# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2005 Decided May 24, 2005

No. 04-7063

L INDA R OEBUCK

, A PPELLANT

v.

O DIE W ASHINGTON

, D IRECTOR

, D.C. D EPARTMENT OF

C ORRECTIONS

, ET AL

., A PPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01564)

Linda M. Correia argued the cause for appellant. With

her on the briefs were Susan L. Brackshaw and Jonathan C.

Puth

.

David A. Hyden

, Assistant Attor ney General, Office of

Attor ney General for the District of Columbia, argued the cause

for appel lee. With him on the brief were R obert J. Spagnoletti

, A ttorney General, and Edward E. Schwab

, Deputy Attor ney

General.

Before: G

INSBURG

, Chief Judge

, and H E NDERSON and

R ANDOLPH

, Circuit Judges

.2

Opinion for the Court filed by Chief Judge G INSBURG

.

G INSBURG

, Chi ef Judge : Linda Roebuck sued her

empl oyer, the District of Columbia Department of Corrections,

under Title VII of the Civil Rights Act of 1964, and her

supervisor, Larry Corbett, under 42 U.S.C. § 1983, alleging

Corbett had sexually harassed her. The jury found Corbett but

not the Departm

ent liable. The Department prevailed by

proving (1) it had “exercised reasonable car e to prevent and

correct promptly any s exually harassing behavior,” and (2)

“Roebuck [had] unreasonably fa iled to take advantage of ...

preventive or corrective opportunities provid ed by the

[Department],” Special Verd i ct at 2; those findings made out an

affirmative defense pursuant to Faragher v. City of Boca Raton

, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth

, 524 U.S. 742 (1998).

Roebuck appeals, arguing prin cipally that the

D epartment had taken a “tangible employment action” against

her and thereby forfeited the Fa ragher

- Ellerth affirmative

defense. Alternatively, Roebuck argues first that the district

court’s instructi

on on the affirmative defense misled the jury

about the Department’s burden to prove she acted unreasonably

in failing to complain earlier and, secon d, that the Department

did not produce evidence sufficient to carry its burden. We

affirm the judgment of the district court.

I. Background

L i nda Roebuck began working for the D.C. Department

of Corrections in 1986. In 1993 she was assigned to work as an

administrative assistant in the Office of the Major at the D.C.

Jail. In 1995 Larry Corbett was promoted to the position of

Major, making him Roebuck’s direct s upervisor; soon thereafter,

Corbett began sexually ha rassing her “off and on.” In August3

1997 Corbett was promoted to D eputy Warden, and later that

same month he asked Roebuck to tran sfer to the Office of the

Warden and continue serving as his administrative ass istant.

Roebuck agreed but when she resumed working for Corbett in

September, he resumed harassing her.

In October Corbett asked Roebuck out to dinner and,

when she refused , he began to question her about her previous

relationship with his brother. In November Corbett’s father died

and Roebuck reluctantly agreed to have dinner with Corbett in

order to console him

, but she brought her son along to avoid

being alone with Corbet t. After dinner they returned to

Roebuck’s residence, where Cor b ett invited himself in and

remai ned for over an hour. When Roebuck finally told Corbett

to “go home to your wif

e” and showed him to the door, Corbett

unexpectedly grasped Roebuck and tried to kiss her. Roebuck

refused, saying, “I tol

d you no, I don’t date married men.”

Corbett left, but the next day at work, he expressed his

displeasure by sticking his tongue out at Roebuck.

In mid-December Corbett showed up un announced at

Roebuck’s house and asked her to accompany him on an

overnight shopping trip to Williamsburg, which invitation

Roebuck declined. Sometime before Christmas, Corbett again

stopped by Roe buck’s house, but Roebuck’s son, per her

instructions, told Corbett she was asleep.

On Christmas Day Corb ett summoned Roebuck to his

office and again grabbed her and tried to kiss her. Lieutenant

James Clark, who witnessed Corbett’s unwanted groping,

reported the incident to the Warden that same day. A couple

d ays later, Corbett left a note reading “Sexy” on top o f

Roebuck’s work assignments. When Roebuck asked Corbett

about the meaning of the note, Corbett responded, “You

, Roebuck,” making the shape of an hourglass with his hands.4

The next day Cor b ett warned Roebuck: “Don’t let me find out

you’re taking sides with Lieutenant Clark.”

So metime in January 1998 Corbett told Roebuck she

should wear her hair up “becau se [she] was sexier” that way,

and that she should wear pants instead of skirts because her legs

were distracting. On January 16 Corbett called Roebuck into his

office with what Roebuck characterized as “bedroom m usic”

playing and simply stared

at her, saying nothing; when Roebuck

asked, “Well , what do you want,” Corbett just kept staring.

Roebuck eventually left, disgu sted, but Corbett immediately

called her back to his desk and repeated the sile nt-staring

routine. That was apparently the last straw as far as Roebuck

was concerned; on January 21 she complained to Li eutenant

Clark of sexual harassment by Corbett.

The next day Roebuck discovered the lock o n Corbett’s

office door had been changed. Another administrative assistant,

Violet Hicks, had a key to the new lock, and she let Roebuck

into the office to retrieve her assignments.

On Febr uary 6 the Warden of the D.C. Jail, Mario

Randall, met with Corbett to discuss Roebuc k’s complaint.

Thereafter Randall sent a memorandum up the departmental

chain of command recommending that Roebuck be reassigned

to the “relief pool,” which was by all indications not a desirable

transfer. Before Roebuck was ever apprised of the proposed

transfer, however, Randall change d his mind, concluding “the

action to move her bac k to the correctional force ... gave the

appearance of being retaliatory.” On February 10 he instead

in formed Roebuck she would be switching duties with Violet

Hicks. Roebuck said she did not want to make the switch.

The change in h

er duties never took place because

Roebuck went on sick leave for six weeks, during which time5

sh e sought psychological counseling for the stress and anxiety

Corbett had caused her. In the meantime Corbett was demoted

and transferred to another facility. When Roebuck returned she

resumed her old job with a new boss, and her sick leave was

restored.

Roebuck later sued both Corbett and t he Department.

The district cou

rt concluded the Department had not taken any

“tan gible employment action” against Roebuck and therefore

co u ld present the affirmative defense to vicarious liability

establishe d in Faragher and Ellerth

. The case was tried to a

jury, which found Corbett ind ividually liable, pursuant to 42

U.S.C. § 1983, and awarded damages against him in the amo unt

of $5,000. In a special verdict, the jury also found the

Department had made ou t the F aragher

- Ellerth affirmative

defense. Special Verdict at 2. Roebuck moved for judgment as

a matter of law, which the district court denied.

II. Analysis

O n appeal Roebuck contends the district court er red in

allo wing the Department to defend on the ground it had taken no

“tangible employment action” agains t her. In the alternative,

Roebuck argues that the dist rict court’s instruction to the jury

was misleading

and contrary to law with respect to the

affirmative defense. Finally, Roebuck contends the Department

failed to produce legally sufficient evidenc e to support the jury’s

finding that Roebuck acted unreasonably in failing earlier to

report Corbett’s sexual harassment.

A. Tangible Employment Action

The Supreme Cou

rt held in F

aragher that “when the

supervisor’s harassment culminates in a tangible employment6

action” against the plaintiff employee, the employer is

vicariously liable for the harassme nt. 524 U.S. at 808. In

Ellerth , decided the same day, the Court elaborated: “A tangible

employment acti

on constitutes a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment wit

h significantly different responsibilities, or a

decision causing a significant change in benefits.” 524 U.S. at

761. Roebuck argues the Department took three tangible

employment actions against her, namely, (1) Corbett changing

the locks on his office door; (2) Warden Randall writing and

sending up the chain of command a memorandum requesting

Roebuck’s transfer to the relief pool; and (3) Randall telling

Roebuck she would be swapping duties with Violet Hicks.

The d istrict court held, and the Department contends,

that Corbett’s chan

ging the locks does not amount to a tangible

employment action. The only consequence identified by

Roebuck was that on one occas ion she had to ask Ms. Hicks to

o pen the door to Corbett’s office so she could get her work

assignments. Even if Roebuck had to get someone to let her in

every day from January 22 through Feb ruary 10 -- upon which

the record is sil

ent -- she still fails to make out a tangible

employmen

t action because, as the district court stated, she did

“not provide [any] evidence that changing the locks in fact

interfered with [her] ability to perform her job.”

Roe buck argues the district court “incorrectly focused on

whether [her] c ompensation was affected or whether she

sufficiently proved the degree of impact that such an ac tion had

on her abi lity to perform her job.” According to Roebuck “[t]he

focus of the Faragher

/ Ellert h standard of vicarious liability is

on the fact of the official action, not on the degree o f the impact”

it had.

Roebuck’s asserted “focus” is far different from that of7

the Supreme Cour t. Indeed, in defining “tangible employment

action,” the Court could hardly have been more clear that it is

not “the fact of the official action,” as Roebuck would have it,

but its effect upon the plaintiff tha t matters. S ee Ellerth

, 524

U.S. at 761 (t angible employment action entails “a significant

change in employment sta tus, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits”). Because Roebuck points to no effect, let alone a

signific ant effect, that Corbett’s changing the locks had upon her

employment status, h

er work, or her benefits, we conclude it

was not a tangible employment action.

Roebuck next argues that Warden Randall’s proposal to

transfer her to the relief pool, w hich he sent up the departmental

chain of command, was a tangible employment action. Randall

testified that he changed his mind about the transfer and, as

Roebuck concedes, the transfer never took place; indeed,

Roebuck did not even know about the poss ibility of being

transferred when sh

e left work on sick leave. The proposal

therefore h

ad no effect upon Roebuck’s employment status, her

work, or her benefits. The district court aptly put the matter in

context: “the internal machinations of [the Department] are

insufficient to constitute a tangible employment action where no

aspect of plaintiff’s actual empl oyment was altered as a result.”

Finally, Roebuck conte nds the Department took a

tangi ble employment action against her when Warden Randall

informed Roebuck she wou ld be switching duties with Violet

Hicks. Again as Roebuck acknowledges, in the event her duties

never were changed. Even if the transfer were deemed effective

when the Warden informed Roebuck of it

-- a poi nt upon which

we express no opinion

-- swapping duties with Violet Hicks,

another administrative assistant in the Office of the Warden,

would hardly have worked a “significant” c h ange in Roebuck’s8

* The court in Brown assumed, see id . at 456-57, and we have

no reason in this case to doubt, that a “materially adverse action” in a

case alleging a discrete act of discr imination, and a “tangible

employ ment action” in a case such as this, alleging a hostile work

environment, are one and the same. employment. The only difference seems to be that Hicks

reported to Warden Rand all whereas Roebuck reported to

D eputy Warden Corbett. As this court explained in B rown v.

Brody

,

A plaintiff who is made to undertake ... a lateral transfer

-- that is, one in which

she suffers no diminution in pay

or benefits

-- does not suffer an actionable injury unless

there ar e some other materially adverse consequences

affecting the terms, conditions, or privileges of her

employment or her future employment opportunities.

199 F.3d 446, 457 (1999). * Although Roebuck did not want to

swap duties with Ms. Hicks, she never identified any way in

which the change would have made h er worse off; as the court

made clear in B rown

, “[m]ere idiosyncracies of perso nal

preference are not sufficient.” 199 F.3d at 457.

Robinson v. Sappington

, 351 F.3d 317 (7th Cir. 2003),

upon w hich Roebuck relies, is not to the contrary. The plaintiff

in that case was a secretary for a judge who, she alleged, was

sexually harassing her. When the plaintiff complained to the

Chief Judge of the district, he proposed to reass ign her to a like

position with another judge, at the same time advising her the

other j udge was not at all happy about the transfer, and “her first

six months [in the new post] probably woul d be [such] ‘hell’”

that it would be in her “best interest to resign.” 351 F.3d at 324.

Thus, although the plaintiff was ostensibly offered a lateral

transfer, the change i

n that case, unlike the proposed swap of9

Roebuck’s and Hicks’ duties, entailed “materially adverse

consequences affectin

g the terms, conditions, or privileges of

her employment,” Brown v. Brody

, 199 F.3d at 457; it was

therefore a “tangible employment action.”

B. The Instruction to the Jury

Roebuck argues the district court erred in instructing the

jury with regard to the second element of the Faragher

- Ellerth

affirmative defense, to wit, the employer’s burden of proving

“the plaintiff employee unreasonably failed to take advantage of

a ny preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.” Ellerth , 524 U.S. at 765.

As the Supreme Court explained,

[W]hile proof that an employee faile d to fulfill the

corresponding obligation of reasonable care to avoi d

harm is not limited to show ing any unreasonable failure

to use any complaint procedure pro vided by the

employer, a demonstration of such failure will normally

suffice to satisfy the employer’s burden under the second

element of the defense.

Id

. In this case, the district court instructed the jury as follows:

You must find for the defendant Dist rict of

Columbia if you find defendant has proved by a

preponderance of the evidence f irst that defendant

District of Columbia exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior; and second, that Roebuck unreasonably failed

to take advantage of any p reventive or corrective

opportunities provided by the District of Columbia to

avoid harm.10

...

[P] roof that plaintiff Roebuck did not follow a

complaint procedure provided by defendant District of

Columbia as employe r will ordinarily be enough to

establish that plaintiff R

oebuck unreasonably failed to

take advantage of a corrective opportunity.

Roeb u ck argues the district court erred when it instructed

the jury that the Department could meet its burden with “proof

that plaintiff Roebuck did not follow a complaint procedure

provided by defendant.”

The Department had not argued that

Roebuck failed to follow its c o mplaint procedure. On the

contrary, there was no dispute that on January 21, 1998 Roebuck

filed with Lieutenant Clark a complaint again st Corbett for

sexual harassment. The only issue before the jury was that of

timeliness -- or as Roebuck, quoting Greene v. Dalton , 164 F.3d

671, 675 (D.C. Cir. 1999), succinctly states, “whether ‘a

reasonable person in [her] place’ would have complain e d

earlier.”

The court twice instructed the jury, co rrectly, that the

D epartment had to prove “Roebuck unreasonably failed to take

advantage of any preventive or corrective opportunit[y ].” The

only “unreasonable failu

re” at issue was Roebuck’s failure to

complain earli er. The court’s further instruction about “proof

that plaintiff Roebuck did not follow a complaint procedure

provided by defendant” was therefore surplusage; it would better

have be en omitted, but we see no reason to think the jury could

have been confused by the instruction and somehow concluded

that Roebuck never complained at all.

C. Sufficiency of the Evidence

Lastly, Roebuck challenges the su fficiency of the11

evidence that she unreasonably delaye d complaining to her

employer. She faces an uphill battle, for this court must affirm

if there was evidence in

the record from which a jury reasonably

could infer that Roebuck failed to ex ercise due care to avoid the

harassment of which she complained. S ee Spars hott v. Feld

Entertainment Inc ., 311 F.3d 425, 429 (D.C. Cir. 2002).

Recall that Corbett resumed harassing her in October

1997, yet Roebuck did not complain until late January 1998.

Roebuck argues here, as she did before the jury, that she delayed

in reporting Corbett’s sexual harassment in part because she was

afraid of reprisal and in part because she was unsure whether the

harassment that occurred outside the workplace was covered by

the Department’s anti-harassment policy. Whether fear and

uncertainty made Roebuck’s delay in complaining reasonable

was for the jury to decide.

As the Department points out, “[t]he jury heard

testimony that [Roebuck] had filed as ma ny as ten sexual

harassment complaints between 19 86 and 1995.” Surely that

could have led a reasonable jury to discount Roe buck’s

explanation for delaying.

Upon this record, a

reasonable jury certainly could have

found in Roebuck’s favo r, but we cannot say the same jury

could not find that Roebuck unreasonably d elayed in reporting

Corbett’s harassment. Therefore Roebuck’s challenge to the

sufficiency of the evidence fails.

III. Conclusion

We conclude Roebuck did not suffer a tangible

e mployment action, and the district court did not err materially

in instructing the jury concerning h e r duty of reasonable care.

Because the Depar

tment put on sufficient evidence for a12

reasonable juror to infer that Roebuck in fact failed to exercise

due car e in avoiding the harm she sustained, the judgment of the

district court is

Affirmed

.