In supervisor sexual
harassment action, employer established the Ellerth / Faragher two-pronged
affirmative defense.
McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. August 11, 2004) - This is
a Title VII supervisory sexual harassment action. Leslie McPherson alleges
that she was sexually harassed by her supervisor, Randall Copenharve.
McPherson's allegations of harassment are as follows: (1) in March of 1999,
Copenharve asked McPherson what color bra she was wearing; (2) Copenharve
asked this question openly in the office area a handful of times during
McPherson's three years of employment; (3) a female co-worker testified that
Copenharve had made similar comments to her; (4) the office manager heard
Copenharve ask the ladies in the office whether the color of their bras and
panties matched; (5) in March of 1999, McPherson called in sick and
Copenharve suggestively asked if he could "make a house call"; (6) on
several occasions, Copenharve wandered over to McPherson's work station,
browsed through her Victoria's Secret catalogs and on one occasion pointed
to a particular outfit that she would look nice in; (7) in late February or
early March of 2001, Copenharve pulled back McPherson's tank top to see what
color bra she was wearing; (8) on March 21, 2001, Copenharve called
McPherson into his office, put his hand up her shirt and felt her breasts;
and (9) on March 26, 2001, Copenharve called McPherson into his office, put
his hand up her shirt and felt her breasts; he also, put his hand down her
pants and inserted his finger into her vagina. On March 27, 2001, McPherson
went to the home of Mary Vanderventer and had lunch. She told Vanderventer,
who is her sister-in-law, what had happened. Almost immediately, Vanderventer contacted her
father, who is the mayor. Soon after McPherson returned to work, she was
told she could go home for the day. City officials met with Copenharve that
same afternoon. Copenharve insisted that the conduct was consensual, but
Copenharve was given the choice of being suspended pending an investigation
or resigning. He resigned on the spot. McPherson was granted thirty days
paid leave even though she did not request it. This leave did not count
against any of her accrued time. She then was allowed to take twenty-two
days of paid leave using her accrued time. When this leave was about up, she
demanded an additional ninety days of paid leave. A few weeks later,
McPherson's attorney inquired about her employment status. The City
responded that she was on "active but unpaid" status, that a temporary was
performing her job, that her position remained available and that she was
currently considered absent without leave, which put her employment at risk.
She was also told that Copenharve had resigned and that therefore a hostile work
environment could no longer exist. McPherson's attorney responded to the
City by effectively tendering her resignation. The City then packed up
McPherson's belongings, asked her to come pick them up, and asked her to
return certain items of City property. McPherson then filed this lawsuit and
the district court granted summary judgment. The Seventh Circuit affirms.
First, the Court holds that Copenharve's actions did not rise to a hostile
work environment until March 21 when he felt her breasts. The conduct prior
to that time was simply boorish. Second, the Court holds that McPherson was
not subjected to a tangible employment action because she was not
constructively discharged. She quit long after the harasser had resigned and
the City made it clear to her that it wanted her to return. As a result of
the finding of no tangible employment action, the Ellerth / Faragher
two-pronged affirmative defense is available. The Court finds that the City
met the first prong by exercising reasonable care to prevent and promptly
correct any sexually harassing behavior. The crux of the case is the second
prong (whether McPherson failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm
otherwise). The Seventh Circuit points out that the City had adequate
preventive and remedial policies in place to protect its employees from
harassment and that McPherson concedes that she failed to avail herself of
those policies and that she did not report Copenharve's conduct until March
27, 2001. Based upon this, the Court finds that the City met the second
prong of showing that McPherson acted unreasonably. However, the opinion is
a little unclear on this crucial point. Is the Court saying that McPherson
waited too long under circumstances where the Court finds that there was no
actionable harassment until March 21, 2001? Or is the Court saying that
McPherson should have used the avenues for reporting harassment contained in
the policies and that reporting the harassment to the mayor's daughter was
insufficient even though the daughter almost immediately reported the harassment to the mayor? Or is the Court saying that McPherson acted unreasonably for
both reasons?
