Gentry, Lesley v. Export Packaging Co ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2367
Lesley Gentry,
Plaintiff-Appellee,
v.
Export Packaging Company,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 99-4012--Joe B. McDade, Chief Judge.
Argued December 8, 2000--Decided January 25, 2001
Before Flaum, Chief Judge, and Ripple and Evans,
Circuit Judges.
Flaum, Chief Judge. Export Packaging Company is
appealing the jury verdict in favor of Lesley
Gentry concerning a Title VII hostile work
environment sexual harassment claim. For the
reasons stated herein, we affirm.
I. Background
Lesley Gentry was hired by Export Packaging
Company ("Export") as a temporary employee in
October of 1997. She became a permanent employee
on December 1, 1997 and transferred into the
technical services department in April of 1998,
assuming the position of Administrative Assistant
to Technical Services. In this new position, she
served in a help desk capacity. Her immediate
supervisor was Leo Broughton. During the last
month of her employment, April of 1998, Gentry’s
desk was in the same office as Broughton’s. Since
Broughton began working at Export on July 5,
1988, he has been the Technical Services
Director. Broughton is considered to be middle
management because he reports to Bryon Fernald,
the company’s Chief Financial Officer and its
Executive Vice President. During the eleven years
prior to May 1, 1998, when Gentry stopped working
for Export, Broughton attended two sexual
harassment training sessions.
Gentry contends that Broughton sexually harassed
her. She claims that during a time span of
approximately four months, with most of the
harassment occurring in April of 1998, Broughton
subjected her to 40 hugs, 15 shoulder rubs, a
kiss on her cheek, and two instances where
Broughton petted her cheeks. Just before Gentry’s
desk was moved into Broughton’s office, Gentry
heard Broughton’s supervisor, Fernald say that
she was going to become a "sex"retary. One
evening Broughton asked her to "try out the back
counter" with him and Gentry believed that
Broughton was requesting that she have sexual
intercourse with him. On another occasion, she
relates that he inquired about her staying the
night with him. This time he said to her that her
clothes would look better on the floor. In
addition, she claims that Broughton gave her a
single page "World of Love 1997, Mexico" calendar
that depicted cartoon drawings of different
sexual positions, one for each day, and Broughton
asked her to pick out a couple of her favorite
days. Gentry stated that she resisted Broughton’s
advances and claims that on two occasions she
spoke with Vicki Hanske, the Benefits Coordinator
in the Human Resources department, about
Broughton’s conduct. She sued Export asserting a
variety of claims, including constructive
discharge, retaliation, sex discrimination, and
quid pro quo sexual harassment. While the
majority of Gentry’s claims did not survive
Export’s motion for summary judgment, the hostile
work environment sexual harassment claim under
Title VII of the Civil Rights Act of 1964, 42
U.S.C. sec. 2000e et seq. withstood the said
motion. The trial was held before a jury on April
24, 2000 and the jury on April 26, 2000 returned
a verdict in favor of Gentry and against Export
in the amount of $25,000, consisting of $10,000
for compensatory damages and $15,000 for punitive
damages. Export now seeks a reversal of this jury
award.
II. Discussion
A. Ellerth/Faragher Affirmative Defense
Private employers under Title VII are prohibited
from discriminating on the basis of sex: "It
shall be an unlawful employment practice for an
employer . . . to discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual’s . . . sex . . . ."
42 U.S.C. sec. 2000e-2(a)(1). Employers can be
held vicariously liable for a supervisor’s/1
sexual harassment of a subordinate, but an
employer may avoid such liability by proving an
affirmative defense:
An employer is subject to vicarious liability to
a victimized employee for an actionable hostile
environment created by a supervisor with
immediate (or successively higher) authority over
the employee. When 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, see Fed. Rule Civ. Proc. 8(c). 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. While proof that an employer had
promulgated an anti-harassment policy with
complaint procedure is not necessary in every
instance as a matter of law, the need for a
stated policy suitable to the employment
circumstances may appropriately be addressed in
any case when litigating the first element of the
defense. And while proof that an employee failed
to fulfill the corresponding obligation of
reasonable care to avoid harm is not limited to
showing any unreasonable failure to use any
complaint procedure provided by the employer, a
demonstration of such failure will normally
suffice to satisfy the employer’s burden under
the second element of the defense. No affirmative
defense is available, however, when the
supervisor’s harassment culminates in a tangible
employment action, such as discharge, demotion,
or undesirable reassignment.
Ellerth, 524 U.S. at 765; see also Faragher, 524
U.S. at 807-08. The Ellerth/Faragher affirmative
defense places the burden on the employer by
requiring that an employer establish that: (1) it
took both preventive and corrective steps to
address sexual harassment; and (2) that the
employee failed to take advantage of available
preventive or corrective measures. See Johnson v.
West, Jr., 218 F.3d 725, 731 (7th Cir. 2000)
("Johnson argues that even if the VA was entitled
in principle to the Ellerth/Faragher affirmative
defense, it did not meet its burden of proof.
That burden requires the employer to establish
two points, not just one.").
As an appellate court, our review of the jury
trial below is limited in nature. See Hennessy v.
Penril Datacomm Networks, Inc., 69 F.3d 1344,
1347 (7th Cir. 1995) ("Appellate courts, viewing
the sort of claims Penril is now making, must be
mindful of their limited role in reviewing
factual determinations made by juries and trial
judges."). Questions of "credibility and weight
of the evidence [are] within the purview of the
jury, whose verdict cannot be lightly set aside
so long as it has a reasonable basis in the
record." Lippo v. Mobil Oil Corp., 776 F.2d 706,
716 (7th Cir. 1985). With this in mind, we
examine Export’s contention that it met its
burden under the Ellerth/Faragher affirmative
defense.
1. Preventive Measures Taken by Export
One of the first issues that must be addressed
is whether Export had devised an effective sexual
harassment policy. For our purposes, the relevant
part of the Export policy reads:
Any employee who believes that he or she has been
subjected [to] or witness to sexual harassment
should immediately report the conduct to the
immediate supervisor, division manager, or Human
Resource Representative, whichever the employee
feels is appropriate, under the circumstances.
The incident or behavior will then be referred to
the Human Resource Director and a prompt and
confidential investigation will be conducted.
There will be no reprisals or retaliation of any
kind against an employee who brings such an issue
before management.
Jennifer Gallagher, who at the time Gentry worked
for the company was the Administrative Assistant
to the Director of Human Resources, claims she
read and explained the policy to Gentry during
the latter’s initial job orientation. Gentry at
trial acknowledged that she was aware of Export’s
sexual harassment policy. According to Export,
its policy was both appropriate and effective and
provided for a bypass mechanism around an
employee’s supervisor. Export contends that its
sexual harassment policy provided Gentry with a
means to voice her concerns about Broughton’s
behavior and she chose not to do so.
In an attempt to prevent sexual harassment,
there is no dispute that Export implemented a
formal sexual harassment policy. "Title VII is
designed to encourage the creation of
antiharassment polices and effective grievance
mechanisms." Ellerth, 524 U.S. at 764. However,
a sexual harassment policy must provide for
"effective grievance mechanisms" and therefore
the mere creation of a sexual harassment policy
will not shield a company from its responsibility
to actively prevent sexual harassment in the
workplace. The policy itself should provide for
a meaningful process whereby an employee can
express his or her concerns regarding an
individual within a working environment. Thus,
the question then becomes whether Export, with
its sexual harassment policy in place, took
reasonable care to prevent sexual harassment. See
Shaw v. AutoZone, Inc., 180 F.3d 806, 812 (7th
Cir. 1999) (". . . the law does not require
success--it only requires that an employer act
reasonably to prevent sexual harassment."). In
this case, the policy itself raises concerns.
During the period in which Gentry worked for
Export, management did not post whom they
considered to be a Human Resources
Representative. John Bauersfeld, the Human
Resources Director, acknowledged that he had not
told Gentry or any other employee who had assumed
the Representative position. This omission is
notable because Export’s policy provided that an
employee could report sexual harassment to a
Human Resources Representative. While Gentry was
employed at Export, there were five people
working in the Human Resources department of the
corporate office. Three of these individuals were
supervisors, including John Bauersfeld, Jennifer
Gallagher, and Vicki Hanske. Gallagher had a baby
in early February of 1998 and took four weeks
off. She then returned to work part-time until
the end of April. Consequently, due to
Gallagher’s absence and reduced schedule, Gentry,
during the months of March and April of 1998, had
the option to report her concerns primarily to
Bauersfeld and Hanske. Bauersfeld, however, took
the position that an employee could only report
sexual harassment to himself or Gallagher. In
contrast, Broughton testified that it would be
proper for an employee to report sexual
harassment to Hanske. Fernald, the Chief
Financial Officer and Executive Vice President of
Export, also said Hanske could be considered a
Human Resources Representative and so reporting
sexual harassment to her would be appropriate.
Clearly, no consensus existed within the
management of the company regarding who assumed
the position of Human Resources Representative
and Export never informed its employees of who
held the position. Such divergence of opinions
suggests that Export appears not to have taken
the necessary steps to fully and effectively
implement its sexual harassment policy. If Export
desired its policy to provide a viable means by
which an employee could report sexual harassment,
then the company should have made it more evident
who assumed the Human Resources Representative
position. A reasonable jury could have found that
such a deficiency in Export’s sexual harassment
policy reveals that it failed to take appropriate
steps to prevent sexual harassment.
2. Gentry’s Preventive or Corrective Action
However, even assuming arguendo that Export’s
policy was construed to be an acceptable one, we
conclude that the jury’s rejection of Export’s
position regarding the preventive or corrective
actions Gentry pursued was not unreasonable.
Export argues that Gentry never reported sexual
harassment, as she claims, to Vicki Hanske, the
Benefits Coordinator at Export. Hanske
acknowledged that on two or three occasions she
did speak with Gentry about her work related
concerns. According to Hanske, Gentry "was upset,
thinking that the employees mainly in the
corporate office were spreading rumors and making
stories up about her." While testifying, Hanske
denied that Gentry informed her of any touching
or sexual harassment that took place in the
office. In addition, Hanske claims Gentry never
suggested to her that Broughton was somehow
involved in the situation. Basically, Hanske told
Gentry that she should develop a thick skin with
regard to the stories she believed were being
told about her. Hanske contends that she learned
about Gentry’s sexual harassment allegations,
when in response to Bauersfeld’s request, she
completed a statement discussing any
conversations she had with Gentry. In this
instance, Hanske said that Gentry would have had
to say the term "sexual harassment" for her to
report it to Bauersfeld or Gallagher because
"[t]here was . . . nothing . . . that I had seen
that would have brought me to think there was
sexual harassment; otherwise, yes, she would have
to say the words because I was not around her
area to see anything." Hanske did remark that if
Gentry had described events that she believed
involved sexual harassment, she would have
reported such information to Gallagher or
Bauersfeld. Based upon Hanske’s testimony, Export
advances the proposition that Gentry acted
unreasonably by failing to report her allegations
of sexual harassment while she still worked at
the company.
In addition, Export notes that Gentry
consciously decided not to report her allegation
of sexual harassment. During the trial, Gentry
said "a big reason" she was "really troubled" was
that she believed co-workers were talking about
her; specifically, that they were saying that she
was having an affair. Gentry stated that she
never formally used the term sexual harassment
because she "was wanting to keep quiet about it
so [she] would not get it out in the office and
[she] wouldn’t lose [her] job." As a consequence,
she said she desired to be "discreet" about the
situation when talking with Hanske, even though
she knew saying the term "sexual harassment"
would get a reaction from the person listening to
her. Export points out that Gentry’s fear does
not relieve her of her responsibility to report
the sexual harassment. See Shaw, 180 F.3d at 813("[A]n employee’s subjective fears of
confrontation, unpleasantness or retaliation do
not alleviate the employee’s duty under Ellerth
to alert the employer to the allegedly hostile
environment."). Therefore, Export argues that
Gentry’s failure to report the sexual harassment
to an appropriate individual according to
Export’s sexual harassment policy was
unreasonable.
However, the jury did not accept Export’s
version of the reporting requirement. Gentry
testified that she called Hanske on two separate
occasions. During the first conversation,
according to Gentry, she told Hanske that she was
uncomfortable with some of the discussions in the
office and there was a lot of shoulder rubbing,
touching, and interoffice dating. Gentry also
mentioned that from her perspective one "either
had to be dicking one of the bosses or maybe go
along with their routines in order to do well in
that company." After receiving a hug from
Broughton that upset her, Gentry again in late
April of 1998 called Hanske and told her that she
was "really uncomfortable with the touching and
the rubbing and the hugging" in the office and
inquired about the possibility of transferring
out of the office. Gentry told Hanske that
someone she worked frequently and closely with
was the source of her problems, and this is when,
according to Gentry, that Hanske "knew it was Leo
because she actually came up with the name Leo."
Hanske responded, Gentry claims, by saying that
this was "his personality, that was how he
worked. He-had-been-there-for-years type thing.
There was really nothing that had ever been done
about it and she didn’t think that there ever was
[going to be anything done.]" While it is true
that Gentry never used the term "sexual
harassment" when she spoke with Hanske,
Bauersfeld said it would not be necessary to
employ the term to activate Export’s policy. If
an employee said he or she was uncomfortable with
Broughton’s touching and would like a transfer to
another department, this comment would be enough,
according to Bauersfeld, to establish an employee
was complaining about sexual harassment.
We cannot conclude that the jury was
unreasonable in believing Gentry’s testimony that
she did in fact report sexual harassment to
Hanske. During oral argument, counsel for Export
suggested that even if Gentry had told Hanske
that she was concerned about hugging and touching
in the workplace, that this type of complaint was
not detailed and clear enough to notify Hanske
that Gentry was making a sexual harassment
complaint. According to counsel, Gentry failed to
say that she was being sexually harassed. Export
urges the position that a company should not have
to surmise an employee’s concerns in this area of
the law. While certainly not an untenable
position, it must be noted that there is no legal
mandate that an employee use the specific term
"sexual harassment" in order to inform his or her
employer about a harasser in the workplace. Some
employees may not be conversant or comfortable
with the term and we should not place a specific
language requirement on an employee when he or
she is already presumably facing a difficult
situation. Gentry’s comments about touching and
hugging in the workplace should have raised
suspicions. When an employee complains about
behavior, such as the kind described in this
case, this should be sufficient to alert an
employer about a potential harasser, assuming the
proper sexual harassment policy and training are
in place. Therefore, we will not disturb the
jury’s decision, which found wanting Export’s
Ellerth/Faragher affirmative defense.
B. Hostile Work Environment
A plaintiff pursuing a hostile work environment
claim must show that his or her work environment
was both subjectively and objectively offensive;
"one that a reasonable person would find hostile
or abusive, and one that the victim in fact did
perceive to be so." Faragher, 524 U.S. at 787.
"For sexual harassment to be actionable, it must
be sufficiently severe or pervasive to alter the
conditions of [the victim’s] employment and
create an abusive working environment." Meritor
Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986) (internal citations and quotation marks
omitted). One can determine whether an
environment is hostile or abusive "by looking at
all the circumstances," including the "frequency
of the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an
employee’s work performance. The effect on the
employee’s psychological well-being is, of
course, relevant to determining whether the
plaintiff actually found the environment abusive.
But while psychological harm, like any other
relevant factor, may be taken into account, no
single factor is required." Harris v. Forklift
Sys., Inc., 510 U.S. 17, 23 (1993). "[S]imple
teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to
discriminatory changes in the terms and
conditions of employment." Faragher, 524 U.S. at
788 (internal citations and quotation marks
omitted).
Export argues that even if it cannot establish
its Ellerth/Faragher affirmative defense, the
conduct alleged by Gentry against Broughton does
not rise to the level of a hostile work
environment. Export claims that one female co-
worker of Gentry’s testified that she received a
hug from Broughton while at Export and did not
consider the hug to be sexual harassment.
According to this individual, hugs can be "good
things" on "[s]tressful days." Likewise, Export
notes that male Export employees rubbed the
shoulders of at least three female co-workers and
these women did not consider this behavior to be
sexual harassment. Export claims that such
testimonials establish that hugs and shoulder
rubs do not create a hostile work environment.
Also, Export contends that the conduct Gentry
complained of is not severe or pervasive sexual
harassment in an objective sense. Export further
argues that Gentry herself must not have
considered any of the alleged conduct to be
sexual harassment because she did not report the
conduct until after she no longer was employed by
Export and she never used the words "sexual
harassment" to describe the conduct until she
contacted her attorney. Taken together, Export
claims that Gentry never perceived her
environment as hostile nor would a reasonable
person conclude her working environment was
hostile.
Upon our review of the record in this case, we
conclude that the jury understandably was not
persuaded by Export’s position that Gentry failed
to make out an objective and subjective claim
that her working environment was hostile. It is
challenging to precisely define what constitutes
a hostile work environment. "On one side lie
sexual assaults; other physical contact, whether
amorous or hostile, for which there is no consent
express or implied; uninvited sexual
solicitations; intimidating words or acts;
obscene language or gestures; pornographic
pictures. On the other side lies the occasional
vulgar banter, tinged with sexual innuendo, of
coarse or boorish workers." Baskerville v.
Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.
1995) (internal citations omitted). Perhaps no
single description can fully take into account
the divide between a hostile work environment and
one which is not. However, in this case, we do
have some rather strong indicators that the
environment was hostile in that Broughton
frequently touched Gentry, he invited her
implicitly to have sex with him, and he showed
her arguably "off color" pictures. See
Baskerville, 50 F.3d at 431. At the time this all
happened, Gentry was nineteen years old and
Broughton was her thirty-eight year old
supervisor. From an objective standpoint, a
reasonable person could have concluded that
Broughton’s behavior constituted sexual
harassment.
Subjectively, it is evident that Gentry
perceived her environment as hostile. Gentry told
Broughton to stop his behavior and because of his
actions she found it hard to concentrate on her
work. By the time she left her job, she hated it
and often cried when she went to work. A co-
worker saw or heard Gentry cry on several
different occasions. Gentry also complained about
Broughton’s behavior to Hanske. She sought
medical care and was treated for anxiety and
depression caused by the oppressive workplace
environment. Finally, a trier of fact could
reasonably conclude that the harassment was
severe or pervasive because of the frequency of
the incidents. At oral argument, Gentry’s counsel
said that Broughton hugged Gentry with two-armed
embraces almost every other working day in March
and April, which was the period when most of the
hugging occurred. Id. ("The infrequency of the
offensive comments is relevant to an assessment
of their impact."). When viewed in its totality,
it was reasonable for the jury to believe that
Gentry worked in a hostile environment because of
Broughton’s conduct.
C. Punitive Damages
Export claims that the district court erred
when it submitted to the jury punitive damages
instructions. We review jury instructions
"essentially for abuse of discretion (though the
specific standard for jury instructions cautions
us to make sure that the law was fairly stated to
the jury)." Molnar v. Booth, 229 F.3d 593, 597
(7th Cir. 2000). For a court to impose punitive
damages, "[t]he employer must act with malice or
with reckless indifference to [the plaintiff’s]
federally protected rights. The terms ’malice’ or
’reckless indifference’ pertain to the employer’s
knowledge that it may be acting in violation of
federal law, not its awareness that it is
engaging in discrimination." Kolstad v. American
Dental Ass’n, 527 U.S. 526, 535 (1999) (internal
citations, quotation marks, and emphasis
omitted).
Although Export did not frame the issue as
such, it is essentially contending that there was
insufficient evidence to find that it acted with
malice or reckless indifference with regard to
Gentry’s Title VII rights. According to Export,
Bauersfeld promptly and to the best of his
ability investigated Gentry’s sexual harassment
allegation. Export suggests that it learned of
Gentry’s sexual harassment complaint when her
attorney sent correspondence on May 18 and May
20, 1998 to Bauersfeld concerning the issue.
Bauersfeld responded to Gentry’s claim of
harassment in a May 28 letter, in which he stated
that "[t]he only way the company can investigate
your allegations of sexual harassment and take
disciplinary action if it is found that sexual
harassment has occurred in order to prevent its
reoccurrence is for you to first make a charge of
sexual harassment under the company’s sexual
harassment policy." On June 2, Gentry sent a
letter to Bauersfeld describing conduct that she
asserted was sexual harassment. In this letter,
she requested that further contact with her be
directed through her legal counsel. Bauersfeld
then tried to contact Gentry by telephone at her
residence three times and left a message on her
answering machine each time. Gentry did not
respond to any of Bauersfeld’s messages.
According to Export, it decided to go ahead with
its investigation even though Gentry refused to
participate and it issued a written report on
June 15, 1998. The investigation occurred over a
three day period, during which Bauersfeld spoke
to a co-worker, Broughton, and Hanske. Broughton
as a result of the investigation received a
written reprimand stating: "TOUCHING SHOULD NOT
BE DONE TO CO-WORKERS, NO MATTER HOW INNOCENT
THE ACTION MAY SEEM. FURTHER ACTIONS COULD RESULT
IN FUTURE STEPS." Export contends that it did
all it could to investigate and address Gentry’s
allegations of sexual harassment against
Broughton under the circumstances--that is,
Gentry’s unwillingness to actively participate in
the process. Even if Gentry contends she reported
the sexual harassment and Export did not respond
appropriately, this claim is not viable,
according to Export, because it at most shows
that Hanske was negligent in failing to recognize
Gentry’s sexual harassment claim. By contrast,
Gentry contends that Export had knowledge of
Broughton’s behavior and failed to take any
action, resulting in her being subjected to
sexual harassment by Broughton.
While Export claims it made a good faith effort
to address Gentry’s concerns, there is evidence
that supports a contrary conclusion. Broughton
knew that sexual harassment was against the law
and that a female employee could consider his
conduct to be sexual harassment. He also thought
it was common knowledge among some of the
management that he hugged female employees at
Export. Likewise, management members Fernald,
Bauersfeld, and Gallagher were cognizant that
sexual harassment was against the law. Despite
this recognition, the record supports the
assessment that each of these individuals may
have failed to address his or her attendant
responsibility. Bauersfeld testified that he saw
Broughton hug or rub a co-worker’s shoulders
during the 1997 and 1998 time frame. Broughton
had hugged Gallagher and she witnessed Broughton
rub an employee’s shoulders as well. Broughton
testified that he believed that management,
particularly Bauersfeld, was aware that he hugged
and rubbed the shoulders of female employees.
These hugs involved two-armed embraces. Fernald,
second in command at the time, said he saw
Broughton give Gentry a shoulder rub between
January and May of 1998. Among management,
Fernald said that Broughton’s behavior of giving
shoulder rubs to female employees "wasn’t
hidden." Fernald overhead a male employee refer
to Gentry as Broughton’s "sex"retary while she
worked for Export and he himself once referred to
her by such a name. Bauersfeld said that when he
mentioned the "sex"retary comment to Fernald
during his investigation of Gentry’s complaint,
Fernald chuckled. In the early 1990’s, Bauersfeld
talked to Broughton about his hugging, and
rubbing, of female employees’ shoulders because
he felt that such behavior was "somewhat
inappropriate" in the workplace. Another female
employee complained in October of 1997 about
Broughton’s behavior and no action was taken with
regard to her complaint. A jury could reasonably
conclude that these facts reflect that Export
acted with malice or reckless disregard because
it had knowledge of Broughton’s inappropriate
behavior./2 Hence, the district court did not
abuse its discretion when it decided to give a
punitive damages instruction to the jury.
III. Conclusion
Because there is a reasonable basis in the
record to support the jury’s conclusions, the
jury award on behalf of Gentry will not be
disturbed. Further, we find that the district
court judge did not abuse his discretion when he
instructed the jury on punitive damages.
Therefore, we Affirm the jury’s decision finding
that Export did not meet its burden under the
Ellerth/Faragher affirmative defense and Affirm the
award of compensatory and punitive damages.
FOOTNOTES
/1 Neither party suggests that Broughton was not
Gentry’s supervisor; therefore, we have analyzed
Gentry’s hostile work environment sexual
harassment claim under the supervisor standard of
liability set forth in Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City
of Boca Raton, 524 U.S. 775 (1998).
/2 In light of the above evidence, we cannot
conclude that Gentry’s failure to directly
participate in the investigation of Broughton
somehow hampered Export’s efforts to correct the
situation. Gentry in her letter did discuss her
various concerns regarding the behavior of
particular employees at the company. At the end
of the letter she said, "The counseling I am
receiving is helping yet I also need to continue
being removed from the situation so that I may
progress. Any further contact I ask that you
please direct through my attorney, Marlita
Greve." While we recognize the importance of a
company receiving information from the person
making a sexual harassment complaint, under these
circumstances a face-to-face meeting with the
complainant seems less critical.