499 F. App'x 473
6th Cir.2012Background
- Plaintiffs Barber, Davis, Williams, and Shields allege sexual harassment by supervisor Klingenberg at FCIS in Ohio; FCIS removed to federal court and sought summary judgment on Faragher/Ellerth defense.
- District court assumed Title VII-based hostile work environment but granted summary judgment to FCIS on the defense, finding the policy effective and plaintiffs failed to follow it.
- Klingenberg’s misconduct included explicit instant messages to Shields and escalating harassment involving Barber and Williams; Shields later disclosed broader harassment to Frye.
- FCIS policy required reporting harassment to management or HR, with internal EEO procedures and anti-retaliation protections; management investigated but prior harassment history existed.
- There was a prior 1998 harassment complaint against Klingenberg (Hocker) with a minimal remedial response, and subsequent investigations and evaluations did not clearly monitor or stop Klingenberg’s conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FCIS’s Faragher/Ellerth defense fits on summary judgment | Barber, Davis, Williams argue policy and enforcement were insufficient as a matter of fact | FCIS contends policy was reasonable and effectively enforced | No; genuine issues of material fact on effectiveness of prevention and correction. |
| Whether FCIS exercised reasonable care to prevent and correct harassment | Management failed to adequately investigate and monitor after complaints | Policy was facially adequate and reasonably implemented | No; jury could find ineffective enforcement and monitoring. |
| Whether plaintiffs unreasonably failed to take advantage of preventive or corrective opportunities | Plaintiffs feared retaliation and barriers to reporting to distant managers | Policy required reporting; plaintiffs had to use available channels | Jury questions remain; not as a matter of law. |
| Whether credible threats of retaliation justified not reporting | Retaliation threats impeded reporting; credible threats existed | Jury questions on credibility of threats and impact on reporting. |
Key Cases Cited
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (establishes Faragher/Ellerth defense framework)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (establishes defense framework)
- Clark v. UPS, Inc., 400 F.3d 341 (6th Cir. 2005) (defense burden on employer to show reasonable care and plaintiff’s lack of prevention)
- Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008) (employer duty to prevent harassment heightened with known serial harasser)
- Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (rejects rigidity in requiring exhaustive use of policy channels)
- Thornton v. Fed. Express Corp., 530 F.3d 451 (6th Cir. 2008) (credible threats may excuse reporting under certain circumstances)