_____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________________________ No. 07-60886 ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. GENERAL MOTORS CORP., Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Southern District of Mississippi ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov STATEMENT REGARDING ORAL ARGUMENT The EEOC respectfully requests that oral argument be granted in this case. In granting the defendant's motion for summary judgment, the district court ruled that, although the sexual harassment at issue was sufficiently severe or pervasive to constitute an actionable hostile work environment, the defendant established both prongs of the Faragher/Ellerth affirmative defense as a matter of law. This defense requires analysis of the reasonableness of the defendant's actions in preventing and correcting harassment, as well as examination of the reasonableness of the victim's actions in mitigating the harm caused by the harassment. Because the reasonableness of both parties' action or inaction under the circumstances is a fact- intensive inquiry requiring careful review of the record and applicable legal standards, the Commission requests the opportunity for oral argument. TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ISSUES PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. District Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . 15 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE SEXUAL HARASSMENT TO WHICH MCGEE WAS SUBJECTED BY A GENERAL MOTORS MANAGER WAS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF HER EMPLOYMENT . . . . . . . . . . . . . . .22 II. THE DISTRICT COURT ERRED IN HOLDING THAT GENERAL MOTORS COULD NOT BE HELD LIABLE FOR THE HARASSMENT BY ITS SUPERVISOR SINCE THE EVIDENCE DOES NOT COMPEL A FINDING THAT THE COMPANY TOOK REASONABLE MEASURES TO PREVENT THE HARASSMENT OR THAT MCGEE UNREASONABLY FAILED TO TAKE ADVANTAGE OF OPPORTUNITIES TO OBTAIN REDRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) . . . . . . . . . 31 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) . . . . . . . . . . . .26, 33 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) . . . . . . . . . . . . . . . 18, 26 Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005) . . . . . . . . . 32 Crowley v. L.L. Bean, 303 F.3d 387 (1st Cir. 2002) . . . . . . . . . . . . . . . 24 DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Dees v. Johnson Controls World Servs., 168 F.3d 417 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Fall v. Indiana Univ. Bd. of Trs., 12 F. Supp. 2d 870 (N.D. Ind. 1998) . . . 26, 30 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) . . . . . . . . . 26, 28, 30, 32 Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir. 1996) . . . . . . 23 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) . . . . . . . . . . . . 22, 23, 25 Harvill v. Westward Commc'ns, 433 F.3d 428 (5th Cir. 2005) . . . . . . . . . . . . 25 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982) . . . . . . . . . . . . 31 Indest v. Freeman Decorating, 168 F.3d 795 (5th Cir. 1999) . . . . . . . . . . . . 31 Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409 (5th Cir. 2003) . . . . . . . . . 26 Minter v. Great Am. Ins. Co., 423 F.3d 460 (5th Cir. 2005) . . . . . . . . . . . . 18 Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) . . . . . . . . . . . . 34 Thomas v. BET Soundstage Rest., , 104 F. Supp. 2d 558 (D. Md. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Watts v. Kroger Co., 170 F.3d 505 (5th Cir. 1999) . . . . . . . . . . . . . . 33, 34 Williams v. Gen. Motors Corp., 187 F.3d 553 (6th Cir. 1999) . . . . . . . . . . . .27 Young v. R.R. Morrison and Son, Inc., 159 F. Supp. 2d 921 (N.D. Miss. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq . . . . . . 1 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . 22 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 OTHER AUTHORITIES EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html . . . . . . . . . . . . . . . . . .33 STATEMENT OF JURISDICTION This is an enforcement action brought by the Equal Employment Opportunity Commission pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court had jurisdiction under 28 U.S.C. § 1331 and § 1345. The district court entered judgment dismissing all of the plaintiff's claims on September 4, 2007. RE-Tab 3 (ROA-530).<1> The Commission filed a timely notice of appeal on August 30, 2007. RE-Tab 2 (ROA-531). This Court has jurisdiction under 28 U.S.C. § 1291. ISSUES PRESENTED FOR REVIEW 1. Whether the district court correctly determined that there is sufficient evidence to support a finding that the sexual harassment to which McGee was subjected was sufficiently severe or pervasive to alter the conditions of her employment where, throughout the two and a half months she worked with Charles McBride, he constantly stared at her in a sexually suggestive way, followed her throughout the plant, sexually propositioned her, asked about her sex life, commented on her appearance, and touched her inappropriately on multiple occasions. 2. Whether the evidence compels a finding that the defendant took reasonable steps to prevent or correct the harassment or that McGee failed to take reasonable steps in availing herself of the company's corrective measures where the company knew McBride had harassed subordinate female employees in the past and McGee's supervisor ignored her complaint during her first week on the job that she did not feel comfortable working with McBride. STATEMENT OF THE CASE A. Course of Proceedings This is an appeal from a final judgment of the district court dismissing this Title VII enforcement action. The EEOC filed suit on January 11, 2006, alleging that the defendant violated Title VII by subjecting Paige McGee to a sexually hostile work environment and retaliating against her for complaining about the harassment by terminating her assignment with the company. ROA-13 (Complaint). On September 4, 2007, the district court issued an opinion and order granting the defendant's motion for summary judgment. RE-Tab 4 (ROA-506). The court entered judgment the same day. RE-Tab 3 (ROA-530). The EEOC filed a notice of appeal on November 5, 2007. RE-Tab 2 (ROA-531). B. Statement of the Facts Kristin Paige McGee was assigned by Kelly Services, a staffing firm, to work as a temporary clerk at a General Motors ("GM") plant in Brandon, Mississippi, beginning on May 13, 2002. ROA-326 (McGee Dep. 56). Her immediate supervisor was Catherine Rickett, the plant's inventory control supervisor. ROA-428 (Rickett Dep. 15); ROA-203 (Pursley Dep. 18). One of McGee's responsibilities was to work with Charles McBride, the quality network manager, on a monthly report. ROA-218, 225 (Pursley Dep. 78, 106). McGee testified that, beginning on her first day and throughout the two and a half months she worked with him, McBride behaved inappropriately toward her. RE-Tab 5 (ROA-162) (McGee Dep. 56) ("[T]he first incident of harassment was the very first day I started there."). According to McGee, McBride kept appearing wherever she went-"[w]alking down the stairs, in the elevator, . . . at the door every morning when I came into work"-and would stare at her in a way that made her feel "very uncomfortable." RE-Tab 5 (ROA-162, 163-64) (McGee Dep. 56, 60-61). McBride also asked for McGee's home telephone number several times, and suggested that he could help her obtain a permanent position with GM. ROA- 179, 180 (McGee Dep. 123, 126-27). When coworker Wayne McKeller commented to McBride that he was constantly coming to the office where McGee worked, McBride replied, "Well, there's finally someone here to look at." RE-Tab 5 (ROA-165) (McGee Dep. 65-66). McBride also made sexually suggestive comments that offended McGee. McBride asked McGee if she would ever cheat on her boyfriend. RE-Tab 5 (ROA- 179) (McGee Dep. 121). On the day after Mother's Day, McBride asked McGee if her boyfriend had done anything special for her, specifically, if they had had sex. RE-Tab 5 (ROA-164) (McGee Dep. 61-62). McBride frequently commented about McGee's appearance. He told her "how good [her] legs look[ed]" when she wore a skirt, and stated that she should wear skirts more often. RE-Tab 5 (ROA- 179) (McGee Dep. 121-22). On two occasions, McBride told McGee that she "had a nice butt" or that an outfit she was wearing made her "butt look good." RE-Tab 5 (ROA-166) (McGee Dep. 70-71). McBride also touched McGee inappropriately. Several times he came up behind McGee and hugged her. RE-Tab 5 (ROA-179) (McGee Dep. 123). On one occasion, McBride pulled McGee's chair close to him, bent over to pick up a pen, put his hand on her leg and "slid it back up [her] thigh." RE-Tab 5 (ROA-168) (McGee Dep. 80). McGee hit his arm and walked out of his office. Id. Another time, McBride dropped something near the cubicle where McGee was sitting. When he bent down to pick it up, he put his hand on her leg to help himself get up. RE-Tab 5 (ROA-170) (McGee Dep. 86). Once when McGee was working on a project in McBride's office, McBride put on a CD and told McGee that "it was his favorite song and to make sure I paid attention to the words." RE-Tab 5 (ROA-179) (McGee Dep. 122). The lyrics included the singer's statement that "'I'm going to put you over a desk . . . or make love to you over a desk." RE-Tab 5 (ROA-167) (McGee Dep. 75). McBride told McGee "that was what he would like to do to me." RE-Tab 5 (ROA-166) (McGee Dep. 72). McGee testified that she started crying. RE-Tab 5 (ROA-167) (McGee Dep. 73). She stated that she did not know what to do because she "hadn't been there that long and he was a manager." RE-Tab 5 (ROA-167) (McGee Dep. 74). McGee testified that, when she saw McBride's car in the parking lot at work, "it made me sick to my stomach to go into that building." RE-Tab 5 (ROA-166) (McGee Dep. 70). According to McGee, even when McBride didn't say anything to her, she was uncomfortable because of his constant presence. RE-Tab 5 (ROA- 168) (McGee Dep. 78) ("[T]he things that would make me uncomfortable were just the fact not necessarily that he said anything. It was just like he would just be waiting in the staircase for me to come downstairs"). She testified, "Every day going to work . . . was just a horrible experience for me. I could not stand to see him. He was everywhere. And it was-he just wouldn't leave me alone." RE-Tab 5 (ROA-192) (McGee Dep. 176). When McGee was asked at her deposition if she had any conversations with McBride in which he did not make an inappropriate comment, she replied: "I honestly don't think so because it seemed like there was always something." ROA-180 (McGee Dep. 125). When McGee told McBride that his behavior made her uncomfortable, McBride apologized and said he wanted to "keep this between us." RE-Tab 5 (ROA-163, 168) (McGee Dep. 60, 78). McGee told McBride more than once that, if she reported his behavior, his family would be hurt. RE-Tab 5 (ROA-168) (McGee Dep. 79). McGee testified that these comments made her feel guilty about his wife, children, and grandchildren and "what would happen to them" if she complained about him. Id. During her first week at GM, McGee asked Rickett if she was required to work with McBride, or if she could do a different assignment for Rickett instead. RE-Tab 5 (ROA-171) (McGee Dep. 89-90). Rickett directed her to complete McBride's assignment. RE-Tab 5 (ROA-171) (McGee Dep. 90). McGee responded, "I don't feel comfortable working with him." RE-Tab 5 (ROA-171) (McGee Dep. 90). According to McGee, Rickett told her that she should be willing to assist McBride or any other manager in oncoming projects. Id. Rickett did not ask McGee to elaborate on her expressed discomfort with working with McBride despite the fact that Rickett herself had been the target of sexually suggestive conduct by McBride. RE-Tab 5 (ROA-171) (McGee Dep. 91). Rickett testified that McBride once came into her office and draped himself over a file cabinet in a sexually suggestive position and said, "I hear you need something from me." RE-Tab 8 (ROA-429) (Rickett Dep. 71-72). After Rickett denied McGee's request, McGee told some of her coworkers about McBride's behavior, and they suggested she tell a GM official. RE-Tab 5 (ROA 169) (McGee Dep. 81- 82). McGee testified that she did not complain to anyone else at that time because she was afraid she would lose her job and she worried she would not be believed because she was "just a temp." RE-Tab 5 (ROA-169) (McGee Dep. 82) ("I needed the job. . . . If I tell, I have no proof of it. Who's going to believe me? I'm just a temp. I'm going to be fired . . . ."). McBride had a history of directing unwanted attention at GM's female employees. Several temporary workers at the plant told McGee that McBride had been in trouble in the past for saying inappropriate things. RE-Tab 5 (ROA-196) (McGee Dep. 191-92). McGee "had heard the rumors throughout the plant and from other employees that Chuck had done this kind of stuff to other people before, and he was still there and they weren't . . . ." RE-Tab 5 (ROA-169) (McGee Dep. 82). Other employees told her that the temporary employee McGee replaced left because McBride had been "bothering her," and "she had made complaints, and she was no longer there." RE-Tab 5 (ROA-169) (McGee Dep. 83- 84). Another employee, Alice Brooks, confided in McGee that McBride had made sexually suggestive comments to her. RE-Tab 5 (ROA-169) (McGee Dep. 83). Lashonda Moore, a fellow temporary clerk, stated that McBride asked her if she would ever cheat on her husband. RE-Tab 11 (ROA-451) (Moore interview notes). Stacy Lanthrip, another temporary clerk, testified that McBride made sexually suggestive comments to her and propositioned her. RE-Tab 12 (ROA- 454) (Lanthrip interview notes); RE-Tab 9 (ROA-400) (Lanthrip Dep. 33). She reported that McBride told her that, "when a man is not happy at home, he looks for sexual favors other places." RE-Tab 12 (ROA-454) (Lanthrip interview notes); RE-Tab 9 (ROA-395) (Lanthrip Dep. 14). McBride told Lanthrip that he and his wife were having problems because she found a pornographic web site he had been visiting on their computer. RE-Tab 9 (ROA-395). She also testified that "[a] lot of times when he would talk to me, he would look at my chest rather than my face." Id. She stated he had commented that she was "very desirable" and offered to give her money if she performed sexual favors for him at work and would "buy me things for my companionship." RE-Tab 9 (ROA-395) (Lanthrip Dep. 14); RE-Tab 12 (ROA-454) (Lanthrip interview notes). Although Lanthrip told McBride that she was not interested in any kind of relationship with him, he repeatedly renewed his request that she "consider being with him." RE-Tab 9 (ROA-398) (Lanthrip Dep. 17). Joanne Pursley, the personnel administrator at the plant, testified that "I knew [McBride] had these issues." RE-Tab 6 (ROA-248) (Pursley Dep. 197). He admitted to Pursley that he was "a flirt," and she recognized that he engaged in "what I would call boorish behavior towards women." RE-Tab 6 (ROA-248) (Pursley Dep. 198). Pursley stated in a memo dated October 5, 1999, that McBride had reportedly been "hitting on women" at the plant-"asking women to go out with him on dates" and "making sexual advances to women in this plant." RE-Tab 7 (ROA-264). Pursley counseled him that such behavior "could lead to sexual harassment" and instructed him to "stop the flirting immediately." Id. During a multi-day training session in Jackson, Mississippi, beginning July 31, 2000, McBride asked a group of female employees who were using the hotel pool to come out of the water so he could see them in their bathing suits. RE-Tab 7 (ROA-265). The next day at the training he asked them why they would not get out of the pool and asked if he would see them in their bathing suits if he came to the pool after the training. Id. After the employees complained, Pursley told McBride that he "showed poor judgment and put himself at great risk for sexual harassment when he went to the pool." RE-Tab 7 (ROA-266). She told him that one more complaint of such behavior would result in an investigation and possible disciplinary action including discharge. Id. According to Pursley's memo, McBride stated that he would correct his behavior. Id. The following day, McBride told Pursley that he had apologized to the women and did not realize anyone had been offended. Id. Pursley stated that she told McBride "that his actions and behaviors were wrong and in clear violation of General Motors' sexual harassment policy" and suggested that he seek counseling. Id. During another training in August 2000, McBride approached a woman, sniffed her neck, and told her, "I love the way you smell." RE-Tab 7 (ROA-262). He also attempted to hug a woman. Id. McBride was reprimanded for this behavior on October 18, 2000. RE-Tab 7 (ROA-263). Pursley counseled him that such actions "are not only inappropriate, but represent sexual harassment in the workplace." RE-Tab 7 (ROA-262). The October memorandum documenting Pursley's conversation with McBride also notes that he was counseled about other "inappropriate behavior of a sexual harassment nature" on October 5, 1999, and August 3, 2000. Id. McBride was instructed to attend professional counseling sessions and warned that further complaints of sexual harassment could result in termination from GM. RE-Tab 7 (ROA-263). According to Pursley, the company sent McBride to a therapist for voluntary counseling in 2000. RE-Tab 6 (ROA- 252) (Pursley Dep. 214-15). He attended one session but did not return for the second appointment. RE-Tab 6 (ROA-253) (Pursley Dep. 217). McBride told Pursley that his psychiatrist characterized his prior behavior as sexual harassment. RE-Tab 6 (ROA-253) (Pursley Dep. 218). Pursley testified that she informed him that additional incidents could result in him losing his job. RE-Tab 6 (ROA-253) (Pursley Dep. 219). McBride attended a counseling session on October 26, 2000, and attended a sexual harassment education class put on by GM on November 16, 2000. ROA-271 (Def. Responses to Plaintiff's First Interrogatories at 6). McGee testified that "the last straw" was when she was at her desk and McBride approached her from behind in July 2002. Tab 5 (ROA-170) (McGee Dep. 86-87). "[H]e came up to me and put [] his hands on my shoulders and he bent down and he kissed me on top of my head." Tab 5 (ROA-170) (McGee Dep. 87). McGee jumped up immediately and knocked the chair over into McBride. Id. McGee saw a notice about reporting sexual harassment on a company bulletin board and asked general manager Kenneth Wall if temporary employees could use the information posted.<2> RE-Tab 5 (ROA-170-71) (McGee Dep. 88-89); see also RE-Tab 5 (ROA-172) (McGee Dep. 96) ("I asked [Wall] if temps could use that same number or if that was just for the UAW employees."). When Wall asked McGee why she asked, she told him that McBride made her feel uncomfortable and that McBride had begged her not to tell anyone about his advances. RE-Tab 5 (ROA-171, 172-73) (McGee Dep. 89, 96-97). Wall's notes from his meeting with McGee indicate that McGee appeared "visibly shaken and scared." RE-Tab 10 (ROA-433). According to McGee, Wall's reaction was "[n]ot again," indicating to her that this was not the first or second time someone had complained about McBride. RE-Tab 5 (ROA-173) (McGee Dep. 97). McGee testified that Wall told her that McBride had been told to keep his mouth shut. Id. McGee gave Wall permission to report McBride's behavior to supervisor Mike White. ROA-174 (McGee Dep. 101-02). White met with McGee on the afternoon of July 24, 2002, then contacted Pursley. ROA-174 (McGee Dep. 102-04); ROA-211, 212 (Pursley Dep. 50, 54-55). Pursley testified that as soon as she was told of McGee's complaint about McBride, she contacted Kelly Services. ROA-211 (Pursley Dep. 49). Kelly elected to handle the complaint internally, pursuant to a company policy. Id.; ROA-213 (Pursley Dep. 58-60). McGee was instructed to come to Kelly's offices where she informed Kelly manager Apryl Stokes of McBride's conduct and provided a written statement to Kelly on July 25, 2002.<3> ROA 177 (McGee Dep. 114-15). Kelly interviewed other Kelly employees who worked at the Brandon plant. ROA-222-23 (Pursley Dep. 96-98). Kelly permitted Pursley to attend interviews and take notes, but she was not allowed to ask questions. ROA-214, 216 (Pursley Dep. 61-62, 71). In a separate investigation, Pursley interviewed Wall, White, and Lanthrip about McGee's allegations. ROA-215, 221 (Pursley Dep. 67, 91). On the morning of July 29, 2002, Pursley and manager Terry Armstrong confronted McBride with McGee's statement and asked for a response. RE-Tab 5 (ROA-181, 182) (McGee Dep. 129, 134); see also ROA-222 (Pursley Dep. 93). McBride denied McGee's allegations, and responded, "I never touched her. I never said anything sexual to her. I will go to the cops right now and take a lie detector test. There are two or three things in there I did, but nothing sexual." ROA-444 (July 29, 2002 meeting notes). McBride then threatened to kill himself and "he went into the fetal position and ripped his face apart and blood was coming from his face." ROA-242 (Pursley Dep. 173). After McBride was transported by ambulance to a hospital, his security badge was deactivated to prevent him from returning to the plant.<4> ROA-242 (Pursley Dep. 175-76). McBride remained on medical leave until he retired. ROA-240 (Pursley Dep. 168). Pursley testified that her investigation remained open pending McBride's sick leave and was never finalized. ROA-220, 226 (Pursley Dep. 88, 109-110). McGee and the other clerical employees were called into the conference room and told that McBride "was very sick," that he had had "some kind of attack," and had been taken to the hospital. RE-Tab 5 (ROA-181) (McGee Dep. 130-31). Several union employees approached McGee and told her that McBride was taken out on a stretcher and that "it was about you." RE-Tab 5 (ROA-182) (McGee Dep. 133). McGee had someone walk her to her car after work and follow her part of the way home because she was afraid McBride would confront her about her complaint. ROA-418 (Arata Rpt. 3). She testified that "he scared me to death and I was afraid he was going to maybe come out and try to do something to me." ROA-183 (McGee Dep. 137). McGee never saw McBride again. RE-Tab 5 (ROA-182) (McGee Dep. 135). McGee testified that after McBride's breakdown, managers and coworkers shunned her. Coworkers made comments, such as "'[i]f you even look at her wrong, she's going to have you arrested or, you know, press charges against you.'" ROA-183 (McGee Dep. 139). McGee's "great working relationship" with Rickett also soured, and Rickett became "very ugly" to her. ROA-186 (McGee Dep. 150). Rickett also took McGee's work away. ROA-186 (McGee Dep. 151). When McGee requested additional work, she was told GM could not give her any. ROA- 419 (Arata Rpt. 4). McGee filed a charge with the EEOC on November 1, 2002 alleging that she was sexually harassed by McBride and that no action was taken to stop the harassment. ROA-431. Pursley testified that around this time, she was directed to contact Kelly Services to request a more skilled clerical contract worker to replace McGee and Moore after the plant manager and general supervisors met regarding the need to reduce the number of temporary clerical workers as a cost-saving measure. ROA- 256-57 (Pursley Dep. 232-33). On November 6, 2002, Pursley told Kelly that GM would let McGee and Moore go and wanted to replace them with one higher qualified clerk. ROA-267 (Pursley notes). On November 18, 2002, Pursley, at Kelly's request, notified Kelly in writing that the GM plant would be reducing the number of contract personnel assigned and that "[e]ffective November 25, 2002, GM no longer will have a need for the Kelly employees assigned to Clerk 2 and Clerk 3 clerical contract positions," ROA-188 (Pursley Dep. 159), and requested placement of a temporary Clerk 5 "with advanced clerical skills, abilities, and experiences." ROA-188 (Pursley Dep. 160). C. District Court Decision In considering GM's motion for summary judgment, the district court ruled that there was sufficient evidence to support a finding that McBride's harassment was sufficiently severe or pervasive to alter McGee's working conditions. RE-Tab 4 at 11. However, the court held that the company established as a matter of law the affirmative defense to liability under Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). According to the court, GM established both that it exercised reasonable care to prevent and correct promptly sexual harassment and that McGee unreasonably failed to take advantage of opportunities to complain or to otherwise avoid harm. RE-Tab 4 at 11, 19. With respect to the reasonableness of GM's actions, the court noted that Kelly had a sexual harassment and discrimination policy in place that required McGee to report any allegations of harassment directly to Kelly, and that McGee received a copy of the policy as an employee. The court noted that GM also had a policy against sexual harassment posted at the GM plant as well as a toll-free telephone number that could be used to report harassment, although McGee did not receive a copy of the anti-harassment policy. Id. at 12-13. In the court's view, GM "began prompt remedial actions" in reporting McGee's complaint through the supervisor hierarchy and to Kelly and then investigating McGee's complaint as soon as the company received McGee's complaint of harassment on July 24, 2002. Id. at 13-14. The court acknowledged that McGee had told Rickett months earlier that she did not feel comfortable working with McBride, but, because McGee did not tell Rickett the reasons she was uncomfortable or say that McBride was sexually harassing her, the court concluded that this exchange "did not place General Motors on notice of the alleged sexual harassment." Id. at 13 n.4. The court noted that McGee was not subject to further harassment after she reported McBride because he never returned to work at the plant. RE-Tab 4 at 15. In the court's view, even though GM did not finish its investigation into McGee's allegations because McBride was out on sick leave, "it did promptly and thoroughly investigate the alleged sexual harassment and was contemplating taking remedial actions against McBride upon his return." Id. Therefore, the court concluded, GM exercised reasonable care to prevent and promptly correct the harassment. Id. at 17. The court also concluded that GM's response to earlier complaints about McGee was reasonable. According to the court, because the prior allegations of sexual harassment against McBride "were limited in their severity and were isolated occurrences," the remedial actions taken by GM in McGee's case were reasonable. Id. at 17-18 n.5. The court stated that the fact that there were no complaints against McBride for ten months after he was first warned about sexual harassment in 1999, and for twenty months after he received a written warning in 2000, indicated that GM's actions in dealing with McBride's prior inappropriate behavior "were initially effective." Id. at 18 n.5. Finally, the court concluded that McGee unreasonably failed to take advantage of the opportunities provided by GM because she did not report the harassment until July 24, 2002. Id. at 18. STANDARD OF REVIEW This Court reviews a district court's award of summary judgment de novo. Minter v. Great Am. Ins. Co., 423 F.3d 460, 464-65 (5th Cir. 2005). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 464. In assessing a motion for summary judgment, the Court views the evidence, and draws all reasonable inferences, in the light most favorable to the non-moving party. Id. at 465. A party is not entitled to summary judgment on an issue as to which it bears the burden of proof unless undisputed evidence compels a finding in the party's favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). SUMMARY OF ARGUMENT GM argued below that the harassment alleged by McGee amounted to only a "smattering" of offensive verbal comments and "minimal" inappropriate touching, and was, therefore, insufficient to support a Title VII claim. The district court correctly rejected this argument, holding that there is sufficient evidence to support a finding that the harassment to which McGee was subjected by a GM manager was sufficiently severe or pervasive to constitute a hostile work environment. Should GM advance this argument on appeal as an alternative ground for affirmance, this Court should also reject it. The evidence of McBride's frequent sexually suggestive stares, comments, propositions, innuendos, stalking, and inappropriate touching would allow a finding that McGee was subjected to conduct that altered the terms and conditions of her employment because of her sex. The district court erred, however, in holding that GM could not be found liable for the harassment by its manager. To avoid liability for sexual harassment by a supervisory employee, an employer must prove both that it exercised reasonable care to prevent sexual harassment from occurring and to promptly correct any harassment that does occur, and that the victim of the harassment unreasonably failed to take advantage of corrective opportunities or to otherwise avoid harm. GM is not entitled to summary judgment on this defense unless undisputed evidence compels a finding in its favor on both elements. The evidence in this case does not compel a finding for GM on either prong. Because the first prong of the Faragher/Ellerth affirmative defense requires an employer to show that it took reasonable steps to prevent, not just correct, workplace harassment to avoid vicarious liability for a hostile work environment, a jury could conclude that GM's actions were deficient. In holding that GM met its burden, the court ignored the most significant evidence that GM's actions were not reasonably calculated to prevent harassment. A reasonable jury would not be compelled to agree with the district court's finding that GM's acts in addressing McBride's past harassment of women employees were effective for the simple reason that the absence of complaints against McBride does not establish that his behavior had changed as a result of GM's warnings. On the contrary, McGee testified that, as soon as she arrived at the plant, McBride resumed the same type of behavior he had been warned about in the past. A jury could find that the company's failure to adequately address McBride's repeat instances of sexual harassment of other women in the past led to his victimization of McGee as soon as she started to work with him. Furthermore, when she told her supervisor she felt "uncomfortable" working with McBride and asked to do an assignment for someone else, she was rebuffed despite the fact that McBride was known to have a history of harassing subordinate female employees and McBride had targeted the supervisor in the past with a sexually suggestive comment. In light of this evidence, a jury could find that GM did not take reasonable care to prevent and correct harassment under the circumstances. Because the evidence does not compel a finding that GM established the first prong of the defense, summary judgment was inappropriate without regard to the evidence on the second prong-whether McGee unreasonably failed to take advantage of opportunities to prevent or correct the harassment. But GM has not shown that it is entitled to summary judgment on this prong either. The district court concluded that GM established this prong of the defense because of its assumption that McGee failed to report the harassment until July, more than two months after the harassment began. However, McGee complained to her supervisor her first week that she was uncomfortable working with McBride. A jury could find McGee's failure to elaborate on the cause of her discomfort reasonable given the situation-she was a new temporary employee worried about losing her job. And a jury could also find it reasonable that McGee did not know if GM's policy against sexual harassment applied to her as a temporary worker; she was never given a copy of the policy and the policy makes no mention of temporary employees. Moreover, a jury could find, consistent with this Court's jurisprudence, that a three-month delay in reporting harassment was not unreasonable. ARGUMENT I. THE DISTRICT COURT CORRECTLY HELD THAT THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT THE SEXUAL HARASSMENT TO WHICH MCGEE WAS SUBJECTED BY A GENERAL MOTORS MANAGER WAS SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER THE CONDITIONS OF HER EMPLOYMENT. In moving for summary judgment, GM asserted that the offensive conduct to which McGee was subjected was merely "a smattering of verbal comments and stares, punctuated by three to five incidents of minimal physical contact, over a period of approximately two months." ROA-283 (Def. Br. at 12). Accordingly, the company argued, it was not sufficiently severe or pervasive to "rise[] to the level of actionable harassment under the law." Id. The district court correctly rejected this argument. Should GM renew this argument as an alternative ground for affirming the district court's judgment, this Court should also reject it. Section 703(a) of Title VII makes it unlawful for an employer to discriminate on the basis of sex with respect to "terms and conditions of employment." 42 U.S.C. § 2000e-2(a). This provision is violated when sexual harassment in the form of "discriminatory intimidation, ridicule, and insult . . . is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted); see also Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (citing Harris). Factors to be considered in determining whether harassment could be found to constitute a hostile work environment include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance," although "no single factor is required." Harris, 510 U.S. at 23; DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 594 (5th Cir. 1995). The undisputed evidence that McGee was repeatedly stared at, followed, propositioned, touched inappropriately, and subjected to frequent sexual comments and innuendos about her body and sex life would allow a finding that she was subjected to a hostile work environment under this standard. A jury could find the conduct at issue sufficiently pervasive to alter McGee's working conditions. McGee testified that, beginning on her first day at GM, McBride "was everywhere" and "wouldn't leave me alone." ROA-192, 180. According to McGee, she never had a conversation with McBride where he refrained from making an inappropriate comment. ROA-180. Fear of encountering him extended the harassment into every day she went to the Brandon plant, even during times she was not required to work with him. RE-Tab 5 (ROA- 168) (McGee Dep. 78) ("[T]he things that would make me uncomfortable were just the fact not necessarily that he said anything. It was just like he would just be waiting in the staircase for me to come downstairs"). See Crowley v. L.L. Bean, 303 F.3d 387, 400 (1st Cir. 2002) (in a case where the harasser stalked the plaintiff at their workplace, the court of appeals held that the plaintiff presented sufficient evidence to satisfy the severe or pervasive element of her hostile work environment claim and emphasized that by focusing on incidents of harassment confined to a narrow time period, the defendant failed "'to capture the residual and cumulative effect that [the harasser]'s campaign of harassment had on [the plaintiff]'s working conditions even on days when she did not encounter him'") (quoting Amicus Br. of EEOC). McBride appeared so often at McGee's work station that one of McGee's coworkers noticed and asked him what he was doing there. ROA-165. A jury could find that McBride's comments about McGee's legs and buttocks and inquiries into her sex life were humiliating. A jury could also find the incidents of hugging, inappropriate touching of her thighs, and kissing the top of her head by a supervisor she was required to work with both humiliating and threatening. McGee testified that McBride's inappropriate behavior intimidated and frightened her. McBride's playing of a sexually explicit CD for McGee and propositioning McGee reduced her to tears. RE-Tab 5 (ROA-167). She testified that seeing his car in the parking lot "made me sick to my stomach," ROA-166, and that "he scared me to death." ROA-183. Wall's notes reflect that McGee was "visibly shaken and upset" when she told him about McBride's behavior. RE-Tab 10 (ROA-433). These facts would allow a finding that McBride's conduct made it more difficult for McGee to perform her job. Harris, 510 U.S. at 25 (Ginsburg, J., concurring) ("It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered the working conditions as to 'make it more difficult to do the job.'"). Accordingly, the district court correctly held that a reasonable jury could find McGee's work environment severe or pervasive. See Harvill v. Westward Commc'ns, 433 F.3d 428, 436 (5th Cir. 2005) (issue on summary judgment is whether a reasonable jury could find the conduct sufficiently severe or pervasive to alter a term or condition of the plaintiff's employment). II. THE DISTRICT COURT ERRED IN HOLDING THAT GENERAL MOTORS COULD NOT BE HELD LIABLE FOR THE HARASSMENT BY ITS MANAGER SINCE THE EVIDENCE DOES NOT COMPEL A FINDING THAT THE COMPANY TOOK REASONABLE MEASURES TO PREVENT THE HARASSMENT OR THAT MCGEE UNREASONABLY FAILED TO TAKE ADVANTAGE OF OPPORTUNITIES TO OBTAIN REDRESS. In Ellerth and Faragher, the Supreme Court ruled that an employer is vicariously liable for a supervisor's sexual harassment of a subordinate that does not culminate in a tangible employment action unless the employer proves both that: 1) it exercised reasonable care to prevent harassment and promptly corrected any harassment that occurred; and 2) that the victim unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Because GM bears the burden of proof, the company is not entitled to summary judgment unless undisputed evidence in the record compels a finding that it has met both elements of the defense. See Celotex, 477 U.S. at 322 ("[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."); Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003) ("To obtain summary judgment, if the movant bears the burden of proof on an issue . . . because . . . as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the . . . defense to warrant judgment in his favor.") (internal citations and quotations omitted) (emphasis in original). Furthermore, because both elements of the affirmative defense turn on the reasonableness of an employer's or employee's actions or failure to act under the particular circumstances, each is a fact-sensitive question uniquely in the province of a jury. "'[I]n all cases where reasonableness is an issue, it is up to the fact- finder to apply this standard.'" Fall v. Indiana Univ. Bd. of Trs., 12 F. Supp. 2d 870, 883 (N.D. Ind. 1998) (quoting In Matter of Kenneth Leventhal & Co., 19 F.3d 1174, 1178 (7th Cir. 1994)); 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. The sufficiency of the provisions and application of the harassment policy must be assessed through an examination of the credibility of the witnesses involved."). The evidence in this case does not compel a finding for GM on either prong of the defense. Under the first prong of the defense, employers "have an affirmative duty to prevent sexual harassment by supervisors." Williams v. Gen. Motors Corp., 187 F.3d 553, 561 (6th Cir. 1999). In considering this issue, the district court focused almost entirely on GM's written anti-harassment policy and the company's response to McGee's formal complaint of harassment in July 2002. See RE-Tab 4 at 12-14. The court dismissed in passing several salient points that could persuade a reasonable jury to reject GM's defense. First, in summarizing GM's harassment policy, the court noted that McGee was never given a copy of the policy, "presumably because she was an employee of Kelly and was required to report claims of harassment to that agency." RE-Tab 4 at 12. In fact, McGee testified that it was not clear to her that, as a contract employee, she could file a complaint under GM's policy. See RE-Tab 5 (ROA-172) (McGee Dep. 96). A jury would not be compelled to find that a harassment policy constituted "reasonable care to prevent harassment" with respect to a contract employee like McGee where it was not given to her and did not clearly cover her. Furthermore, by concentrating on GM's response to McGee's July 2002 complaint, the court ignored the most significant evidence that GM's actions were not reasonably calculated to prevent harassment. There is compelling evidence that it was common knowledge at the GM plant that McBride had a history of harassing female employees under his supervision. It is undisputed that Pursley had warned him in the past that future acts of harassment could result in discipline or termination. RE-Tab 6 (ROA-253); RE-Tab 7 (ROA-262). Because McBride was a repeat offender and in a position of power as a manager, GM had a special obligation to notice and prevent any inappropriate behavior directed at his female subordinates. See Faragher, 524 U.S. at 805-06 (Title VII's primary objective is not to provide redress for harassed employees, but to avoid harm in the first place.). GM's actions were arguably deficient in two respects. First, a jury could find that the company's half-hearted response to McBride's past documented harassment of female employees communicated to McBride that his behavior would be tolerated and emboldened him to harass McGee when she arrived at the plant. The district court, ignoring its obligation to draw inferences in favor of the non-moving party, stated that it "finds" that "the remedial actions taken by General Motors was [sic] reasonable" noting that "there were no complaints against McBride for approximately ten months after he received his first verbal warning in 1999, and for approximately twenty months after he received the written warning in 2000." RE-Tab 4 at 18 n.5. A reasonable jury would not be compelled to agree with the district court's "finding" for the simple reason that the absence of complaints against McBride does not establish that his behavior had changed as a result of GM's warnings. On the contrary, McGee testified that, as soon as she arrived at the plant, McBride resumed the same type of behavior he had been warned about in the past. RE-Tab 5 (ROA-162) (McGee Dep. 56) ("[T]he first incident of harassment was the very first day I started there."). In addition, at the very least, GM had an obligation to be alert to any indications that McBride was engaging in his familiar offensive behavior towards female employees. As the court noted, one week after McGee began working with McBride, she complained to her supervisor, Rickett, that McBride made her "uncomfortable," and requested that she not be assigned to work with him. RE- Tab 5 (ROA-171) (McGee Dep. 90-91). The district court concluded that it was reasonable for GM to ignore this complaint "because [McGee] did not tell [Rickett] the reason she felt uncomfortable or that she felt [McBride] was sexually harassing her." RE-Tab 4 at 13 n.4. Once again, a reasonable jury could disagree. Given McBride's reputation and the fact that Rickett herself had been the subject of McBride's sexual innuendo on at least one occasion (RE-Tab 8 (Rickett Dep. 71-72)), McGee's suggestion to Rickett that she did not feel comfortable working with McBride should have alerted Rickett to a problem and triggered a duty to report and address McGee's concerns. See Dees v. Johnson Controls World Servs., 168 F.3d 417, 422 (11th Cir. 1999) (reversing district court's grant of summary judgment where there was a factual issue as to whether the employer had notice of harassing conduct predating the plaintiff's complaint and took no action to correct the abuse despite the employer's immediate response to the plaintiff's current complaint); Fall, 12 F. Supp. 2d at 883 (employer's knowledge of harasser's inappropriate sexual behavior toward female employees prior to harassment of the plaintiff precluded summary judgment for the employer because such evidence created a genuine issue of material fact as to whether the employer had knowledge of the prior harassment of women yet did nothing to prevent its recurrence). Because prior complaints about the same harasser may show the employer's lack of reasonable care, the district court's finding that GM established this prong of the defense was erroneous. Cf. Faragher, 524 U.S. at 803 (appropriateness of vicarious liability for misuse of supervisory authority "is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance"). Even apart from McGee's complaint to Rickett, a jury could find that McBride's open stalking and harassment of McGee should have triggered the company's duty to take immediate action to protect McGee from additional acts of harassment. Given the pervasiveness of McBride's inappropriate attention coupled with his well-known reputation, a jury could find that GM did not act reasonably in failing to prevent or immediately halt McBride's sexual advances targeting McGee. See, e.g., Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673-74 (10th Cir. 1998) ("highly pervasive harassment should, in the exercise of reasonable care, be discovered by management-level employees"); Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir. 1982) (pervasive harassment gives rise to an inference of knowledge or constructive knowledge). Because the evidence does not compel a finding that GM established the first prong of the defense, summary judgment was inappropriate without regard to the evidence on the second prong. See, e.g., 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) (emphasis in original); Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Cir. 2005) ("The employer will lose this defense if it fails either prong."). In any event, GM was not entitled to summary judgment on this prong either. The district court once again based its "finding" that GM established that McGee unreasonably failed to take advantage of corrective opportunities on the assumption that McGee failed to report the harassment until July 24, 2002. RE- Tab 4 at 18. However, as noted supra at 28-29, McGee made an effort to convey her concerns about McBride to her supervisor during her first week on the job, but was rebuffed. RE-Tab 5 (ROA-171) (McGee Dep. 89-90). A jury could find McGee's failure to elaborate on the cause of her discomfort reasonable given the situation. McGee was a new, temporary employee with no track record with GM. ROA-169 (McGee Dep. 82) (McGee testified, "Who's going to believe me? I'm just a temp."). See Faragher, 524 U.S. at 803 ("an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker"). McGee was being harassed by a manager who had been with the company for years, and who had told her not to tell anyone about his behavior because his family would be hurt. RE-Tab 5 (ROA-168) (McGee Dep. 79). She had heard that McBride had harassed other employees and that those employees had lost their jobs when they complained. Re-Tab 5 (ROA-169) (McGee Dep. 82). The fact that he was still with the company despite his behavior communicated to McGee that GM did not take the matter seriously. For the same reasons, a jury could also find it reasonable that McGee did not complain to Kelly Services out of fear that she would lose the job assignment, or because she believed other temporary workers from Kelly had complained about McBride to no avail. Because the affirmative defense contemplates that the victim of harassment may take corrective opportunities provided by the employer "or to avoid harm otherwise," Ellerth, 524 U.S. at 765, a jury could determine that McGee's decision to complain to GM first was reasonable. Cf. Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (pursuing union grievance rather than company's sexual harassment policies "comports with the Burlington/Faragher rubric" because both the employer and union procedures are corrective mechanisms designed to avoid harm). A jury could also find that McGee reasonably feared retaliation for complaining of McBride's advances. GM's policy did not contain any assurances that complaining employees would be protected from retaliation. ROA-260, 261. McGee had been told that other employees who complained about McBride were no longer with the company, which she interpreted to mean that they were terminated because they complained of harassment. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html ("To assure employees that such a fear is unwarranted, the employer must clearly communicate and enforce a policy that no employee will be retaliated against for complaining of harassment."). Although "[a]ll harassment victims risk retaliation when they complain," and a generalized fear of retaliation is not ordinarily enough to establish the reasonableness of an employee's failure to complain, "evidence of prior unresponsive action by the company or management to actual complaints" constitutes objective evidence that retaliation will take place and could allow a jury to find a plaintiff's failure to complain immediately to be reasonable and defeat an employer's affirmative defense. See Young v. R.R. Morrison and Son, Inc., 159 F. Supp. 2d 921, 927 (N.D. Miss. 2000). Moreover, even if a jury did not consider McGee's complaint to Rickett in May to be a complaint of harassment, McGee formally complained on July 24, 2002, only two and a half months after the harassment commenced. A jury could find that this delay did not constitute an unreasonable failure to take advantage of GM's corrective opportunities. See Watts, 170 F.3d at 510 (jury could find that waiting until July 1994 before complaining of harassment that began in 1993 and intensified in the spring of 1994 was not unreasonable). McGee had "the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard." Pennsylvania State Police v. Suders, 542 U.S. 129, 152 (2004). Because a jury could find McGee's actions reasonable, GM cannot meet this burden. Accordingly, the district court's grant of summary judgment was erroneous. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,205 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov Dated: January 23, 2008 CERTIFICATE OF SERVICE I, Julie L. Gantz, hereby certify that I served two hard copies of the foregoing brief, plus one electronic copy in PDF format on a CD, this 23rd day of January, 2008, by overnight delivery, postage pre-paid, to the following counsel of record: Saundra Brown Strong PHELPS DUNBAR 111 East Capitol Street Suite 600 Jackson, MS 39201 Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> "RE-Tab [#]" refers to tabbed material in the EEOC's Record Excerpts. "ROA- [#]" refers to the paginated, certified Record on Appeal. <2> There is evidence that a sexual harassment policy was posted near the entrance to the plant that directs employees who feel they have been subjected to sexual harassment to bring their concerns to "either your immediate supervisor, personnel director or representative, or you may utilize appropriate and existing internal complaint procedures." ROA-260, 261; ROA-207 (Pursley Dep. 35). McGee testified that the policy she saw did not instruct employees to bring complaints to their immediate supervisor, personnel director, or representative, and instead, listed an 800 number. RE-Tab 5 (ROA-172) (McGee Dep. 93). <3> Stokes told Pursley she knew the complaint was about McBride before Pursley identified him as the accused harasser. RE-Tab 13 (ROA-457). Stokes stated that she did not like to take McBride's calls because "he always asked . . . very personal questions and filled all conversations with sexual innuendos." Id. Stokes requested that someone accompany her during visits to the GM plant so she would not have to be alone with McBride. Id. <4> McBride attempted to enter the plant several hours later but was turned away. ROA-222, 237 (Pursley Dep. 94-95, 153-54). <5> The court also dismissed the Commission's retaliation claim because the evidence GM offered in support of its legitimate, non-retaliatory reason for McGee's discharge-the company's need to reduce the number of temporary clerks and replace McGee and Moore with one more skilled clerk-was unrebutted. RE-Tab 4 at 22. The Commission does not challenge this ruling on appeal.