No. 03-6393 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ SANDRA CLARK and RHONDA KNOOP, Plaintiffs-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. ____________________________________________________ On Appeal from the United States District Court for the Western District of Kentucky at Louisville ____________________________________________________ Proof Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal of the District Court's Order Entering Summary Judgment ______________________________________________________ ERIC S. DREIBAND General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney TABLE OF CONTENTS STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 1. Nature of the Case and Course of Proceedings . . . . .2 2. Statement of Facts . . . . . . . . . . . . . . . . . .3 3. District Court Decision. . . . . . . . . . . . . .9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 THE DISTRICT COURT ERRED IN CONCLUDING THAT UPS ESTABLISHED AS A MATTER OF LAW THE TWO-PRONG AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY FOR BROCK'S HARASSMENT SINCE UPS'S SUPERVISORS FAILED TO REPORT THE HARASSMENT AND DID NOT PROMPTLY CORRECT IT. . . . . . . . 13 A. UPS failed to show as a matter of law that it exercised reasonable care to prevent and correct promptly Brock's harassment.15 1. UPS's anti-harassment policy was ineffective in preventing or correcting harassment because UPS's supervisors failed to report harassment they knew about. . . . . . 15 2. UPS failed to establish that it acted reasonably to correct Brock's harassment in July of 2001. 22 B. UPS failed to meet its burden of establishing that the plaintiffs did not take advantage of any preventive or corrective opportunities or failed to take steps to avoid harm otherwise.24 1. Clark properly used one of UPS's "reporting avenues" to complain in an appropriate manner about Brock's harassment.. . . . . . . . . . . . . . . . . . . . . . . . . . 25 2. Whether Clark and Knoop unreasonably delayed in reporting Brock's harassment presents a jury question.31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Barton v. United Parcel Servs., Inc., 175 F. Supp. 2d 904 (W.D. Ky. 2001)22 Breda v. Wolf Camera & Video, 222 F.3d 886, 889-90 (11th Cir. 2001)21, 28 Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 31 (N.D. Ohio 2000). . . . . . . . . . . . . . 16, 20, 28, 29 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . passim Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417 (11th Cir. 1999)15 Dinkins v. Charoen Pokphand USA, 133 F. Supp. 2d 1237 (M.D. Ala. 2001) . . . . . . . . . . . . . . . 17, 20, 28 Distasio v. Perkin Elmer Corp., 157 F.3d 55 (2d Cir. 1998) . . 28 EEOC v. Dial, 156 F. Supp. 2d 926 (N.D. Ill. 2001) . . . . . . 29 EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001). . 10 Fall v. Indiana Bd. of Trustees, 12 F. Supp. 2d 870 (N.D. Ind. 1998)19, 28, 31 Faragher v. City of Boca Raton, 524 U.S. 725 (1998)2, 10, 14, 16, 27 Hurley v. Atlantic City Police Dep't, 174 F.3d 95 (3d Cir. 1999)25 Jackson v. Quanex Corp., 191 F.3d 647(6th Cir. 1999) . . . 20, 28 Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59 (2d Cir. 1992)12, 26 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). . . . . . . . 17 Phillips v. Taco Bell Corp., 156 F.3d 884 (8th Cir. 1998). 16, 31 Thomas v. BET Soundstage Rest., 104 F. Supp. 2d 558 (D. Md. 2000)16 Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997). . . . . 12, 26, 29 Varner v. Nat'l Supermarkets, Inc., 94 F.3d 1209 (8th Cir. 1996)17, 18 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999)10, 12 Williamson v. City of Houston, 148 F.3d 462 (5th Cir. 1998)passim Wilson v. Tulsa Junior Coll., 164 F.3d 534 (10th Cir. 1998)17, 30 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997) . . 12, 26, 28 Federal Statute Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. .1 Other Authority EEOC Compliance Manual Notice 915.002. . . . . 16, 17, 18, 23, 30 No. 03-6393 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ SANDRA CLARK and RHONDA KNOOP, Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Western District of Kentucky at Louisville _____________________________________________________ Proof Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiffs-Appellants and Reversal of the District Court's Order Entering Summary Judgment ______________________________________________________ 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 case raises an important issue concerning the proof of an employer's affirmative defense to liability for a supervisor's sexual harassment under Faragher v. City of Boca Raton, 524 U.S. 725 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). A ruling on this issue will affect these and other Title VII plaintiffs. Therefore, the Commission offers its views to the Court. STATEMENT OF THE ISSUE Whether the district court erred by holding that the employer established the two-prong affirmative defense to vicarious liability for a supervisor's sexual harassment although the employer's policy stated that harassment could be reported to "supervisors," three supervisors witnessed the harassment, and other supervisors heard one plaintiff complain about the harassment but no supervisor did anything to stop it. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings Plaintiffs-Appellants Sandra Clark and Rhonda Knoop filed this action in state court alleging that Defendant-Appellee United Parcel Service, Inc. ("UPS") violated the Kentucky Civil Rights Act by subjecting them to a hostile work environment based on their sex. (R.36, slip op., pg. 1, Apx. pg. __). Plaintiffs also brought a claim of outrageous conduct under state law. (Id.) On November 13, 2001, UPS removed the case to federal court. (R.1, notice, Apx. pg. __). UPS filed two separate motions for summary judgment, one for each plaintiff. (R.10 & R.11, motions, Apx. pp. __). The district court granted UPS's motions for summary judgment in a published opinion dated September 30, 2003. (R.36, order, Apx. pg. __). 2. Statement of Facts This case arose out of the sexual harassment of Sandra Clark and Rhonda Knoop by their upper-level supervisor, Eli Brock. Other mid-level supervisors, who also reported to Brock or a manger at his level, witnessed some of the harassment and heard Clark complain about it. (R.36, slip op., pp. 6-7, Apx. pg. __). Although UPS policy required them to report it, they did not. (Id.) Sandra Clark UPS hired Sandra Clark ("Clark") in 1993. (R.14, Clark deposition, p.14, Apx. pg. ___). In August 1999, UPS promoted Clark to administrative assistant in the Claims Department. (R.36, slip op., pg. 2, Apx. pg. __). Brock was the manager of the Claims Department from the time of Clark's promotion until August 2001. (Id.) Brock sexually harassed Clark throughout this two-year period by subjecting her to unwelcome sexual comments and touching. (R.36, slip op., pp. 2-4, Apx. pp. __). Clark's mid-level supervisor, Jeanine Riggons, twice witnessed Brock harassing Clark and heard Clark complain about it but did nothing. (R.14, Clark deposition, pp. 32-33 & 119, Apx. pp. ___); (R.36, slip op., pp. 2-4, 6, Apx. pp. __). The first incident occurred in August 2000 when Brock made a lewd gesture. (R.14, Clark deposition, pp. 111-12, Apx. pp. ___). During this incident, Clark was standing outside of Riggons cubicle talking to her. (R.14, Clark deposition, pg. 112, Apx. pg. ___). Riggons was sitting at her desk while Clark leaned against the cubicle wall looking down at Riggons. (Id.) Brock came up behind Riggons and then reached out and scratched the partition where Clark's breasts were located. (Id.) Brock laughed. (Id.) Riggons "shook her head" and "started laughing." (Id.) Fifteen or twenty minutes later, Clark asked Riggons, "How does he get away with this[?] Why does this happen[?]" (R.14, Clark deposition, pp. 32-33, Apx. pp. __). Riggons shrugged and said she did not know. (R.14, Clark deposition, pg. 35, Apx. pg. ___). The second incident Riggons witnessed occurred the next day. (R.14, Clark deposition, pg. 33, Apx. pg. ___). Clark was talking to Riggons about a shipment of cherries that had been lost. (Id.) Brock walked up behind Clark, leaned against her back, and whispered in her ear that he was jealous Clark was talking to Riggons about cherries. (Id.) Afterward, Clark complained to Riggons. (R.14, Clark deposition, pg. 120, Apx. pg. ___). Specifically, Clark "expressed [her] disgust with [Brock's] constant comments." (Id.) Riggons responding by saying "what she always said" "[s]he just shook her head" and said "'I don't know about him.'" (Id.) Other supervisors also witnessed Brock's harassment. Larry West, a mid- level supervisor, was present when Brock approached Clark at a departmental luncheon in 1999 and asked her, "Do you want some chips?" (R.36, slip op., p.2, n.1, Apx. pg. __) (R.14, Clark deposition, pg. 93, Apx. pg. ___). When Clark responded, "Yeah, sure," Brock picked up a bag of chips and held them in front of his crotch. (R.14, Clark deposition, pg. 93, Apx. pg. __). Clark was shocked and asked Brock, "What are you doing?" (R.14, Clark deposition, pg. 96, Apx. pg. ___). Similarly, two other mid-level supervisors, Joe O'Bryan and Dave Roller, stood by while Brock harassed Clark. R.14, Clark deposition, pg. 36, Apx. pg. __). After Brock made a sexually explicit remark to Clark, she complained to O'Bryan by asking, "Why does nobody say anything to him when he says this type of makes these type of comments[?]" and "how does he get away with doing this"? (R.14, Clark deposition, pg. 33, Apx. pg. __). O'Bryan responded by shrugging his shoulders and saying, "I don't know." (Id.) Clark also complained to Roller about Brock's harassment. (R.14, Clark deposition, pp. 34-35, Apx. pp. __). As she had before, Clark asked, "Why does nobody say anything to him[?] Why does he keep getting away with this"? (R.14, Clark deposition, pg. 35, Apx. pg. __). Like O'Bryan and Riggons, Roller shrugged his shoulders and said he did not know. (Id.) Either Roller or O'Bryan also said that Brock got away with it because "[h]e's a manager." (Id.) Finally, upper management was present when Brock made inappropriate comments to Clark and other women in the office. (R.14, Clark deposition, pg. 69, Apx. pg. __). No evidence shows that management did anything in response. Rhonda Knoop UPS hired Rhonda Knoop ("Knoop") in 1990. (R.36, slip op., pg. 2, Apx. __). In February of 1998, she began working in Air Cargo Resolution Group where she investigates lost packages. (Id.) Brock was her upper-level manager from February of 1998 until August of 2001. (Id.) Jeannie Riggons was Knoop's mid-level supervisor. (R.12, Knoop deposition, pg. 127, Apx. pg. ___). During this period of employment, Brock harassed Knoop by making sexually inappropriate comments and twice placing his vibrating pager against her upper thigh. (R.36, slip op., pg. 2, Apx. pg. __). Both Riggons and Roller were present during one harassing incident in January of 2001 when Knoop was wearing jean overalls for a "dress down" day. (Id.) As Knoop passed Brock on her way to Riggons's desk, Brock asked, "What do you have on? . . . . What do you have on underneath your overalls?" (Id.) Hoping to embarrass Brock, Knoop replied sarcastically, "If you must know, I have a thong on." (Id.) Brock then grabbed the back of Knoop's overalls as if he was trying to look down them. (Id.) Both Brock and Roller laughed. (R.12, Knoop deposition, pg. 139, Apx. pp. __). UPS's Policies UPS has a "Professional Conduct and Anti-Harassment Policy." (R.11, Ex. A, Apx. pg. __). It states in part that "inappropriate remarks, slurs, threats or jokes will not be tolerated" and that "inappropriate physical contact will not be allowed." (Id.) It further states that "[a]ny employee who witnesses objectionable conduct or believes that he or she is subject to . . . objectionable conduct must report it immediately to a supervisor or manager, a Human Resources representative, the Human Resources manager, the Employee Relations manager, or the UPS Help Line." Id. The policy permits verbal and written reports. Id. The policy further states that UPS will investigate reports and keep them confidential and that employees will not be retaliated against for making good faith reports. Id. In 1994 and in 1999 UPS published "A Guide for the UPS Administrative and Technical Team: Working Together." (R.11, Ex.C & D, Apx. pp. __). The 1994 "Working Together" guide sets forth UPS's "open door policy," which encourages employees to discuss concerns with their supervisors. (R.11, Ex.C, pg. 12, Apx. pg. __). Both the 1994 and 1999 "Working Together" guides re-publish UPS's sexual harassment policy from the "UPS Policy Book." These sections of the "Working Together" guides state that employees who believe they are being harassed "should take any complaint to their supervisor and/or Human Resources manager." (R.11, Ex.C, pg. 17, Apx. pg. __); (R.11, Ex.D, pg. 23, Apx. pg. __). These sections further state, "[m]anagers and supervisors are responsible for maintaining an environment free of sexual harassment. That responsibility includes reporting incidents of sexual harassment to the appropriate management people." Id. It is undisputed that Knoop and Clark were aware of UPS's sexual harassment policy and that UPS provided sexual harassment training. (R.36, slip op., pg. 5, Apx. pg. __). UPS Investigation and Brock's Resignation In July of 2001 UPS employee Jennifer Robbins began investigating allegations that Brock was making inappropriate promises to a trucking company contractor of UPS. (Id.) During that investigation, Clark and Knoop complained to Robbins about Brock's harassment. (R.36, slip op., pp. 5-6, Apx. pp. __). In August of 2001, both women gave Robbins written statements about some of the harassment. (R.36, slip op., pg. 6, Apx. pg. __). Later that month, Robbins finished her investigation. (Id.) On August 24, 2001, Rich Hallman, the Human Resources Manager, and Bill O'Connell, who worked in Airline Security, discussed with Brock his "unethical and dishonest acts" and allowed him to resign. (R.11, Memo. in support of Summ. J., pg. 7, Apx. pg. __); (R.11, Ex. E (report), pg. 1). According to the court, he record does not establish the exact nature of the charges that resulted from Robbins' investigation or why Brock resigned. (R.36, slip op., pg. 6, Apx. pg. __). 3. District Court Decision The district court granted UPS's motions for summary judgment on all of Clark's and Knoop's claims. (R.36, slip op., Apx. pg. __). The court reviewed the evidence of sexual harassment and concluded that Brock's harassment of Knoop was not sufficiently severe or pervasive to be actionable. (R.36, slip op. pg. 9, Apx. pg. __). In reaching this conclusion, the district court stated, "Brock's behavior is more analogous to the vulgar jokes and the occasional teasing that, in Faragher[v. City of Boca Raton, 524 U.S. 775 (1998)], the Supreme Court found did not constitute actionable harassment." (R.36, slip op., pg. 10, Apx. pg. __). The district court also concluded that the harassment of Knoop "does not rise to the level of harassment that the Sixth Circuit has found actionable in other cases," citing EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508-09 (6th Cir. 2001), and Williams v. Gen. Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999). (Id.) As to Clark, the district court found Brock's harassment to present "a closer case." (Id.) Again relying erroneously on Faragher, the district court stated that Brock's harassment of Clark was "offensive and sophomoric, [but] was not physically threatening and was likely more akin to the sporadic teasing and offensive jokes that the Supreme Court in Faragher did not find actionable." (R.36, slip op., pg. 11, Apx. pg. __). The court also concluded that Brock's harassment of Clark did not "rise to the level of abuse that the Sixth Circuit found actionable in Harbert-Yeargin." (Id.) Nevertheless, the district court stated that it did not need to decide whether the harassment was actionable because it could decide the case on another ground the Ellerth/Faragher affirmative defense. The district court found that UPS met both prongs of the affirmative defense. (Id.) The court held that UPS satisfied the first prong, whether the employer exercised reasonable care to prevent and correct promptly any harassing behavior, as a matter of law because of "UPS's established policies and its rapid action to remove Brock once notified about his behavior." (R.36, slip op., pg. 12, Apx. pg. __). In reaching this conclusion, the district court rejected plaintiffs' argument that UPS could not prevail on this prong because several supervisors had witnessed the harassment and because Clark had complained about it. (Id.) In the court's view, "the mere knowledge of low-level supervisors" was not "enough to suggest that UPS management was aware of and therefore was under a duty to correct Brock's behavior." Id. The court also concluded that UPS met the second prong of the affirmative defense. The court stated that neither plaintiff had used the complaint procedure set out in UPS's sexual harassment policy. (Id.) The court also rejected the plaintiffs' argument that they satisfied the notification requirement because several incidents occurred in the presence of supervisors and because Clark asked the supervisors about how Brock could "get away with" his behavior. (R.36, slip op., pg. 13, Apx. pg. __). In the court's view, "the knowledge of low-level management personnel about harassing incidents cannot be imputed to the employer." Id. The court found it significant that the supervisors who witnessed the harassment reported to Brock. (Id.) Citing cases about co-worker and low-level supervisor harassment relying on a negligence theory of liability, the court stated that the "general consensus is that the knowledge of or notice to a low-level employee without authority or power to terminate or address the problem cannot be imputed to the employer." (Id.) (citing Torres v. Pisano, 116 F.3d 625, 634-35 (2d Cir. 1997); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 64 (2d Cir. 1992); Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998); Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997)). The court also found its conclusion consistent with Faragher and Ellerth, stating that "[i]mputing the knowledge of low-level supervisors to the employer would make meaningless the complaint procedures and the affirmative defense." (R.36, slip op., pg. 14, Apx. pg. __). Second, the court concluded that "even if the actions of the supervisors involved could be imputed to UPS, Clark's verbal comments to Riggons, O'Bryan, and Roller were too non-specific and informal to constitute proper notice to UPS." (Id.) Therefore, the court found that "UPS has demonstrated without doubt that Plaintiffs failed to use the existing complaint procedure until late July 2001" and "failed as a matter of law to establish employer liability." (R.36, slip op., pg. 15, Apx. pg. __). ARGUMENT THE DISTRICT COURT ERRED IN CONCLUDING THAT UPS ESTABLISHED AS A MATTER OF LAW THE TWO-PRONG AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY FOR BROCK'S HARASSMENT SINCE UPS'S SUPERVISORS FAILED TO REPORT THE HARASSMENT AND DID NOT PROMPTLY CORRECT IT. The district court erred in holding as a matter of law that UPS met its burden of establishing the Ellerth/Faragher affirmative defense and therefore is not vicariously liable for Brock's sexual harassment. In Ellerth and Faragher, the Supreme Court held that employers are vicariously liable for a supervisor's sexual harassment of a subordinate that does not culminate in a tangible employment action unless the employer establishes a two-prong affirmative defense. That defense requires an employer to show by a preponderance of the evidence that: 1.) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2.) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities or failed to prevent harm otherwise. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. Accordingly, an employer is liable for a supervisor's sexual harassment when the employer fails to establish either prong by a preponderance of the evidence. Here, UPS failed to meet its burden of establishing either prong. Several mid-level supervisors including Riggons, the plaintiffs' direct supervisor witnessed Brock's harassment but, in violation of UPS policy, failed to report it. At least four mid-level supervisors including Riggons heard Clark complain of Brock's harassment but did nothing. The record also does not establish that UPS took any corrective action once the plaintiffs submitted written reports to Robbins in July of 2001 complaining about Brock's harassment. Under these facts, UPS cannot establish as a matter of law that it exercised "reasonable care to prevent and correct promptly" Brock's harassment or that the plaintiffs unreasonably failed to take advantage of any corrective opportunities or to avoid harm otherwise. A. UPS failed to show as a matter of law that it exercised reasonable care to prevent and correct promptly Brock's harassment. The district court erred in holding that "UPS's established policies and its rapid action to remove Brock once notified about his behavior[] show that, as a matter of law, UPS has satisfied the first element of the defense." (R.36, slip op., pg. 12, Apx. pg. __). The evidence establishes that UPS's policies were ineffective because its supervisors knew about Brock's harassment but failed to do anything to stop it. The evidence also does not support the district court's conclusion that UPS met its burden of showing that it acted reasonably to correct the harassment in July of 2001 after the plaintiffs submitted their written reports of Brock's harassment. Therefore, the district court erred in finding that UPS satisfied the first prong of its defense. 1. UPS's anti-harassment policy was ineffective in preventing or correcting harassment because UPS's supervisors failed to report harassment they knew about. In concluding that UPS met the first prong, the district court emphasized the existence and dissemination of UPS's anti-harassment policy. (R.36, slip op., pp. 11-12, Apx. pp. __). The mere existence of an established anti-harassment policy, however even when coupled with prompt remedial action does not absolve an employer of liability where the employer knew of the harassment but failed to act. See, e.g., Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422-23 (11th Cir. 1999) (employer could be vicariously liable, although it had policy and took prompt remedial action once plaintiff complained to human resources, because factual issue existed whether defendant had prior notice of harassment but took no action); Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998) (holding that jury question existed as to first prong even though defendant posted written sexual harassment policy and distributed it to employees); Thomas v. BET Soundstage Rest., 104 F. Supp. 2d 558, 567 (D. Md. 2000) ("The determination of the adequacy of the policy and the employer's preventive and corrective measures is in the province of the fact-finder."). Instead, an employer must show that its anti-harassment policy was "effective" to avoid vicarious liability. See Faragher, 524 U.S. at 806 (stating that employer may satisfy its burden if it has a "a proven, effective mechanism for reporting and resolving" harassment); Bremiller v. Cleveland Psychiatric Inst., 195 F.R.D. 1, 31 (N.D. Ohio 2000) (first prong not established where "sexual harassment policy clearly was not effective" and supervisors with knowledge failed to follow it); EEOC Compliance Manual Notice 915.002, pp. 19-20 "Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors," (June 18, 1999) (discussing "effective complaint process" requirements), available at www.eeoc.gov/policy/docs/harassment.html. "A policy is 'defective' if those responsible for its enforcement lack training and knowledge sufficient to recognize, prevent, and correct workplace discrimination." Dinkins v. Charoen Pokphand USA, Inc., 133 F. Supp. 2d 1237, 1251 (M.D. Ala. 2001). A policy is also defective if it "does not require a supervisor who has knowledge of an incident of sexual harassment to report that information to those who are in a position to take appropriate action." Varner v. Nat'l Supermarkets, Inc., 94 F.3d 1209, 1214 (8th Cir. 1996) (policy ineffective when it directed supervisor with knowledge of harassment not to take any personal action); EEOC Compliance Manual Notice 915.002 ("reasonable care in preventing and correcting harassment requires an employer to instruct all supervisors to report complaints of harassment to appropriate officials") (emphasis added). Similarly, an effective policy requires supervisors to report both "formal" and "informal" complaints of harassment. Wilson v. Tulsa Junior Coll., 164 F.3d 534, 541 (10th Cir. 1998); see also EEOC Compliance Notice 915.002 (employer obligated to investigate all complaints, including verbal, regardless of format). Here, UPS had an anti-harassment policy that looked good on paper. It prohibited inappropriate remarks and jokes and physical contact. (R.11, Ex. A, Apx. pg. __). The policy permitted verbal and written complaints. (Id.) UPS's policy also set out several avenues for reporting harassment; one avenue was to complain "to a supervisor." Id.; see also (R.11, Ex. C, pg. 17, Apx. pg. __); (R.11, Ex. D, pg. 23, Apx. pg. __) (directing employees to complain "to their supervisor and/or Human Resources manager"). UPS's policies also imposed a duty on all supervisors to report harassment: "[m]anagers and supervisors are responsible for maintaining an environment free of sexual harassment. That responsibility includes reporting incidents to the appropriate management people." Id. Although UPS's policies looked good on paper, they did not work in practice. Clark's direct supervisor, Riggons, witnessed two harassing incidents during two consecutive days but did nothing in response except to laugh at the first incident. (R.14, Clark deposition, pp. 112, 120, Apx. pp. __). When Clark complained following each incident, Riggons simply shrugged or shook her head and said, "I don't know about him." (R.14, Clark deposition, pg. 120, Apx. pg. __); (R.36, slip op., at 7, Apx. at __). The response of supervisors Roller and O'Bryan was the same after Clark asked them how Brock can "get away with this"; they shrugged their shoulders and said they did not know. (R.36, slip op. at __, Apx. at __); (R.14, Clark deposition, pp. 32-35, Apx. pp. __). Nor did supervisor West do anything when he witnessed Brock's harassment of Clark. (R.14, Clark deposition, pp., 93, 95, Apx. pp. __). Similarly, mid-level supervisors Roller and Riggons (who was Knoop's direct supervisor) witnessed Brock's harassment of Knoop but did nothing to stop it. (R.12, Knoop deposition, pp. 126-27, 129, 139, Apx. pp. __). To the contrary, Roller laughed. (R.12, Knoop deposition, pg. 139, Apx. pg. __). Clark's complaints to Riggons and the other mid-level supervisors put them on notice of Brock's unwelcome harassment and triggered their duty under UPS's policies to report the harassment. See Fall v. Indiana Bd. of Trustees, 12 F. Supp. 2d 870, 882 (N.D. Ind. 1998) ("the employer's knowledge of the harassment . . . need not be complete, but merely enough to make a reasonable employer think there was some probability that the harassment was taking place") (emphasis in original). From Clark's complaints, there could be no doubt that Brock's harassment was unwelcome and offensive. (R.14, Clark deposition pg. 120, Apx. pg. __) (Clark expressed to Riggons her "disgust" with Brock's "constant comments"); (R.36, slip op. at 6, Apx. pg. __) (Clark asked supervisors how Brock could "get away" with his conduct and why no one said anything to him). The supervisors' observations of Brock's harassment of Clark and Knoop were also enough to trigger their duty under UPS's policies to report the harassment. See Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) (stating that harassment need not be reported to be actionable and noting that supervisor was aware of graffiti and racially motivated conduct). Their failure to do so shows that UPS's policies were ineffective and that UPS was on notice of the harassment but failed to correct it. See Bremiller, 195 F.R.D. at 31 (factual question existed as to first prong where harassment policy ineffective and "many supervisors . . . who were on notice of incidents of sexual harassment did not even follow the procedures outlined in the policy"); see also Dinkins, 133 F. Supp. 2d at 1251 (policy defective where supervisors lack the "training and knowledge sufficient to recognize, prevent, and correct workplace discrimination"). Therefore, UPS failed to establish as a matter of law that it acted reasonably to prevent and correct Brock's harassment. The district court erred when it concluded otherwise. The court reasoned that "the mere knowledge of low-level supervisors" was not "enough to suggest that UPS management was aware of and therefore was under a duty to correct Brock's behavior." (R.36, slip op., pg. 12, Apx. pg. __). As discussed, however, UPS's own policies invited employees to complain to "their supervisor," which Clark did by complaining to Riggons. "When an organization designates a particular person or persons to receive harassment complaints, it sends a clear signal that those persons have the authority to accept notice of harassment problems." Williamson v. City of Houston, 148 F.3d 462, 466 (5th Cir. 1998); see also Breda v. Wolf Camera & Video, 222 F.3d 886, 889-90 (11th Cir. 2001) (employer has actual knowledge where employee complains to person designated by policy to receive complaints). Similarly, UPS policy required all supervisors regardless of their rank in the corporate structure to report sexual harassment of which they were aware. (R. 11, Ex. C, pg. 17, Apx. pg. __); (R.11, Ex. D, pg. 23, Apx. pg. __). Supervisors Riggons, Roller, O'Bryan, and West knew of Brock's harassment because they saw it. Since they had a duty to report it, their failure to report demonstrates the inadequacies of UPS's policy. See Williamson, 148 F.3d at 466. In short, a reasonable jury could find that UPS's policies were ineffective in preventing and correcting harassment since UPS had notice of Brock's harassment but failed to correct it. See Barton v. United Parcel Servs., Inc., 175 F. Supp. 2d 904 (W.D. Ky. 2001) ("[A] reasonable jury could conclude from the evidence that UPS supervisors were well aware of the comments and sexually hostile atmosphere exhibited by Plaintiff's co-workers before her written complaint of April 30"). 2. UPS failed to establish that it acted reasonably to correct Brock's harassment in July of 2001. Even if UPS's harassment procedures were viewed as generally effective, UPS failed to establish as a matter of law that it acted reasonably to correct Brock's harassment following Robbins's investigation. In concluding that UPS had met the first prong, the court relied on UPS's "rapid action" in removing Brock. (R.36, slip op., pg. 12, Apx. pg. __). This reliance, however, was misplaced. The court itself found that the "record does not contain a statement of the precise reasons for Brock's resignation nor the nature of the ultimate charges against" him. (R.36, slip op., pg. 6, n.2, Apx. pg. __). UPS's own evidence shows that Brock met with the Human Resources Manager and someone from Airline Security who discussed Brock's "unethical and dishonest acts" with Brock, which suggests that the investigation and forced resignation resulted from Brock's improper business promises, not his sexual harassment. (R.11, Memo. in support of Summ. J., pg. 7, Apx. pg. __) (R.11, Ex. E (report), pg. 1). Thus, UPS failed to show as a matter of law that it did anything in response to Brock's sexual harassment. Further, the district court did not cite any evidence that UPS responded appropriately to the complained of harassment, for example by ordering additional training of its supervisors and managers to ensure that they recognized harassment and understood their duty to report it, or by taking any steps to reassure Knoop or Clark that their concerns had been heard and addressed. See EEOC Compliance Manual Notice 915.002, pg. 27 (employer's duty of care includes ensuring that supervisors understand their responsibilities under anti-harassment policy, which may be accomplished through periodic training that explains the policy and types of conduct that violate it). Based on this, and the equivocal evidence surrounding Brock's resignation, a jury could find that UPS did not establish that it took prompt corrective action even after Clark and Knoop submitted written reports of Brock's harassment. In summary, UPS failed to establish as a matter of law that it exercised reasonable care to prevent and correct promptly Brock's sexual harassment. Since UPS must meet both prongs of the Ellerth/Faragher affirmative defense, this Court need not even address the second prong. Assuming, however, that UPS satisfied the first prong, this Court should still hold that summary judgment was improper because UPS failed to establish the second prong as a matter of law. B. UPS failed to meet its burden of establishing that the plaintiffs did not take advantage of any preventive or corrective opportunities or take any steps to avoid harm otherwise. The district court erred in holding that UPS met its burden of showing by a preponderance of the evidence that the plaintiffs unreasonably failed to take advantage of any preventive or corrective opportunities or to avoid harm otherwise and that their July 2001 reports were unreasonably delayed. The court's first finding rests on two erroneous premises. First, the court wrongly concluded that the plaintiffs failed to use UPS's "reporting avenues" to complain because the supervisors were low-level and reported to Brock or someone at his level. Second, the district court erred in finding that Clark's complaints "were too non- specific and informal to constitute proper notice." (R.36, slip op., pg. 14, Apx. __). Finally, the court also erred in finding that UPS established this prong as a matter of law based on the delay in reporting to Robbins. To the contrary, a jury could determine that any delay in reporting Brock's harassment was reasonable because the plaintiffs believed UPS's policy was ineffective. 1. Clark properly used one of UPS's "reporting avenues" to complain in an appropriate manner about Brock's harassment. The district court's finding that Clark failed to use UPS's "anti-harassment policy and the various reporting avenues" before July of 2001 is not supported by the record. (R.36, slip op., pg. 12, Apx. pg. __). As discussed above, UPS's anti-harassment policy states that an employee may report harassment to "a supervisor." (R.11, Ex. A, Apx. pg. __). UPS's policy book also states that employees who believe they are being harassed may report it to "their supervisor." (R.11, Ex.C, pg. 17, Apx. pg. __); (R.11, Ex.D, pg. 23, Apx. pg. __). Clark twice complained to her direct supervisor, Jeannie Riggons, about Brock's harassment. (R.14, Clark deposition, pp. 32-33, Apx. pp. __). She also twice complained to "a supervisor" about Brock's harassment when she complained to Roller and O'Bryan. (R.36, slip op., pg. 13, Apx. pg.__). Therefore, as a factual matter, the district court erred in finding that Clark failed to utilize one of UPS's "reporting avenues." The district court also erred as a legal matter when it found that the supervisors' knowledge of Brock's harassment could not be imputed to UPS because "the general consensus is that the knowledge of or notice to a low-level employee without authority to terminate or address the problem cannot be imputed to the employer." (R.36, slip op., pg. 13, Apx. pg. __). To support its assertion, the district court cited cases discussing an employer's liability for harassment under a negligence theory, which requires the plaintiff to show the employer knew or should have known of the harassment but failed to stop it. See Williamson, 148 F.3d at 466 (imputing first-line supervisor's knowledge of co-worker harassment to employer where he had duty under policy to report); Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997) (pre-Ellerth, holding that notice to department head was notice to company where policy permitted complaining to department head); Torres v. Pisano, 116 F.3d 625, 634-35 (2d Cir. 1996) (pre-Ellerth, holding employer not liable where associate director knew of harassment but plaintiff asked him to keep it confidential); Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59, 63-64 (2d Cir. 1992) (pre-Ellerth, holding that plaintiff failed to show that company knew or should have known of harassment where low-level supervisors had no duty to report her complaints). These cases, while informative, are not directly controlling. Under a negligence theory, which sets "the minimum standard for employer liability under Title VII," the plaintiff bears the burden of showing that the employer knew or should have known about the harassment but failed to stop it. Ellerth, 524 U.S. at 758. In this case, however, the plaintiffs have advanced under the less "stringent" theory of vicarious liability for a supervisor's harassment, id., so the burden is on the employer to meet its affirmative defense. Accordingly, the plaintiffs do not have the burden of establishing UPS's knowledge of Brock's harassment. Rather, UPS has the burden of establishing the Ellerth/Faragher affirmative defense, which UPS has failed to do as a matter of law. Therefore, the district court erred in disposing of this case on summary judgment. The district court's reliance on "notice" cases with respect to the second prong of UPS's affirmative defense is also misplaced because whether an employer knew about harrassment but failed to stop it goes to the first prong of the affirmative defense. See, e.g., Jackson, 191 F.3d at 664 (finding that reasonable minds could differ as to whether employer "exercised reasonable care to correct racial harassment" when it merely reprimanded supervisor whose conduct was known to management); Dinkins, 133 F. Supp. 2d at 1252-53 (discussing issue of notice under first prong); Fall, 12 F. Supp. 2d at 882 n.12 (same); Bremiller, 195 F.R.D. at 31 (same). Assuming, however, that the issue of notice is relevant to a determination of the second prong, the district court's reasoning is unpersuasive. As discussed, UPS's own policies designated "supervisors" not just "upper-level" supervisors as individuals to whom employees could complain of harassment. Where an employer's policy designates a point person to receive complaints and the plaintiff complains to that person, there is no question that the employer has notice of the harassment. See, e.g., Williamson, 148 F.3d at 466; Breda, 222 F.3d at 889-90; Young, 123 F.3d at 675. Since Clark complained to her supervisor and other supervisors, all of whom were designated under UPS's policy to receive complaints and had a duty to report harassment, UPS cannot plausibly argue it did not have notice of Brock's harassment. See, e.g., Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998) (imputing supervisor's knowledge of co-worker harassment because supervisor had duty under policy to report harassment); Williamson, 148 F.3d at 466 (employer could be liable based on supervisor's knowledge where policy "specifically directs those who believe they have been harassed to report it to their supervisors"); EEOC v. Dial, 156 F. Supp. 2d 926, 954 (N.D. Ill. 2001) (whether employer had notice presented jury question where plaintiff offered evidence that supervisors received complaints but failed to report them as company policy required); Bremiller, 195 F.R.D. at 30 (plaintiffs raised jury question whether defendant had notice where supervisors who witnessed harassment or were told about it failed to report it as policy required). The district court also erred in finding that the supervisors' knowledge of Brock's harassment could not be imputed to UPS because they reported to him or someone at his level. (R.36, slip op., pg. 13, Apx. pg. __). UPS's policy did not require employees to report only to "supervisors who are higher-ranked than the harasser" it simply stated that employees could report to "supervisors." Nor is there any legal requirement that harassment must be reported to "upper-level" supervisors to impute knowledge. See Torres, 116 F.3d at 638 (record supported finding that employer responsible for associate director's knowledge of harassment before he became harasser's supervisor because he either had duty to relay employee complaints or plaintiff reasonably thought he did); see also EEOC Compliance Manual 915.002, p.27 (effective complaint procedure requires employer to instruct "all" supervisors to report harassment). Finally, the court also erred in stating that Clark's complaints were too vague and informal to give proper notice. Clark called attention to conduct and comments she found offensive and asked why Brock was allowed to get away with such behavior. UPS's policies do not require any "specific" or "formal" format; the anti-harassment policy explicitly allows for verbal reports. (R.11, Ex.A, Apx. pg. __). Nor would the law support such a requirement. See Wilson, 164 F.3d at 542 (complaint procedure deficient because it required supervisors to report only "formal" as opposed to "informal" complaints); EEOC Compliance Manual Notice 915.002, p. 19 ("When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing."). Accordingly, Clark properly utilized UPS's complaint procedure when she complained four times to her immediate and other mid-level supervisors about Brock's harassment. To allow UPS to escape liability where, "as here, the complainant has followed the employer's policy for reporting harassment would undermine" the goal of Title VII, which "is to prevent discrimination" by encouraging "'the creation of antiharassment policies and effective grievance mechanisms.'" Williamson, 148 F.3d at 466-67 (quoting Ellerth, 52 U.S. at 764). Therefore, this Court should hold that UPS failed to establish its affirmative defense to vicarious liability for Brock's harassment of Clark. 2. Whether Clark and Knoop unreasonably delayed in reporting Brock's harassment presents a jury question. Even assuming that the plaintiffs delayed reporting Brock's harassment until July 2001 when they submitted their written reports to Robbins, a jury should determine whether the delay was reasonable. See Phillips, 156 F.3d at 889 (whether two-month delay in reporting harassment was reasonable "is a question best left to the finder of fact"); Fall, 12 F. Supp. 2d at 884 (jury should determine based on totality of circumstances whether three-month delay in reporting harassment was reasonable). As discussed above, a jury could find that the plaintiffs knew that UPS's anti-harassment policies were ineffective since their supervisors stood by while Brock harassed them and failed to respond to Clark's complaints. A jury could therefore conclude that any delay by the plaintiffs in complaining about the harassment until Robbins talked to them about unrelated problems with Brock was reasonable. CONCLUSION For the reasons stated above, the Commission believes the district court erred in concluding that UPS established by a preponderance of the evidence both prongs of its Ellerth/Faragher affirmative defense as a matter of law. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel __________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) because this brief contains ____ words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724 Dated: March 8, 2004 CERTIFICATE OF SERVICE I certify that on March 8, 2004, I served one copy of this "proof" brief by by first-class mail, postage prepaid, to the following: Counsel for the Plaintiffs-Appellants Thomas E. Clay Garry R. Adams 462 South Fourth St. Meidinger Tower, Ste. 1730 Louisville, KY 40202 Counsel for the Defendant -Appellee Kathleen B. Wright Susan C. Lonowski Marvin R. O'Koon Winston E. Miller Gray &Weiss Frost, Brown & Todd 500 W. Jefferson St. 400 W. Market St. Suite 1200 32nd Floor Aegon Center Louisville, KY Louisville, KY 40202 40202-3363 ____________________________ ANNE NOEL OCCHIALINO Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4724