Chaloult v. Interstate Brands Corp.

• Citation: 540 F.3d 64
• Decision Date: 28 August 2008
• Docket Number: No. 07-2694.,07-2694.
• Parties: Bonnie CHALOULT, Plaintiff, Appellant, v. INTERSTATE BRANDS CORPORATION, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

540 F.3d 64

Bonnie CHALOULT, Plaintiff, Appellant, v. INTERSTATE BRANDS CORPORATION, Defendant, Appellee.

No. 07-2694.

United States Court of Appeals, First Circuit.

Heard May 8, 2008.

Decided August 28, 2008.

Guy D. Loranger with whom Nichols, Webb & Loranger, PA were on brief for appellant.

Robert W. Kline, for appellee.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

Bonnie Chaloult sued her former employer, Interstate Brands Corporation ("IBC"), alleging she had suffered sexual harassment by her supervisor, Kevin Francoeur, in the six months before she quit her job. The district court entered summary judgment for the employer.

The issue on appeal turns on the affirmative defense available to employers when the harassment is by the plaintiff's supervisor.

Under Title VII, an employer is subject to vicarious liability for sexual harassment by an employee's supervisor which does not constitute a tangible employment action. But the employer may prevail if it demonstrates a two-part affirmative defense: that its own actions to prevent and correct harassment were reasonable and that the employee's actions in seeking to avoid harm were not reasonable. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). This case turns on the Faragher-Ellerth affirmative defense.

The question here concerns the employer's affirmative defense that it is not vicariously liable because on summary judgment it has established that (i) the employee's own actions were not reasonable (here plaintiff did not herself complain to management); (ii) the employer had reasonably set up and educated employees on appropriate procedures for handling sexual harassment allegations; (iii) the employer did reasonably investigate the original allegation plaintiff made to management at the time of her resignation; (iv) no one at a managerial level equal to or superior to the harasser had notice of the different allegations of harassment made in the lawsuit; and (v) the co-worker who had some notice of some of the different allegations did not consider the conduct he knew of to be harassment and did not call it to the attention of management.

The plaintiff-employee argued that as a matter of law the knowledge of a co-worker with the title of supervisor, who was in fact a peer of the plaintiff's and who also reported to the harasser, was attributed to the employer under the company's policy and that defeats the Faragher-Ellerth defense. The district court rejected the plaintiff's argument.

Conducting our independent review of the record, we find the employer made out its Faragher-Ellerth defense to vicarious liability. We affirm the entry of summary judgment for the employer.

I.

We describe the facts, drawing all inferences in the plaintiff's favor, as we must do in summary judgment. Mellen v. Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir. 2007).

Bonnie Chaloult began working at IBC's Biddeford, Maine production plant in June 1999. In July 2004, when an entry-level bread supervisor position opened up, Chaloult applied for and received it, and she began working as a bread supervisor in September 2004. When she first started working as a supervisor, she was in production, then she was moved to wrapping, and then back to production. When she was moved back to production in February 2005, her immediate supervisor became Kevin Francoeur, who was the assistant production manager. At that time, Chaloult's shift was the night shift, from 10 p.m. to 8 a.m.

On June 8, 2005, Chaloult and other supervisors attended a "WARN meeting," under the Worker Adjustment Rehearing Notification Act, at which they were put on notice that their positions could potentially be eliminated in sixty days. This was occasioned by the company's going into bankruptcy. Chaloult understood that this could mean she was out of a job as of August 12, 2005. Chaloult conceded at deposition that her attendance at work "deteriorated" after this meeting, and other evidence supports this.

At no time prior to her resignation did Chaloult complain about sexual harassment.

After an incident with a co-worker,¹ on August 4, 2005, Chaloult submitted a letter of resignation. Chaloult was pregnant when she left IBC in August 2005, and was not re-employed until June 30, 2006. The letter of resignation stated, verbatim:

I respectfully request to give forth my two week notice, in accordance with the companies involuntary leave slip, my last date of work will be 8/19/05.

I would like to take the time to thank you, (Paul) and IBC for the experience I now have under management.

However, when I filled out my application for employment with IBC, it never stated that at any time would my supervisors above me, have the right to question my personal affairs and demand information.

This I learned from yet another supervisor being accused of fore-play.

Is this company Policy? I tried to change shifts, told I had day hours for 6-strap production then I was denied. I no longer feel comfortable working for this supervisor.

The letter did not directly accuse her supervisor of harassing her, but of questioning her personal affairs with another supervisor, a situation she learned about from the supervisor who, she said, was accused of having a sexual relationship with her. The letter did state she no longer felt comfortable working for her own supervisor.

Chaloult put her letter into the mailbox of her department manager, Paul Santos. Santos met with her the first day he was back at work after receiving the letter. Before meeting with Chaloult, Santos discussed her letter with Joseph Cabral, Assistant Human Resources Manager, and gave a copy of the letter to Human Resources so they could put it on file. Cabral and Santos decided that Santos should ask her what the letter meant, since they did not know to what she was referring.

At the meeting, Chaloult said she was referring to an incident that had taken place on July 15, in which Francoeur had approached a co-worker, Jim Anderson, and demanded to know whether Anderson and Chaloult were having sexual relations. Chaloult, who had a fiancé at the time, had not been present during this conversation and said that Anderson had told her about it the following morning.

When asked why she did not come forward sooner, she told Santos that she was worried about issues "coming back at me." She did not say to Santos that there had been any other incidents of concern involving Francoeur. At deposition she admitted there was nothing that prevented her from reporting other instances to the company.

Santos told her that he would follow up with both Anderson and Francoeur and report the incident to Human Resources. Santos did what he promised. Immediately after his meeting with Chaloult, Santos called Cabral and briefed him. Santos then called Francoeur into his office; they met for about half an hour. He told Francoeur what Chaloult had said. Francoeur said that was not what happened. Francoeur explained his version of what happened to Santos as follows:

[H]e explained to me that he had been calling for both [Anderson and Chaloult], he had tried calling for her, tried calling for him on the radio, neither one of them were responding on the radio. He was walking from the six strap makeup area going towards the wrap office. He had passed Bonnie in transit or she was going — he noticed her going one way towards makeup, and he was going towards wrapping. He walked into the wrap office and said, Jim, what, are you and Bonnie fucking with me, screwing with me? And he said that Jim started laughing. He was like, no, we didn't hear the calls on the radio. And that's pretty much it.

Santos made Francoeur write down his version of events. The document was submitted into evidence and is consistent with Santos's description of the meeting.²

Santos then met with Anderson. Anderson told Santos:

[Francoeur] just came in and was like, what, are you and Bonnie trying to fuck me? I was like, okay. I go, what else was said? He was like, nothing. We just laughed and he wanted some numbers, and I went out on the floor and that was it. He says he was trying to call us. I didn't hear him. Maybe our radios were down, and that was it.

During the interview Santos also asked Anderson what he said to Chaloult. Santos described his conversation with Anderson as follows:

[I asked] what did Kevin say to you? What do you recall Kevin saying to you? He said, he just came in and he was like, what, are you and Bonnie trying to fuck me? I was like, okay. I go, what else was said? He was like, nothing. We just laughed and he wanted some numbers, and I went out on the floor and that was it. He says he was trying to call us. I didn't hear him. Maybe our radios were down, and that was it. I go, so he didn't come in and ask if you guys were fucking? He said, no. No, he just came in and he wanted to know if we were fucking with him.

....

I said, Bonnie is saying that you went to her and told her that Kevin asked you if you and her were having sex. He was like, oh, I don't remember what I told her. I go, well, you just told me that he came in and asked if you two guys were fucking with him and then you turn around and went to Bonnie and told Bonnie that Kevin asked if you and her were fucking. I go, so which one is it? He was like, no, he just came in and he said if we were fucking him. I was like, so then why did you go to Bonnie and tell her something different? And he made a comment about, oh, Bonnie and I were just laughing about it, we were joking about it, and that was it. I was like, well, it's not a joking matter because this is where we're at right now.

When he received Francoeur's statement, Santos discussed the matter with Cabral. They concluded that what Francoeur had said to Anderson was "are you guys fucking...