Employer Establishes Affirmative Defense To Harassment Claim

Court Finds Worker Failed To Take Advantage Of Corrective Measures Offered By Company

A federal appellate court recently rejected a lawsuit brought by an employee who claimed that she was subjected to a sexually hostile work environment. According to the Sixth Circuit Court of Appeals, the employee’s harassment claim was properly dismissed because she unreasonably failed to use the preventive and corrective measures offered by her employer. Thornton v. Federal Express Corp., No. 07-5116, Sixth Circuit Court of Appeals (June 24, 2008).

Factual Background

According to Deborah Thornton, while she was employed by Federal Express (FedEx) her supervisor, David Bragorgos, made unwelcomed advances towards her. She claimed she took a leave of absence due to the stress caused by the alleged harassment.

In June of 2003, two months into her leave, Thornton reported the harassment to FedEx for the first time. FedEx promptly initiated an internal investigation. However, because Bragorgos denied the allegations and other employees were not able to corroborate Thornton’s claims, the investigation was unable to confirm that inappropriate behavior had occurred.

Nonetheless, FedEx offered Thornton the opportunity to return to work under a different manager; however, Thornton claimed that her doctor had not released her to return to work. She was then granted a one-year workers’ compensation medical leave of absence. During this time, she again refused return-to-work opportunities.

In August of 2004, after Thornton had been on leave for 16 months, she was fired. Thornton sued FedEx alleging sexual harassment (among other claims). The trial judge dismissed the suit and Thornton appealed.

Legal Analysis

The Sixth Circuit Court of Appeals first agreed that Thornton’s quid pro quo harassment claim must fail because she had not shown that she suffered a tangible job detriment. The court then turned to Thornton’s hostile work environment claim, finding that the trial judge’s analysis of this claim was incomplete. In particular, the court considered whether Bragorgos’ behavior (if true) unreasonably interfered with Thornton’s work performance by creating a hostile, offensive or intimidating work environment.

The Sixth Circuit found that “the [trial judge] minimized the offensive nature of Bragorgos’ comments and behavior.” Bragorgos’ alleged preoccupation with sex talk and sexual advances were degrading, offensive and intimidating, the court found. These facts, the court concluded, create a genuine question as to whether Thornton’s work environment was “hostile.”

The Sixth Circuit next considered whether FedEx should be held liable for Bragorgos’ behavior. According to the court, “FedEx is vicariously liable for sexual harassment by Bragorgos, [Thornton’s] supervisor, unless FedEx establishes its [Faragher/Ellerth] affirmative defense.” The court found that FedEx satisfied the first element of the affirmative defense because it had promulgated and disseminated an effective sexual harassment policy. Thus, the court turned to the second element – whether Thornton unreasonably failed to take advantage of that policy.

Thornton first claimed that she failed to report the harassment earlier because she feared retaliation. However, the court found that Thornton failed to show that she was under a “credible threat of retaliation.” Thornton also claimed that FedEx’s investigation was superficial and that she refused FedEx’s return-to-work offers because she was physically unable to return to work. The court countered that Thornton’s “dissatisfaction” with the investigation did not justify her rejection of FedEx’s corrective action. Finally, the Sixth Circuit noted that Thornton’s claim that she was unable to return to work was not substantiated by the record.

Finding that Thornton’s failure to take advantage of FedEx’s corrective and preventive measures were unreasonable, the court concluded that FedEx had established an affirmative defense. Thus, the Sixth Circuit upheld the dismissal of Thornton’s hostile work environment claim.

Practical Impact

According to Keith Frazier, a shareholder in Ogletree Deakins’ Nashville office: “This case again demonstrates the importance of having a published policy in place providing an avenue for employees to bring issues of harassment to management’s attention. More importantly, this decision provides a benchmark for employers to evaluate the effectiveness of their own policies going forward.”

Note: This article was published in the September/October 2008 issue of The Employment Law Authority.