Stephanie Howard v.  Donald C. Winter, Secretary of the Navy

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 STEPHANIE HOWARD,
Plaintiff-Appellant,
v. No. 05-1258 
DONALD C. WINTER, SECRETARY OF
THE NAVY,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-04-799-1)
Argued: March 21, 2006
Decided: May 4, 2006
Before WILKINS, Chief Judge, and WILLIAMS and
SHEDD, Circuit Judges.
Affirmed in part; vacated and remanded in part by published opinion.
Judge Williams wrote the opinion, in which Chief Judge Wilkins and
Judge Shedd joined.
COUNSEL
ARGUED: John F. Karl, Jr., KARL & TARONE, Washington, D.C.,
for Appellant. Dennis Carl Barghaan, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
States Attorney, Alexandria, Virginia, for Appellee.

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OPINION
WILLIAMS, Circuit Judge:
Appellant Stephanie Howard appeals the district court’s entry of
summary judgment for Appellee Secretary of the Navy (Navy), in his
official capacity,1 on her hostile work environment claim under Title
VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.
(West Supp. 2005). The district court granted summary judgment
based on its conclusion that once the Navy was provided adequate
notice of Howard’s allegations, its response was reasonable. For the
reasons stated herein, we affirm in part, and vacate and remand in
part.
I.
We summarize the essential facts of this case in the light most
favorable to Howard.2 Howard is a former employee of the Naval Air
Systems Command (NAVAIR) in Arlington, Virginia. During some
of her time at NAVAIR, Howard was employed as a group secretary,
where her duties consisted of providing administrative services to all
fifty-five staff members in the Air Assault and Weapons Division.
One of those fifty-five staff members was Randy McCall, a Logis-
tics Management Specialist. Howard alleges that McCall sexually
harassed her between the period of June 1995 to November 1996.
Howard claims that McCall often spoke to her in a sexually provoca-
tive manner and fondled her breasts, backside, and face. This behav-
ior reached a height on March 5, 1996, when Howard walked over to
McCall’s cubicle to read his newspaper, as she often did. While she
was reading the newspaper, McCall placed his fingers up her dress
1The complaint named then-Secretary Gordon R. England as the sole
defendant. However, during the course of this appeal, Donald C. Winter
was sworn in as the new Secretary of the Navy.
2When reviewing a district court’s grant of summary judgment, we
construe the facts in the light most favorable to the nonmoving party,
which in this case was Howard. See, e.g., Laber v. Harvey, 438 F.3d 404,
415 (4th Cir. 2006) (en banc).
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and inside her vagina. Traumatized and violated, Howard immedi-
ately fled McCall’s cubicle area.
After the March 5 incident,3 Howard drafted a letter to McCall
explaining that his advances were unwanted and he had gone too far.
After drafting the letter, she delivered it to McCall while accompa-
nied by her friend and coworker, William Willard. On March 19,
Howard went to speak with Jessica Demaris, who worked in
NAVAIR’s human resources division. Howard told Demaris that she
wished to be placed on a list to receive placement with another
Department of Defense division. When Demaris asked why, Howard
told her she was being "assail[ed]" at work. (J.A. at 321.) Demaris
attempted to get more information out of Howard, but, by Howard’s
own admission, she was not "very specific" and did not name McCall.
(J.A. at 85.) Unable to obtain much information from Howard,
Demaris then referred Howard to Aaron Pendleton, a Human
Resources Specialist. (J.A. at 507.) At her deposition, Howard
recounted her conversation with Pendleton:
[Pendleton] said to me, Hey, what’s going on? What are you
doing here?
I says, I am trying to get the hell up out of here.
He says, Why? What’s wrong?
I said this mother-f----r put his hands on me, and I don’t like
it.
He says, Who?
I said, Somebody old enough to be my grandfather.
3Prior to this March 5 incident, Howard stated she had informed four
coworkers of her earlier problems with McCall: Lisa Pace, a NAVAIR
secretary who worked in another division; June Mattingly-Bateman, also
a secretary; Jorie Henry, who worked for an independent contractor; and
William Willard, a military member assigned to NAVAIR whom How-
ard described as a friend. (J.A. at 85.)
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He says, Who?
I said, Randy McCall.
He says, I don’t know him. He says, This is what you need
to do. He says, What you need to do is you need to write
him a letter.
I said, I already did.
He says, The next thing you need to do is you need to write
down everything else that he, you know, he does to you if
he harasses you again. Now, if he harasses you again, you
need to let somebody know. You need to tell your supervi-
sor or you need to come back to me.
(J.A. at 322-23.)
Some time later, McCall again began to make inappropriate com-
ments to Howard, but he did not touch her again until November 18,
1996, when Howard alleges that McCall cornered her while she was
sorting mail, this time placing his hand on her face, neck, and breast.
Howard told her friend and coworker Pace about McCall’s behavior,
and sometime in November 1996, Pace — with Howard’s consent —
went to Pace’s supervisor, Ginger Toucher, to explain Howard’s
problem and provide Toucher with a copy of Howard’s earlier letter
to McCall. At that point, Toucher called both of Howard’s supervi-
sors, Michael Erk and John Baranowski, into her office to explain
what she had learned. This was the first that Erk or Baranowski had
heard of Howard’s allegations. Erk and Baranoswki then immediately
informed NAVAIR’s Office of General Counsel of the allegations,
and Baranoswki located McCall and brought him into his office.
McCall was immediately reassigned to another NAVAIR division on
a different floor level. An investigation ensued, but NAVAIR could
not verify Howard’s charges. Nonetheless, McCall’s reassignment off
of Howard’s floor was made permanent. Howard did not complain of
any harassment after this November date.
At all times during the period of alleged harassment, the Depart-
ment of the Navy had a specific sexual harassment policy in place.
The relevant portions of the policy provided:
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Individuals who believe they have been sexually harassed
are encouraged to address their concerns or objections
regarding the incident directly with the person demonstrat-
ing the harassing behavior. Persons who are subjected to or
observe objectionable behavior should promptly notify the
chain of command if:
(1) The objectionable behavior does not stop; or
(2) The situation is not resolved; or
(3) Addressing the objectionable behavior directly with
the person concerned is not reasonable under the circum-
stances; or
(4) The behavior is clearly criminal in nature.
If the person demonstrating the objectionable behavior is a
direct superior in the chain of command or the chain of
command condones the conduct or ignores a report, individ-
uals who have been subjected to or who observe objection-
able behavior are encouraged to promptly communicate the
incident through other available means.
(J.A. at 213.)
In January 1997, Howard filed an EEO complaint with NAVAIR,
alleging that the Navy discriminated against her on the basis of her
sex in violation of Title VII. On July 15, 1999, an EEOC administra-
tive judge (AJ) entered a "Decision Without Hearing" against How-
ard. (J.A. at 180.) The AJ found that McCall had no supervisory
authority over Howard, that Howard first informed NAVAIR of her
allegations in November 1996, and that the Navy responded with
immediate and appropriate action once it was put on notice in
November. NAVAIR adopted the AJ’s findings of fact and conclu-
sions of law as its final agency decision. Howard appealed the final
agency decision to the EEOC’s Office of Federal Operations, and
they affirmed the decision.
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On March 18, 2002, Howard filed her civil complaint in the United
States District Court for the District of Columbia. Howard’s com-
plaint put forward three separate claims pursuant to Title VII of the
Civil Rights Act of 1964: (1) intentional sex discrimination; (2) inten-
tional creation of a hostile work environment based on sex; and (3)
retaliation for bringing a complaint of sexual harassment. During liti-
gation, Howard’s first two causes of action were determined to consti-
tute a single claim for what traditionally has been known as "hostile
work environment" sexual harassment.
On August 26, 2003, the district court transferred venue over How-
ard’s complaint to the United States District Court for the Eastern
District of Virginia. On November 30, 2004, the Navy moved for
summary judgment. In her opposition to the Navy’s summary judg-
ment motion, Howard conceded that the retaliation claim should be
dismissed, leaving only the hostile work environment claim. After
briefing, the district court held a hearing on the Navy’s motion.
At the conclusion of the hearing, the court orally granted the
Navy’s motion for summary judgment, implicitly finding that McCall
was a co-worker, not a supervisor, and explicitly noting that once the
Navy was put on notice in November 1996, its response was "about
the fastest [the court had] seen an employer do in a long time in these
cases." (J.A. at 569.) The court further found that action was not taken
earlier by the Navy because Howard failed to "give the employer ade-
quate information to trigger the kinds of response [she was] request-
ing." (J.A. at 569.)
By written order on January 10, 2005, judgment was entered in
favor of the Navy. Howard timely appealed, and we have jurisdiction
pursuant to 28 U.S.C. § 1291 (West 1993).
II.
Howard argues that the district court erred in granting summary
judgment to the Navy on her hostile work environment claim. She
contends that the Navy is liable for McCall’s harassment because he
was her supervisor for purposes of Title VII. Howard further contends
that even if McCall was not her supervisor, the Navy is nonetheless
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liable for the harassment because it knew or should have known of
the harassment and failed to take measures to stop it.
We review de novo the district court’s grant of summary judgment
in favor of the Navy, applying the same standard as did the district
court. See Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en
banc). Summary judgment is appropriate when "the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as
a matter of law." Fed R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). We must construe the facts in the
light most favorable to Howard, and we may not make credibility
determinations or weigh the evidence. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Edell & Assocs., P.C. v. Law Offices
of Peter G. Angelos, 264 F.3d 424, 435 (4th Cir. 2001).
Title VII is violated "[w]hen the workplace is permeated with [sex-
based] intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and
create an abusive working environment." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotation marks omitted). To estab-
lish a sexual harassment claim, Howard must prove that the offending
conduct "(1) was unwelcome, (2) was based on her sex, (3) was suffi-
ciently severe or pervasive to alter the conditions of her employment
and create an abusive work environment, and (4) was imputable to her
employer." Ocheltree v. Scollon Prod., Inc., 335 F.3d 325, 331 (4th
Cir. 2003) (en banc). For the purposes of their summary judgment
motion, the Government conceded that Howard could prove the first
three factors. The only question on appeal, then, is whether there is
any dispute of material fact as to whether McCall’s alleged behavior
can be imputable to the Navy. We conclude there is.
A.
At the summary judgment hearing below, the district court ana-
lyzed Howard’s claim under the theory that McCall was her
coworker, as opposed to her supervisor. Howard argues there are dis-
putes of material fact as to whether McCall was Howard’s supervisor
for purposes of Title VII.
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The question of whether McCall was Howard’s supervisor or her
coworker is of great significance because in a case of harassment by
a supervisor "with immediate (or successively higher) authority over
the employee," an employer is vicariously liable for the harassment,
subject to limited affirmative defenses not relevant here. Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). In a case where an
employee is sexually harassed by a coworker, on the other hand, the
employer may be liable only "if it knew or should have known about
the harassment and failed to take effective action to stop it."
Ocheltree, 335 F.3d at 334.
In determining McCall’s supervisory status with respect to How-
ard, the fundamental question we ask is "whether [McCall’s] conduct
was ‘aided by the agency relation.’" Mikels v. City of Durham, 183
F.3d 323, 332 (4th Cir. 1999) (quoting Ellerth, 524 U.S. at 763). "Any
harassing conduct that culminates in a tangible employment action
against the victim is necessarily conduct aided by the agency relation,
since it can only be taken by supervisory employees empowered by
their employers to take such action." Id. (internal quotation marks
omitted). But "harassment by a fellow-employee having no authority
of any kind over the victim never can be found aided by the agency
relation; as to such employees, the agency relation provides no aid for
their conduct but workplace proximity, and that does not suffice the
purpose." Id. (internal quotation marks omitted). "Between these
extremes, there remains otherwise actionable harassment that, though
it does not culminate in tangible employment action, is nonetheless
aided by the agency relation." Id. (internal quotation marks omitted).
Howard does not make a persuasive argument that McCall was her
supervisor. The most powerful indication of supervisory status is the
ability "to take tangible employment actions against the victim, such
as ‘hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in
benefits.’" Id. at 333 (quoting Ellerth, 524 U.S. at 761). No tangible
employment action was taken against Howard. Moreover, Howard
concedes that McCall did not possess any power to take tangible
employment actions or make economic decisions affecting her. The
record is devoid of any evidence suggesting that McCall could fire
Howard, promote or demote her, reassign her, or take any other direct
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action against her. Instead, he was merely one of fifty-five staff mem-
bers to whom Howard provided administrative support.
Nonetheless, the fact that Howard provided administrative support
to McCall suggests that he did wield at least some authority over her.
The record is clear, however, that like the situation in Mikels, the "au-
thority possessed by [McCall] over [Howard] was at best minimal."
Id. at 334.
In Mikels, we affirmed a summary judgment order in favor of the
City of Durham on Mikels’s sexual harassment claim. Id. at 335.
Mikels was a private in the City police department who alleged that
Acker, a corporal in the department, sexually harassed her. Id. at 326.
The fact that Acker was her superior in rank, however, was not
enough to show that he was her supervisor for purposes of Title VII.
Id. at 331. This was because Acker did not have the power to take tan-
gible employment actions against Mikels and his authority consisted
only of "the occasional authority to direct her operational conduct
while on duty." Id.; see also Hall v. Bodine Elec. Co., 276 F.3d 345,
355 (7th Cir. 2002) (holding that the alleged harassor’s "marginal dis-
cretion" over the harasee’s work operations was "not sufficient to
impute Title VII vicarious liability to an employer"); Rhodes v. Illi-
nois Dep’t of Transp., 359 F.3d 498, 506 (7th Cir. 2004) (holding that
evidence that alleged harassor "managed [plaintiff’s] work assign-
ments, investigated complaints and disputes, and made recommenda-
tions concerning sanctions for rule violations" was insufficient to
show supervisory status). Moreover, the record showed that Mikels
understood that her squad-level sergeant was her direct supervisor and
that she had direct access to her sergeant without going through
Acker. Id.
The record here is similarly clear. If anything, McCall’s authority
over Howard was only an occasional authority — shared with the
other fifty-four staff members — to direct her operational duties.
Moreover, Howard points to no evidence in the record that could lead
to a conclusion that McCall’s authority to request administrative
assistance from Howard enabled his harassment. In short, McCall’s
alleged harassment of Howard was not aided by the agency relation.
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We therefore conclude that McCall was not Howard’s supervisor for
the purposes of Title VII.4
B.
Because McCall was Howard’s coworker, the Navy is only liable
for his conduct if it was negligent "in failing, after actual or construc-
tive knowledge, to take prompt and adequate action to stop it."
Mikels, 183 F.3d at 332; accord Ocheltree, 335 F.3d at 333-34 ("In
a case where an employee is sexually harassed by a coworker, the
employer may be liable . . . if it knew or should have known about
the harassment and failed to take effective action to stop it."). Accord-
ingly, Howard argues that there are disputes of material fact as to
whether the Navy was negligent in responding to McCall’s alleged
harassment.
"When presented with the existence of illegal conduct, employers
can be required to respond promptly and effectively, but when an
employer’s remedial response results in the cessation of the com-
plained of conduct, liability must cease as well." Spicer v. Virginia
Dep’t of Corrs., 66 F.3d 705, 711 (4th Cir. 1995) (en banc). The
Navy, however, "cannot avoid Title VII liability for coworker harass-
ment by adopting a ‘see no evil, hear no evil’ strategy. Knowledge of
harassment can be imputed to an employer if a reasonable person,
intent on complying with Title VII, would have known about the
harassment." Ocheltree, 335 F.3d at 334. Moreover, the Navy "may
be charged with constructive knowledge of coworker harassment
when it fails to provide reasonable procedures for victims to register
complaints." Id. But "[t]he law against harassment is not self-
enforcing and an employer cannot be expected to correct harassment
unless the employee makes a concerted effort to inform the employer
4Howard also contends that vicarious liability is proper because she
mistakenly believed that McCall exercised supervisory authority over
her. This argument is of no avail to Howard. The Supreme Court has rec-
ognized that vicarious liability might be proper in the unusual case where
there is a reasonable "false impression that the actor was a supervisor,
when he in fact was not." Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 759 (1998). Such a false impression in this case, however, could not
be reasonable on the record before us.
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that a problem exists." Barrett v. Applied Radiant Energy Corp., 240
F.3d 262, 268 (4th Cir. 2001)(internal quotation marks omitted). Just
as an employer may not adopt a "see no evil, hear no evil" sexual
harassment policy, an employee may not impute liability on an
employer under a theory that the employer must exercise an all-seeing
omnipresence over the workplace.
In order to determine whether the Navy was entitled to summary
judgment, we must determine when the Navy had actual or construc-
tive notice of McCall’s alleged harassing behavior and whether the
Navy’s response was reasonable once such notice was provided. We
conclude that (1) the Navy lacked constructive notice of McCall’s
alleged harassment before March 19, 1996, (2) there are questions of
fact as to whether the Navy was placed on notice on March 19, 1996,
and if so, whether the Navy’s response was reasonable, and (3) the
Navy had actual notice on November 20, 1996, and its response at
that point was reasonable as a matter of law.
1.
Howard argues that the Navy had constructive notice of McCall’s
harassing behavior before March 19, 1996. She contends that the
Navy’s 1993 sexual harassment policy was per se inadequate and that
McCall’s previous behavior put the Navy on constructive notice that
he was a harassor. We disagree with both of these arguments.
In Ocheltree, we concluded that liability could be imputed to the
employer because its sexual harassment policy "fail[ed] to provide
reasonable procedures for victims to register complaints." Id. at 334.
In the context of that case, however, we further noted that it was "de-
batable whether the company actually [had] a sexual harassment pol-
icy," and that even if it did, it was so sparse that "a jury could
reasonably find that it fail[ed] to provide reasonable avenues of com-
plaint." Id.
In Ocheltree, the company provided no documents to employees
mentioning sexual harassment, conducted no training, and merely had
a policy stating that "verbal abuse" was "not acceptable" and "grounds
for termination." Id. Such circumstances, however, are a far cry from
the Navy’s 1993 policy. The Navy had a an eleven-page "Department
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of the Navy Policy on Sexual Harassment" and issued memoranda
"for all hands" explaining that "[s]exual harassment is prohibited and
will not be tolerated." (J.A. at 210, 208.) Unlike the insufficient pol-
icy examined in Ocheltree, the Navy’s policy and memoranda clearly
defined sexual harassment and made it abundantly clear that such
behavior would not be tolerated.5 Accordingly, a reasonable juror
could not find that the Navy adopted a "see no evil, hear no evil" sex-
ual harassment strategy, Ocheltree, 335 F.3d at 334, and this case
does not amount to one of the rare instances where constructive notice
could be found due to a company’s nearly non-existent sexual harass-
ment policy.6
Howard also contends that the Navy was on notice because McCall
was a repeat offender with "a history of inappropriate behavior in the
office." (Appellant’s Br. at 4.) Specifically, she points to the affidavit
of Cresswell Elmore, a previous supervisor of McCall who worked at
NAVAIR prior to Howard joining the branch. In his affidavit, Elmore
stated:
Before [the] policy came out regarding zero tolerance for
sexual harassment, there was a time when "girlie" pictures
were allowed to be hung in cubicles, and there was a time
when I found those type of pictures in Mr. McCall’s work
area. Once the policy became zero tolerance, I had an occa-
sion to ask Mr. McCall to remove that type of material from
his work area. It reoccurred on one occasion, and I went
5The Navy’s policy was also unlike the one at issue in Ocheltree in
that it offered numerous avenues for complaint in order to ensure that
when an employee was being harassed by a supervisor, that employee
was afforded alternative means of notifying the chain of command.
6Howard also argues that even if the Navy had an adequate policy,
there are disputes of material fact as to whether the Navy disseminated
its sexual harassment policy to her. Yet there is no evidence in the record
that could lead to a conclusion that the Navy failed to disseminate its pol-
icy. To the contrary, the record contains a memorandum addressing the
"Sexual Harassment Policy" disseminated to "all hands." (J.A. at 208.)
Moreover, NAVAIR conducted mandatory sexual harassment training
for all employees. Finally, Howard admits to have "taken a class," which
covered the matter. (J.A. at 365.)
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through the same steps again to ask him to remove the mate-
rial from his area. I also had given him verbal warnings
about language that could not be used in the work environ-
ment.
(J.A. at 455.)
Howard’s contention that the Navy’s knowledge of McCall’s pic-
tures or inappropriate language somehow placed the Navy on notice
of McCall’s alleged harassment of Howard is unavailing. She cites
neither case law nor evidence in the record that suggests that an
employee’s display of inappropriate images or use of foul language
suffices to put an employer on notice that the employee is by nature
a sexual harassor inclined to assault another employee in the manner
Howard alleges.7 Although we will infer knowledge on the part of the
employer when that employer altogether fails to promulgate an ade-
quate sexual harassment policy, a factfinder may not — without more
— find that an employer had notice of the type of specific harassment
alleged here based solely on the alleged harassor’s isolated past uses
of inappropriate language and displays of lewd images. Accordingly,
we affirm the district court’s award of summary judgment for any
alleged harassment occurring before March 19, 1996, when Howard
claims she first notified someone in a supervisory position of
McCall’s behavior.
2.
Howard argues that the Navy was placed on notice of the alleged
harassment in March of 1996 when she spoke with Pendleton in the
human resources office, and that Pendleton’s response was not rea-
sonable. We agree that summary judgment on this point was improper
and conclude that a reasonable trier of fact could find that Howard’s
conversation with Pendleton was sufficient to place the Navy on
7Howard’s brief further states that the record "could support a finding
by the jury that the Navy was on notice because of previous complaints
about McCall." (Appellant’s Br. at 21.) Howard, however, points us to
no place in the record detailing any previous harassment complaints
about McCall and our independent review of the record discovered no
such instances.
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notice of McCall’s behavior, and that given Howard’s statements to
Pendleton, there exists a factual issue as to the reasonableness of his
response.
After the alleged March 6 assault, Howard admits that she did not
inform any of her direct supervisors. Instead, she drafted a letter to
McCall. Howard, however, argues that by also informing Pendleton
of her problem, she went far enough to put the Navy on legal notice
of the harassment. The Navy disagrees, first arguing that Howard
could not have provided the Navy "with legally-sufficient notice by
informing just any NAVAIR employee." (Appellee’s Br. at 49.)
While this statement rings true in the abstract, Pendleton was not "just
any NAVAIR employee." He was a senior member of NAVAIR’s
Human Resources Division with experience in harassment com-
plaints. Moreover, he specifically told Howard to come to him with
any further problems, telling her, "[t]his is my job. This is what I do."
(J.A. at 323.) Accordingly, if Howard in fact notified Pendleton of the
harassment, that notification could be found sufficient to place the
Navy on notice.
When Howard entered Pendleton’s office in March, 1996, she told
Pendleton that "this mother-f——r put his hands on me." (J.A. at
322.) When Pendleton asked, "[w]ho," she responded by stating that
it was "[s]omebody old enough to be my grandfather," before finally
indicating that it was McCall. (J.A. at 322.) According to Howard’s
deposition, Pendleton responded by simply telling Howard to write
McCall a letter and keep track of any future harassing behavior, mak-
ing sure to report any further instances to him8 or to one of Howard’s
supervisors. He did not get to the bottom of her allegations. There is
nothing in the record suggesting that he asked to see the letter or
attempted to learn the specifics of Howard’s allegations. There is
nothing to suggest that he spoke with McCall or others about How-
ard’s problem, nor is there anything to suggest an inquiry, much less
an investigation of any kind. In short, Howard alleges that Pendle-
ton’s only response to her statement that McCall put his hands on her
and that she did not like the touching was for her to write McCall a
8We note that in addition to instructing Howard to report any future
harassment, Pendleton periodically checked in with Howard to see how
she was doing.
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letter and notify someone if McCall "harasses [her] again." (J.A. at
323.)
While a reasonable juror could find that Pendleton’s response to
Howard was sufficient given the lack of details in her allegation, we
believe a reasonable juror could also conclude otherwise. See, e.g.,
Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 442
(2d Cir. 1999) ("A factfinder may well conclude that [the employer’s]
responses were reasonable and adequate. We cannot, however, say as
a matter of law that the record evidence compels only that result.
Accordingly, summary judgement should not have been granted on
this ground.") (emphasis omitted). At the very least, a juror could
conclude that it was unreasonable for Pendleton to not ask follow-up
questions in an effort to determine the exact way in which McCall put
his hands on Howard. We base this conclusion on the belief that the
harsh language used by Howard in describing McCall and his alleged
physical assault was sufficient to at least put Pendleton — an experi-
enced human resources officer — on notice of a potentially serious
workplace-harassment problem between Howard and McCall. In
other words, there is a question of fact as to whether — at that point
— the Navy should have known that Howard was alleging harassment
based on her sex.9 We further conclude that based on that level of
information, a reasonable juror could find that Pendleton was negli-
gent in responding to Howard’s allegations.10 See Malik v. Carrier
9We note that Howard alleges that Pendleton told her that she needed
to write everything down "if [McCall] harasses [her] again." (J.A. at 323
(emphasis added).) Pendleton’s response leads to the inference that he at
least knew that she was alleging workplace harassment of some kind.
10Howard goes further in contending that Pendleton’s advice to write
a letter was unreasonable as a matter of law considering McCall had just
sexually assaulted her. We reject this argument because such a conten-
tion neglects the fact that she never informed Pendleton that Howard sex-
ually assaulted her. This fact is critical because in a Title VII claim, the
issues of employer notice and response are closely connected insomuch
as the reasonableness of an employer’s response must be examined in
relation to the specificity of notice received. In other words, the employ-
er’s response must always be viewed in light of what it actually knew or
should have known at the time of its response.
Thus, while a juror could find that Howard’s comments were sufficient
to place the Navy on notice of a hostile work environment claim, there
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Corp., 202 F.3d 97, 107 (2d Cir. 2000)("An employer’s conduct of an
investigation and determination of its scope must be viewed ex ante
. . . .").
We recognize that an employee claiming harassment by a coworker
bears significant responsibility in notifying the employer. See, e.g.,
Barrett, 240 F.3d at 268 (noting that "[l]ittle can be done to correct
[harassing] behavior unless the victim first blows the whistle on it").
We further recognize that the unpleasant nature of reporting harassing
conduct does "not alleviate the employee’s duty . . . to alert the
employer to the allegedly hostile environment," id., because such a
rule "would completely undermine Title VII’s basic policy ‘of
encouraging forethought by employers and saving action by objecting
employees.’" Id. (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 807 (1998); Ellerth, 524 U.S. at 764). Nonetheless, Title VII also
places significant responsibilities on employers in reasonably
responding to employee allegations. And in the circumstances of this
case, we hold that a reasonable juror could find that Howard’s com-
ments to Pendleton were sufficient to put the Navy on notice of at
least a potential hostile work environment and that the Navy’s
response to that notice was negligent. Accordingly, we vacate the dis-
trict court’s award of summary judgment with respect to any alleged
harassment that occurred between the period of March 19, 1996 and
November 20, 1996.
3.
Howard’s final argument is based on her contention that once the
Navy received notice of her specific allegations on November, 20,
1996, its response was unreasonable. We disagree.
Once a copy of Howard’s letter made it into the hands of a Navy
supervisor on November 20, 1996, McCall was immediately trans-
ferred to another floor and out of Howard’s working group. More-
is a difference in degree in knowing that McCall "put his hands" on
Howard and knowing that McCall inserted his fingers in Howard’s
vagina. Although an employer’s response to the more general allegation
might be deemed reasonable, that same response might be deemed unrea-
sonable had the employer known the more specific details.
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over, this transfer was made permanent. In fact, the district court
noted that the Navy’s response was "about the fastest [the court had]
seen an employer do in a long time in these cases." (J.A. at 569.)
Howard’s argument that the Navy was unreasonable because it did
not further punish McCall after conducting an inconclusive investiga-
tion is without merit. What is most important is that there were no fur-
ther instances of harassment after this date — a fact that Howard
concedes — and "when an employer’s remedial response results in
the cessation of the complained of conduct, liability must cease as
well." Spicer, 66 F.3d at 711; see also Mikels, 183 F.3d at 329-30
(describing this principle as "most important[ ]"). Accordingly, we
conclude that the Navy is entitled to summary judgment for the period
after November 20, 1996, because its response at that point was rea-
sonable.
III.
In sum, we recognize that McCall’s alleged behavior was beyond
unacceptable and plainly criminal in nature. Nonetheless, Title VII
requires a claimant to show more than just severe harassment in order
to hold an employer liable for an employee’s behavior. And because
we conclude that McCall was Howard’s coworker for the purposes of
Title VII and Howard cannot show that the Navy should have known
about McCall’s behavior prior to March 19, 1996, we affirm the dis-
trict court’s award of summary judgment with respect to that period.
We also affirm the award of summary judgment with respect to the
period after November 20, 1996, because the Navy’s response
resulted in the cessation of any harassing behavior. For the period of
time between March 19 and November 20, 1996, however, we vacate
the district court’s award of summary judgment and remand the case
for proceedings not inconsistent with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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