FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUGH HARDAGE, 

Plaintiff-Appellant,

v. No. 03-35906

CBS BROADCASTING INC., a New D.C. No.

York Corporation; VIACOM CV-02-01303-JCC

TELEVISION STATIONS INC., a 

ORDER AND Delaware Corporation; VIACOM AMENDED BROADCASTING OF SEATTLE INC., a OPINION Delaware Corporation; KATHY

SPARKS, an individual,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Chief Judge, Presiding

Argued and Submitted

May 3, 2005—Seattle, Washington

Filed November 1, 2005

Amended January 6, 2006

Second Amendment February 8, 2006

Before: J. Clifford Wallace, Barry G. Silverman, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Wallace;

Partial Dissent by Judge Paez

1447
COUNSEL

Claudia Kilbreath, Short Cressman & Burgess PLLC, Seattle,

Washington, for the plaintiff-appellant. 

HARDAGE v. CBS BROADCASTING INC. 1451
Harry J. F. Korrell and Kathryn S. Loppnow, Davis Wright

Tremaine LLP, Seattle, Washington, for the defendantsappellees. 

ORDER

The panel opinion filed January 6, 2006, is amended as follows:

Add as a new paragraph after footnote 1 (slip op. 82): 

There may be circumstances where an employer’s

“remedial obligation kicks in,” Fuller, 47 F.3d at

1528, regardless of the employee’s stated wishes. In

other words, the mere fact that the employee tells the

employer not to take any remedial action may not

always relieve that employer of the obligation to do

so. See, e.g., Torres v. Pisano, 116 F.3d 625, 639 (2d

Cir. 1997). Here, however, it is uncontested that

Hardage did not want Falcone to take further action,

and that Hardage’s wishes were not insincere or

uninformed. Moreover, Hardage did not disclose to

Falcone the details of the harassment, so Falcone had

no way to know of its severity. 

The petition for panel rehearing has been previously

denied. Judge Silverman votes to deny the Petition for

Rehearing En Banc and Judge Wallace so recommends. Judge

Paez would grant the petition. The full court has been advised

of the Petition for Rehearing En Banc and no judge of the

court has requested a vote on whether to rehear the matter en

banc. Fed. R. App. P. 35. 

Appellant’s Petition for Rehearing En Banc is therefore

DENIED. No further petitions may be filed.

1452 HARDAGE v. CBS BROADCASTING INC.
OPINION

WALLACE: 

The district court entered summary judgment dismissing

Hardage’s sexual harassment and retaliation claims against

CBS Broadcasting Inc., Viacom Television Stations Inc., and

Viacom Broadcasting of Seattle Inc. (collectively, CBS), pursuant to Title VII of the 1964 Civil Rights Act and the Washington Law Against Discrimination (WLAD). The district

court concluded that CBS was entitled to assert an affirmative

defense to liability based on the Supreme Court’s decisions in

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and

Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and it

accordingly denied Hardage’s motion for partial summary

judgment on that issue. In addition, the court declined to exercise supplemental jurisdiction over Hardage’s WLAD claims

against Kathy Sparks (the alleged harasser) and dismissed

those claims without prejudice. See 28 U.S.C. § 1367(c). The

court also dismissed Hardage’s Title VII claims against

Sparks with prejudice, and Hardage does not appeal this portion of the court’s judgment. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

I.

In the summer of 1998, Hardage began working as an

advertising account executive for KSTW-TV, a television station owned by Viacom Television Stations, Inc. and managed

by CBS Broadcasting Inc. He was promoted to Local Sales

Manager in February of 2000, and in this position he worked

with another Local Sales Manager, Nadene Stauffer, to manage and supervise the account executives. Both Hardage and

Stauffer were supervised by Patty Dean, the General Sales

Manager, who was in turn supervised by defendant Sparks,

the station’s General Manager. Until about a month before

Hardage resigned in August of 2001, he worked in the Seattle

HARDAGE v. CBS BROADCASTING INC. 1453
sales office whereas Sparks worked in the management office

in Tacoma. 

Hardage contends he was sexually harassed by Sparks on

several occasions and subjected to retaliation after he rejected

her advances. He alleges that during Sparks’ visits to the Seattle office, she repeatedly flirted with him and made inappropriate comments — such as “[y]ou need somebody that’s

older and more stable that can take care of you.” Leo Elbert,

another employee at KSTW, stated that Sparks would “camp

out” in Hardage’s office, kick back in his chair with her feet

on his desk, and smile and giggle in a flirtatious manner.

Hardage asserts that he never flirted with Sparks, but that he

is a “flirtatious person by nature” and that there was “playful

banter from the git-go” with Sparks, some of which he concedes could have been perceived as mutually flirtatious. He

has also stated that he referred to Sparks as “Sparkalicious,”

“Baskin Robbins 32nd Flavor” and “Driving Ms. Sparky.” He

also agreed in his deposition that his love life in general was

“[d]efinitely” part of the “watercooler talk” and “a big topic

of conversation around the office.” 

In addition to the charged workplace harassment, Hardage

alleges more serious harassment on five occasions outside of

the office. First, on Easter Sunday in 2000, Hardage, Sparks,

Dean, Dean’s husband, and a few others attended a brunch at

the Sorrento Hotel. Hardage believes that he might have been

the person who invited Sparks to the event. The group consumed alcoholic beverages and eventually relocated to a

sports bar. Hardage drove Sparks in her car. After a few more

drinks, Sparks allegedly asked Hardage if her hands were

pretty, and then put her foot on an air hockey table while

Hardage was playing and asked if he thought she had cute

feet. Later, while Hardage was on a skateboard game, Sparks

allegedly got up on the skateboard behind him, put her arms

around his waist and told him that he had a “cute ass.” 

After the sports bar, the group went to the Paragon restaurant for dinner and continued drinking alcoholic beverages.

1454 HARDAGE v. CBS BROADCASTING INC.
Sparks sat across the table from Hardage and allegedly took

off her shoe, slid under the table, and put her foot in Hardage’s crotch. At the end of the dinner, many people commented that Sparks was too drunk to drive home, and Sparks

asked if she could stay at Hardage’s apartment for the night.

Hardage declined her request and, according to one witness,

Sparks became “livid” and “stormed off” to drive herself

home. 

The second incident of harassment outside the workplace

allegedly occurred two days after the Easter Sunday events.

Sparks called Hardage and invited him to the Icon Grill restaurant for drinks after work. At the restaurant, she allegedly

told Hardage she had not been able to sleep and “was having

orgasms in her sleep.” She asked Hardage if he felt the same

way about her; Hardage replied that he did not want to damage his career by having a relationship and wanted to go no

further than friendship. Hardage asserts that Sparks responded

with a snide comment along the lines of, “Don’t forget who

got you to where you are.” 

Third, in August of 2000, Hardage and Sparks were both

traveling to Texas to visit their respective families. Sparks

arranged her travel plans so that she and Hardage sat next to

each other on the same flight. Hardage alleges that Sparks

took off her shoe and started rubbing her foot on his leg. After

he asked her to stop, she began rubbing his back “in a kind

of a weird manner.” Sparks later referred to Hardage as her

boyfriend as she was ordering drinks from a flight attendant,

and as they were consuming their drinks, she grabbed his

hand and made explicit sexual advances. Hardage contends

that she offered him oral sex and told him that one experience

of sexual intercourse with her would be life-altering for him.

Hardage told her that nothing physical would happen between

them. 

The fourth incident of alleged harassment occurred in October of 2000, when Hardage and Sparks took some of KSTW’s

HARDAGE v. CBS BROADCASTING INC. 1455
clients to a baseball game. This is the only alleged instance of

harassment outside the workplace that occurred during a

work-related event. Hardage and Sparks sat next to each

other, and Sparks began rubbing his leg with her foot. Hardage responded, “Kathy, cut it out, you know, we got clients

sitting next to us, it’s inappropriate.” Later, Sparks allegedly

took off her rain poncho, put it over Hardage’s lap and

reached under it for Hardage’s crotch. Hardage states he

elbowed her hand away and told her to stop. 

After the game, Hardage invited Sparks to join him for

drinks with his friends at the Pesos bar. Sparks allegedly

glared at Hardage while he greeted his friends, including several women, and shouted, “Who haven’t you f—ed in here?”

Hardage states he pointed to one woman and responded jokingly, “I haven’t f—ed anybody in here, you know, but hopefully she’s next.” Sparks became very upset, asked to be taken

back to her car, and shouted obscenities to Hardage. One witness, Leo Elbert, has stated that Sparks told Hardage, “Don’t

f—ing talk to me. You’re finished.” 

The day after the Pesos incident, Hardage complained to

Dean and told her that “[l]ast night, things went way too far”

and that Sparks had lost her temper. However, Hardage has

stated that he did not tell her “specifics about sexual contact”

and never told Dean that Sparks had touched him in an inappropriate way, nor did he share any details of the harassment

with anyone else at work. 

Hardage also testified that Dean later suggested something

“to the effect of . . . ‘Why don’t you just do it and get it over

with. It may put her in a better mood.’ ” However, when

Hardage told Dean about the Pesos incident, Dean promptly

contacted Ray Rajewski, an executive vice president, who in

turn called Hardage to let him know that he would be contacted by Paul Falcone, a representative from the company’s

human resources department. Falcone called Hardage the

1456 HARDAGE v. CBS BROADCASTING INC.
same day of Hardage’s complaint and arranged to meet with

him in person the following week. 

During their subsequent meeting — which occurred while

Hardage drove Falcone to the airport — he did not give Falcone details about the harassment; indeed, he “didn’t share

any of the so-called gory details with anybody.” Instead, he

gave Falcone “[j]ust the broad statement . . . that [Sparks] had

made . . . unwanted sexual advances that were denied,” that

he was uncomfortable with the situation, and that Sparks had

lost her temper and was “jeopardizing . . . the success of the

team.” Hardage did not tell Falcone about any of the alleged

physical contact or groping by Sparks. 

It is also undisputed that although Falcone offered to talk

to Sparks and treat Hardage’s complaint as an anonymous

complaint, Hardage insisted on handling the situation by himself. Hardage explained in his deposition that he did not think

the complaint could be handled truly anonymously, because

Sparks would know the source, and that he “prided [him]self

in handling [his] own business affairs.” Approximately two

weeks after their meeting, Falcone called Hardage to follow

up, and Hardage informed Falcone that nothing new had happened and that he still did not want Falcone to intervene. 

In addition to sexual harassment, Hardage contends he was

subjected to retaliation. Sparks made snide comments, such

as, “your number’s up” and, “It’s not going to be me that

loses my job, it’s going to be you.” 

About the same time, Hardage’s performance was called

into question. When Hardage and another Local Sales Manager, Stauffer, repeatedly failed to meet sales goals due to a

slump in the advertising market, Dean counseled them on several occasions and sent them joint memoranda discussing their

performance issues. Furthermore, on August 6, 2001, Dean

sent Hardage a memorandum which cited problems with his

work performance, including his insubordination in failing to

HARDAGE v. CBS BROADCASTING INC. 1457
return to work after attending a charity event. Hardage has

conceded that he had in fact been insubordinate. The memorandum indicated that Hardage and Dean would have a formal

meeting to reevaluate his performance in approximately thirty

days, and it warned that a “[f]ailure to see significant

improvement could result in [his] termination.” 

On August 31, 2001, Hardage submitted his letter of resignation. He testified that adverse market conditions had created

a “pretty intense environment” and had “deflated [him] to the

point that . . . was the end of [his] rope.”

II.

Hardage asserts Title VII and WLAD claims of sexual

harassment and retaliation against CBS. “Washington’s Law

Against Discrimination tracks federal law, and thus our analysis will cite only federal law,” but our analysis applies with

equal force to Hardage’s WLAD claims against CBS. Anderson v. Pac. Mar. Ass’n, 336 F.3d 924, 925 n.1 (9th Cir. 2003),

citing Payne v. Children’s Home Soc’y, Inc., 892 P.2d 1102,

1105-06 (Wash. Ct. App. 1995); see also Little v. Windermere

Relocation, Inc., 301 F.3d 958, 966, 969 (9th Cir. 2002)

(Washington courts look to federal law when considering sex

discrimination and retaliation claims). 

We review the district court’s summary judgment de novo

to determine whether, viewing the evidence in the light most

favorable to the non-moving party, there are any genuine

issues of material fact and whether the district court correctly

applied relevant substantive law. Kohler v. Inter-Tel Techs.,

244 F.3d 1167, 1171 (9th Cir. 2001). “[T]here is no issue for

trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).

1458 HARDAGE v. CBS BROADCASTING INC.
III.

[1] Title VII provides that it is “an unlawful employment

practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s . . .

sex.” 42 U.S.C. § 2000e-2(a)(1). This anti-discrimination

principle is violated when sexual harassment is sufficiently

severe or pervasive to “alter the conditions of [the victim’s]

employment and create an abusive working environment.”

Montero v. AGCO Corp., 192 F.3d 856, 860 (9th Cir. 1999)

(alteration in original), quoting Meritor Sav. Bank, FSB v.

Vinson, 477 U.S. 57, 67 (1986), quoting Henson v. Dundee,

682 F.2d 897, 904 (11th Cir. 1982). 

[2] An employer is vicariously liable “for an actionable

hostile environment created by a supervisor with immediate

(or successively higher) authority over the employee.” Id. at

861. However, the Supreme Court has established an affirmative defense to vicarious liability:

When no tangible employment action is taken, a

defending employer may raise an affirmative defense

to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc.

8(c). The defense comprises two necessary elements:

(a) that the employer exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or

to avoid harm otherwise. . . . No affirmative defense

is available, however, when the supervisor’s harassment culminates in a tangible employment action,

such as discharge, demotion, or undesirable reassignment. 

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08. Thus,

even if we assume that Hardage was sexually harassed, CBS

HARDAGE v. CBS BROADCASTING INC. 1459
can avoid liability if it can show that (1) it took no “tangible

employment action” against Hardage, (2) it exercised reasonable care to prevent and correct harassment, and (3) Hardage

unreasonably failed to take advantage of preventive or corrective opportunities. We must determine whether, even viewing

the evidence in the light most favorable to Hardage, he has

failed to raise a triable factual issue as to each element of this

defense, thus entitling CBS to summary judgment.

A.

[3] A “tangible employment action constitutes a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. A tangible employment action

“requires an official act of the enterprise, a company act,” and

“in most cases inflicts direct economic harm.” Id. at 762. 

While employed at KSTW-TV, Hardage never experienced

any decrease in compensation, hours, title, duties or benefits.

He contends, however, that he was constructively discharged

as a result of a hostile work environment, and this constructive discharge constitutes a tangible employment action. See

Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342,

2351 (2004) (holding that constructive discharge precipitated

by a supervisor’s official act can constitute a “tangible

employment action”). He cites the sexual harassment by

Sparks as well as allegedly retaliatory actions — namely, the

adverse performance memoranda he and Stauffer received,

Sparks’ snide remarks, and the August 6, 2001 memorandum

warning Hardage that his performance would be reevaluated

after a thirty-day period. He contends that after “enduring the

severe and pervasive harassment . . . and retaliation,” he “finally came to the conclusion that CBS would not take his

complaints seriously” and saw “no way out” but to resign. He

also argues he was constructively discharged by being placed

1460 HARDAGE v. CBS BROADCASTING INC.
on “the same kind of probation under which [he] had seen

other employees consistently lose their jobs.” 

[4] These arguments miss the mark. In order to survive

summary judgment on a constructive discharge claim, a plaintiff “must show there are triable issues of fact as to whether

‘a reasonable person in [his] position would have felt that [he]

was forced to quit because of intolerable and discriminatory

working conditions.” Steiner v. Showboat Operating Co., 25

F.3d 1459, 1465 (9th Cir. 1994); see also Suders, 124 S. Ct.

at 2347. In Montero, 192 F.3d at 861, we held that the plaintiff was not constructively discharged in part because the sexually harassing behavior had ceased three to four months

before the plaintiff’s resignation. See also Steiner, 25 F.3d at

1465-66; Manatt v. Bank of Am., NA, 339 F.3d 792, 804 (9th

Cir. 2003). Hardage concedes that the last time Sparks made

inappropriate sexual advances or comments was in March of

2001, yet he did not resign until five months later, on August

31, 2001. As a result, even if Sparks’ sexual harassment created a hostile work environment, such harassment ceased well

in advance of Hardage’s resignation. 

[5] Nor do the allegedly retaliatory actions taken against

Hardage amount to a constructive discharge. CBS has proffered legitimate, non-retaliatory reasons for the adverse performance memoranda, which were addressed to both Hardage

and Stauffer. See Brooks v. City of San Mateo, 229 F.3d 917,

930 (9th Cir. 2000) (“[C]onstructive discharge occurs when

the working conditions deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary

and egregious’ ” (citation omitted) (emphasis added)). Indeed,

it is undisputed that Hardage was insubordinate and failed to

meet sales goals in his last few months as a Local Sales Manager. 

[6] For this reason, even if we consider the memoranda as

tangible employment actions in and of themselves, rather than

as components of a constructive discharge, they do not bar

HARDAGE v. CBS BROADCASTING INC. 1461
CBS from asserting the Ellerth/Faragher defense. See Elvig

v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir.

2004) (“[E]ven if a tangible employment action occurred, an

employer may still assert the affirmative defense if the tangible employment action ‘was unrelated to any harassment or

complaint thereof’ ” (quoting Nichols v. Azteca Rest. Enter.,

Inc., 256 F.3d 864, 877 (9th Cir. 2001))); Kohler, 244 F.3d at

1180 (“Kohler cannot connect any of the alleged employment

actions she experienced to her rejection of [her supervisor]’s

advances. Therefore, Kohler has failed to demonstrate a disputed factual issue as to whether she suffered a tangible

employment action”). 

[7] As for the allegedly snide remarks, the Supreme Court

has emphasized that only a constructive discharge which is

precipitated by an “official act” can constitute a “tangible

employment action.” Suders, 124 S. Ct. at 2355. An official

act is “ ‘the means by which the supervisor brings the official

power of the enterprise to bear on subordinates.’ ” Id. at 2353,

quoting Ellerth, 524 U.S. at 762. Sparks’ occasional comments clearly are insufficient under this standard. Thus, Hardage has failed to establish a material factual dispute as to

whether he was constructively discharged, and he has not

alleged any other “tangible employment action.”

B.

In order to assert the Ellerth/Faragher defense successfully, CBS must have “exercise[d] reasonable care to prevent

and correct promptly any sexually harassing behavior.”

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. In Kohler, 244 F.3d at 1180-81, we construed this standard to require

both preventive and remedial measures. 

[8] As for the former, we held that an employer’s adoption

of an anti-harassment “policy and its efforts to disseminate

the policy to its employees establish that [the employer] exercised reasonable care to prevent sexual harassment in the

1462 HARDAGE v. CBS BROADCASTING INC.
workplace.” Id. at 1180; see also Ellerth, 524 U.S. at 765. In

this case, it is undisputed that CBS has an anti-harassment

policy, with which Hardage had familiarity. As a supervisor,

he was responsible for reporting sexual harassment to the

human resources department, and he understood that sexual

harassment was prohibited. Thus, CBS fulfilled its duty to

take preventive measures as a matter of law by adopting and

promoting awareness of its anti-harassment policy. 

In addition, however, CBS must have taken steps to correct

Hardage’s particular situation promptly. See Kohler, 244 F.3d

at 1181 (“The [reasonable care] prong of the affirmative

defense also requires [the employer] to demonstrate that it

exercised reasonable care to promptly correct sexually harassing behavior”); see also Montero, 192 F.3d at 862. After

Hardage complained to Dean in October 2000, Dean immediately contacted Rajewski, who in turn notified Falcone. Falcone called Hardage the same day he made his complaint, and

shortly thereafter, they met in Seattle. At their meeting, Falcone discussed Hardage’s options. Hardage asserted that he

wanted to “handle it by [him]self.” Approximately two weeks

later, Falcone followed up with Hardage by telephone, and

Hardage indicated that he still did not want Falcone to intervene. This would appear to end any debate on this issue, but

Hardage makes two arguments as to why there is a triable factual dispute regarding this requirement. 

[9] First, he emphasizes Falcone’s “inexplicabl[e]” failure

to investigate his complaint or discipline Sparks. In Swenson

v. Potter, 271 F.3d 1184 (9th Cir. 2001), we explained that

“[n]otice of the sexually harassing conduct triggers an

employer’s duty to take prompt corrective action that is ‘reasonably calculated to end the harassment.’ ” Id. at 1192 (citations omitted). “The reasonableness of the remedy depends on

its ability to: (1) ‘stop harassment by the person who engaged

in harassment;’ and (2) ‘persuade potential harassers to refrain

from unlawful conduct.’ ” Nichols, 256 F.3d at 875. Although

an “investigation is a key step,” Swenson, 271 F.3d at 1193,

HARDAGE v. CBS BROADCASTING INC. 1463
we “consider the overall picture” to determine whether the

employer’s response was appropriate. Id. at 1197. 

To be sure, CBS’s anti-harassment policy states that

“[f]ollowing a complaint, a thorough investigation will be

made” and the “matter will be handled in the strictest of confidence.” Hardage was convinced, however, that there was “absolutely no way that [his complaint] could be handled

anonymously,” and he therefore told Falcone he wanted to

handle the situation by himself. Indeed, he stated that when

Sparks later mentioned the words “sexual harassment” to him,

he “felt like [his] trust had been possibly violated by corporate

and — leaking information, because [he had] stated [he]

wanted to handle the case on [his] own.” 

[10] In addition, although Hardage did put CBS on notice

of Sparks’ “unwanted sexual advances,” he did not tell Falcone the “gory details” or apprise Dean of the “specifics about

sexual contact.” Instead, he was vague about the extent and

nature of Sparks’ advances. Thus, even if a more thorough

investigation and disciplinary measures for the harasser could

in some circumstances be essential in spite of a harassed

employee’s request to handle the situation, there can be no

such duty in this case. See Ellison v. Brady, 924 F.2d 872, 882

(9th Cir. 1991) (“[R]emedies should be ‘assessed proportionately to the seriousness of the offense’ ”); cf. Nichols, 256

F.3d at 870-71 (employer failed to meet remedial obligations

after employee “reported and described the specifics of the

harassment” to a human resources director, and “expressed

concern that the harassment would continue to be ignored”).

Dean’s alleged comment to Hardage that “Why don’t you just

do it and get it over with. It may put her in a better mood” is

certainly troubling. However, it cannot singularly serve to

transform CBS’s response into an unreasonable one, nor can

it erase the legal significance of his specific request not to

investigate his admittedly minimal and vague complaint. Con1464 HARDAGE v. CBS BROADCASTING INC.
sidering the “overall picture,” CBS’s response was both

prompt and reasonable as a matter of law.1

There may be circumstances where an employer’s “remedial obligation kicks in,” Fuller, 47 F.3d at 1528, regardless

of the employee’s stated wishes. In other words, the mere fact

that the employee tells the employer not to take any remedial

action may not always relieve that employer of the obligation

to do so. See, e.g., Torres v. Pisano, 116 F.3d 625, 639 (2d

Cir. 1997). Here, however, it is uncontested that Hardage did

not want Falcone to take further action, and that Hardage’s

wishes were not insincere or uninformed. Moreover, Hardage

1The dissent accuses us of “depart[ing] from well-settled case law

requiring an employer to conduct an investigation and take prompt corrective action once it is on notice of alleged harassment.” This “well-settled

case law” appears to consist of a single out-of-circuit case, Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000). Malik, however, addressed a significantly different legal context. 

In Malik, the Second Circuit considered state law claims by a man

accused of harassment. Malik filed suit for negligent infliction of emotional distress and negligent misrepresentation arising out of the investigation of complaints against him. 202 F.3d at 99. Malik’s accusers never

requested that their complaints not be investigated. See id. at 100-02. Thus

Malik bears little resemblance to the present action and the quoted language is at best dicta from another circuit. 

There is thus no precedent to support the dissent’s claim (at 1475) that

“even if a complainant requests that the employer take no action, an

employer still must fulfill its duty” to investigate the complaint. It is therefore the dissent that would “depart from well-settled” precedent by requiring an investigation in all circumstances no matter how strenuously or

repeatedly the alleged victim asked the company to forego investigation.

The dissent also analyzes the potential legal effect of EEOC enforcement guidance. This guidance was never cited by Hardage in any of his

briefs. “Our circuit has repeatedly admonished that we cannot ‘manufacture arguments for an appellant’ and therefore we will not consider any

claims that were not actually argued in appellant’s opening brief.” Indep.

Towers v. Washington, 350 F.3d 925, 929 (9th Cir. 2003), quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). For that reason, we will

not manufacture an argument on Hardage’s behalf and then rule on it in

his favor. This argument was waived. See Greenwood, 28 F.3d at 977. 

HARDAGE v. CBS BROADCASTING INC. 1465
did not disclose to Falcone the details of the harassment, so

Falcone had no way to know of its severity. 

Alternatively, Hardage contends there is a triable factual

dispute as to whether CBS was on notice prior to his complaint to Dean in October of 2000. He alleges that he made

“numerous complaints” to Dean and repeatedly told her he

did not want to be left alone with Sparks. Yet when counsel

for CBS asked Hardage during his deposition to state every

time he could recall speaking to Dean about Sparks’ behavior,

Hardage vaguely suggested a barbeque event and a concert at

the Mercer Coliseum, but he could not remember the dates or

what he told Dean about why he did not want to attend the

events. Hardage recalled that he may have told Dean he did

not want to be alone with Sparks — which Hardage asserts

was “an ongoing joke” — but such a statement would hardly

have given Dean notice of ongoing sexual harassment. Even

drawing all reasonable inferences in favor of Hardage, these

undetailed allegations are “merely colorable” and insignificantly probative to create a genuine factual dispute about

whether CBS’s response was reasonable. See Anderson, 477

U.S. at 249-50; see also McPherson v. City of Waukegan, 379

F.3d 430, 441 n.7 (7th Cir. 2004) (“ ‘When . . . the only possible source of notice to the employer . . . is the employee who

is being harassed, she cannot withstand summary judgment

without presenting evidence that she gave the employer

enough information to make a reasonable employer think

there was some probability that she was being sexually

harassed.’ ” (quoting Zimmerman v. Cook County Sheriff’s

Dep’t, 96 F.3d 1017, 1019 (7th Cir. 1996))). 

Hardage also argues that CBS was on notice of the harassment because Dean personally observed some of Sparks’

harassing behavior. Yet, Hardage has stated that Dean also

witnessed “some flirtation,” and he concedes that the mutual

“banter” between Sparks and him could have been perceived

as flirtatious. Taken in context, Dean did not unreasonably

1466 HARDAGE v. CBS BROADCASTING INC.
fail to report the incident to CBS management, thereby triggering CBS’s duty to remedy the situation promptly. 

In addition, Hardage suggests Dean “had the opportunity to

observe the harassment on a daily basis in the workplace.”

However, until July 2001 — approximately ten months after

Hardage complained to Dean in October 2000 — Hardage

worked in Seattle and Sparks worked in Tacoma. Accordingly, Dean had limited opportunities to observe Hardage and

Sparks together. Furthermore, given Hardage’s playful names

for Sparks such as “Sparkalicious” and their “playful banter

from the git-go,” his repeated invitations to Sparks to socialize with him outside of work, and his failure to inform Dean

that Sparks’ flirtations were unwelcome harassment, Dean did

not unreasonably fail to report any flirtatious behavior by

Sparks when she was visiting the Seattle office. 

C.

[11] We now turn to the third Ellerth/Faragher requirement: that Hardage unreasonably failed to take advantage of

preventive or corrective opportunities. As a local sales manager in charge of supervising approximately ten employees,

Hardage was well aware of CBS’s anti-harassment policy and

the procedure for initiating a complaint. Indeed, he testified

he understood that “all actual sexual harassment in [his]

workplace [was] dealt with in a serious manner.” He contends

that he “informally and formally reported the harassment on

several occasions,” and therefore he did not unreasonably fail

to make use of remedial and preventive opportunities. 

[12] Yet, although Hardage contends the harassment commenced in April 2000, his first complaint to Dean that he has

identified with specificity was in October 2000 — approximately half a year later. “[W]hile proof that an employee

failed to fulfill the . . . obligation of reasonable care to avoid

harm is not limited to showing any unreasonable failure to use

any complaint procedure provided by the employer, a demonHARDAGE v. CBS BROADCASTING INC. 1467
stration of such failure will normally suffice to satisfy the

employer’s burden under [this] element of the defense.”

Ellerth, 524 U.S. at 765; Faragher, 124 U.S. at 807-08; see

also Suder, 124 S. Ct. at 2354 (the Ellerth/Faragher defense

requires “plaintiffs reasonably to stave off avoidable harm”);

Kohler, 244 F.3d at 1181-82. In addition to waiting half a year

to make a complaint, when Hardage finally made his complaint he specifically asked the company not to investigate it.

By specifically requesting the company not make use of its

remedial and preventative procedures, Hardage unreasonably

failed to make use of CBS’s anti-harassment policies and procedures. 

[13] Thus, Hardage has failed to establish a material factual

dispute regarding any of the three elements of CBS’s affirmative defense. The district court properly entered summary

judgment for CBS and denied partial summary judgment for

Hardage on his sexual harassment claim. 

IV.

[14] Title VII prohibits retaliation against an employee for

opposing unlawful discrimination. 42 U.S.C. § 2000e-3(a). To

make out a prima facie case of retaliation, Hardage must show

that (1) he engaged in a protected activity, such as the filing

of a complaint alleging sexual harassment; (2) CBS subjected

him to an adverse employment action; and (3) a causal link

exists between the protected activity and the adverse action.

See Manatt, 339 F.3d at 800, quoting Ray v. Henderson, 217

F.3d 1234, 1240 (9th Cir. 2000); Brooks, 229 F.3d at 928. If

Hardage makes a prima facie case, the burden shifts to CBS

to articulate a legitimate, nondiscriminatory reason for the

adverse action, and Hardage then bears the ultimate burden of

demonstrating that this reason is pretextual. Manatt, 339 F.3d

at 800. 

[15] Hardage contends he was subjected to retaliation in the

form of adverse performance memoranda and being placed on

1468 HARDAGE v. CBS BROADCASTING INC.
a thirty-day probation period. In Ray, we recognized that “undeserved performance ratings, if proven, would constitute

‘adverse employment decisions.’ ” 217 F.3d at 1241 (emphasis added), quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376

(9th Cir. 1987). Here, by contrast, it is undisputed that Hardage failed to meet sales goals and disobeyed Dean’s instruction that he return to work after a charity event. Hardage

therefore failed to prove a causal link between the memoranda

and Hardage’s sexual harassment complaint. Furthermore,

even if we assume that Hardage has established a prima facie

case, we conclude he has failed to rebut CBS’s legitimate reasons for the memoranda. See Manatt, 339 F.3d at 801. Moreover, except for the August 6 memorandum addressing

Hardage’s insubordination, Stauffer received the same performance memoranda. “Absent a showing of disparate treatment,

the [employer’s action] cannot be deemed retaliatory.”

Brooks, 229 F.3d at 929. 

In addition, Hardage asserts that Sparks retaliated by making “snide remarks” and threats, such as “your number’s up”

and “don’t forget who got you where you are.” However, we

have held that “only non-trivial employment actions that

would deter reasonable employees from complaining about

Title VII violations will constitute actionable retaliation.” In

Kortan v. California Youth Authority, 217 F.3d 1104, 1112

(9th Cir. 2000), we held that a supervisor’s laughing and stating that the plaintiff “got him on sexual harassment charges,”

the supervisor’s hostile stares, and increased criticism were

insufficient to preclude summary judgment dismissing the

plaintiff’s retaliation claim. See also Brooks, 229 F.3d at 929

(stating that badmouthing an employee outside the job reference context does not constitute adverse employment action);

Manatt, 339 F.3d at 803 (“Mere ostracism in the workplace

is not grounds for a retaliation claim . . . .”); cf. Ray, 217 F.3d

at 1243 (definition of “adverse employment action” “does not

cover every offensive utterance by co-workers, because offensive statements by co-workers do not reasonably deter

employees from engaging in protected activity”). 

HARDAGE v. CBS BROADCASTING INC. 1469
Moreover, even if Sparks’ remarks collectively created a

hostile work environment that constituted retaliation, such

harassment “is actionable only if it is ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’ ” Ray, 217 F.3d

at 1245. quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993). Considering the totality of circumstances, we hold

that Sparks’ comments are insufficiently severe to support a

retaliation claim. See Faragher, 524 U.S. at 788 (“ ‘[S]imple

teasing,’ offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes

in the ‘terms and conditions of employment.’ ” (citation omitted)).

V.

[16] Because Hardage appeals from the district court’s dismissal of his state WLAD claims against Sparks only by arguing they should be reinstated if summary judgment for CBS

is reversed, we affirm the district court’s dismissal of this

claim as well. See 28 U.S.C. § 1367(c); Acri v. Varian

Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc)

(“ ‘[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors . . . will point

toward declining to exercise jurisdiction over the remaining

state-law claims’ ” (omission in original) (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988))). 

AFFIRMED.

PAEZ, Circuit Judge, dissenting in part: 

I agree that the district court properly granted summary

judgment on Hardage’s constructive discharge and retaliation

claims, and that Hardage did not raise a triable issue of fact

as to whether he suffered a tangible employment action. I can1470 HARDAGE v. CBS BROADCASTING INC.
not agree, however, with the majority’s conclusion that CBS

established as a matter of law the Faragher/Ellerth defense to

vicarious liability for Sparks’ sexual harassment. In reaching

its conclusion, the majority departs from well-settled case law

requiring an employer to conduct an investigation and take

prompt corrective action once it is on notice of alleged harassment. Because a reasonable jury readily could find that CBS

is vicariously liable for sexual harassment, I would reverse the

grant of summary judgment and remand for a trial. Accordingly, I dissent from Parts III.B and III.C of the majority’s

opinion. 

To establish the Faragher/Ellerth affirmative defense, an

employer must prove by a preponderance of the evidence two

necessary elements: 

(a) that the employer exercised reasonable care to

prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or

to avoid harm otherwise. 

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

An employer is not entitled to summary judgment on this

issue unless there are no genuine disputes of material fact as

to either element of the defense. That is, summary judgment

must be denied if a rational jury could conclude either that (1)

the employer failed to exercise reasonable care to prevent and

promptly correct any sexually harassing behavior, or that (2)

the employee did not unreasonably fail to take advantage of

any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise. Here, the record reveals

genuine factual disputes as to both elements. 

HARDAGE v. CBS BROADCASTING INC. 1471
1. Whether CBS Acted Reasonably to Prevent and

Correct the Harassment

It is well-established that “[n]otice of the sexually harassing

conduct triggers an employer’s duty to take prompt corrective

action that is reasonably calculated to end the harassment.”

Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001) (internal quotation marks omitted). The reasonableness of the remedy depends on the employee’s ability to stop the harassment

and to deter potential harassers, as well as the promptness of

the response. McGinest v. GTE Serv. Corp., 360 F.3d 1103,

1120 (9th Cir. 2004). Once an employer is on notice of a sexual harassment complaint, it must conduct an investigation.

Swenson, 271 F.3d at 1193. An employer’s remedial “obligation actually has two parts. The first consists of the temporary

steps the employer takes to deal with the situation while it

determines whether the complaint is justified. The second

consists of the permanent remedial steps the employer takes

once it has completed its investigation.” Id. at 1192. 

Contrary to our case law, the majority holds that an

employer’s response to a harassment complaint may be

deemed reasonable as a matter of law even though the

employer conducted no investigation and took no action to

address the harassing behavior. The majority relies on our

statement in Swenson that “we consider the overall picture” in

determining the adequacy of the employer’s response to a

harassment complaint. Id. at 1197. In Swenson, however, we

never suggested that an investigation was not required. In

fact, we specifically stressed the importance of an investigation, stating:

The most significant immediate measure an

employer can take in response to a sexual harassment complaint is to launch a prompt investigation

to determine whether the complaint is justified. An

investigation is a key step in the employer’s

response, and can itself be a powerful factor in deter1472 HARDAGE v. CBS BROADCASTING INC.
ring future harassment. By opening a sexual harassment investigation, an employer puts all employees

on notice that it takes such allegations seriously and

will not tolerate harassment in the workplace. An

investigation is a warning, not by words but by

action. 

Id. at 1193 (citation omitted). 

In Swenson, we held that the investigation conducted by the

employer was competent. We noted, however, that even if the

investigation were “less than perfect,” the employer’s

response was reasonable in light of the “overall picture,” id.

at 1197, which included the fact that the employer immediately warned the harasser that his conduct was sexual harassment and ordered him to keep away from the complainant,

promptly separated him from the complainant pending the

outcome of the investigation, and the harassment stopped as

a result of the employer’s intervention. Id. at 1192-98. We did

not hold, nor have we ever held, that an employer may be

deemed to have reasonably responded to a harassment complaint when it altogether fails to conduct an investigation.

Indeed, we have stated that “the ‘fact of investigation alone’

is not enough. An investigation that is rigged to reach a predetermined conclusion or otherwise conducted in bad faith

will not satisfy the employer’s remedial obligation.” Id. at

1193 (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1529

(9th Cir. 1995)). 

Here, the majority acknowledges that Hardage told CBS’s

human resources representative, Ray Falcone, that Sparks had

made “ ‘unwanted sexual advances.’ ” Maj. op. at 1457. Yet,

Falcone conducted no investigation and took no corrective

action. Nor did he even inform Sparks that a complaint had

been made, much less discipline her.1 Nonetheless, the major1Falcone testified in his deposition as follows: 

HARDAGE v. CBS BROADCASTING INC. 1473
ity concludes as a matter of law that CBS exercised reasonable care to correct Sparks’ harassment. The majority relies

on two facts: Hardage told Falcone he would handle the matter himself, and Hardage did not offer Falcone specific details

about Sparks’ sexually harassing behavior. Maj. op. at 1464.

Neither is a valid reason for absolving CBS of its duty to

investigate and correct Sparks’ harassment. 

First, a harassment complainant’s request that an employer

take no action does not relieve the employer of its obligation

under the law to investigate and remedy the harassing conduct. The Equal Employment Opportunity Commission’s

(“EEOC”) Enforcement Guidance on Vicarious Liability for

Supervisor Harassment speaks precisely to this point: 

A conflict between an employee’s desire for confidentiality and the employer’s duty to investigate may

Q: “Just to confirm, . . . based on your conversation with Mr.

Hardage, you didn’t conduct any investigation — 

A: Correct. 

Q: — of these claims? 

A: Yes. 

Q: And I take it that Ms. Sparks was never disciplined in any

way? 

A: No. I never even — my recommendation to Ray Rajewski

was that it didn’t even need to be brought to Kathy Sparks’ attention. 

Further, Patty Dean testified: 

Q: Did Mr. Falcone ever contact you or interview you in any

way regarding Mr. Hardage’s complaints about Ms. Sparks? 

A: No, I believe not. 

Q: Okay. Did anyone at KSTW or CBS, the broader entity, ever

contact you, ask you any questions, interview you, anything of

that kind regarding Mr. Hardage’s complaints about Ms. Sparks?

A. No. 

1474 HARDAGE v. CBS BROADCASTING INC.
arise if an employee informs a supervisor about

alleged harassment, but asks him or her to keep the

matter confidential and take no action. Inaction by

the supervisor in such circumstances could lead to

employer liability. While it may seem reasonable to

let the employee determine whether to pursue a complaint, the employer must discharge its duty to prevent and correct harassment. 

EEOC Enforcement Guidance: Vicarious Employer Liability

for Unlawful Harassment by Supervisors, § V.C.1.d, No.

915.002 (June 18, 1999) [hereinafter EEOC Enforcement Guidance].2

 This same concern was expressed by the Second Circuit in Malik v. Carrier Corp., 202 F.3d 97, 105-06 (2d Cir.

2000). Although addressing slightly different circumstances,

the Second Circuit in Malik noted the importance of an

employer’s investigation of sexual harassment complaints,

even when the victim employee desires to drop the matter: 

[A]n employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to

investigate may allow a jury to impose liability on

the employer. . . . Nor is the company’s duty to

investigate subordinated to the victim’s desire to let

the matter drop. Prudent employers will compel

harassing employees to cease all such conduct and

will not, even at a victim’s request, tolerate inappropriate conduct that may, if not halted immediately,

create a hostile environment. 

Thus, contrary to the majority’s holding, even if a complainant requests that the employer take no action, an employer

still must fulfill its duty to prevent and correct the alleged

harassment. 

2We have held that the EEOC’s interpretations of Title VII as expressed

in this Enforcement Guidance “are entitled to respect.” Holly D. v. Cal.

Inst. of Tech., 339 F.3d 1158, 1172 (9th Cir. 2003). 

HARDAGE v. CBS BROADCASTING INC. 1475
Moreover, while the majority purports to consider the

“overall picture,” its account of CBS’s response to Hardage’s

complaint ignores critical facts indicating that CBS failed to

act reasonably. The majority’s summary of these events is

brief: “[A]lthough Falcone offered to talk to Sparks and treat

Hardage’s complaint as an anonymous complaint, Hardage

insisted on handling the situation by himself.” Maj. op. at

1476. This account leaves out key aspects of Hardage’s discussion with Falcone. After Hardage told Falcone that Sparks

had made unwanted sexual advances, Falcone asked Hardage,

“What would you like me to do?” In response, Hardage said

he “really d[id]n’t know,” and asked, “What are my options?

How do you usually handle these things?” Falcone testified

that he then told Hardage he had three choices: (1) Hardage

could “do absolutely nothing and hope it solves itself,” (2)

Hardage could talk to Sparks on his own, or (3) Falcone could

“very nicely talk with” Sparks and ask her to “just lay back

on this a little bit,” but he assured Hardage he would not “yell

at her and get her in trouble.” 

Notably, not one of these options fulfilled CBS’s legal duty

to investigate and correct the harassing behavior. The first two

options flouted CBS’s obligation to take prompt corrective

action. See Fuller, 47 F.3d at 1529 (“[I]naction [cannot] fairly

be said to qualify as a remedy ‘reasonably calculated to end

the harassment.’ Title VII does not permit employers to stand

idly by once they learn that sexual harassment has occurred.

To do so amounts to ratification of the prior harassment.”

(citation omitted)). The second option also inappropriately put

the burden on Hardage to correct the harassment. See Nichols

v. Azteca Rest. Enters., Inc., 256 F.3d 864, 876 (9th Cir. 2001)

(holding that an employer unreasonably responded to a

harassment complaint when it “placed virtually all of its

remedial burden on the victimized employee”). Finally, the

third option—the only one proposing any action by CBS at all

—improperly included a guarantee that CBS would not discipline Sparks in any way. See McGinest, 360 F.3d at 1120

1476 HARDAGE v. CBS BROADCASTING INC.
(“Remedial measures must include some form of disciplinary

action.”). 

It was only after Falcone presented these three legally inadequate options that Hardage said he would handle the situation himself. Even if an employer could be relieved of its duty

to investigate and correct harassing behavior by virtue of a

complainant’s request to address it on his own—which it

cannot—this certainly cannot be true where, as here, “the

overall picture” reveals that CBS affirmatively misled Hardage about its own legal duty and offered him no meaningful

alternative to handling the situation on his own. An employer

may not shield itself from liability by erroneously telling a

complainant that doing “absolutely nothing” is a valid

response to harassment, and then justifying its inaction by

stating it was merely respecting the employee’s “choice.” 

Second, the majority incorrectly holds that “there can be no

duty” to investigate or correct harassment where an employee

fails to offer specific details of the harassing behavior in the

course of making his initial complaint. The majority notes that

Hardage said he “did not tell [Dean] ‘specifics about sexual

contact’ ” and did not tell Falcone the “ ‘gory details’ ” of

Sparks’ behavior. Maj. op. at 1464. The majority, however,

acknowledges that “Hardage did put CBS on notice of

Sparks’ ‘unwanted sexual advances.’ ”

3

Id. This is all that is

required to trigger CBS’s duty to investigate and correct the

harassment. 

There is simply no authority for the proposition that an

employer who is on notice of unwanted sexual advances is

relieved of the duty to investigate and take corrective action

merely because the employee did not volunteer the details of

3

Indeed, Hardage testified that he told both Dean and Falcone that

Sparks had made unwanted sexual advances, and Dean herself testified

that she understood that Hardage was complaining about sexual harassment. 

HARDAGE v. CBS BROADCASTING INC. 1477
the harassing conduct during his initial complaint to the

employer, especially where—as here—the employer never

asked for specifics. The very point of an investigation is to

gather the details about the alleged harassment. See EEOC

Enforcement Guidance § V.C.1.e.i (providing examples of

appropriate questions to ask the complainant during an investigation, including, “Who, what, when, where, and how: Who

committed the alleged harassment? What exactly occurred or

was said? When did it occur and is it still ongoing? Where did

it occur? How often did it occur? How did it affect you?”). 

To support its conclusion that an employer has no duty to

investigate where the complainant is “vague about the extent

and nature” of a supervisor’s sexual advances, the majority

cites Ellison v. Brady, where we held that “remedies should

be assessed proportionately to the seriousness of the offense.”

924 F.2d 872, 882 (9th Cir. 1991) (internal quotations omitted). In Ellison, however, we did not suggest that an investigation is a remedy that may or may not be imposed depending

on the seriousness of the offense; indeed, there, the employer

promptly investigated the complaint and requested that the

harasser refrain from discriminatory conduct, yet we held that

there was a genuine dispute of fact regarding the reasonableness of the remedy. Id. at 882-83. As we have made clear, “an

investigation is principally a way to determine whether any

remedy is needed and cannot substitute for the remedy itself.”

Fuller, 47 F.3d at 1529. 

The majority also cites Nichols, where we stated that the

complainant had reported “the specifics of the harassment.”

256 F.3d at 870. In Nichols, however, we noted this fact in the

context of holding that the district court clearly erred in finding that the complainant had not reported the harassment at all

and in support of our conclusion that the complainant subjectively perceived his workplace to be hostile. Id. at 873

(“Sanchez told Serna, in considerable detail, about the fact

and nature of the verbal abuse. Sanchez also complained to

the Southcenter general manager and an assistant manager,

1478 HARDAGE v. CBS BROADCASTING INC.
though in less detail. It was clearly erroneous to find, as did

the district court, that Sanchez had not complained about his

harassment. . . . That Sanchez complained about the frequent,

degrading verbal abuse supports our conclusion that the conduct was unwelcome”). 

Moreover, Nichols actually undermines the majority’s conclusion. There, we noted that the plaintiff’s complaints did not

comply with the formal reporting requirements of the employer’s anti-harassment policy; nonetheless, we held that the

plaintiff’s complaints “were sufficient to place the company

on notice of the harassment.” 256 F.3d at 876 n.10. Because

the employer did nothing to investigate or remedy the harassment despite this notice, we held that the employer did not

exercise reasonable care and could not assert the affirmative

defense to vicarious liability. Id. at 877. As in Nichols, the

critical point here is that CBS was on notice of Sparks’

unwanted sexual advances, yet failed to investigate or remedy

the harassment. 

Notice of Sparks’ unwanted sexual advances triggered

CBS’s duty to investigate and take steps reasonably calculated

to end the harassment. CBS’s inaction in the face of Hardage’s complaint not only violated its legal duty, it also violated its own written policy on sexual harassment. This policy

states:

Following a complaint, a thorough investigation will

be made by interviewing the individual(s) allegedly

responsible for the harassment, and any witnesses.

After the investigation, should it be determined that

the allegations are true, then appropriate action will

be taken, including, but not limited to, written reprimand, warning, suspension, demotion, or dismissal.

As noted, CBS admittedly never conducted an investigation

of Hardage’s complaint and never took any disciplinary action

against Sparks. Indeed, Falcone testified that his “recommenHARDAGE v. CBS BROADCASTING INC. 1479
dation . . . was that it didn’t even need to be brought to Kathy

Sparks’ attention.” On this record, a rational trier of fact readily could conclude that CBS failed to exercise reasonable care

to correct Sparks’ harassing behavior. See Fuller, 47 F.3d at

1529 (“An employer whose sole action is to conclude that no

harassment occurred cannot in any meaningful sense be said

to have ‘remedied’ what happened.”). 

The majority’s contrary conclusion marks a dramatic

departure from our case law establishing that an employer

breaches its duty of reasonable care when it fails to adequately investigate, and take steps to correct, harassing conduct. See Nichols, 256 F.3d at 876-88 (holding that employer

did not exercise reasonable care to promptly correct sexually

harassing behavior where it “made no effort to investigate

Sanchez’s complaint; it did not discuss his allegations with

the perpetrators; it did not demand that the unwelcome conduct cease; and it did not threaten more serious discipline in

the event the harassment continued”); Fuller, 47 F.3d at 1529

(holding that employer could not be shielded from liability for

sexual harassment where its investigation was inadequate, its

offer to transfer victim improperly targeted the victim rather

than the harasser, and the employer “failed to take any appropriate remedial steps once it learned of the harassment”);

Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th

Cir. 1994) (reversing grant of summary judgment in favor of

employer on vicarious liability where employer “was consistently slow to react to Steiner’s claims, and did not seriously

investigate them or strongly reprimand” the harasser until

after Steiner filed a complaint with the state equal rights commission); Ellison, 924 F.2d at 882 (holding that genuine

issues of fact precluded summary judgment for the employer

even though it “promptly investigated” the harassment allegation, where it “did not express strong disapproval of Gray’s

conduct, did not reprimand Gray, did not put him on probation, and did not inform him that repeated harassment would

result in suspension or termination”). 

1480 HARDAGE v. CBS BROADCASTING INC.
CBS’s conduct here is a far cry from actions that we have

held fulfilled an employer’s duty of reasonable care. For

example, in Kohler v. Inter-Tel Tech., 244 F.3d 1167, 1181

(9th Cir. 2001)—where we stated that the facts “present a paradigm of the ‘reasonable efforts’ the Supreme Court sought to

encourage when it established the affirmative defense”—the

employer “responded by promptly hiring a neutral third party

to investigate Kohler’s allegations,” and even though the

investigator did not confirm the harassment claim, the

employer nonetheless reviewed its antiharassment policy with

the alleged harasser, reprimanded him for his behavior, and

conducted mandatory sexual harassment trainings for the

entire workforce. Id.; see also Holly D., 339 F.3d at 1177-78

(holding that employer acted reasonably as a matter of law

where it “promptly convened an investigatory committee,

which impartially interviewed every witness” suggested by

the complainant and the alleged harasser; the employer

reminded the harasser of its sexual harassment policy despite

an initial determination that there was insufficient evidence of

harassment; and once evidence came to light substantiating

the victim’s complaint, the employer asked the harasser to

resign); Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir.

1999) (holding that employer exercised reasonable care where

it promptly investigated the allegations, interviewed the complainant, the alleged harassers, and other employees at the

facility, met with all employees “and made clear that the company would tolerate no retaliation against Plaintiff,” terminated one of the harassers, and disciplined the two others). In

contrast, CBS did nothing to investigate or remedy Sparks’

behavior. 

Even apart from CBS’s inaction following Hardage’s October 2000 complaint, Hardage raised a triable issue of fact

regarding the reasonableness of CBS’s response to his earlier

complaints to Patty Dean. Hardage testified that he complained to Dean “numerous times” about Sparks’ unwanted

sexual advances and that Dean personally observed Sparks’

harassment. He also testified that Dean responded to HardHARDAGE v. CBS BROADCASTING INC. 1481
age’s complaints by suggesting, “Why don’t you just do it and

get it over with. It may put her in a better mood.” This piece

of evidence alone is sufficient to establish a genuine factual

dispute as to whether CBS exercised reasonable care in

responding to Hardage’s complaint. It is difficult to imagine

how any reasonable juror could conclude that an employer

who suggests that the complainant have sex with a harassing

supervisor has acted reasonably to end the harassment. In concluding that Dean was not on notice of Sparks’ harassment

and that “[t]aken in context, Dean did not unreasonably fail

to report the incident to CBS management, thereby triggering

CBS’s duty to remedy the situation promptly,” Maj. op. at

1466-67 the majority improperly credits CBS’s account and

fails to draw all inferences in favor of Hardage by dismissing

his claims as “minimal and vague.” Id. at 1464. 

2. Whether Hardage Unreasonably Failed to Take

Advantage of Corrective Opportunities

As noted above, the existence of a genuine factual dispute

regarding either prong of the affirmative defense precludes

summary judgment in favor of CBS. Because a reasonable

jury could find that CBS failed to exercise reasonable care,

Hardage is entitled to a trial even if CBS could establish as

a matter of law that Hardage unreasonably failed to take

advantage of CBS’s corrective opportunities. See Nichols, 256

F.3d at 877. Nonetheless, it is clear that on this record, a reasonable jury could find for Hardage on this second element as

well. 

In Faragher, the Supreme Court held that harassment victims have “a duty to use such means as are reasonable under

the circumstances to avoid or minimize the damages that

result from violations of [Title VII].” 524 U.S. at 806 (internal

quotation marks omitted). The “burden [is] squarely on the

defendant to prove that the plaintiff unreasonably failed to

avoid or reduce harm.” Penn. State Police v. Suders, ___,

U.S. ___, 124 S. Ct. 2342, 2354 (2004).

1482 HARDAGE v. CBS BROADCASTING INC.
[W]hile proof that an employee failed to fulfill the

corresponding obligation of reasonable care to avoid

harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the

employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under

the second element of the defense. 

Faragher, 524 U.S. at 807-08. An employer who exercised

reasonable care will not be liable “if the aggrieved employee

could have avoided all of the actionable harm. . . . [I]f the

employee unreasonably delayed complaining, and an earlier

complaint could have reduced the harm, then the affirmative

defense could operate to reduce damages.” EEOC Enforcement Guidance § V.D. 

Here, the majority concludes as a matter of law that Hardage unreasonably failed to take advantage of CBS’s corrective

opportunities because “his first complaint to Dean that he has

identified with specificity” was not until about six months

after Sparks’ harassment began. Maj. op. at 1467. In so holding, the majority fails to view the facts in the light most favorable to Hardage. Hardage testified that he reported Sparks’

harassing conduct to Dean on “numerous occasions” and told

her, “I don’t want to be alone with her.” He also testified that

Dean personally observed Sparks’ harassing behavior, and

that in response to Hardage’s complaints about Sparks’

unwanted sexual advances, Dean suggested that he “just do it

and get it over with.” Viewing the evidence in the light most

favorable to Hardage, a reasonable jury could find that Hardage did not unreasonably delay in reporting Sparks’ harassment. Unlike in Kohler, where the victim never complained

about her supervisor’s harassment, 244 F.3d at 1181, here,

Hardage repeatedly complained about Sparks’ behavior. 

Moreover, even if Hardage had not complained until October 2000, such a delay could not be deemed unreasonable as

a matter of law. As the EEOC Enforcement Guidance

HARDAGE v. CBS BROADCASTING INC. 1483
explains, “An employee should not necessarily be expected to

complain to management immediately after the first or second

incident of relatively minor harassment. . . . An employee

might reasonably ignore a small number of incidents, hoping

that the harassment will stop without resort to the complaint

process.” EEOC Enforcement Guidance § V.D.1. Here, Hardage testified that the incident in October 2000 was “over the

line” and that he went into Dean’s office the very next day

and told her, “Last night, things went way too far.” He

explained in his deposition, “When it spilled over to where it

affects the team that reports directly to me that I’m responsible for — that’s — you know, . . . I felt that it was detrimental, over the line, uncalled for.”

4

 Finally, even if Hardage’s

delay in reporting the harassment can be viewed as unreasonable in light of the circumstances, this is a matter for a jury

to decide. 

The majority also concludes that Hardage’s claim fails as

a matter of law because “[i]n addition to waiting half a year

to make a complaint, when Hardage finally made his complaint he specifically asked the company not to investigate it.”

Maj. op. at 1468. The majority omits, however, that Hardage

opted to handle the matter himself only after Falcone provided him with the aforementioned legally inadequate

response options. Under these circumstances, it can hardly be

said that Hardage’s decision to deal with Sparks’ sexually

harassing actions himself is per se unreasonable in light of his

other options that were “do absolutely nothing” or have Falcone, who promised not to take any disciplinary actions

against Sparks, “very nicely talk with her . . . and ask [her]

to please, let’s just lay back on this a little bit.” 

In sum, Hardage complained numerous times to his imme4Notably, the incident in October 2000 is the only incident of harassment that CBS characterizes as “work related.” If this is correct, then

Hardage could not be deemed unreasonable in failing to report Sparks’

earlier conduct to CBS. 

1484 HARDAGE v. CBS BROADCASTING INC.
diate supervisor, who personally observed the harassing

behavior, yet she ignored his concerns and even suggested

that Hardage sleep with Sparks “to put her in a better mood.”

Moreover, it is undisputed that Hardage formally complained

the day after the incident in October 2000, when he felt

“things went way too far.” Contrary to the majority’s conclusion, CBS has not established as a matter of law that Hardage

unreasonably failed to take advantage of its corrective opportunities. 

***

An employer who is on notice of alleged harassment has a

duty to adequately investigate and take prompt corrective

action reasonably calculated to end the harassing behavior.

Despite having notice of Sparks’ unwanted sexual advances,

CBS did nothing. Accordingly, I would reverse the grant of

summary judgment and remand for a trial. 

HARDAGE v. CBS BROADCASTING INC. 1485