Brown v. Perry

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WENDY JO BROWN,
Plaintiff-Appellant,
v.
No. 97-1501
WILLIAM J. PERRY, Secretary of
Defense,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Jillyn K. Schulze, Magistrate Judge.
(CA-96-47)
Argued: January 29, 1998
Decided: July 14, 1999
Before MURNAGHAN, NIEMEYER, and MOTZ,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Murnaghan joined. Judge Niemeyer concurred in the
judgment.
_________________________________________________________________
COUNSEL
ARGUED: Stephen Zak Chertkof, HELLER, HURON, CHERTKOF,
LERNER & SALZMAN, Washington, D.C., for Appellant. Perry F.
Sekus, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: Tracy L. Hilmer, Kensington, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
To resolve this Title VII appeal we need only determine whether
the evidence forecast by the plaintiff would, if proved, render her
employer vicariously liable for a supervisor's sexual harassment.
Wendy Jo Brown appeals the grant of summary judgment to her for-
mer employer, the Army and Air Force Exchange Service (AAFES)
of the United States Department of Defense, maintaining that AAFES
should be found liable for sexual harassment perpetrated on her by
one of her supervisors. We held this case in abeyance pending the
Supreme Court's decisions in Faragher v. City of Boca Raton, 118 S.
Ct. 2275 (1998), and Burlington Indus. v. Ellerth, 118 S. Ct. 2257
(1998). Guided by those opinions, we now affirm, albeit for reasons
somewhat different than those relied on by the magistrate judge.
I.
We state the facts in the light most favorable to Brown, the non-
moving party with respect to the summary judgment granted below.
In April 1992, AAFES, a nonappropriated fund instrumentality of
the Department of Defense which provides goods to members of the
military and their dependents, hired Brown as an exchange detective.
She was charged with investigation of employee theft and shoplifting
at the Regional Exchange in Fort Meade, Maryland.
Brown reported to and was evaluated by supervisory exchange
detective Timothy Boles, who in turn reported to exchange manager
George Bass. Brown received technical assistance, including work
assignments, from Alwyn Ansley, the area loss prevention manager
for the lower Mid-Atlantic AAFES region. Ansley was supervised by
William Boyd, Chief of Safety and Security for AAFES's Eastern
Region, who was stationed in Texas. In preparing Brown's perfor-
2
mance evaluations, Boles consulted with Ansley and Bass. Although
Boyd was not directly involved with any employment decisions con-
cerning Brown, Brown believed that Boyd could influence her career
and future advancement.
Brown first encountered Boyd when he visited Fort Meade and met
briefly with exchange detectives. Brown did not have any conversa-
tion with Boyd at that meeting.
In March 1993, Brown and Boyd met for the second time, at a
required AAFES conference for loss prevention personnel held at the
Ramada Inn in Alexandria, Virginia. As the senior loss prevention
employee at the conference, Boyd hosted a social gathering in his
suite on the first evening for conference attendees. Brown attended
this non-mandatory gathering at the urging of Ansley, who encour-
aged Brown to go and meet more of her colleagues.
Approximately seven employees were present when Brown arrived
at Boyd's suite, but by about 11:30 p.m. everyone had left the suite
except for Boyd and Brown. The two then discussed Brown's career
for approximately half an hour before Brown decided to leave.
According to Brown, as she moved toward the door, Boyd grabbed
her shoulders, pushed her against the wall, and kissed her face and
neck. He told her, "[Y]ou're so beautiful. I can make you feel like no
one else can." Brown freed herself and left Boyd's room. Boyd, how-
ever, followed her and when she reached the door to her room in the
hotel, he kissed her and stated, "You know, baby, I'll always take care
of you." Brown then managed to elude Boyd's grasp and entered her
own room.
Brown immediately contacted Boles, her supervisor, about the inci-
dent. Boles responded by telling Brown, "Whatever you want to do,
I'll support you 100%," and by suggesting that Brown speak with an
EEO counselor. He also offered to speak with Ansley about the inci-
dent.
In the morning, Brown herself spoke to Ansley, who responded
that "he had spoken to Mr. Boles about what had happened and that
he did not want to hear anything from me until I decided what I was
going to do because he would have to be doing the investigation."
3
This upset Brown because she was hoping Ansley would be more
supportive.
The next day Brown advised Ansley that she had "decided not to
do anything" about Boyd's conduct, i.e., not to pursue any grievance.
Neither Boles nor Ansley investigated the matter further. Brown did
tell Ansley that she would like Boyd to apologize (which Boyd ulti-
mately did). During the remainder of the conference, Brown did not
have any contact with Boyd, except to attend his lecture.
Brown did not experience any work-related problems because of
the March incident with Boyd, and she continued to excel at her job.
As a result of discussions with her husband, she decided "to let
bygones be bygones and hopefully I wouldn't have to see him again
and I was worried about my career and I just went on."
Brown had no further contact with Boyd until September 21, 1993,
when AAFES held another conference at the same hotel in Alexan-
dria, Virginia. Again, AAFES required Brown to stay at the hotel and
attend the conference. Boyd was also present at the conference, and
he once again held a non-mandatory social gathering in his suite on
the first night of the conference. Brown was reluctant to attend and
she advised Boles and Ansley of her reluctance. After both men
"stressed the importance to her career of attending the social" and
assured her that if she decided to attend they would be there with her,
Brown agreed to go to the gathering. Boles accompanied Brown to
the gathering, and upon their arrival Boyd apologized to Brown for
his previous conduct. Brown and Boyd then shook hands, which made
Brown feel more relaxed.
Brown was once again the last guest at the gathering. Brown and
Boyd again began to discuss Brown's career. Boyd noted that Boles
would be leaving his job, implying that Brown should apply for
Boles's position. Boyd did not, however, explicitly offer to assist
Brown in obtaining that position.
Brown and Boyd then left the hotel and walked to a pub, where
they each had a beer. While at the pub, they continued to discuss her
career. After 20-25 minutes, Brown and Boyd left the pub and went
across the street to a reggae bar. Boyd tried to get Brown to dance
4
with him, but Brown said she was tired and refused. After about 30
minutes at the reggae bar, they returned to the hotel.
Upon arriving at the hotel at approximately midnight, Boyd asked
Brown if she would come up to his room. Brown agreed after Boyd
promised "he would not touch her in any way." Brown had earlier
cautioned Boyd not to touch her and each time Boyd had agreed not
to.
Once they were in Boyd's suite, while Brown was in the bathroom,
Boyd turned off the lights and put on music. Upon discovering this,
Brown stated that she was going to leave. Boyd grabbed her by the
arms, got down on his knees, and pulled her on top of him. As Brown
tried to free herself, Boyd continually kissed and groped her. Once
she was out of his grasp and was heading for the door, Boyd stated,
"It's your word against mine," and gestured for her to leave.
Brown went back to her room and unsuccessfully attempted to
reach her husband. She did not try to contact anyone else about the
incident. In fact, throughout the rest of the conference, Brown did not
tell anyone about the incident and continued to participate in confer-
ence events.
Upon returning to work at Fort Meade, Brown informed Boles and
Ansley about the incident. They were not supportive, expressing sur-
prise and dismay that Brown would have allowed herself to be alone
with Boyd again.
A few days later, Brown, pursuant to the AAFES anti-harassment
policy, filed an informal EEO complaint about the September inci-
dent. She eventually also filed a written complaint and sought EEO
counseling. In addition, Brown reported the incident to Leigh Farney,
the human resource manager for the Fort Meade Exchange. Brown
and Farney met with the exchange's manager, George Bass, who
reported Brown's allegations to AAFES's Dallas headquarters.
On October 29, 1993, AAFES issued a restraining order in
response to Brown's charges that required Boyd to refrain from hav-
ing any further direct or indirect contact with Brown or with "anyone
5
assigned in any capacity to the Ft. Meade Exchange." After EEO
counseling, Brown entered into a voluntary settlement agreement with
AAFES on November 23, 1993. The agreement provided that (1) the
director of loss prevention would issue a formal apology to Brown,
(2) Boyd would have no further contact with Brown and no dealings
with any employee assigned to the Ft. Meade Exchange, and (3)
Brown's allegations would be investigated and appropriate corrective
action taken upon completion of the investigation. Brown was satis-
fied with this action at the time.
As a result of the investigation conducted pursuant to the settle-
ment agreement, Boyd received a 30-day suspension in June 1994 for
his "inappropriate physical contact and advances towards" Brown and
several other inappropriate work-related activities. This was not the
first time AAFES disciplined Boyd. In January 1993 (prior to both
incidents), Boyd had been counseled about several work-related
issues "including the inviting of female detectives to his room, invit-
ing female detectives to ride with him, making comments about their
looks, etc." He had allegedly commented to a female exchange detec-
tive "while looking at her nipples (through her clothing) that he could
see that she was really cold." In March 1993, employees reported that
a year earlier Boyd had asked a female employee to sit on his lap and
commented that her chest was "well endowed," had made public com-
ments about dildos, and had spoken of enjoying toe sucking. In Janu-
ary 1994, (after both incidents with Brown) still another female
employee reported that Boyd introduced her as his"sexy-tary" and
had engaged in other vulgarisms. None of these employees has ever
claimed that Boyd touched her inappropriately.
Boyd never spoke to or had any contact with Brown after the Sep-
tember 1993 incident. In November 1993, Brown was promoted to
Boles's former position; Boyd played no role in the promotion.
After the September incident, Brown's job performance began to
decline. She also started having suicidal thoughts, nightmares, and
difficulty concentrating. In December 1993, Brown discovered that
Boyd had sent e-mail messages to Ansley in Ft. Meade, causing her
to believe that Boyd had violated the settlement agreement. On Janu-
ary 10, 1994, Brown left her position at AAFES and she entered Wal-
ter Reed Army Hospital the next day. She was diagnosed with post-
6
traumatic stress disorder and depression. She and her husband
divorced soon thereafter. Brown remains unemployed.
II.
On January 5, 1996, Brown filed this action against the then Secre-
tary of Defense, William J. Perry, alleging that she had been sexually
harassed in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e-16 (West 1994), and seeking injunctive relief and
money damages.
Following discovery, the Secretary moved for summary judgment.
In response, Brown maintained that she had forecast sufficient evi-
dence to proceed to trial on her sexual harassment claim under either
a quid pro quo or hostile work environment theory. After thoroughly
detailing the relevant facts and carefully applying the then controlling
circuit precedent, the magistrate judge concluded that Brown had
failed to present sufficient evidence to proceed under either theory.
Hence, she granted summary judgment to the Secretary.
In order to prove a quid pro quo case -- i.e., that an employee's
receipt of a job-related benefit or detriment depended on the employ-
ee's reaction to a supervisor's unwelcome sexual harassment -- at the
time of the magistrate judge's decision, circuit precedent required a
plaintiff to establish five elements:
1. The employee belongs to a protected group.
2. The employee was subject to unwelcome sexual harass-
ment.
3. The harassment complained of was based upon sex.
4. The employee's reaction to the harassment affected tan-
gible aspects of the employee's compensation, terms,
conditions, or privileges of employment. The accep-
tance or rejection of the harassment must be an express
or implied condition to the receipt of a job benefit or
cause of a tangible job detriment to create liability. Fur-
7
ther, as in typical disparate treatment cases, the
employee must prove that she was deprived of a job
benefit which she was otherwise qualified to receive
because of the employer's use of a prohibited criterion
in making the employment decision.
5. The employer, as defined by Title VII, 42 U.S.C.
§ 2000e(b), knew or should have known of the harass-
ment and took no effective remedial action.
Spencer v. General Elec. Co., 894 F.2d 651, 658 (4th Cir. 1990)
(footnote omitted). The fifth element was "automatically met" when
the harassment was alleged to have been perpetrated by a supervisor.
Id. at 658 n.10 ("[W]here the harassment is being committed by one
of the employer's supervisors . . . knowledge of the harassment is
imputed to the employer.").
The magistrate judge concluded that Brown had forecast sufficient
evidence to survive summary judgment on the first three elements of
the quid pro quo test. However, she held that Brown had produced no
evidence to establish the fourth element, i.e. , that Boyd "assisted
[Brown] in obtaining a job benefit or caused her to suffer a detri-
ment."
The magistrate judge also noted the requirements of circuit prece-
dent concerning claims of what the judge characterized as the "second
form of Title VII sexual harassment," the "creation of a hostile work
environment." To establish a hostile work environment claim, a plain-
tiff was required to prove four elements:
(1) the subject conduct was unwelcome; (2) it was based on
the sex of the plaintiff; (3) it was sufficiently severe or per-
vasive to alter the plaintiff's conditions of employment and
to create an abusive work environment; and (4) it was
imputable on some factual basis to the employer.
Spicer v. Virginia, 66 F.3d 705, 710 (4th Cir. 1995) (en banc). The
magistrate judge found Brown's evidence sufficient to sustain a find-
ing in her favor on the first three elements, but not the fourth. At the
8
time of the judge's decision, circuit law provided that liability could
only be imputed to an employer in a hostile environment claim based
on a supervisor's conduct if a plaintiff could prove that the "employer
knew or should have known of the illegal conduct and failed to take
prompt and adequate remedial action." Andrade v. Mayfair Manage-
ment, Inc., 88 F.3d 258, 261 (4th Cir. 1996). The magistrate judge
concluded that "no reasonable factfinder could conclude that the
remedial action taken here was anything short of prompt and ade-
quate."
Brown appealed, asserting that the magistrate judge had erred with
respect to both her quid pro quo and hostile environment claims.
Brown maintained that she had forecast sufficient evidence to entitle
her to trial on both theories. The parties fully briefed and we heard
argument on the viability of these theories under the facts of this case.
Recognizing that the Supreme Court had granted certiorari in
Faragher and Burlington and that the Court's resolution of those
cases could clarify or even change the governing legal principles, we
held this case in abeyance pending the issuance of those decisions.
The Supreme Court's opinions in those cases did indeed change the
applicable legal principles, and the parties in this case accordingly
submitted supplemental briefs, which we appreciate and have care-
fully considered.1
III.
In Faragher and Burlington, the Supreme Court provided much-
needed guidance as to the proper analysis of sexual harassment claims
and, most particularly, as to the circumstances in which an employer
can be held liable for a supervisor's harassment of a subordinate.
The Court initially instructed that classification of alleged discrimi-
nation as either "quid pro quo" or"hostile work environment" harass-
ment plays no role in the decision as to whether an employer will be
_________________________________________________________________
1 The Secretary asserts in his supplemental brief, as he did in his princi-
pal brief, that Boyd "was not Brown's supervisor." Supplemental Brief
of Appellee at 6. In view of our resolution of this case, we need not reach
that question.
9
held vicariously liable for the acts of a supervisor. Although those
terms may describe or illustrate different types of sexual harassment,
they are otherwise of "limited utility." Burlington, 118 S. Ct. at 2264.
They are only relevant to the "threshold question[of] whether a plain-
tiff can prove discrimination in violation of Title VII." Id. at 2265.2
The Court further held that "the factors" it would set forth, "not the
categories quid pro quo and hostile work environment, will be con-
trolling on the issue of vicarious liability for alleged sexual harass-
ment." Id. at 2265. The Court thus made it clear that whether a claim
is of the quid pro quo or hostile work environment variety does not
govern the determination of vicarious liability under Title VII.
In limiting the use of the two categories as it did, the Court rejected
the distinction that we (and other circuits) had drawn when imputing
liability to an employer for the acts of a supervisor. As noted above,
circuit case law prior to Faragher and Burlington provided that in
quid pro quo cases, liability would be imputed to an employer "auto-
matically," but that in hostile environment cases, liability would be
imputed to the employer only when the employer knew or should
have known of the supervisor's acts and failed to take prompt and
adequate remedial action. In Faragher and Burlington the Supreme
Court directed that vicarious liability in all sexual harassment suits is
to be decided under one set of factors.
The Court then went on to set forth those factors. Whenever sexual
harassment by a supervisor takes the form of a "tangible employment
action" against a subordinate, vicarious liability will be imposed on
the employer. Id. at 2269; see also Faragher, 118 S. Ct. at 2293
("[W]hen the supervisor's harassment culminates in a tangible
employment action, such as discharge, demotion, or undesirable reas-
signment" an employer is vicariously liable); Burlington, 118 S. Ct.
at 2270 (same). In these circumstances, "[n]o affirmative defense is
available" on the issue of vicarious liability. Id.; accord Reinhold v.
Virginia, 151 F.3d 172, 174-75 (4th Cir. 1998). The Court explained
that its holding is based on the rule that a principal is liable when its
_________________________________________________________________
2 The Secretary makes no claim that Boyd's conduct in September
1993 was not "sufficiently severe and pervasive to constitute discrimina-
tion under Title VII." Cf. Lissau v. Southern Food Serv., Inc., 159 F.3d
177, 183 (4th Cir. 1998).
10
agent has been aided by the agency relationship in causing the harm
alleged. See Burlington, 118 S. Ct. at 2267-69. Because a tangible
employment action would not be possible "absent the agency rela-
tion," the Court concluded that "it would be implausible to interpret
agency principles to allow an employer to escape liability" for any
such action perpetrated by a supervisor against a subordinate. Id. at
2269. Thus, "[w]hatever the exact contours of the aided in agency
relation standard, its requirements will always be met when a supervi-
sor takes a tangible employment action against a subordinate." Id.
(emphasis added).
The Supreme Court further directed that even when a supervisor's
harassment does not involve a tangible employment action, an
employer may still be "subject to vicarious liability to a victimized"
subordinate. Faragher, 118 S. Ct. at 2292-93; Burlington, 118 S. Ct.
at 2270. However, "[w]hen no tangible employment action is taken,
a defending employer may raise an affirmative defense to liability or
damages." Faragher, 118 S. Ct. at 2293; Burlington, 118 S. Ct. at
2270; accord Lissau v. Southern Food Serv., Inc. , 159 F.3d 177, 182
(4th Cir. 1998).
To escape liability for a supervisor's harassment of a subordinate
by means of this affirmative defense, an employer must prove by a
"preponderance of the evidence . . . two necessary elements."
Faragher, 118 S. Ct. at 2293; Burlington, 118 S. Ct. at 2270. First,
the employer must establish that it "exercised reasonable care to pre-
vent and correct promptly any sexually harassing behavior." Id.;
accord Reinhold, 151 F.3d at 175. Second, the employer must demon-
strate "that the plaintiff employee unreasonably failed to take advan-
tage of any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise." Faragher, 118 S. Ct. at 2293;
Burlington, 118 S. Ct. at 2270.
The employer's institution and enforcement of an anti-harassment
policy and an adequate complaint procedure, while not required "in
every instance as a matter of law," is certainly relevant in establishing
the first element of the affirmative defense. Id. Conversely, proof that
a plaintiff employee failed to follow a complaint procedure "will nor-
mally suffice to satisfy the employer's burden under the second ele-
ment of the defense." Id. Such proof is not, however, the only way
11
in which an employer can establish the second element. Id. ("proof
. . . is not limited to showing an[ ] unreasonable failure to use [the]
complaint procedures").
With these principles in mind, we turn to the case at hand.
IV.
Faragher and Burlington considerably simplify our resolution of
this case.
The undisputed facts clearly demonstrate that Brown suffered no
tangible employment action at Boyd's hands. Boyd simply took no
part in any decision to hire, fire, discharge, transfer, or reassign
Brown, or in any way to alter her employment benefits. Indeed, the
only tangible employment action taken with regard to Brown during
the relevant period was her promotion to Boles's former position, and
Brown concedes that Boyd "had no role in the promotion." Brief of
Appellant at 8. Because Brown indisputably suffered no tangible
employment action, Faragher and Burlington direct that imputation
of liability to her employer is not automatic.
Even in the absence of a tangible employment action, however,
vicarious liability will be imposed unless the employer can make out
the affirmative defense described in Faragher and Burlington. The
undisputed facts in this case demonstrate that AAFES has satisfied
both elements of that affirmative defense.
As a preliminary matter, we note that AAFES needs no defense
with respect to Boyd's advances on Brown at the March conference.
Brown has never sought recovery for damages arising from that inci-
dent. Furthermore, the district court held, and Brown does not seri-
ously dispute on appeal, that "no factfinder would conclude that
[Brown] subjectively perceived her work environment as hostile or
abusive during the period between the first assault and the second."
The uncontroverted facts support this conclusion. The quick and
wholehearted support provided to Brown by her supervisor when she
reported the March assault, Brown's decision not to pursue disciplin-
ary action against Boyd after that incident, her continued excellent job
12
performance, the fact that she had no contact with Boyd between the
two incidents, and her ultimate attendance at the September gathering
all indicate that Brown suffered no hostile work environment as a
result of Boyd's advances in March. Accordingly, the only issue
before us is whether AAFES established an affirmative defense as to
the September incident.
As to the first element of the affirmative defense-- whether the
employer has proved that it exercised reasonable care to prevent and
correct the harassment -- the record reflects that AAFES had in place
an anti-harassment policy (including a complaint procedure) designed
to deter sexual harassment. We recognize that an employer can meet
its burden as to the first element without such a policy, Faragher, 118
S. Ct. at 2293; Burlington, 118 S. Ct. at 2270, and that mere promul-
gation of such a policy may well fail to satisfy the employer's burden.
The employer must act reasonably, and thus any policy adopted by
the employer must be both reasonably designed and reasonably effec-
tual. See Faragher, 118 S. Ct. at 2293-94; see also Reinhold, 151 F.3d
at 175. But where, as here, there is no evidence that an employer
adopted or administered an anti-harassment policy in bad faith or that
the policy was otherwise defective or dysfunctional, the existence of
such a policy militates strongly in favor of a conclusion that the
employer "exercised reasonable care to prevent" and promptly correct
sexual harassment. Faragher, 118 S. Ct. at 2293; accord Lissau, 159
F.3d at 182.
Furthermore, the existence of a viable anti-harassment policy in
this case is accompanied by other undisputed evidence of the employ-
er's reasonable care. First, with regard to prevention of the September
incident, Brown herself concedes that as soon as she told Boles about
the March incident, he fully supported her. Boles immediately told
her, "Whatever you do, I'll support you 100%," and then suggested
that she contact an EEO counselor. Brown, however, told her supervi-
sors that she did not want "to do anything" about Boyd's first
advance. Brown's supervisors respected her wishes and did not pur-
sue the matter.
Apparently in doing so they violated an AAFES directive that all
instances of sexual harassment, even those a victim does not want to
pursue, must be reported to a "resources manager." Although this
13
directive seems a wise one, no reasonable factfinder could conclude
that in this case the supervisors did not take adequate action. They
were confronted with a victim who was continuing to work effec-
tively and did not wish to pursue the matter, who reported a single
incident of harassment perpetrated by a supervisory employee with
whom she would have very limited future contact. We believe that in
these circumstances offering immediate unconditional support to the
victim and suggesting that she pursue her EEO remedies constitutes
an entirely reasonable effort to prevent further incidents. That this
effort proved unsuccessful is unfortunate, but it does not mean that
the effort was unreasonable. Sometimes, as in this case, an employ-
er's reasonable attempt to prevent future harm will be frustrated by
events that are unforeseeable and beyond the employer's control. The
law requires an employer to be reasonable, not clairvoyant or omnipo-
tent.
The evidence as to the reasonableness of AAFES's corrective
action is similarly clear. When Brown did file an EEO complaint after
the September incident, AAFES took prompt corrective action.
AAFES immediately issued a restraining order prohibiting Boyd from
having any contact with Brown or other Ft. Meade employees. In
addition, Brown entered into a voluntary settlement agreement with
AAFES in which the agency agreed to investigate Boyd, to take
appropriate corrective action, to issue Brown a formal apology, and
to reiterate its order to Boyd to cease all contact with Brown and other
Ft. Meade employees. Upon receiving these orders, Boyd never again
had any contact with Brown. Moreover, AAFES did, in fact, investi-
gate Boyd, after which it suspended him for thirty days for inappro-
priate work-related activities including "inappropriate physical
contact and advances toward Brown." Even Brown acknowledged
that at the time she was satisfied that these constituted adequate cor-
rective measures by AAFES.
Later, of course, Brown contended that AAFES's corrective
efforts, like its preventive ones, were inadequate. Specifically, she
asserts that she never received a formal apology and that Boyd contin-
ued some business e-mail communications to other Ft. Meade
employees, that the settlement agreement was thus violated, and that
AAFES did nothing to remedy this. Even if the agreement was techni-
cally violated in these respects, in view of the fact that AAFES's
14
response pursuant to its established anti-harassment policy succeeded
in permanently ending Boyd's harassment of Brown and punishing
Boyd for his past behavior, no reasonable factfinder could conclude
that AAFES's action did not constitute reasonable corrective mea-
sures. Again, the law requires reasonableness, not perfection.
In sum, a reasonable finder of fact considering AAFES's fully
functioning anti-harassment policy; Boles's immediate support for
Brown after the first incident; AAFES's issuance of a restraining
order prohibiting Boyd from having any contact with Brown, which
succeeded in stopping any further harassment; AAFES's undertaking
of an investigation of Boyd; and finally AAFES's suspension of Boyd
for thirty days could only conclude that AAFES did"exercise[ ] rea-
sonable care to prevent and correct promptly" Boyd's "sexually
harassing behavior." Faragher, 118 S. Ct. at 2293; Burlington, 118 S.
Ct. at 2270. Thus, we must conclude that AAFES has met its burden
on the first element of the affirmative defense.
With regard to the second element, the evidence that AAFES met
its burden is just as clear. Contrary to the parties' apparent belief, in
order to satisfy this element an employer need not demonstrate that
an employee "unreasonably failed" to follow a"complaint procedure"
or "to take advantage of any preventive or corrective opportunities
provided by an employer." Id. Rather, an employer can prove the sec-
ond element of the affirmative defense by demonstrating that the
"plaintiff employee unreasonably failed . . . to avoid harm otherwise."
Id.
The record in this case is replete with uncontroverted evidence that
Brown utterly failed to "avoid harm otherwise." Less than six months
after rebuffing advances from Boyd in his hotel room late at night,
Brown unnecessarily put herself in a situation that permitted repeti-
tion of precisely the same kind of advances. By her own account,
Brown voluntarily decided to remain alone in Boyd's hotel room with
him at night during the September conference even though the March
incident was fresh in her mind. Brown not only remained alone with
Boyd in his room for a second time, she also accepted Boyd's invita-
tion to visit first a pub and then a reggae bar following the party.
Finally, after the bar-hopping, Brown agreed to return to Boyd's hotel
room at midnight. In light of her previous history with Boyd, no rea-
15
sonable factfinder could reach any conclusion other than that Brown
"unreasonably failed . . . to avoid harm." Id. Thus, the undisputed
facts demonstrate that AAFES satisfied the second element of the
affirmative defense as well as the first; hence, it cannot be held vicari-
ously liable for Boyd's harassment of Brown.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
NIEMEYER, Circuit Judge, concurring in the judgment:
I agree that the district court should be affirmed in this case and
therefore concur in the judgment.
16