Alexander v. Alcatel Na Cable Systems, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DIANE ALEXANDER, 
Plaintiff-Appellant,
v.
 No. 01-2077
ALCATEL NA CABLE SYSTEMS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-97-637-R)
Argued: June 5, 2002
Decided: October 15, 2002
Before MICHAEL, Circuit Judge, Robert R. BEEZER,
Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation, and
Benson Everett LEGG, United States District Judge
for the District of Maryland, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Legg wrote
the opinion, in which Judge Michael and Senior Judge Beezer joined.
COUNSEL
ARGUED: Terry N. Grimes, KING, FULGHAM, SNEAD, NIXON
& GRIMES, P.C., Roanoke, Virginia, for Appellant. Bruce McCoy
2 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
Steen, MCGUIREWOODS, L.L.P., Charlotte, North Carolina, for
Appellee. ON BRIEF: John S. Barr, Rodney A. Satterwhite,
MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
LEGG, District Judge:
This case requires us to decide whether the district court properly
granted summary judgment to the defendant employer in a Title VII
sexual harassment case. The lower court held that there was no basis
on which to impute liability to the employer because its response to
the alleged sexual harassment of the plaintiff was both prompt and
effective. The district court deemed irrelevant evidence that the
employer had failed to investigate and check harassment of other
women that had occurred before the events that aggrieved the plain-
tiff. This was error. An employer, whose tepid reaction to complaints
of abusive behavior emboldens would-be offenders, may be liable for
failing to prevent subsequent harassment. Accordingly, we reverse the
judgment of the district court and remand with instructions to con-
sider this alternate basis of liability.
I.
Diane Alexander ("Alexander") appeals from the district court’s
order granting summary judgment to Alcatel NA Cable Systems, Inc.
("Alcatel") on her claim of sexual harassment under Title VII of the
Civil Rights Act of 1964. Because we are reviewing a grant of sum-
mary judgment, we must view the facts in the light most favorable to
the non-moving party, Alexander. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 3
A.
Alcatel’s plant in Roanoke, Virginia, manufactured fiberoptic
cable. Alexander worked at the plant from 1989 until the plant closed
in December 1997. She made glass tubing in the sleeving department
and worked every Friday, Saturday, and Sunday from 6:00 a.m. to
6:00 p.m. J.A. 67-69. Alexander claims that she was sexually
harassed at various times during her tenure with Alcatel.
1. Harassing Telephone Calls from
December 1989 to January 1990
Alexander alleges that in December 1989, Dale Anderson, a co-
worker,1 began calling her repeatedly to ask her out on dates. J.A. 49.
Alexander contends that Anderson obtained her home telephone num-
ber from John Gray, one of the plant managers. The calls were so per-
sistent that Alexander changed her telephone number four times
within six months. After the first three number changes, Alexander
refused to give her new phone numbers to Gray for fear that he would
pass them along to Anderson. In January 1990, Anderson stopped
calling after Alexander began dating another co-worker. J.A. 49-50.
2. Harassment of Other Women from 1990-1996
Alexander suffered from no harassing conduct between 1990 and
1996. She has, however, supplied the affidavits of two other employ-
ees, Beth Ann Witt Wheeler and Joan Saunders, who complained of
persistent sexual harassment during this time. J.A. 322-26.
In her affidavit, Wheeler states that she was repeatedly abused,
both verbally and physically, by Anderson. This abuse began when
Anderson propositioned her in the company parking lot. Wheeler
describes the incident as follows:
Anderson grabbed me and pulled me toward him. He appar-
ently had been drinking. He said, "Come on! Let’s go to the
1
Alexander and Anderson worked in different departments and Ander-
son was not her supervisor.
4 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
parking lot. You’ll like it. J.R. (my husband) doesn’t need
to find out. Let’s have some fun." I pushed Anderson away.
This sort of thing happened many times over the course of
my shift that night. When I told my supervisor, Rick Silva,
about the harassment, Mr. Silva said to just avoid Anderson.
He also told me, "don’t let him get you cornered," or words
to that effect.
J.A. 322.
Wheeler further relates that Anderson, upon learning that she had
complained to Silva, accosted her with threats, including: "you fuck-
ing bitch;" "get out of my face;" "I ought to kill you;" "I’ll beat the
hell out of you;" and "I’ll kill J.R. [her husband]." Id.Wheeler claims that when she reported Anderson’s threats to her
supervisor, he took no action other than to advise her to avoid Ander-
son. Id. A few days later, Wheeler asserts that Anderson sexually
assaulted her again by groping at her body and threatening, "I’m
gonna find out what’s in them damn pants." Wheeler’s affidavit states
that the supervisor witnessed this encounter, but stood by idly. Id.Wheeler also claims that she received at least eighteen vulgar tele-
phone calls at work over a five month period beginning in September
1995, and ending on February 22, 1996. The record is unclear
whether Wheeler notified her supervisors about these phone calls.
Joan Saunders’s affidavit asserts that she was sexually harassed by
two of her co-workers, Anderson and Jeffrey White. Concerning
Anderson, Saunders alleges that he frequently subjected her to sexu-
ally suggestive gestures and vulgar comments regarding her anatomy
and sex life. Saunders’s affidavit does not mention whether she noti-
fied her supervisor about Anderson’s misconduct.
Saunders claims that in 1996, Jeffrey White began his harassment
by brushing up against her, and then claiming that Saunders had
"brushed up against him with [her] big buffalo ass." J.A. 325.
Saunders responded to White that if he had a grievance with her, he
should discuss it with a supervisor. White rejoined, "I don’t want to
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 5
take it to the supervisor. I’ll just have my friends come over here and
fuck you up." Id. Saunders reported the incident to Alcatel manage-
ment. She also swore out an arrest warrant against White. Saunders
complains that the company failed even to investigate her charge.
Saunders alleges that White sexually assaulted her on two later
occasions. She reported both assaults to management. The plant man-
ager promised to move her to another shift, but the record is unclear
as to whether this occurred.
Saunders also reports that Alcatel tolerated sexually demeaning
graffiti. For example, the phrase "Joe sucks Joan’s pussy" and other
offensive messages were written at or near her work station. J.A. 326.
Saunders claims that she began complaining to her supervisors in Jan-
uary 1996. The record is silent regarding what measures, if any, the
company took to end this harassment.
Similar to Wheeler, Saunders also received vulgar internal tele-
phone calls while at the plant. The record does not reveal when these
phone calls took place, whether Saunders reported them to manage-
ment, and what measures, if any, were taken to stop them.
3. Anderson’s Alleged 1996 Assault
of Alexander and its Aftermath
Despite the initial spate of aggressive telephone calls, Anderson
and Alexander worked amicably together from 1990 until September
1996. Although Alexander claims that Anderson made isolated sexual
remarks during this interval, such as, "I’d like to get next to that," she
concedes that she considered Anderson to be a friend. J.A. 47.
This harmony unexpectedly ended on Saturday, August 24, 1996.
Alexander contends that she asked Anderson to unlock a maintenance
room so that she could retrieve supplies. After unlocking the door,
Anderson followed her into the room and locked the door behind him.
Anderson then began complaining about his girlfriend, Wyonna
Altizer, a fellow Alcatel employee. Anderson criticized Alitzer as a
"slut," yet reported that he was not "getting it at home." J.A. 320.
6 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
Anderson then grabbed Alexander’s breasts, shoved her over a
counter, pushed himself up against her, tried to unzip her pants, and
eventually knocked her to the floor. Anderson boasted that Alexander
would "enjoy it" if she just gave him a "chance." Alexander fought
back, kicking at Anderson. According to Alexander, Anderson then
poured a line of cocaine onto the table and said "Diane, just chill out.
Come over and do this." Alexander refused, blew the cocaine off the
table, ran out of the maintenance room, and sought refuge in the
women’s bathroom, where she began to cry.2
After leaving the bathroom, Alexander tried to locate her supervi-
sor, Jack Daniels, but could not find him. She paged Daniels without
success. J.A. 64-65. When Alexander returned to her station, she told
two of her co-workers about the assault. After finishing her shift,
Alexander went to the local magistrate’s office to report the incident.
An employee at the magistrate’s office suggested that Alexander
speak with her supervisor before filing charges.
The next day, August 25th, Alexander reported the assault to super-
visor Daniels. Daniels advised her to "stay away from [Anderson] and
not to be alone with him." J.A. 77. Alexander told Daniels that she
wished to press charges. In response, Daniels promised that he would
discuss the matter with Brian Colton, the production manager at Alca-
tel.
Alexander also reported the assault to Walter Grossheim, the chief
union steward, who advised Alexander not to be alone with Anderson
or his girlfriend, Wyonna Altizer. J.A. 78. Alexander did not work the
following weekend, but instead accompanied her boyfriend to Illinois.
Alexander initially requested vacation time off for the trip. When a
supervisor denied the request as untimely, Alexander asked the super-
visor to back-date her request. Faced with the supervisor’s refusal,
Alexander simply failed to report. Alexander later made a half-
hearted attempt to justify the unexcused absence under the Family and
Medical Leave Act ("FMLA"). The supervisor reported Alexander’s
misconduct to Alcatel official Brian Colton.
2
Anderson denies that he assaulted Alexander on this or any other
occasion.
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 7
Alexander returned to work on Friday, September 6th, and left
Brian Colton a phone message inquiring about the company’s investi-
gation of her claim against Anderson. Colton returned Alexander’s
call and scheduled a meeting for September 13th to discuss Alexan-
der’s assault allegations and her possible abuse of the FMLA policy.
Colton contends that Alexander’s phone message was the first notice
he received of the alleged sexual assault. J.A. 285.
Alexander contends that Wyonna Altizer, Anderson’s girlfriend,
physically attacked her that same weekend. Alexander testified on
deposition that Altizer "came over the desk . . . and put her hands
across my neck and swore all this stuff at me and said that she would
kill me. She cussed me out, told me that if I ever laid hands on
[Anderson] — you know . . . that I have always wanted [Anderson].
. . ." J. A. 101. Alexander states that she reported the assault to super-
visor Daniels. A few days later, Altizer allegedly attacked Alexander
a second time.3
On September 13th, Alexander met with Brian Colton, Walter
Grossheim, and other company representatives to discuss the allega-
tions of: (i) sexual assault by Anderson, (ii) attacks by Altizer, and
(iii) abuse of the FMLA policy by Alexander. Colton opened the
meeting by explaining, "We are here to investigate some serious alle-
gations of attempted rape/sexual assault." J.A. 299. Colton then
invited Alexander to describe the assaults by Anderson and Altizer.
Colton promised that Alcatel would investigate her charges.
Colton then focused the meeting on Alexander’s missed weekend.
After some discussion, Colton concluded that Alexander had abused
Alcatel’s FMLA policy, asked her supervisor to lie for her, and falsi-
fied time records. Colton "wrote up" Alexander for these infractions
and placed her on indefinite suspension.4 J.A. 286, 305.
3
Apparently, Altizer’s alleged attack was motivated by jealousy rather
than a desire to punish Alexander for reporting Anderson to manage-
ment.
4
Ultimately, Alexander was suspended for only three days before
returning to work.
8 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
Following the meeting, Colton investigated the assault. He inter-
viewed Anderson, who denied assaulting Alexander or even follow-
ing her into the stockroom. J.A. 286. Colton also interviewed
Grossheim, who claimed to have been present when Alexander asked
Anderson to unlock the supply room. Grossheim reported that he saw
Anderson unlock the door, but that Anderson did not follow Alexan-
der into the storeroom. Id. Colton also interviewed Altizer, although
the record is incomplete regarding what was discussed.
Although Colton was unable to substantiate Alexander’s allega-
tions, he contacted the police department to report her accusations and
to offer his interview notes. J.A. 98, 181, 286. The police interviewed
Alexander, who swore out an arrest warrant for Anderson. J.A. 99,
114. Although Anderson was brought to trial, the charges against him
were eventually dismissed for lack of evidence.
In addition to contacting the police, Colton took other measures.
He tried to separate Alexander and Anderson.5 Colton warned Ander-
son that Alcatel prohibited sexual harassment and that he would be
terminated if Alexander’s allegations were ever substantiated. Alcatel
also conducted a sexual harassment training program.
Alexander’s only contact with Anderson after the alleged assault
occurred approximately one year later, in August 1997. Alexander
contends that Anderson approached her in the hall and said, "[N]ext
time, [you] will get it." J.A. 234. Alexander claims that she updated
her 1996 complaint paperwork to reflect this most recent confronta-
tion. Colton disputes that Alexander advised him of the incident, how-
ever. J.A. 289.
4. Offensive telephone calls from
September 1996 to January 1997
Alexander also contends that she began receiving offensive tele-
phone calls over Alcatel’s paging system beginning in September
1996. Alexander states that an anonymous caller often would return
5
Alexander was required to ask a supervisor to retrieve any materials
she needed from Anderson’s work area. Alexander was permitted to
leave her work area if Anderson had business there.
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 9
her pages, making lewd comments. After the first few calls, Alexan-
der began documenting them in letters to her supervisors. J.A. 333-
340. According to Alexander’s notes, she received a total of four
offensive calls on October 6th and 19th. The calls subsided until
December 13th, when they began anew. Between December 13th and
January 11th, she received sixteen additional calls.
Alcatel took three separate measures to end the calls. In October
1996, Colton told Alexander that she was no longer obligated to
answer pages. J.A. 129-30, 288. On January 10 and 16, 1997, Colton
issued memoranda reminding employees that the in-house phones and
public address system were not to be used for prank calls or inappro-
priate announcements. J.A. 288, 312, 313. On January 15th, another
supervisor issued a similar memorandum. J.A. 314. As a final mea-
sure, Colton equipped Alexander’s telephone with "caller I.D." J.A.
288. The offensive telephone calls ceased after the caller I.D. was
installed. J.A. 133-34.
5. Sexually explicit postings
Alexander also complains that throughout her tenure at Alcatel she
was exposed to sexually explicit materials posted on bulletin boards
and in cabinets. See e.g., J.A. 253-61, 328-32. Although none of the
postings specifically referenced Alexander, she found them offensive.
Alexander never filed a formal complaint with Colton regarding the
postings, but she would occasionally take them down and deliver
them to him. Alexander recalls saying to Colton: "[Y]ou need to get
these pictures off the walls. They are ridiculous." J.A. 126-27. She
also complained about the postings to another supervisor.
Management did not ignore the offensive postings and always
removed those that Alexander brought to its attention. Additionally,
when it was possible to determine who had posted an inappropriate
message, Alcatel disciplined the employee.
6. Alcatel’s Sexual Harassment Policy
Alexander contends that she would have been spared from the
assault and other harassment had Alcatel instituted and enforced an
10 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
effective sexual harassment policy prior to 1996. While Alcatel con-
tends that it had a sexual harassment policy, the documentation is
thin. The record contains three one-page documents, only two of
which predate the alleged August 1996 assault.
The first document is a June 17, 1994 memorandum addressed to
nineteen individuals.6 It does not set out the company’s policies and
procedures for combating sexual harassment. Instead, it is a schedule
for mandatory sexual harassment classes. J.A. 292. The memo states
that the recipients should "[e]nsure that everyone in your group
attends one of the classes." Id. The record does not include, however,
any handouts or other documents that may have been distributed in
connection with the classes.
The second is a January 18, 1996 memorandum reminding all plant
employees of Alcatel’s policy against sexual harassment. The memo-
randum states:
It has come to our attention that some employees may be
engaging in behavior which violates Alcatel’s harassment
policy. . . . All employees should understand that the Com-
pany will take all necessary and appropriate steps to iden-
tify, discipline, and cooperate with local law enforcement
authorities in regard to any employees or other individuals
who may have engaged in improper harassment.
J.A. 293.
The third is a November 1996 document stating that Alcatel "is
committed to providing a work environment . . . free from sexual
harassment. . . . Such action constitutes grounds for corrective disci-
pline up to and including termination." J.A. 291. In contrast to the
previous memoranda, this document advises employees whom to con-
tact with reports of sexual harassment.7
6
It is unclear what position each of the nineteen people held, but it
appears that they were supervisors for various "groups" within the Roa-
noke facility.
7
Many companies have a clearly stated sexual harassment policy in an
employee handout or other widely distributed document. These policies
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 11
Alexander claims that she had neither seen nor heard of any of
these documents until the instant litigation. Further, she argues that,
even if such a policy was in place, it was neither well publicized nor
enforced.
B.
On September 22, 1997, Alexander filed the instant suit against
Alcatel alleging sexual harassment and retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. On July
17, 2001, Alcatel moved for summary judgment pursuant to Fed. R.
Civ. P. 56.
The district court heard oral argument and by Order of August 8,
2001, granted summary judgment in favor of Alcatel on both claims.
On the retaliation claim, the district court found that Alexander had
offered no evidence to show that Alcatel’s asserted reason for sus-
pending her (abuse of the FMLA policy) was a pretext. Alexander did
not appeal from this ruling.
On the sexual harassment claim, the district court concluded that
there was no basis for imputing liability to Alcatel. It is this ruling
that is on appeal.
II.
The Court reviews the district court’s grant of summary judgment
de novo, using the same standards applied by the district court. Hart-
sell v. Duplex Prods., Inc., 123 F.3d 766, 771 (4th Cir. 1997).
A.
Title VII creates a cause of action for "hostile work environment"
sexual harassment. See Meritor Savings Bank v. Vinson, 477 U.S. 57,
usually outline a specific process that the employee is to follow when
reporting offensive behavior. The reporting procedures vary if the
aggressor is a supervisor or a co-worker. The only Alcatel document to
specify complaint procedures was published after the alleged assault of
Alexander.
12 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
66 (1986). To make out a prima facie case, the plaintiff "must prove:
(1) that [s]he was harassed because of [her] sex; (2) that the harass-
ment was unwelcome; (3) that the harassment was sufficiently severe
or pervasive to create an abusive working environment; and (4) that
some basis exists for imputing liability to the employer." Hartsell,
123 F.3d at 771 (internal citations omitted); Swentek v. USAIR, Inc.,
830 F.2d 552, 557 (4th Cir. 1987).
Anderson and the other people who harassed Alexander were co-
workers rather than supervisors. Thus, the harassment was "unaided"
by any supervisory power granted to the offenders by the company.
In such cases, the employer is only liable if it was negligent in failing,
after actual or constructive knowledge, to take prompt and adequate
action to stop the harassment. Mikels v. City of Durham, 183 F.3d
323, 332 (4th Cir. 1999); see also Spicer v. Commonwealth of Vir-
ginia, Dept. of Corr., 66 F.3d 705, 710 (4th Cir. 1995).8
B.
In the district court, the summary judgment argument focused on
the fourth element of the prima facie case, namely whether there were
grounds for imputing liability to Alcatel. Alcatel argued that it was
absolved of liability because it took sufficient remedial action follow-
ing Alexander’s complaints of harassment beginning in 1996.
8
In Burlington Indus. v. Ellerth, 524 U.S. 742 (1998), and Faragher v.
City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court clarified the
law regarding employer liability under Title VII for sexual harassment.
The Court held, "[A]n employer is subject to vicarious liability to a vic-
timized employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the
employee." Ellerth, 524 U.S. at 765, Faragher, 524 U.S. at 807; see also
Mikels, 183 F.3d at 331. An employer would only be "subject to" but not
"automatically liable" for such an environment because not all harass-
ment is necessarily "aided by the agency relation." 183 F.3d at 331.
When the harasser is a co-worker and not a supervisor, as stated above,
the employer is only liable when it was negligent in failing, after actual
or constructive knowledge, to take prompt and adequate action to stop
the harassment. Id. at 332.
ALEXANDER v. ALCATEL NA CABLE SYSTEMS 13
In opposing summary judgment, Alexander conceded that her rela-
tionship with Anderson from 1990 to 1996 was amicable. Alexander
argued, however, that the company had allowed the harassment of
Wheeler and Saunders to go unchecked. Had Alcatel created and
enforced a vigorous sexual harassment policy, Anderson would either
have been terminated or brought to heel, Alexander contended. Con-
sequently, he would not have assaulted her in the maintenance room.9
The district court rejected this argument. The court wrote, "Alexan-
der points to previous allegations against Dale Anderson that went
unchecked. The issue in this case, however, is whether Alcatel
responded appropriately to the unwelcome conduct of which Alexan-
der was the subject." Alexander v. Alcatel NA Cable Sys., Inc., No.
96-0637-R at 6 (W.D. Va. Aug. 8, 2001). Because it found that Alca-
tel "responded both promptly and effectively" to Alexander’s individ-
ual complaints,10 the district court concluded that there was no basis
for imputing liability to the employer. We must disagree. In certain
circumstances, an employer, whose tepid response to valid complaints
of sexual harassment emboldens would-be offenders, may be liable if
a vigorous response would have prevented the abuse. Under the
Court’s decision in Paroline v. Unisys Corp., liability may be imputed
to an employer under two alternative theories. 879 F.2d 100, 106 (4th
Cir. 1989), vacated and remanded on other grounds, 900 F.2d 27 (4th
Cir. 1990). First, an employer may be liable if it fails to take prompt
and effective action to redress a valid complaint lodged by the plain-
tiff. Second, if an employer reasonably should have anticipated that
the plaintiff would become a victim, but failed to take action reason-
ably calculated to prevent the harassment, it may be liable. To quote
from Paroline, the law "impose[s] a duty on [the employer] to take
9
An effective policy would have spared her from the offensive phone
calls and the lewd postings and graffiti, she also contended.
10
Because the district court erred in excluding from consideration the
pre-1996 incidents involving other women, we have not addressed the
adequacy of Alcatel’s responses to Alexander’s complaints. The lower
court may decide to revisit its approval of Alcatel’s reactions if it finds
that the company’s pre-1996 sexual harassment enforcement invited the
attacks on Alexander. A company whose prior enforcement has been
tepid may be under an obligation to take more rigorous action to check
abuses that its own laxity has invited.
14 ALEXANDER v. ALCATEL NA CABLE SYSTEMS
adequate steps to try to prevent . . . harassment, not merely to act after
the event." 879 F.2d at 106.
The Paroline Court noted that an "employer’s knowledge that a
male worker has previously harassed female employees other than the
plaintiff will often prove highly relevant in deciding whether the
employer should have anticipated that the plaintiff too would become
a victim of the male employee’s harassing conduct." Paroline, 879
F.2d at 107.
In the instant case, the district court should not have dismissed as
irrelevant the affidavits of Wheeler and Saunders. Their testimony,
when coupled with the thin record of Alcatel’s sexual harassment pol-
icy, may be sufficient to impute liability to Alcatel.11
CONCLUSION
For the foregoing reasons, the judgment of the lower court on the
hostile work environment claim is reversed and the case is remanded
for further proceedings consistent with this opinion.
REVERSED AND REMANDED
11
Our holding does not mean that other complaints lodged by other
employees are necessarily relevant or subject to discovery in all discrimi-
nation cases. In the instant case, discovery into the claims of other female
employees is relevant because of (i) Anderson’s identity as an alleged
common offender, and (ii) the slender record of a pre-1996 sexual
harassment policy. In all cases, the district court may set reasonable dis-
covery limits based upon the discrete facts presented.