Leslie Kohler (“Kohler”) appeals from the summary judgment entered in favor of defendant Inter-Tel Technologies (“Inter-Tel”) dismissing her sexual harassment and retaliation claims under the California Fair Employment and Housing Act, Cal. Gov’t Code §§ 12900 — 12996 (“FEHA”). Kohler contends that the district court erred in applying the federal affirmative defense to employer liability to her state sexual harassment claims. She also contends that this court should either (1) direct the district court to dismiss her state claims without prejudice under the supplemental jurisdiction statute, or (2) find that genuine issues of material fact exist as to her FEHA quid pro quo and hostile environment claims.
We affirm because we conclude that the district court did not err in determining that the California Supreme Court will hold that an employer can assert an affirmative defense under certain circumstances to a claim that a supervisor has sexually harassed the plaintiff in violation of FEHA.
I
Kohler was employed as a project coordinator with Inter-Tel from August 18, 1997, through December 19, 1997. Inter-Tel is a single source provider of tele: phone, data, and network services. Kohler was responsible for programming telephone systems at customer sites and training customers on how to use the Inter-Tel telephone system. Edward Herrera (“Herrera”) supervised Kohler throughout her employment with Inter-Tel. Kohler contends that starting in August 1997 and continuing throughout her four-month employment with Inter-Tel, Herrera subjected her to unwelcome sexual remarks, sexual advances, and physical contact that amounted to actionable sexual harassment.
On one occasion when Kohler and Herrera stopped at a gas station on their way to a work site, Herrera touched her forearm, saying “you don’t know how hard it is for me not to grab you.” She responded by ignoring him and saying that she had to get back to the site. On another occasion, Herrera and Kohler were loading equipment into Kohler’s car. When she bent down over the trunk in front of him, he said, “[djon’t do that in front of me it drives me crazy.”
*1169 In the office, Herrera once asked Kohler to have a drink with him. She responded “no” and he said “okay.” On another occasion, Herrera stared at Kohler’s breasts and told her that he couldn’t take his eyes off them. Several times Herrera told Kohler that he found her attractive. Also, Herrera once sent Kohler an “alpha-page” telling her that her short skirt would “drive clients crazy.” On another day Herrera said “kiss me” in response to Kohler’s question whether he was upset with her. Finally, Herrera forwarded an obscene voicemail message to several people in the office, including Kohler. The message depicted someone imitating the voice of Donald Duck making several sexual innuendos and then ejaculating. Generally, when Kohler told Herrera that his behavior made her uncomfortable, his response was to “get quiet” or “laugh it off.”
Kohler estimates that she saw Herrera once a week in the office and once a month at installation sites, but says that his offensive conduct was not limited to working hours. Herrera called Kohler at home approximately ten times during August and September of 1997. During these calls he would typically initiate the conversation by discussing work and then talk about being sexually frustrated with his wife. On one occasion, he described his sexual fantasies about Kohler. Another time, Herrera said that if he could get her in a “telephone room,” he would kiss her neck and ears. She replied that “it was never going to happen.” He responded, “[wje’ll see.” During the same conversation he said that women were unable to resist him. Kohler’s general reaction to these calls was to tell Herrera that he made her uncomfortable although she admits she may have occasionally laughed and smiled while talking with him. She hung up on Herrera once.
Inter-Tel had a comprehensive antihar-assment policy in effect at all relevant times. Despite her knowledge of the policy, Kohler did not report Herrera’s behavior to the human resources department, or to any person in a management position at Inter-Tel.
Kohler alleges that the combination of Herrera’s retaliatory and harassing behavior made the conditions at Inter-Tel “intolerable.” Kohler felt that without proper assistance and training, she was not qualified to do the installation jobs alone. She contends that Herrera thus set her up to fail by withholding training and assistance. This led her to submit resumes to other employers in October and eventually resign from Inter-Tel in December. 1
After her resignation, Kohler filed complaints with the Equal Employment and Opportunity Commission (“EEOC”) and California’s Fair Employment and Housing Commission (“FEHC”).
2
On February 2, 1998, Kohler filed an action against Inter-Tel seeking relief for sexual harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e — 2000e-17 (“Title VII”), and FEHA, as well as relief for constructive discharge in violation of public policy. Before the district court rendered its decision in this matter, the United States Supreme Court issued two opinions which clarified employer liability for sexual harassment under Title VII. In
Faragher v. City of Boca Raton,
On April 13, 1999, the district court granted Inter-Tel’s motion for summary judgment on all of Kohler’s claims. The district court held that Kohler had not suffered a tangible employment action as a result of her rejection of Herrera’s sexual advances. The district court also concluded that Inter-Tel was entitled to judgment because the undisputed facts demonstrated that it had met both prongs of the affirmative defense to a Title VII claim. The district court further determined that the affirmative defense adopted in Ellerth and Faragher applied to a workplace harassment claim under FEHA, holding that “there is no reason to assume that California courts would not follow the holdings of Ellerth and Faragher given that the policy set forth by the California Legislature supporting FEHA is the same as that supporting Title VII.”
The district court dismissed Kohler’s state law retaliation, discrimination, and constructive discharge claims for failure to demonstrate any triable issues of fact as to the prima facie elements of those claims. Kohler filed a timely notice of appeal. Her appeal is limited to the dismissal of her FEHA claims for sexual harassment and retaliation. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
II
Kohler first contends that the district court abused its discretion in failing to dismiss her supplemental state law claims without prejudice in view of its dismissal of the Title VII claims. 3 Kohler never moved to dismiss her supplemental claims before the district court after it granted Inter-Tel’s motion for summary judgment with respect to her Title VII claims.
The supplemental jurisdiction statute provides that “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Here, it is undisputed that Kohler’s federal and state law claims form a part of the same case and controversy because they are based on the same nucleus of operative facts. Therefore, the district court had the power to exercise supplemental jurisdiction over Kohler’s FEHA claims.
See Munger v. City of Glasgow Police Dep’t,
Kohler does not challenge the district court’s jurisdiction over her state law claims, but she contends that it should have declined to exercise its jurisdiction and, instead, it should have dismissed them without prejudice pursuant to section 1367(c)(3). “[A] federal district court with power to hear state law claims has discretion to keep, or decline to keep, them under the conditions set out in § 1367(c).... ”
Acri v. Varian Assocs.,
Kohler has waived her objection to the district court’s discretionary exercise of supplemental jurisdiction by failing to raise it in the district court. “[W]e are not required to step in
sua sponte
on appeal to undo an unchallenged exercise of supplemental jurisdiction.”
Acri,
Ill
Kohler next contends that the district court erred in assuming the California courts would apply the affirmative defense to employer liability under Title VII announced in
Ellerth
and
Faragher
to a claim of sexual harassment under FEHA. Specifically, she maintains that the district court erred in dismissing her FEHA claims because an employer is “strictly liable” under FEHA for the harassing conduct of a supervisor. We review the district court’s decision to grant summary judgment de novo.
Robi v. Reed,
The parties have not cited, nor have we discovered, any California decision that addresses this precise question. For example, in
Reno v. Baird,
A
We begin our discussion of whether the California Supreme Court would recognize an affirmative defense to a workplace harassment claim filed under FEHA by reviewing the present state of sexual
*1172
harassment law in California. California Government Code section 12940 defines eleven unlawful employment practices prohibited by FEHA, including sexual discrimination, a violation of subdivision (a), and sexual harassment, a violation of subdivision (j).
Mogilefsky v. Superior Court,
California decisions construing FEHA parallel federal case law interpreting Title VII in recognizing “two theories upon which sexual harassment may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.”
Id.
California’s intermediate appellate courts have adopted the federal definition of both types of harassment.
Beyda v. City of Los Angeles,
In
Kelly-Zurian v. Wohl Shoe Co.,
The California Courts of Appeal have held that subsection (j)(l) of section 12940 imposes liability
on employers for damages
incurred by an employee as a result of sexual harassment by employees.
Kg., Doe v. Capital Cities,
The California courts consistently look to Title VII for guidance in interpreting FEHA.
See Aguilar v. Avis Rent A Car Sys., Inc.,
The tendency of California courts to look to Title VII law for guidance does not end our inquiry, however, because the California Supreme Court has also observed that it is neither bound nor limited by federal law when interpreting FEHA.
See, e.g., Johnson v. City of Loma Linda,
B
We continue our discussion with a comparison of the pertinent provisions of FEHA and Title VII. Both statutes proscribe discrimination by employers because of sex. California Government Code section 12940 provides in pertinent part:
It shall be an unlawful employment practice ... (a) For an employer, because of the ... sex ... of any person ... to discriminate against the person in compensation or in terms, conditions, or privileges of employment ... [and] (j)(l) For an employer ... because of ... sex ... to harass an employee.... Harassment of an employee ... by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
Cal. Gov’t Code §§ 12940(a), (j)(l) (emphasis added).
The parallel section of Title VII provides in relevant part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]
42 U.S.C. § 2000e-2(a)(l). The obvious difference between the wording of the two statutes is that FEHA is more specific, both in explicitly proscribing harassment and in delineating that employers are required to make efforts to prevent harassment. These discrepancies, particularly the second one, convince us that the language of FEHA provides an even stronger basis for applying the federal affirmative defense than does Title VII itself. The
*1174
FEHA requirement that employers “take all reasonable steps to prevent harassment from occurring,” § 12940(j)(l), mirrors the first prong of the affirmative defense under which an employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”
Faragher,
In addition, FEHA defines “employer” to include “any person acting as an agent of an employer, directly or indirectly.” Cal. Gov’t Code § 12940(j)(4)(A). In
Ellerth,
the Court noted that “the term ‘employer’ is defined under Title VII to include ‘agents.’ ”
In
Ellerth,
the Court considered general common law principles of agency law in interpreting Title VII, and noted that “we are bound by our holding in
Meritor
that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment.”
Id.
at 763,
The
Ellerth
Court noted, however, that “[w]hether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious.”
Id.
at 763,
Accordingly, we next examine the policy goals underlying FEHA and conclude that they favor imposition of the affirmative defense. The legislative note to FEHA provides:
*1175 It is the existing policy of the State of California, as declared by the Legislature, that procedures be established by which allegations of prohibited harassment and discrimination may be filed, timely and efficiently investigated, and fairly adjudicated, and that agencies and employers be required to establish affirmative programs which include prompt and remedial internal procedures and monitoring so that worksites will be maintained free from prohibited harassment and discrimination by their agents, administrators, and supervisors as well as by their nonsupervisors and clientele. To further this intent, the Legislature enacts this act.
Stats.1984, ch. 1754, § 1, p. 60;
see also Murillo,
In
Ellerth,
the Court stated that “[although
Meritor
suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well.”
Ellerth,
Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer Lability to depend in part on an employer’s effort to create such procedures, it would effect Congress’ intention to promote conciliation rather than litigation in the Title VII context, and the EEOC’s policy of encouraging the development of grievance procedures. To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII’s deterrent purpose.
Id. (citations omitted). Consequently, the Court adopted the affirmative defense “[i]n order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” Id. The Ellerth analysis persuades us that FEHA’s identical policy goals support imposition of the affirmative defense to FEHA under the conditions set forth in Ellerth, 5
*1176
In sum, the plain statutory language and the policies underlying FEHA support the application of the federal affirmative defense to cases of supervisory harassment arising under FEHA where no tangible employment action was taken. Thus, there is no reason for us to believe that the California Supreme Court would deviate in this instance from its usual practice of construing FEHA in conformity with Title VIL
Cf Fisher,
C
Kohler contends that an affirmative defense is not available under FEHA because the California Courts of Appeal have consistently used the term “strict liability” in referring to an employer’s legal responsibility for a supervisor’s sexual harassment of an employee. None of the cases Kohler cites for this proposition considers the question whether the affirmative defense adopted in Ellerth and Faragher is applicable under FEHA. Kohler, however, relies on these decisions to make two distinct contentions regarding strict liability. First, she asserts that FEHA’s strict liability regime is incompatible with Title VTI’s vicarious liability scheme. Second, she argues that, as a general matter, affirmative defenses are unavailable where strict liability is applicable. We reject both arguments in turn.
Kohler’s reliance on the California courts’ use of the term “strict liability” or “strictly liable” in distinguishing an employer’s responsibility under FEHA for the actions of an agent or supervisor from an employer’s responsibility under Title VII is misplaced. California courts have extrapolated the “strict liability” concept from the provision in FEHA which states, “harassment of an employee ... by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” § 12940(j)(l). For example, in Kelly-Zwian, the California Court of Appeal for the Second District Division Three reasoned as follows:
By providing harassment of an employee by an employee other than an agent or supervisor shall be unlawful only if the employer knows or should have known of the harassment and fails to intervene, section 12940 reflects that harassment by a supervisor is unlawful regardless of whether the employer knows or should have known and fails to intervene.
Fisher properly acknowledged this distinction in the FEHA between agents and supervisors and other employees. Fisher observed: “Under [the] FEHA, an employer is ‘strictly liable for the harassing conduct of its agents and supervisors’” On the other hand, “[t]he standard for coworker liability is that an employer is liable where it, its agent or supervisors ‘knows or should have known of this conduct and fails to take immediate and appropriate corrective action.’ ”
Id. (citations omitted).
Title VII does not, on its face, distinguish between an employer’s liability for harassment of an employee by a supervisor or a coworker. Under the law of this circuit, an employer is liable under Title VII for a coworker’s sexual harassment. In
Yamaguchi v. U.S. Dep’t of the Air Force,
An employer is liable for a co-worker’s sexual harassment only if, after the employer learns of the alleged conduct, he fails to take adequate remedial measures. These measures must include immediate and corrective action reasonably calculated 1) to end the current harassment, and 2) to deter future harassment from the same offender or others.
*1177
Id.
at 1483. Thus, both FEHA and Title VII limit an employer’s liability for a coworker’s harassment in the same manner. Under FEHA and Title VII, however, an employee can recover against an employer without showing that the employer had actual or constructive knowledge of the supervisor’s actions or acted negligently in failing to intervene.
Kelly-Zurian,
Under each statute, a plaintiff may present a prima facie case of an employer’s liability for a supervisor’s sexual harassment without demonstrating that the employer was otherwise at fault. The only distinction is that the United States Supreme Court refers to this form of respon-deat superior as “vicarious liability” and California’s intermediate appellate courts call it “strict liability.”
The confusion may lie in courts’ tendency to interchange the terms “vicarious liability” and “strict liability” in the employment context. Liability of employers to third parties for acts of its employees is commonly referred to as “vicarious liability.”
See
Black’s Law Dictionary 927 (7th ed.1999) (defining “vicarious liability” as “[ljiability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties.”) The term “strict liability” is ordinarily applied to ultra hazardous activities or products-liability cases. It is also referred to as “liability without fault.”
Id.
at 926. Under this theory, a plaintiff may prevail without presenting any evidence that the owner of land where the ultra hazardous activities are conducted, or the manufacturer of the defective product, acted negligently or intended to do harm.
Id.
To prevail in a FEHA or Title VII action, the plaintiff must show that an agent or supervisor committed acts constituting sexual harassment. The employer is thus vicariously liable for the acts of the agent or supervisor.
See Ellerth,
In ElleHh, the Court granted certiorari to address the following question:
[W]hether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., an employee who refuses the unwelcome and threatening advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor’s actions.
Id.
at 746-47,
Similarly, federal courts occasionally characterize Title VII as imposing “strict liability” on employers, subject to an affirmative defense available in cases in which no tangible employment action occurred.
See Caridad v. Metro-North Commuter R.R.,
In sum, the California courts that state an employer is “strictly liable” for supervisory harassment use that term to indicate that an employer is liable for the conduct of his agent. The mere fact the California courts use a “strict liability” label rather than a “vicarious liability” label for the same theory of liability does not persuade us that the California Supreme Court would decline to adopt an affirmative defense to a FEHA workplace harassment action.
Kohler also maintains, as a general matter, that affirmative defenses are fundamentally incompatible with strict liability. This notion is contrary to California law. In
Luque v. McLean,
IV
We now apply the affirmative defense to the facts of this case. We must first determine whether Kohler suffered a tangible employment action, because “[n]o affir
*1179
mative defense is available ... when [a] supervisor’s harassment culminates in a tangible employment action.”
Ellerth,
Kohler claims that she suffered a tangible employment action because, after she rejected Herrera’s advances, he acted angrily toward her, withheld training and assistance, gave her inconvenient work schedules and a poor work performance review.
8
It is questionable whether any of these alleged employment actions qualify as “tangible” as none of them appears to have caused a “significant change in employment status.”
Ellerth,
Kohler complains that she was denied the opportunity to attend a training session in Arizona. She admits, however that Herrera registered her for the session in Arizona. The class was later canceled, and Kohler has not alleged that Herrera had anything to do with the cancellation. Koh-ler also asserts that she did not receive enough assistance at installation sites, and yet she offers no specific facts to support her contention that this was a form of retaliation by Herrera. In fact, Kohler stated that she did not know why another employee received more assistance from the other coordinators.
Kohler similarly fails to support her claims that Herrera gave her “crazy schedules” in retaliation for her refusal to succumb to his advances. Kohler complains that Herrera sent her to inconvenient job locations at least once, but admits that “it was just part of the job being all over. As I said before, East, North Bay, South Bay.” She also admits that, initially, she simply accompanied other project coordinators to their sites so that they could train her.
Finally, Kohler fails to raise disputed facts regarding whether Herrera yelled at her inappropriately or gave her undeserved work evaluations. Herrera acted angrily toward Kohler when she performed poorly and when she did not want to work past 5:00 p.m. She also heard Herrera speak angrily to male technicians and other female coordinators when things were not going smoothly. Kohler described a particular incident where she and a coworker had incorrectly programmed 200 single-line phones. Herrera was upset by her admittedly poor performance.
The legally relevant inquiry is not whether Kohler ever experienced an employment action at Inter-Tel, but whether Herrera’s harassment culminated in a tangible employment action.
Ellerth,
524
*1180
U.S. at 765,
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[.]”
Id.
In the present case, the undisputed facts make clear that Inter-Tel has satisfied the affirmative defense as a matter of law.
9
The first prong of the defense requires Inter-Tel to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.”
Ellerth,
Inter-Tel’s policy (1) provides a definition of sexual harassment, (2) identifies whom employees should contact if they are subjected to sexual harassment, (3) ensures that harassing supervisors can be bypassed in registering complaints, (4) describes the disciplinary measures that the company may use in a harassment case, and (5) provides a statement that retaliation will not be tolerated.
10
Inter-Tel distributed the policy to its employees on their first day of work. Kohler acknowledged having received and read a copy of the policy and the employee handbook, which contains a separate statement summarizing the policy.
11
Inter-Tel’s policy and its efforts to disseminate the policy to its employees establish that Inter-Tel exercised reasonable care to prevent sexual harassment in the workplace.
Montero,
*1181 The first prong of the affirmative defense also requires Inter-Tel to demonstrate that it exercised reasonable care to promptly correct sexually harassing behavior. The undisputed facts of this case establish that Inter-Tel was exemplary in its investigation of Kohler’s allegations. The first notice Inter-Tel received of Koh-ler’s sexual harassment allegations was from the EEOC. Inter-Tel responded by promptly hiring a neutral third party to investigate Kohler’s allegations. In addition, Inter-Tel immediately wrote to Koh-ler and extended an offer for her to return to her position at Inter-Tel, with a new supervisor and under the same terms and conditions as her original employment. Finally, Inter-Tel offered Kohler back pay from the time of her resignation through her reinstatement. Kohler did not respond to Inter-Tel’s offers.
The independent investigator, who was an employment law attorney, repeatedly sought Kohler’s participation in the investigation. Kohler never responded to these attempts because she “did not want to participate in the investigation.” The investigator interviewed six Inter-Tel employees, including Herrera and all but one of the other Project Coordinators who reported to him. The investigator determined that Herrera had forwarded an offensive Donald Duck voicemail message to a number of employees. Ultimately, however, the investigator did not confirm Koh-ler’s claim that she had been harassed. Inter-Tel wrote a letter to Kohler, informing her of the outcome of the investigation. Kohler never responded.
After the investigation was complete, Inter-Tel reviewed its antiharassment policy with Herrera on two occasions even though no actionable harassment had been confirmed. In addition, Inter-Tel reprimanded Herrera and threatened to deny his eligibility for a “supervisor” position for sending the offensive voicemail message. 12 Inter-Tel also conducted mandatory sexual harassment training seminars for the entire Emeryville work force on May 1, 1998, and again on May 27 and 28, 1998.
Inter-Tel could hardly have done more to investigate Kohler’s allegations in a prompt and neutral manner. These facts present a paradigm of the “reasonable efforts” the Supreme Court sought to encourage when it established the affirmative defense.
Faragher,
The second prong of the affirmative defense requires “that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”
Ellerth,
The record shows that Kohler was aware of the policy and had received and reviewed at least two copies of it. She also knew Herrera’s supervisor and the human resources personnel at Inter-Tel and believed them to be professional and competent. Nonetheless, Kohler did not complain about Herrera’s behavior to the management or the human resources department at Inter-Tel. Prior to initiating this lawsuit, Kohler never told anyone that she was quitting because of sexual harassment, nor did she attribute her resignation to Herrera’s behavior.
13
Therefore, Inter-
*1182
Tel successfully satisfied the second prong of the affirmative defense as a matter of law by showing that Kohler unreasonably failed to take advantage of the preventative and corrective opportunities provided by Inter-Tel, although she knew of their existence.
Montero,
y
In her statement of issues presented by this appeal, Kohler asserts that she is appealing her state retaliation claim, but her brief contains no arguments in support of that claim. Rule 28(a)(9) of the Federal Rules of Appellate Procedure requires that the brief of an appellant contain “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Issues raised in a brief which are not supported by argument are deemed abandoned.
Acosta-Huerta,
Kohler has not preserved her retaliation claim for appeal and we decline to review it.
Greenwood v. FAA,
CONCLUSION
In sum, we hold that the California courts will most likely adopt the affirmative defense to employer liability for workplace harassment set forth in Ellerth and Faragher. Because Kohler suffered no tangible employment action and Inter-Tel has satisfied both prongs of the affirmative defense, the district court’s summary judgment in favor of Inter-Tel is AFFIRMED.
Notes
. Two weeks prior to leaving Inter-Tel Kohler accepted a job with another company.
. The parties do not dispute that Kohler exhausted her administrative.remedies.
. In Kohler's complaint, she asserted federal question jurisdiction under 28 U.S.C. § 1331, over her federal claims, and supplemental jurisdiction under 28 U.S.C. § 1367, over her state claims. As noted above, Kohler appeals only her state claims. In her brief to this court, Kohler asserts diversity jurisdiction under 28 U.S.C. § 1332 and supplemental jurisdiction. The party seeking to invoke federal jurisdiction has the burden of proving diversity jurisdiction.
Lew v. Moss,
. Notably, California courts have determined that the “reasonable steps” language is only a basis for liability if the plaintiff proves that actual discrimination or harassment occurred.
Trujillo v. N. County Transit Dist.,
. We note also that the majority of states that have addressed the question whether the affirmative defense applies to their antidiscrimi-nation laws have adopted it.
Boudreaux v. Louisiana Casino Cruises, Inc.,
. In addition, the Second Restatement provides examples of several affirmative defenses that may be available under strict liability regimes, such as "assumption of risk’’ and "contributory negligence.” Restatement (Second) of Torts §§ 523, 524 (1977).
. We are also unpersuaded by Kohler's argument that applying the affirmative defense to actions brought under FEHA will eviscerate the provision that "[l]oss of tangible job benefits shall not be necessary in order to establish harassment.” Cal. Gov’t Code § 12940(j)(l). Kohler simply misconstrues the holdings of
Ellerth
and
Faragher.
Under Title VII, it is well settled that the loss of tangible job benefits is not required to establish actionable harassment.
Faragher,
. In the district court, Kohler also claimed that she was constructively discharged. We have not yet determined whether a constructive discharge is a tangible employment action.
Montero v. Agco Corp.,
. In her brief to this court, Kohler states: "At least two things are clear. First, Plaintifl/Ap-pellant does not have a cause of action under Title VII for sexual harassment because the defendant employer had both a sexual harassment policy and complaint procedure in place, and because PlaintiffyAppellant did not make use of it.” Although we have the discretion to consider this statement a judicial admission of the party,
American Title Ins. Co. v. Lacelaw Corp.,
. Inter-Tel’s antiharassment policy provides, inter alia:
Sexual Harassment
Inter-Tel believes that all personnel should work in an environment free from sexual harassment. Sexual harassment by an employee, manager, supervisor, or non-employee will not be tolerated. Inter-Tel will actively investigate any allegation of sexual harassment, and if it is determined that sexual harassment has occurred, Inter-Tel will take appropriate disciplinary action.
Complaint Procedures
Any employee who believes he or she has been the subject of sex discrimination or sexual harassment should report the alleged act immediately to his or her supervisor or to the branch or Corporate Human Resources Department. An investigation of all complaints will be undertaken immediately. Any employee who has been found by Inter-Tel, after appropriate investigation, to have violated this policy will be subject to appropriate disciplinary action, depending on the seriousness of the offense, from a verbal warning up to and including termination. The complainant will be informed of all such remedial action.
General
All employees shall be protected from coercion, intimidation, retaliation, interference, or discrimination for filing a complaint or assisting in the investigation of a sexual harassment complaint.
.The employee handbook reiterates the admonition against sexual harassment as well as Inter-Tel’s complaint procedures, providing in pertinent part:
Inter-Tel does not condone discrimination or harassment of any sort on the job. If you feel discriminated against or harassed because of ... sex ... discuss it with your supervisor or contact the Human Resources Department. If the complaint involves your supervisor, the complaint should be filed directly with the Human Resources Department. An investigation of all complaints will be undertaken immediately.
. Herrera could be denied a "supervisor” position because he was technically an installation "manager” and not a "supervisor" by title. The parties do not dispute, however, that Herrera supervised Kohler throughout her employment with Inter-Tel.
. Kohler’s resignation letter states simply that “as of December 19, 1997 I am resigning from my position as a Project Coordinator. Thank you for this opportunity to serve you.”