Third Circuit Overturns Summary Judgment Based on the Faragher-Ellerth Defense
Employers who are sued for sexual harassment committed by a supervisor may be able to avoid liability, even if harassment had, in fact, occurred, by asserting the so-called Faragher-Ellerth affirmative defense, named after the two United States Supreme Court cases that first recognized the defense. An employer may assert the Faragher-Ellerth defense to supervisor harassment when no tangible employment action has been taken against the harassed employee and the employer is able to demonstrate (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Recently, the United States Court of Appeals for the Third Circuit, in Minarsky v. Susquehanna County, addressed the requirements of the Faragher-Ellerth defense in the context of the assertion of a female employee that she acted reasonably in not taking advantage of the procedures made available by her employer to prevent or correct the harassment against her by her supervisor. In so doing, the Third Circuit reversed the district court’s grant of summary judgment to the employer based on the Faragher-Ellerth defense and held on the facts of the case a jury should decide the whether the defense applied.
Sherri Minarsky worked as a part-time secretary at the Susquehanna County Department of Veterans Affairs (the “Department”). Thomas Yadlosky was one of her supervisors. Minarsky and Yadlosky worked alone together one day per week. Minarsky alleged that soon after she started working at the Department and, over a four-year period, Yadlosky sexually harassed her with unwanted physical contact, asking her inappropriate personal questions, and calling her at home. Yadlosky reported to the Chief County Clerk who was aware of Yadlosky’s inappropriate behavior towards two other women and orally reprimanded him on both occasions. After both incidents, there was no follow-up and no notation was placed in Yadlosky’s personnel file. Minarsky learned of one of these reprimands and had also been told about or had observed attempts by Yadlosky to make physical contact with other female employees.
On her first day of work, Minarsky read and signed the Department’s General Harassment Policy, which advised her that an employee could report any harassment to her supervisor, or, if the supervisor is the source of the harassment, to the Chief County Clerk or a County Commissioner. During the four years Minarsky claimed she was harassed by Yadlosky, she did not report this harassment to any of the designated individuals. Minarsky claimed she feared reporting Yadlosky because he had repeatedly warned her not to trust the County Commissioners or the Clerk and would often tell her to look busy or else they would terminate her position. Minarsky asserted that Yadlosky’s warnings, and the fact that Yadlosky had been reprimanded unsuccessfully for his inappropriate advances towards others, prevented her from reporting him. Eventually, another supervisor overheard two employees talking about Yadlosky’s treatment of Minarsky and reported the conversation to the Chief County Clerk who promptly interviewed both Minarsky and Yadlosky and recommended Yadlosky’s termination to the County Commissioners. Yadlosky was then terminated.
Minarsky resigned from the Department several years later. She brought suit against the Department in federal district court under Title VII of the Civil Rights Act of 1964 for gender discrimination, quid pro quo sexual harassment, and hostile work environment sexual harassment. The district granted the Department’s motion for summary judgment on all three claims. On appeal to the Third Circuit, Minarsky challenged only the district court’s application of the Faragher-Ellerth defense to her hostile work environment sexual harassment claim. Minarsky did not contest the district court’s dismissal of her other claims.
The Third Circuit’s Opinion
The Third Circuit began its analysis of the district court’s application of the Faragher-Ellerth defense by addressing the issue of whether the Department had exercised reasonable care to prevent and promptly correct any sexually harassing behavior. The court concluded there was too much evidence against the Department on these issues to warrant summary judgment in the Department’s favor. With regard to whether the Department exercised reasonable care to prevent harassment, the court found there was sufficient evidence for the jury to find that “Yadlosky’s behavior formed a pattern of conduct, as opposed to mere stray incidents . . . .” such that the Department should have investigated further instead of “seemingly turn[ing] a blind eye towards Yadlosky’s harassment.” The court further determined that the issue of whether the Department’s anti-harassment policy was effective also merited jury consideration. On this issue, the court framed the following questions for the jury: “Knowing of [Yadlosky’s] behavior, and knowing that Minarsky worked alone with Yadlosky every Friday, should someone have ensured that she was not being victimized? Was his termination not so much a reflection of the policy’s effectiveness, but rather, did it evidence the County’s exasperation, much like the straw that broke the camel’s back?”
Turning to the issue of whether Minarsky acted reasonably in never reporting Yadlosky’s harassment, the Third Circuit recognized that, while it had “often found a plaintiff’s failure to report persistent sexual harassment to be unreasonable, particularly when the opportunity to make such complaints existed,” nevertheless, “a mere failure to report one’s harassment is not per se unreasonable.” Thus, “[i]f a plaintiff’s genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher-Ellerth element as a matter of law. Instead, the court should leave the issue for the jury to determine at trial.” As to Minarsky’s explanation of why she did not report the harassment, the Third Circuit concluded her explanation was not per se unreasonable and that a jury should determine whether it was objectively reasonable under all of the facts and circumstances.
On the surface, the employer appeared to have done everything right for purposes of asserting the Faragher-Ellerth defense. It had an anti-harassment policy and complaint procedure in place, and, although Minarsky never reported Yadlosky, as soon as the employer learned she was being harassed, it promptly investigated and terminated the harasser. The lesson that the Minarsky case teaches is that once an employer receives complaints about or otherwise becomes aware of a harassing supervisor in the workplace, it should thoroughly investigate to determine the full extent of the harassing conduct in terms of all possible victims. Had the employer in Minarsky undertaken such an investigation, it likely would have uncovered Yadlosky’s harassment of Minarsky and taken corrective action early on and thereby would have avoided a lawsuit altogether.
If you have any questions regarding this blog, or sexual harassment issues in general, feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.