmative defense by demonstrating employee unreasonably failed to report harassment). The purpose of this second prong is, therefore, to ensure employers have sufficient information about possible problems so they can take appropriate steps to eliminate harassment where it has occurred notwithstanding the employer's preventive efforts. In the present case, the district court erred in applying both prongs of this Faragher/Ellerth affirmative defense. The court erroneously concluded that, as a matter of law, Famous Dave's met the first part of the first prong (the exercise of reasonable care to prevent workplace harassment) merely by having an anti- harassment policy that contains a complaint procedure. Brenneman, 410 F. Supp. 2d at 842. The factfinder must consider not just whether a policy exists on paper, but also whether Famous Dave's took appropriate steps to implement the policy. As the district court noted but then improperly discounted, a critical element of such appropriate implementation was absent from Famous Dave's summary judgment record. Specifically, Famous Dave's argued that it implemented its anti-harassment policy effectively by training Brenneman on the policy when she was first hired. Id. Famous Dave's asserted this, presumably, to demonstrate Brenneman's awareness of the procedure for reporting harassment, a procedure that she followed. The district court then noted that "Famous Dave's does not state whether Ryburn received similar training, an omission the Court considers significant considering that the first part of the affirmative defense asks whether the employer exercised reasonable care to prevent any sexual harassment." Id. (citing Faragher, 524 U.S. at 807) (emphasis added and in original). Indeed, the company offered no evidence that it ever trained any of its senior managers on the policy, even though these managers were responsible for not only following the policy themselves, but also for ensuring a harassment-free work environment at the restaurants they managed. In particular, there is no evidence that Famous Dave's provided training on its anti-harassment policy to Ryburn, the general manager of the restaurant where Brenneman worked and Brenneman's alleged harasser. There is also no evidence that the company trained LeCorgne, the general manager of the Lincoln, Nebraska restaurant to whom Brenneman first reported her concerns and who assured her he would pass the information along to the Human Resources Department, but apparently never did. See Varner v. Nat'l Super Markets, 94 F.3d 1209, 1213 (8th Cir. 1996) (complaint procedure not effective if it does not require a supervisor with knowledge of harassment to report that information to those in position to take appropriate action); EEOC Enforcement Guidance at 615.0111 ("[R]easonable care in preventing and correcting harassment requires an employer to instruct all supervisors to report complaints of harassment to appropriate officials."). Finally, there is no evidence that Famous Dave's ever provided anti-harassment training to Henson, the regional manager who supervised Ryburn and whom Brenneman observed viewing pornography on a laptop in the shared managers' office during working hours. Given this absence of evidence that Famous Dave's trained its managers or took any other effective implementing steps, the district court was wrong to rule that Famous Dave's established, as a matter of law, that it took reasonable steps to implement its anti-harassment policy. All the company's evidence really shows is that it had a policy in place of which Brenneman was aware. There is substantial caselaw holding similar efforts are simply inadequate to establish the defense as a matter of law. See, e.g., Clark, 400 F.3d at 349; Hurley, 174 F.3d at 118. Clearly, this is a factual question for a jury to determine, taking into account the company's failure to allege that it ever trained any of its manager (other than Brenneman) or that it ever expressly directed its managers to enforce and comply with the policy. See, e.g., Jackson v. Cintas Corp., 391 F. Supp. 2d 1075, 1095 n.19 (M.D. Ala. 2005); cf. Hardage v. CBS Broad., 427 F.3d 1177, 1185 (9th Cir. 2005) (CBS fulfilled its duty to take preventive measures as a matter of law by adopting and promoting awareness of its anti-harassment policy), cert. pet. pending (S.Ct. No. 05-1399). With respect to Famous Dave's' efforts to correct the harassment after Brenneman complained, Brenneman alleges that the only remedies Famous Dave's offered before she resigned was to change her hours or to transfer her to another location where she would not come in contact with Ryburn. A jury could easily determine that if separating Ryburn and Brenneman was necessary or appropriate in this instance, offering to change Brenneman's schedule and/or location rather than that of the harasser does not constitute an appropriate response. See Steiner v. Showboat Operating, 25 F.3d 1459, 1464 (9th Cir. 1994) (remedial action for supervisor sexual harassment inadequate where employer twice changed plaintiff's shift to get her away from supervisor rather than change his shift or work area), cert. denied, 513 U.S. 1082 (1995); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991) (victim of sexual harassment should not have to work in less desirable location as result of employer's remedy for sexual harassment); Guess v. Bethlehem Steel, 913 F.2d 463, 465 (7th Cir. 1990) ("remedial measure that makes the victim of sexual harassment worse off is ineffective per se"); see also EEOC Enforcement Guidance at 615.0111 nn 72 & 73. In sum, the first prong of the affirmative defense is a fact-sensitive question that depends on the reasonableness of the defendant's actions under the particular circumstances. In cases such as this, where the parties have asserted disputed facts, it properly falls within the province of the fact-finder to determine whether the defendant has met its burden on the first prong. See, e.g., Phillips v. Taco Bell, 156 F.3d 884, 889 (8th Cir. 1998) (jury question existed as to first prong even though defendant posted written sexual harassment policy and distributed it to employees); Anderson v. Dillard's, 109 F. Supp. 2d 1116, 1125-26 (E.D. Mo. 2000) (despite existence of anti-harassment policy, disputed facts existed as to whether defendant took reasonable care to correct alleged harassment), aff'd o.b., 18 Fed. Appx. 460 (8th Cir. 2001) (per curiam) (affirming, after trial, submission of case to jury) (unpub.); see also Beard, 266 F.3d 799-800 (affirming denial of judgment as a matter of law because jury could conclude from evidence that under the particular circumstances Flying J failed to exercise reasonable care in correcting harassment and, therefore, did not prove its affirmative defense); Jackson, 391 F. Supp. 2d at 1096 (factual disputes as to reasonableness of Cintas' steps to disseminate its anti- harassment policy). In determining as a matter of law that Famous Dave's exercised reasonable care in this case to prevent and promptly correct harassment, the district court erroneously took this function away from the jury. The district court also erred in holding that Famous Dave's established the second prong of the affirmative defense as a matter of law. The district court properly recognized that Brenneman brought her concerns to Famous Dave's' attention through appropriate channels only a few weeks after the harassment began. 410 F. Supp. 2d at 832-33. The district court nevertheless reasoned that Famous Dave's met the second prong of the Faragher/Ellerth defense on the grounds that Brenneman "unreasonably failed to take advantage of . . . corrective opportunities provided by the employer," Ellerth, 524 U.S. at 765, by resigning instead of continuing to participate in the company's efforts to address her harassment complaint. 410 F. Supp. 2d at 843-45. As noted above, the Supreme Court made clear in Faragher that it was adopting a two-pronged affirmative defense primarily to further Title VII's principal purpose of preventing harm where possible. See 524 U.S. at 805-07. Accordingly, the purpose of the second prong is to ensure an employer receives prompt notice of any problems in the workplace and obtains the information needed to take effective remedial steps. See Hardage, 427 F.3d at 1193 (Paez, J., dissenting in part) ("The very point of an investigation is to gather the details about the alleged harassment."). Brenneman reported the harassment to the HR office promptly. She spoke with the investigator over the phone and told her everything that had happened. PSMFD #31 (JA316). A reasonable jury could conclude that at this point the investigator had the information she needed from Brenneman, permitting the company's investigation to proceed with interviews of the other individuals involved. Moreover, the record reflects that, based on her conversations with Schindler, Brenneman believed Famous Dave's had completed its investigation and no action would be taken against Ryburn. Brenneman's impression was indeed borne out by Schindler's later acknowledgment that she had already made up her mind that Ryburn had done nothing wrong. See discussion at 5-6, supra. A jury could reasonably conclude from these allegations, which the court was required to credit on summary judgment, see EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 922-23 (8th Cir. 2002), that Brenneman's refusal to participate further in Famous Dave's alleged corrective actions was reasonable. Thus, summary judgment was wrongly granted because Famous Dave's has not established the second prong as a matter of law. It is undisputed that Brenneman complained of the harassment and explained the details to the member of the company's HR department who was assigned to investigate. In addition, Brenneman alleged sufficient facts from which a jury could conclude that she thereafter had a reasonable basis for not participating further in the company's corrective steps. See Ferraro, 440 F.3d at 103 (defendant must "first introduc[e] evidence that the plaintiff failed to avail herself of the defendant's complaint procedure and then [demonstrate] the absence or inadequacy of the plaintiff's justification for that failure"); Harrison v. Eddy Potash, 248 F.3d 1014, 1025-26 (10th Cir. 2001) (defendant must prove both prongs of affirmative defense to prevail). As Judge Melloy noted in his dissent in McCurdy v. Arkansas State Police, 375 F.3d 762 (8th Cir. 2004), cert. denied, 543 U.S. 1121 (2005), "if there is supervisory harassment, . . . 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." Id. at 774-76 (Melloy, J., dissenting). See also Indest v. Freeman Decorating, 168 F.3d 795, 796 (5th Cir. 1999) (Wiener, J., concurring) (employer vicariously liable for supervisor's actionable sexual harassment of employee unless employer can prove both elements of Faragher/Ellerth affirmative defense). In McCurdy, this Court concluded that the Supreme Court did not intend, in Faragher and Ellerth, to deny the affirmative defense to an employer who responded promptly to an employee's complaint following a single harassing incident. See McCurdy, 168 F.3d at 771-72. The present appeal is not inconsistent with this result because here, as in Faragher and Ellerth, Brenneman's claim of hostile environment is based on repeated incidents of supervisor sexual harassment. Thus, this case does not present the difficult "single harassing incident" issue this Court addressed in McCurdy. Rather, it is a straightforward application of the affirmative defense as plainly envisioned in Faragher and Ellerth. As this Court concluded when it reversed a district court's grant of judgment as a matter of law in Moisant v. Air Midwest, 291 F.3d 1028 (8th Cir. 2002), a defendant-employer is liable for supervisor harassment where the plaintiff-employee availed herself of the company's complaint procedures, even where the company took prompt remedial action in response, because the employer has not established both prongs of the Faragher/Ellerth affirmative defense. Id. at 1030-31. To sustain its burden, Famous Dave's must establish both prongs of the affirmative defense. In this instance, Famous Dave's failed to establish either prong as a matter of law. By granting summary judgment, the district court short-circuited the jury's proper function to determine whether Famous Dave's met its burden of establishing the Faragher/Ellerth affirmative defense. Therefore, summary judgment was improper on this ground. II. The Eighth Circuit's Constructive Discharge Standard Does Not Survive Suders. Brenneman alleges that the harassment to which she was subjected was sufficiently severe or pervasive that it not only supports a claim of hostile work environment under Title VII, but a claim of constructive discharge, as well. In addressing this claim, the district court applied this Court's well-established standard for constructive discharge. See Brenneman, 410 F. Supp. 2d at 841 (constructive discharge occurs when employee resigns after employer "has created an intolerable working environment in a deliberate attempt to compel such a resignation"). The component of this standard involving the employer's intent is, however, no longer viable following the Supreme Court's decision in Suders. In Ellerth and Faragher, the Supreme Court held that the affirmative defense is unavailable where harassment culminates in a "tangible employment action." See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808. In Suders, the Court determined that a plaintiff's constructive discharge constitutes such a "tangible employment action" where "the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation;" otherwise, a defendant may assert the affirmative defense in a constructive discharge claim based on hostile work environment. Suders, 542 U.S. at 134. The Court also held, in Suders, that to establish a claim of constructive discharge, a plaintiff must show not just that harassing behavior was "sufficiently severe or pervasive to alter the conditions of [her] employment," but also "that the abusive working environment became so intolerable that her resignation qualified as a fitting response." Id. at 133-34. As the Court explained, this involves the "objective" inquiry of whether "a reasonable person in the employee's position would have felt compelled to resign." Id. at 141 (citation omitted); see also id. at 147. Echoing this standard, although not referencing Suders, the district court noted below that a plaintiff asserting a claim of constructive discharge based on a hostile work environment must establish "that the harassment was severe enough that a reasonable person in the same position would have found the working conditions intolerable." See Brenneman, 410 F. Supp. 2d at 841 (citation omitted). A majority of circuits had properly identified this as the standard for constructive discharge prior to Suders. See, e.g., EEOC v. Univ. of Chic. Hosps., 276 F.3d 326, 331 (7th Cir. 2002) (to demonstrate constructive discharge, plaintiff must show "she was forced to resign because her working conditions, from the standpoint of the reasonable employee, had become unbearable"); Ramos v. Davis & Geck, 167 F.3d 727, 731 (1st Cir. 1999) (same); Watson v. Nationwide Ins., 823 F.2d 360, 361 (9th Cir. 1987) (same); Garner v. Wal-Mart Stores, 807 F.2d 1536, 1539 (11th Cir. 1987) (same); Derr v. Gulf Oil, 796 F.2d 340, 343-44 (10th Cir. 1986) (expressly rejecting subjective element of employer's intent); Goss v. Exxon Office Sys., 747 F.2d 885, 887-88 (3d Cir. 1984) (same); Bourque v. Powell Elec. Mfg., 617 F.2d 61, 65 (5th Cir. 1980) (same). The district court, however, also imposed an additional element: that Famous Dave's sought to force Brenneman to quit, or that her resignation was a reasonably foreseeable consequence of the hostile environment. Brenneman, 410 F. Supp. 2d at 841. Since at least 1981, the Eighth Circuit has been among a minority of federal circuits requiring constructive discharge plaintiffs to prove that the employer created the intolerable working environment in a deliberate attempt to compel the employee's resignation. See Johnson v. Bunny Bread, 646 F.2d 1250, 1256 (8th Cir. 1981) ("To constitute a constructive discharge, the employer's actions must have been taken with the intention of forcing the employee to quit."); see also Martin v. Cavalier Hotel, 48 F.3d 1343, 1354 (4th Cir. 1995) (subscribing to "minority view" that plaintiff must prove "the actions complained of were intended by the employer . . . to force the employee to quit"); Yates v. AVCO Corp., 819 F.2d 630, 637 (6th Cir. 1987) (requiring "some inquiry into the employer's intent").<4> This Court has reiterated this additional requirement post-Suders, without any discussion of Suders' impact on this standard. See, e.g., Davis, 421 F.3d at 706 (not mentioning Suders and rejecting Davis's claim, in part, because there was "no indication [her employer] acted with the intention of forcing Davis to resign"); Wright v. Rolette County, 417 F.3d 879, 886 (8th Cir. 2005) (applying two-prong standard to claim of constructive discharge under Section 1983), cert. denied sub nom Sims v. Wright, 126 S.Ct. 1338 (2006).<5> This Court has also held that absent specific evidence that the employer intended to force her resignation, a plaintiff can prove, alternatively, that her resignation was the reasonably foreseeable consequence of the employer's deliberate creation or toleration of intolerable working conditions. See Delph, 130 F.3d at 354. As the Fourth Circuit explained: "in assessing the deliberateness of an employer's conduct, ‘an employer "must necessarily be held to intend the reasonably foreseeable consequences of its actions."' " Martin, 48 F.3d at 1355 (citations omitted); see also Yates, 819 F.2d at 637 (intent can be demonstrated by "at least some foreseeability on the part of the employer"). Neither iteration – proof that an employer subjectively intended to force an employee to resign, or demonstration that the employee's resignation was a reasonably foreseeable consequence – remains viable in light of the Supreme Court's explicit statement of the constructive discharge standard in Suders. The Court's unambiguous articulation that a constructive discharge claim involves an "objective" inquiry as to what a reasonable person in the employee's position would have felt compelled to do, Suders, 542 U.S. at 141, leaves no room for the appendage of any further requirements. Thus, this Court's two-part standard does not survive Suders. Cf. Patterson v. Tenet Healthcare, 113 F.3d 832, 838 (8th Cir. 1997) ("Although one panel of this court ordinarily cannot overrule another panel, this rule does not apply when the earlier panel decision is cast into doubt by a decision of the Supreme Court.").<6> Aside from the fact that Suders clearly articulates the standard for constructive discharge, there is no principled reason for disallowing claims of constructive discharge simply because proof is lacking that the employer intended, through the adverse conditions, to cause the employee to quit. Employers are responsible for maintaining workplaces that are free from discrimination, including harassment. Where there are grounds for holding an employer liable for unlawful workplace harassment, and where the harassment, whether created by the actions of a supervisor or a co-worker, is sufficiently intolerable that a reasonable employee would feel compelled to resign, it would make no sense to absolve the employer of liability for backpay and related damages simply because the employer actually wanted the employee to stay and endure the harassment. See Hukkanen v. Int'l Union of Operating Eng'rs, 3 F.3d 281, 284-85 (8th Cir. 1993) (rejecting as "bizarre" employer's argument that constructive discharge claim should fail because manager's harassment was intended to extract sexual favors from plaintiff, not force her to resign); Martin, 48 F.3d at 1355 (adopting same reasoning). Although Hukkanen and Martin sought to remedy this untenable result by accepting proof that the resignation was "reasonably foreseeable," this alternative is equally problematic. If determining whether it was reasonably foreseeable that the employee would resign and determining whether a reasonable employee would have felt compelled to resign under the circumstances both involve essentially the same evidence, as this Court apparently concluded in Hukkanen, see 3 F.3d at 285 (same evidence involved under both elements "and the constructive discharge finding is the same"), then it is hard to understand how the two-part inquiry differs materially from the single inquiry followed by the majority of circuits and now endorsed by the Supreme Court. See, e.g., Martin, 48 F.3d at 1356 n.8 (recognizing that "often when a plaintiff has proved that a ‘reasonable person' in her position would have felt compelled to resign, she will have also demonstrated the requisite employer intent"). If both inquiries ("would a reasonable employee feel compelled to resign under the circumstances?" and "was it reasonably foreseeable the employee would resign?") generally yield the same answer, then surely imposing this additional requirement adds little to the analysis. In sum, Suders overruled this Court's two-part standard for establishing constructive discharge under Title VII and other federal employment discrimination laws. Given the Supreme Court's express characterization of the constructive discharge standard as "objective" and its articulation of a test that focuses only on the effect of the workplace conditions on the employee, Suders, 542 U.S. at 141, 147, this Court should now recognize that the "employer intent"/"reasonably foreseeable consequences" component is an improper standard for a claim of constructive discharge under federal employment discrimination laws. CONCLUSION For all of the foregoing reasons, the EEOC respectfully submits that the district court erred in its application of the affirmative defense under Faragher and Ellerth and, as a result, erroneously concluded that Famous Dave's established the defense as a matter of law. The EEOC further submits that this Court's "employer intent"/"reasonably foreseeable" requirement for constructive discharge is no longer viable following the Supreme Court's decision in Suders. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel DATED: June 5, 2006 SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Comm. 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 6,980 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). The accompanying diskette has been scanned for viruses and is virus-free. June 5, 2006 Susan R. Oxford A P P E N D I X CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on June 5, 2006, I caused ten copies of the EEOC's brief as amicus curiae and one diskette containing an electronic version of the brief in pdf format to be sent by Federal Express, postage prepaid, to the Clerk of the Court for the U.S. Court of Appeals for the Eighth Circuit, and two copies of the brief and one diskette to be sent to counsel of record by the same means on the same date to the addresses noted below. I further certify that on this 6th day of June, 2006, I caused ten copies of the EEOC's attached corrected amicus curiae brief to be sent by Federal Express, postage prepaid, to the Clerk, and two copies of the attached corrected brief to be sent by the same means on the same date to counsel of record at the following addresses: James H. Gilliam, Esq. BROWN, WINICK, GRAVES, GROSS, BASKERVILLE & SCHOENEBAUM, PLC 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Counsel for Plaintiff-Appellant George R. Wood, Esq. LITTLER MENDELSON 33 South 6th Street, Suite 3110 Minneapolis, Minnesota 55402-3716 Counsel for Defendant-Appellee June 6, 2006 Susan R. Oxford, Attorney EEOC / Office of General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax. (202) 663-7090 *********************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> “R.#” refers to the district court’s docket number. “JA” refers to the Joint Appendix Plaintiff Brenneman filed with this Court along with her opening brief. <3> The district court relied on this Court’s recent decision in Beard, 266 F.3d 792, noting that it “contained a harassment pattern remarkably similar to the allegations in this case.” 410 F. Supp. 2d at 839. As here, the plaintiff in Beard was a female assistant manager and, as in this case, she alleged harassment by her direct supervisor, a male general manager, occurring over a matter of weeks and consisting of lewd comments, sexual innuendo and inappropriate touching, with indications that the general manager had behaved similarly toward other female employees. Id. at 839-40; Beard, 266 F.3d at 797-98. <4> The Second Circuit’s position is not entirely clear. See Ternullo v. Reno, 8 F. Supp. 2d 186, 191 (N.D.N.Y.1998) (noting disagreement in Second Circuit between cases requiring employer intent and cases requiring no such specific intent). <5> Other courts of appeals have similarly reiterated the two-prong standard post-Suders without discussing Suders’ potential effect on this standard. See, e.g., Collette v. Stein-Mart, 126 Fed. Appx. 678, 681-82 (6th Cir. 2005) (acknowledging Suders’ articulation of the objective “reasonable employee” inquiry but then re-iterating the circuit’s “employer inquiry” prong as an additional requirement) (unpub.)(attached); Petrosino v. Bell Atl., 385 F.3d 210, 229-30 (2d Cir. 2004) (discussing Suders with respect to whether work conditions are so intolerable as to compel an employee’s resignation, but omitting any mention of Suders in discussing the “employer intent” alternative proof “that the employer’s actions were ‘deliberate’ and not merely ‘negligent or ineffective’”). <6> The Supreme Court characterized its articulation of the standard for constructive discharge as a “holding.” 542 U.S. at 134 (“we hold [that] to establish ‘constructive discharge,’ the plaintiff must . . . show that the abusive working environment became so intolerable that her resignation qualified as a fitting response”). Even assuming arguendo that this statement is properly characterized as dicta because it was not the precise question certified for review, it is, nevertheless, properly followed by the courts of appeals. See Oyebanji v. Gonzales, 418 F.3d 260, 264-65 (3d Cir. 2005) (lower federal courts are advised to follow Supreme Court's "considered dicta"); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (federal appellate courts “are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings,” particularly when “dictum is of recent vintage and not enfeebled by any subsequent statement").