Brown v. Perry

• Decision Date: 29 January 1998
• Docket Number: No. 97-1501,CA-96-47,97-1501
• Citation: 184 F.3d 388
• Parties: (4th Cir. 1999) WENDY JO BROWN, Plaintiff-Appellant, v. WILLIAM J. PERRY, Secretary of Defense, Defendant-Appellee. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 388

184 F.3d 388 (4th Cir. 1999)

WENDY JO BROWN, Plaintiff-Appellant, v. WILLIAM J. PERRY, Secretary of Defense, Defendant-Appellee.

No. 97-1501 (CA-96-47)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 29, 1998

Decided: July 14, 1999

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Jillyn K. Schulze, Magistrate Judge.

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.

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.

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 former 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 nonmoving 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 performance evaluations, Boles consulted with Ansley and Bass. Although Boyd was not directly involved with any employment decisions concerning 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 conversation 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 encouraged 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, however, 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 incident. 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 incident.

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." 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 ultimately 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 Alexandria, 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 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 conference events.

Upon returning to work at Fort Meade, Brown informed Boles and Ansley about the incident. They were not supportive, expressing surprise 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 incident. 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 having any further direct or indirect contact with Brown or with "anyone 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 satisfied with this action at the time.

As a result of the investigation conducted pursuant to the settlement 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, inviting female detectives to ride...