The opinion of the court was delivered by: Robertson, District Judge.
This memorandum sets forth the Court's reasoning for granting
defendant's motion for summary judgment on May 9, 1999. This
suit was filed by the Equal Employment Opportunity Employment
Commission on behalf of Glynda Baptist, a former employee at
defendant Barton Protective Services. EEOC asserted that Ms.
Baptist had been sexually harassed while working at Barton.
Barton denied the harassment but also interposed the
affirmative defense recognized in Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct.
2275, 141 L.Ed.2d 662 (1998) — that Barton exercised
reasonable care in trying to prevent and correct harassment,
and that Baptist acted unreasonably by waiting more than eleven
months to report the harassment. The grant of summary judgment
assumed for the sake of argument that the complained-of
harassment happened, but concluded that the affirmative defense
succeeded as a matter of law.
The following facts were either undisputed or were assumed to
be true for purposes of the Court's ruling: Glynda Baptist
began working as a security guard for defendant Barton
Protective Services in May 1995. She was assigned to work at
Lafayette Center in Washington, D.C. On April 20, 1995, before
beginning her job, she received and signed a copy of Barton's
written Sexual Harassment Policy on April 20, 1995. The policy
stated, "An employee alleging either harassment by anyone with
supervisory authority, or failure by a supervisor to take
immediate action on the individual's complaint of being
sexually harassed by another employee should file a written and
detailed complaint immediately." (Def.Ex. 6 & 9). She also
received a copy of Barton's Security Officer's Training Manual.
That manual stated,
Beginning on Ms. Baptist's first day of work in mid-May 1995,
Troy Williams, the account manager at Lafayette Center,
sexually harassed her on a daily basis. She did not report the
harassment or complain about it until, eleven months later, in
late-April 1996, she mentioned it to Basim Muhammad, her
newly-appointed shift supervisor (who was subordinate to Mr.
Williams). Mr. Muhammad confronted Mr. Williams that same day,
and he denied the harassment. On June 4, 1996, Ms. Baptist for
the first time told one of Mr. Williams' supervisors, Carl Box,
the operations manager, about the harassment. That same day,
Mr. Box changed Mr. Williams' schedule, pending investigation
of the complaint, and he offered Ms. Baptist a transfer, which
she declined. The next day, Barton offered Ms. Baptist leave
with pay pending investigation of her complaint, and this offer
she accepted. Two days later, on June 7, 1996, Ms. Baptist
contacted Barton and asked to return to work.
Ms. Baptist did return to work on June 10, 1996. On that day,
she met with Mr. Box, with Todd Carroll, Vice President, and
with Jennifer Cavanaugh, Payroll Manager. After five or ten
minutes, she felt "ambushed" by the meeting. She told Messrs.
Box and Carol and Ms. Cavanaugh that she would prefer to speak
with an attorney present. That same day, Roger Reed, Human
Resources Manager, wrote to Ms. Baptist's lawyer asking for Ms.
Baptist's cooperation in the investigation of her complaint. On
June 11, Ms. Baptist resigned.
Ms. Baptist filed a timely complaint of discrimination with
the EEOC alleging that she had been harassed by Mr. Williams
and that Barton maintained a hostile work environment. She
asserted that she had been constructively discharged in
violation of Section 703(a) of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC conducted an
investigation and filed this lawsuit on June 30, 1998. On March
21, 1999, defendant moved for summary judgment.
An employer may be held vicariously liable for a supervisor's
sexual harassment of an employee, but "[w]hen no tangible
employment action is taken, a defending employer may raise an
affirmative defense to liability or damages, subject to proof
by a preponderance of the evidence. . . ." Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141
L.Ed.2d 633 (1998). "The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior,
and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise."
Burlington, 118 S.Ct. at 2270.
The first question that must be addressed is whether a
"tangible employment action" occurred here. EEOC asserts that
Ms. Baptist was constructively discharged and that a
constructive discharge, like any discharge, is a tangible
employment action. The initial appeal of that argument turns
out, upon closer inspection in the context of this case, to be
"[A] constructive discharge occurs where the employer creates
or tolerates discriminatory working conditions that would drive
a reasonable person to resign." Katradis v. Dav-El of
Washington, D.C., 846 F.2d 1482, 1485 (D.C. Cir. 1988)
(quotations and citation omitted). It is not clear whether Ms.
Baptist's claim of constructive discharge focuses on the eleven
months of harassment or the "ambush" meeting that was the
apparent trigger of
her decision to resign. Assigning the labels of "constructive
discharge" and "tangible employment action" to either set of
facts, however, would make nonsense of the Burlington
affirmative defense. If Barton may successfully defend by
showing that Ms. Baptist unreasonably waited eleven months
before telling anyone at work about the harassment, it makes no
sense to permit the same eleven months of harassment to
neutralize the defense. And, if Barton may successfully defend
by showing that Ms. Baptist unreasonably failed to take
advantage of a corrective opportunity, it makes no sense to
permit that defense to be neutralized by her dissatisfaction
with that opportunity, repackaged as "constructive discharge"
and then as "tangible employment action."*fn1 In the context
of this case, Ms. Baptist's claim of constructive discharge
thus would not amount to a tangible employment action even if
Turning then to the merits of the two-element affirmative
defense outlined in Burlington: The first element is the
employer's exercise of reasonable care to prevent and correct
promptly any sexually harassing behavior. It is undisputed that
Barton had two policies in place to prevent discrimination, and
that Ms. Baptist received and signed the Sexual Harassment
Policy and the Security Officer Training Manual. It is further
undisputed that Barton provided additional EEO training for its
managers and distributed written materials on how to prevent
EEOC asserts, however, that Barton failed to exercise
reasonable care to prevent sexual harassment because it did not
investigate rumors that Mr. Williams and Ms. Baptist were
dating, and because it condoned sexual jokes and ogling of
non-Barton employees in the workplace. Neither assertion gives
rise to a genuine issue of material fact. Rumors of dating (if
they were in circulation) gave rise to no duty of
investigation. Barton's sexual harassment policy in effect at
the time did not prohibit dating between employees,
see Def.Ex. 6. In any event, sexual harassment consists of
unwelcome sexual conduct, not dating. As for jokes, there is no
evidence that Ms. Baptist — or any other Barton employee —
complained about jokes or found them to be offensive. "[I]f the
victim does not subjectively perceive the environment to ...