Olа JACKSON, Appellant, v. ARKANSAS DEPARTMENT OF EDUCATION, VOCATIONAL AND TECHNICAL EDUCATION DIVISION; Lonnie McNatt, Director, Individually and in his official capacity; Roy Wood, Dr., Associate Director, Individually and in his official capacity, Appellees.
No. 00-1789
United States Court of Appeals, Eighth Circuit
Filed: Dec. 4, 2001.
Rehearing and Rehearing En Banc Denied: Jan. 10, 2002.
272 F.3d 1020
McMILLIAN, Circuit Judge.
Finally, the class seeks to overturn the denial of part of their request for attorneys fees. The issue of the proper fees is reviewed for an abuse of discretion. The district court awarded plaintiffs over $238,000 in attorneys fees and costs. He denied a request for additional fees arising out of hundreds of hours of long-distance telephone calls. He said he could not assess the reasonableness of the request because counsel refused to describe in general terms the substance of the calls. We fail to see an abuse of discretion in this decision.
The appeal of Steven Sweeney is dismissed. With the scope of the judgment in the class action as modified herein, the judgment of the district court is AFFIRMED.
Lori Freno, Asst. Atty. Gen., argued, Little Rock, AR, for appellee.
Before McMILLIAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
McMILLIAN, Circuit Judge.
Ola Jackson appeals from a final order entered in the District Court1 for the Eastern District of Arkansas granting summary judgment in favor of her former employer, the Arkansas Department of Education, Vocational and Technical Education Division (“the Department“) and her supervisors in their official and individual capacities. The district court dismissed Jackson‘s claims of sexual harassment, race discrimination and constructive discharge brought pursuant to Title VII of the Civil Rights Act of 1964, as amended,
Jurisdiction
Jurisdiction was proper in the district court based upon
Background
The following facts are based upon the district court order.2 Jackson was employed by the Departmеnt as a Secretary II from November 23, 1993 until September 12, 1995. From the first day of her employment, Jackson‘s supervisor, Robert Gwatney, made unwelcome and unsolicited remarks to her about sexual favors and hugged and touched her inappropriately. On August 31, 1994, Jackson‘s fiancé phoned one of Jackson‘s supervisors, Ruth Deaton, to inform her of the sexual harassment. Deaton immediately informed her supervisor, Roy Wood, who began an investigation of the allegations.
During the investigation, Wood and the personnel director, Dianne Farquhar, met with Jackson to hear her complaints. Wood and Farquhar agreed to change Jackson‘s working hours so that she would not be alone in the office with Gwatney. They also assured Jackson that Gwatney‘s offensive behаvior would stop immediately and asked her to inform them if it continued. Wood and Farquhar then met with Gwatney, who admitted hugging Jackson but denied the rest of the allegations. Gwatney agreed to avoid any further contact with Jackson that might be interpreted as improper. Although the investigation was considered inconclusive, Wood and Farquhar assured Jackson that Gwatney would not hug or touch her in any manner, nor would he discuss sexual matters with her again.
Pursuant to the Department‘s formal anti-harassment grievance process, Wood and Farquhar attempted to schedule a meeting with both Jackson and Gwatney. Jackson declined the Department‘s offer and instead stated her intent to file a grievance with the EEOC. Jackson informed Wood and Farquhar that her new working hours conflicted with her child care arrangement, so they arranged for Gwatney to leave the office at 4:30 p.m. every day, to avoid the possibility of being alone with Jackson during the time in which the harassment had occurred. For two weeks afterwards, Wood stopped by Jackson‘s office daily to ask how she was doing and to ensure that Gwatney had left the office by 4:30. Jacksоn did not complain again about Gwatney‘s conduct.
On June 23, 1995, the Department learned that Gwatney had lied during the investigation about his conduct toward Jackson. Gwatney was immediately terminated.
On June 27, 1995, Jackson complained to Wood that she had been asked to perform data entry, which she claimed was not included in her job responsibilities. Wood arranged for Jackson to meet with Farquhar on June 29, 1995, to discuss her job duties. However, Jackson left work on June 27 for a doctor‘s appointment and remained on leave for “job-related stress” until July 26, 1995.
Jackson returned to work on July 26, 1995. Wood temporarily reassigned her data entry duties to other employees. Three days later, Jackson took another extended leave. On August 24, 1995, Jackson was notified that she had exhausted all of her paid leave time on August 7, 1995, but that she was entitled to 196 hours of unpaid leave under the Family Medical Leave Act. On August 29, 1995, Jackson received a summary of her remaining leave time. On September 12, 1995, Jackson was terminated because she had exhausted all of her leave time and had failed to return to work.
On May 22, 1997, Jackson sued the Department and her supervisors in their individual and official capacities for sexual discriminаtion and constructive discharge in violation of her rights under Title VII and
Jackson timely appealed the district court‘s order and judgment pro se. On December 11, 1998, this court reversed the district court‘s order and remanded the case for further consideration in light of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (Ellerth), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (Faragher). On Mаrch 6, 2000, after re-briefing by the parties, the district court again granted summary judgment in favor of the defendants. The district court assumed for purposes of analysis that Gwatney‘s conduct was severe or pervasive enough to alter Jackson‘s working conditions and thus created a hostile work environment. Nonetheless, the district court found that, in the absence of a tangible employment action, the Department was entitled to the affirmative defense provided by Faragher and Ellerth because the Department had demonstrated effectively that: (1) it had exercised reasonable care to prevent and promptly correct any sexually harassing behavior and (2) Jackson had unreasonably failed to take advantage of any preventive or corrеctive opportunities provided by the Department or to otherwise avoid harm. Jackson timely appealed, and this court appointed counsel to represent her on appeal.
Jackson‘s new counsel unsuccessfully attempted to obtain a copy of Jackson‘s original deposition in this case from opposing counsel, the district court, and this court. On June 5, 2001, Jackson moved to strike from the record on appeal excerpts of her deposition included in the Department‘s appendix on the grounds that the complete deposition was unavailable. On June 12, 2001, the Department opposed the motion to strike. On June 8, 2001, this court entered an order taking the motion with the case, which was argued and submitted on June 11, 2001.
Standard of Review
We review the district court‘s grant of summary judgment de novo to determine whether “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.”
Availability of Affirmative Defense
Faragher and Ellerth provide an affirmative defense to an employer‘s vicarious liability under Title VII for an employee‘s hostile work environment claim based on a supervisor‘s harassment:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages ... [which] 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 оtherwise.
Faragher, 524 U.S. at 807; see also Todd v. Ortho Biotech, Inc., 175 F.3d 595, 597 (8th Cir.1999) (Todd).
Jackson contends that the district court erred in granting summary judgment because there are genuine issues of material fact regarding whether the Department was entitled to the affirmative defense articulated in Faragher. Specifically, Jackson claims that (1) the Department‘s anti-harassment prevention policy was ineffective, as evidenced by the eight months it took to expose Gwatney‘s lies about the sexual misconduct, and (2) as a result of the policy‘s ineffectiveness, it was not unreasonable for her to disregard it. Jackson further asserts that a jury is best qualified to resolve the issue. The Department responds, based on the undisputed facts, that (1) its harassment prevention policy was effective, because it immediately acted upоn Jackson‘s complaint by rescheduling Gwatney‘s work hours, conducting an investigation, encouraging Jackson to inform her supervisors of further harassment, and regularly checking with Jackson to ensure that no continued harassment had occurred; and (2) Jackson unreasonably failed to take advantage of the preventive and corrective opportunities the Department provided by failing to report the harassment until August 31, 1994, and by electing to file a grievance with the EEOC rather than comply with the Department‘s formal anti-harassment procedures. We agree with the Department.
In the present case, the Department fulfilled the “primary objective” of Title VII, which is “not to provide redress but to avoid harm.” Faragher, 524 U.S. at 806 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)); see also Ellerth, 524 U.S. at 764 (“Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms.“); Todd, 175 F.3d at 598 (“The Supreme Court‘s new affirmative defense was adopted to avoid ‘automatic’ employer liability and to give credit to employers who make reasonable efforts to prevent and remedy sexual harassment.“). Upon notification of Gwatney‘s improper behavior, the Dеpartment immediately activated its anti-harassment prevention policy to investigate Jackson‘s complaint and to avoid any situation in which Gwatney might repeat the behavior. The Department conscientiously solicited Jackson to ensure that the harassment had ended and encouraged her to inform her supervisors if the harassment continued. As a result, we agree with the district court that the undisputed facts show that the Department acted promptly and effectively to remedy the past sexual harassment and to avoid any future incidents, thus satisfying the first prong of the affirmative defense articulated in Faragher.
In addition, the Department fulfilled the second prong of the affirmative defense by showing beyond genuine dispute that Jackson unreasonably fаiled to take advantage of the Department‘s preventive or corrective opportunities through her failure to report the harassment for more than nine months after it began and her refusal to participate in the proposed meeting with the Department and Gwatney. See Faragher, 524 U.S. at 807-08 (recognizing that an employee‘s failure to use the employer‘s comрlaint procedure will normally satisfy the employer‘s burden regarding the second element of the affirmative defense).
For these reasons, we hold that the district court did not err in concluding that there were no genuine issues of material fact regarding whether the Department was entitled to the Faragher affirmative defense against vicarious liability for supervisor sexual harassment.
Constructive Discharge
The Department would not be entitled to the affirmative defense against vicarious employer liability for sexual harassment if a tangible employment action was taken as a result of the harassment. See Faragher, 524 U.S. at 807,
“Constructive discharge occurs ‘when an employer deliberately renders the employee‘s wоrking conditions intolerable and thus forces [her] to quit [her] job.‘” Phillips, 156 F.3d at 890 (quoting Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)). To be liable, the employer must have intended to force the employee to quit, or at least have reasonably foreseen the employee‘s resignation as a consequence of the unlawful working conditions it created. See id.; see also Tidwell v. Meyer‘s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996) (“To constitute a constructive discharge, the employer must delibеrately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit.“). Furthermore, the employee must also show that a reasonable person, from an objective viewpoint, would find the working conditions intolerable. See Phillips, 156 F.3d at 890; Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir.1996). To be reasonable, an employee must give her employer a reasonablе opportunity to correct the problem. See Phillips, 156 F.3d at 890.
We agree with the district court that the Department‘s expectation that Jackson would return to work, especially after Gwatney had been terminated, does not rise to the level of an objectively intolerable working condition. Moreover, Jackson did not provide the Department with a reasonable opportunity to correct the alleged problem because she did not notify it until nine months after the harassment started and because she refused to participate in the Department‘s formal sexual harassment correction procedure. Furthermore, the Department did reasonably correct the problem of Jackson‘s harassment, by changing Gwatney‘s schedule, reimbursing hеr sick leave time, checking on her continued state of mind, and ultimately firing Gwatney.
As a result, we hold that the district court did not err in concluding that there were no genuine issues of material fact concerning the reasonableness of the working conditions created by the Department. Therefore, we further hold that the district court was correct in dismissing Jackson‘s constructive dischаrge claim because her working conditions were not so intolerable that she was forced to resign. Our holding thus necessitates the conclusion that the district court properly determined that, due to the absence of the Department‘s tangible employment action, the Department was entitled to the affirmative defense articulated in Faragher.
Motion To Strike Jackson‘s Deposition
Jackson argues that, pursuant to
After carefully reviewing the record, we find that the excerpted portions of Jackson‘s deposition are not relevant to the arguments asserted in this appeal. Furthermore, the district court did not rely upon Jackson‘s deposition in compiling its findings of fact.3 In any event, pursuant to Local Rule 56.1(c), Jackson forfeited her ability to contest the facts presented in the Department‘s original summary judgment motion by her failure to respond to the Department‘s motion.
Accordingly, the judgment of the district court is affirmed.