Fifth Circuit Upholds Summary Judgment for Employer Because of Plaintiff's Failure to Follow Employer's Sexual Harassment Complaint Procedures


The Employment and Labor Law Alert

December 20, 2005

A recent decision from the Untied States Court of Appeals for the Fifth Circuit highlights the importance to employers of having in place effective procedures for dealing with employee claims of harassment. In Harvill v. Westward Communications, L.L.C., ___ F.3d ___, 2005 WL 3388571 (5th Cir. Dec. 13, 2005), the court acknowledge that plaintiff had made out a prima facie case of sexual harassment by a co-employee sufficient to withstand summary judgment but held that summary judgment in the employer’s favor was proper because plaintiff had delayed in following the guidelines for making complaints of sexual harassment as set forth in the company’s employee handbook. In the course of its decision the court discussed the essential elements of a sexual harassment claim and the response that employers are required to make to such claims.


Plaintiff alleged that she had been repeatedly sexually harassed by a co-worker. The company’s employee handbook, a copy of which plaintiff received when she was hired, provided that sexual harassment should be reported to the employee’s immediate supervisor and that if the supervisor did not provide sufficient recourse, the Director of Human Resources should be notified. About 10 months after the plaintiff began working, she and a co-worker complained to their immediate supervisor, Nell French, that they had been sexually harassed by a co-worker, one Rogers. French interviewed various female employees, but never spoke with Rogers, who remained unaware of the allegations against him.

Plaintiff continued to complain about Rogers’ conduct her and advised French that she intended to file a charge with the Equal Opportunity Commission. Eventually, plaintiff retained an attorney who notified Gina Fisher, Westwood’s Director of Human Resources, of the alleged harassment. Fisher launched her own investigation. She advised Rogers that sexual harassment allegations had been made against him and alerted French that plaintiff claimed that she was still being harassed by Rogers. As part of her investigation, Fisher interviewed another female employee whom plaintiff had indicated would substantiate her allegations that Rogers was sexually harassing female employees. The co-employee, however, failed to corroborate plaintiff’s allegation in this regard. When Fisher asked plaintiff why she had not brought these allegations of harassment to her earlier, plaintiff claimed that French had instructed her never to “go above [her] head on any matters.” Fisher immediately ordered that Rogers no longer work in close fiscal proximity to either plaintiff or the co-worker who was also claiming harassment, and Fisher continued to interview numerous former and current employees. Fisher did not uncover any evidence specifically corroborating the allegations concerning Rogers and informed both plaintiff and Rogers of the results of her investigation. She also instructed Rogers to avoid direct interaction with the two complaining employees. Shortly after Fisher completed her investigation, plaintiff took leave under the Family Medical Leave Act and a relatively short period of time thereafter tendered her resignation, asserting that this was at the request of her physician. Ultimately, plaintiff instituted suit against Westwood alleging sexual harassment and constructive discharge among other things.

The Court’ Decision

The trial court granted Westwood’s motion for summary judgment and plaintiff appealed. The Fifth Circuit first addressed the issue of whether the plaintiff had come forward with sufficient evidence of a hostile work environment to survive summary judgment. The court noted that the issue of whether hostile or abusive environment has been created by the sexual harassment turns on such factors as the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferences with the employee’s work performance, citing Harris v. Forklift, 510 U.S. 17-23 (1993). The court also noted that for the harasser’s conduct to be actionable, it must be both objectionably offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. See Harris, 510 U.S. at 21-22.

The trial court had held that. to be actionable, a harasser’s conduct must be both “severe” and “pervasive.” The Fifth Circuit, however, disagreed, and held that the complainant’s conduct can either be “severe” or “pervasive” to support a hostile work environment claim. Plaintiff had alleged that over a period of approximately 8 months, Rogers had touched her in a sexual manner on numerous occasions and on one occasion made comments to her about her sex life. The Court of Appeals ruled the this testimony if believed by a jury could lead the jury to reasonably conclude that Rogers’ conduct was sufficiently “severe” or “pervasive” to alter the terms and conditions of plaintiff’s employment.

The Fifth Circuit, however, agreed with the trial court that plaintiff had not come forward with sufficient evidence to establish that Westward failed to take proper remedial action on being informed of the harassment. In this regard, the Court noted that an employer has an obligation to take prompt remedial action reasonably calculated to end the harassment and that the employee must take advantage of corrective opportunities provided by the employer but that the employee is not obligated to go through motions of reporting the harassment if the employee reasonably believes that bringing a subsequent sexual harassment complaint would be futile.

In the present case, the court of appeals agreed with the trial court that plaintiff had not promptly taken advantage of corrective opportunities provided by her employer because she delayed several months before reporting the harassment to the Director of Human Resources after she became dissatisfied with her supervisor’s response to her allegations of harassment. The court noted that plaintiff had acknowledged receipt of the employee handbook outlining the company’s anti-harassment policy, which, inter alia, instructed, employees to contact the Director of Human Resources if their immediate supervisor did not satisfactorily resolve the problem. In this regard the court noted that plaintiff conceded that the harassment completely ceased after the Director of Human Resources was contacted. The court rejected plaintiff’s contention that she should be excused for failing to have promptly notified the Director of Human Resources because her supervisor had one time told her not to go over her head on any matters. The court noted that this instruction was not given in the context of the company’s sexual harassment policy. Accordingly, the court agreed with the trial court that Westwood was entitled to summary judgment on plaintiff’s hostile work environment claim because of plaintiff’s failure to utilize the company’s anti-harassment remedial procedures as set forth in the employee handbook.


The Harvill case serves as an excellent reminder to employers of the importance of having in place effective anti-harassment complaint procedures and ensuring that employees are on notice of those procedures. In Harvill, even though the plaintiff had made out a prima facie case of a hostile work environment because of sexual harassment, the employer nevertheless prevailed on summary judgment because the plaintiff failed to follow the employer’s procedures for dealing with claims of harassment.