Crawford v. BNSF Ry. Co.

• Decision Date: 17 February 2012
• Docket Number: No. 11–1953.,11–1953.
• Parties: Jennifer L. CRAWFORD; Gannon Q. Dvorak; Ernest Magdaleno; David Allen Peters; Michael C. Meadows, Plaintiffs–Appellants, v. BNSF RAILWAY COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

114 Fair Empl.Prac.Cas. (BNA) 249

665 F.3d 978

95 Empl. Prac. Dec. P 44,386

Jennifer L. CRAWFORD; Gannon Q. Dvorak; Ernest Magdaleno; David Allen Peters; Michael C. Meadows, Plaintiffs–Appellants,

v.BNSF RAILWAY COMPANY, Defendant–Appellee.

No. 11–1953.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 13, 2011.Filed: Jan. 11, 2012.Rehearing and Rehearing En Banc Denied Feb. 17, 2012.*

Joy Shiffermiller, argued, Lincoln, NE, for Appellants.

Nichole S. Bogen, argued, Thomas C. Sattler, on the brief, Lincoln, NE, for Appellee.

Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Jennifer Crawford, Gannon Dvorak, Ernest Magdaleno, David Peters, and Michael Meadows sued their employer BNSF Railway Company, alleging that they had been subjected to sexual and racial harassment by their supervisor Michael Duran in violation of Title VII of the Civil Rights Act of 1964. The district court ¹ granted BNSF's motion for summary judgment, concluding that it was entitled to the affirmative defense for supervisor harassment recognized by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). On appeal the employees argue that BNSF is not entitled to the Ellerth–Faragher affirmative defense and that material fact questions preclude summary judgment. We affirm.

I.

We first state the facts in the light most favorable to appellants. See Brenneman v. Famous Dave's of Am., 507 F.3d 1139, 1141 (8th Cir.2007). At all relevant times Crawford, Dvorak, Magdaleno, Peters, and Meadows were mid level supervisors at a BNSF Railway Company diesel engine facility in Alliance, Nebraska and were supervised by Michael Duran. Citing specific incidents beginning in early 2008, appellants allege that their supervisor Duran subjected them to frequent sexual harassment and, in the case of Magdaleno, racial harassment. BNSF does not directly dispute appellants' allegations about Duran's conduct but maintains that it is entitled to the Ellerth–Faragher affirmative defense. It claims that appellants did not report Duran's conduct in a timely manner and that it responded promptly and effectively once the conduct was reported.

The appellants described their supervisor's behavior in written discovery and depositions. Crawford stated that Duran slapped her buttocks, fondled her breasts, and made sexual comments. Those comments included a suggestion that she have sex with a coworker. Dvorak described inappropriate sexual remarks made by Duran, including comments on his wife's breasts and questions about with which female coworkers he would like to have sex. Dvorak also stated that once upon entering Duran's office, he saw another supervisor on his knees near Duran while the latter pretended to zip up his pants. Magdaleno, who is Hispanic, stated that Duran made inappropriate sexual comments to him “on a weekly basis” and also inappropriate racial remarks. Peters stated that Duran twice tried to grab his crotch and made frequent inappropriate sexual comments to him. Meadows described the sexual comments Duran made to him, including that he would have to give him oral sex in order to receive favorable performance reviews or to avoid working the midnight shift. Meadows admits Duran did not retaliate after he refused to comply with such demands. Meadows also stated that Duran attempted to touch his private parts.

Appellants were aware of BNSF's “zero tolerance” policy on workplace harassment. The policy prohibited harassing conduct including “(a) sexual flirtations, touching, advances, or propositions; (b) verbal abuse of a sexual nature; (c) graphic or suggestive comments of a sexual nature; (d) sexually degrading words; and (e) displaying sexually suggestive materials.” Employees were instructed to report offensive conduct through one of five channels, which included reporting to a supervisor or by an anonymous employee hotline. As supervisors, appellants were responsible for responding to any subordinate reports of harassment. The company policy stated that after a report was made, allegations would be investigated “promptly, impartially, and confidentially.” It also contained guidelines explaining the ranges of discipline BNSF might apply to employees who harassed others. The policy included a provision prohibiting retaliation for reporting discrimination.

Appellants had been trained on how to report harassment. They did not initially report Duran's conduct to his supervisors despite testimony that they considered his superiors to be approachable and professional. While they concede that they never used the hotline to report Duran, they claim that reports would have been useless because BNSF had never taken any action after a hotline call. The hotline records produced by the company indicate however that each complaint was investigated and eventually closed. In some cases, even though investigation did not substantiate the complaint, the subject of the complaint was counseled by BNSF on its antiharassment policies.

Appellants contend that Duran's superiors were aware of his harassing conduct through informal comments but that they failed to take any action in response. The first example was a conversation between Duran and his superior Beau Price overheard by Meadows, in which Duran joked that there might be “peter tracks” on Price's hat. Price responded by asking Meadows if Duran always behaved like that. Meadows said yes. Meadows also stated at his deposition that after he heard Joe Hall, another superior of Duran's, complaining about Duran for unrelated reasons, he told Hall that Duran was “doing some inappropriate things and he was probably going to get himself fired for it.” According to Meadows, Hall responded by saying he did not want to listen or be involved. Meadows did not pursue the matter further and did not explain to Hall the nature of any inappropriate conduct by Duran. Appellants also note two times when Duran called other employees insulting names and another incident when he allegedly slapped a female employee's rear end but received only “minimal” discipline.

In October 2008, months after the alleged harassment began, each appellant filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC). After filing charges, on October 28, 2008, Crawford reported Duran's conduct for the first time to BNSF. She told Joe Hall that she and four other employees had filed or were filing NEOC complaints because of Duran's conduct.

As soon as BNSF received Crawford's complaint, it began an investigation, including interviewing four of the appellants. Within two days, BNSF placed Duran on administrative leave. After completing its investigation, BNSF informed Duran on November 10, 2008 that he was being terminated from his general foreman position. Duran chose to resign. Appellants explained in their depositions that they had delayed reporting Duran's conduct due to their concern about retaliation but also due to their desire to build up evidence against him.

After receiving right to sue letters, appellants filed suit in federal court, alleging that BNSF had subjected them to sexual and racial harassment in violation of Title VII and seeking declaratory and injunctive relief and damages. The district court granted summary judgment in favor of BNSF. It declined to decide whether the employees had established the elements of their sexual and racial harassment claims, concluding that BNSF was not liable because it was entitled to its Ellerth–Faragher affirmative defense. The court concluded that BNSF had exercised reasonable care to prevent and correct promptly any harassing behavior and the appellants had unreasonably failed to take advantage of the company's reporting procedures for workplace harassment. The five employees appeal, arguing that BNSF failed to take corrective action despite knowing about Duran's behavior and that they had acted reasonably in not reporting his conduct to the company until Crawford notified it about the charges they had filed with the NEOC.

II.

We review de novo the district court's grant of summary judgment, “viewing all evidence and all reasonable inferences most favorably” to appellants. Young–Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir.2011). Summary judgment is appropriate only if there is no genuine issue of material fact and BNSF is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against any individual “with respect to his compensation, terms, conditions, or privileges of employment” because of the individual's “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Sexual harassment may violate Title VII where it is sufficiently “severe or pervasive” so as to create an “objectively hostile or abusive work environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

An employer is vicariously liable for a supervisor's actionable sexual or racial harassment of employees unless the employer can establish the Ellerth–Faragher affirmative defense. Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1195 (8th Cir.2006). An employer may only assert this affirmative defense when it has taken no tangible employment action against the allegedly harassed employee. Id. The Ellerth–Faragher affirmative defense protects an employer otherwise vicariously liable for a harassing supervisor's conduct if the employer can show that (a) it exercised “reasonable care to prevent and correct promptly any sexually harassing behavior”; and (b) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm...