Court Finds Employer Successfully Asserted Affirmative Defense

A federal appellate court recently dismissed a lawsuit brought by an employee who claimed that her employer subjected her to a hostile work environment. While the employer exercised reasonable care to prevent and correct the alleged harassment, the court held, the employee failed to take advantage of the corrective opportunities offered by the employer. Brenneman v. Famous Dave’s of America, Inc., No. 06-1851, Eighth Circuit Court of Appeals (November 16, 2007).

Factual Background

Christine Brenneman was hired by Famous Dave’s to work as an assistant manager at its West Des Moines, Iowa restaurant. She was supervised by Dave Ryburn, the general manager.

Brenneman claimed in mid-February 2003 that Ryburn had made inappropriate comments and sexual advances toward her. According to Brenneman, Ryburn winked and blew kisses at her on a daily basis. In addition, he allegedly slapped her on the buttocks and routinely pulled the badge attached to the front of her belt.

On April 7, Brenneman called Famous Dave’s employee hotline. When no one answered immediately, she hung up. Brenneman called again later and left a message with her name and telephone number. She also complained to another manager at the restaurant, who then relayed the information to Karen Schindler in the HR department. Schindler immediately called Brenneman, who described the incidents involving Ryburn.

One week later, Schindler visited the West Des Moines restaurant to conduct an investigation. Schindler advised Brenneman not to report to work that day, but contacted her that afternoon to schedule a meeting. Schindler also asked her whether she wanted to continue working for Famous Dave’s and offered to move her to another restaurant in Des Moines. Brenneman replied that she wanted to talk with her husband and would call Schindler the next morning.

On April 15, Schindler left several messages for Brenneman, which she did not return. Later that day, Brenneman’s lawyer called the company’s HR director stating that she had resigned. Three days later, the HR director emailed Brenneman and invited her to return to work. Ryburn sent her a letter apologizing for his behavior and asking that she return as well. On April 24, the HR director again wrote Brenneman with an invitation to return to work. The letter also stated that Famous Dave’s had instructed Ryburn to refrain from any inappropriate behavior in the workplace.

Brenneman ultimately sued Famous Dave’s alleging hostile work environment harassment (among other claims). The trial judge dismissed the suit and Brenneman appealed.

Legal Analysis

The Eighth Circuit Court of Appeals first noted that in cases of supervisor harassment, an employer may assert the Ellerth/Faragher affirmative defense so long as there has been no tangible employment action. Brenneman argued that she suffered a tangible employment action because she was constructively discharged. According to the court, “an employee who quits without giving [her] employer a reasonable chance to work out a problem has not been constructively discharged.”

The Eighth Circuit found that Brenneman was not constructively discharged. Famous Dave’s conducted an investigation, offered possible solutions (including a new schedule or relocation) and continued to invite Brenneman back to work after she resigned. She could have taken “steps short of resignation to improve her working conditions,” the court held, “but she declined to do so.” Because Brenneman was not constructively discharged and did not suffer a tangible employment action, the court turned to whether Famous Dave’s satisfied the affirmative defense.

The first element in the Ellerth/Faragher affirmative defense requires the employer to exercise reasonable care to prevent and promptly correct any sexually harassing behavior. According to the court, Famous Dave’s has a facially valid anti-harassment policy with a non-retaliation provision and flexible reporting procedures. Brenneman acknowledged that she received training on the policy. The court also found that Famous Dave’s took the proper steps to correct any harassment that occurred, including conducting an investigation, attempting to create a new schedule with Brenneman and offering to relocate her to another restaurant. “Though transferring Brenneman, instead of Ryburn, is not ideal,” the court noted, “Famous Dave’s has satisfied the correction prong.”

Turning to the second element, the Eighth Circuit found that Brenneman’s failure to take advantage of Schindler’s assistance was unreasonable. The court also rejected the argument that she feared “repercussions” from Ryburn. The court noted that Schindler was superior to Ryburn and in charge of the situation, and that the company’s policy included an anti-retaliation provision. Based on this evidence, the court held that Brenneman’s harassment claim was properly dismissed.

Practical Impact

According to Chuck Baldwin, a shareholder in the firm’s Indianapolis office: “Although this is a pro-employer decision, it should be noted that a remedial measure that disadvantages the victim is generally not effective. An offer to transfer the alleged victim or change her work schedule may be viewed as retaliatory and ultimately turn a very weak harassment case into a viable retaliation case. On a positive note, the court found the worker was not constructively discharged and that she failed to take advantage of the employer’s assistance. As a result, the company was able to successfully assert the affirmative defense.”

Note: This article was published in the August – December 2007 “Double Issue” of The Employment Law Authority.

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