United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1953

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Jennifer L. Crawford; Gannon Q. *

Dvorak; Ernest Magdaleno; David *

Allen Peters; Michael C. Meadows, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska. 

BNSF Railway Company, *

*

Defendant - Appellee. *

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Submitted: December 13, 2011

Filed: January 11, 2012

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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.

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MURPHY, Circuit Judge.

Jennifer Crawford, Gannon Dvorak, Ernest Magdaleno, David Peters, and

Michael Meadows sued their employer BNSF Railway Company, alleging that they

had been subjected to sexual and racial harassment by their supervisor Michael Duran

in violation of Title VII of the Civil Rights Act of 1964. The district court granted

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BNSF's motion for summary judgment, concluding that it was entitled to the

Honorable Lyle E. Strom, United States District Judge for the District of

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Nebraska.
affirmative defense for supervisor harassment recognized by the Supreme Court in

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

Boca Raton, 524 U.S. 775 (1998). On appeal the employees argue that BNSF is not

entitled to the Ellerth-Faragher affirmative defense and that material fact questions

preclude summary judgment. We affirm.

I.

We first state the facts in the light most favorable to appellants. See

Brenneman v. Famous Dave's of Am., 507 F.3d 1139, 1141 (8th Cir. 2007). At all

relevant times Crawford, Dvorak, Magdaleno, Peters, and Meadows were mid level

supervisors at a BNSF Railway Company diesel engine facility in Alliance, Nebraska

and were supervised by Michael Duran. Citing specific incidents beginning in early

2008, appellants allege that their supervisor Duran subjected them to frequentsexual

harassment and, in the case of Magdaleno, racial harassment. BNSF does not directly

dispute appellants' allegations about Duran's conduct but maintains that it is entitled

to the Ellerth-Faragher affirmative defense. It claims that appellants did not report

Duran's conduct in a timely manner and that it responded promptly and effectively

once the conduct was reported.

The appellants described their supervisor's behavior in written discovery and

depositions. Crawford stated that Duran slapped her buttocks, fondled her breasts,

and made sexual comments. Those commentsincluded a suggestion thatshe have sex

with a coworker. Dvorak described inappropriate sexual remarks made by Duran,

including comments on his wife's breasts and questions about with which female

coworkers he would like to have sex. Dvorak also stated that once upon entering

Duran's office, he saw another supervisor on his knees near Duran while the latter

pretended to zip up his pants. Magdaleno, who is Hispanic, stated that Duran made

inappropriate sexual comments to him "on a weekly basis" and also inappropriate

racial remarks. Peters stated that Duran twice tried to grab his crotch and made

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frequent inappropriate sexual comments to him. Meadows described the sexual

comments Duran made to him, including that he would have to give him oral sex in

order to receive favorable performance reviews or to avoid working the midnight

shift. Meadows admits Duran did not retaliate after he refused to comply with such

demands. Meadows also stated that Duran attempted to touch his private parts.

Appellants were aware of BNSF's "zero tolerance" policy on workplace

harassment. The policy prohibited harassing conduct including "(a) sexualflirtations,

touching, advances, or propositions; (b) verbal abuse of a sexual nature; (c) graphic

or suggestive comments of a sexual nature; (d) sexually degrading words; and (e)

displaying sexually suggestive materials." Employees were instructed to report

offensive conduct through one of five channels, which included reporting to a

supervisor or by an anonymous employee hotline. As supervisors, appellants were

responsible for responding to any subordinate reports of harassment. The company

policy stated that after a report was made, allegations would be investigated

"promptly, impartially, and confidentially." It also contained guidelines explaining

the ranges of discipline BNSF might apply to employees who harassed others. The

policy included a provision prohibiting retaliation for reporting discrimination. 

Appellants had been trained on how to report harassment. They did not

initially report Duran's conduct to his supervisors despite testimony that they

considered his superiors to be approachable and professional. While they concede

that they never used the hotline to report Duran, they claim that reports would have

been useless because BNSF had never taken any action after a hotline call. The

hotline records produced by the company indicate however that each complaint was

investigated and eventually closed. In some cases, even though investigation did not

substantiate the complaint, the subject of the complaint was counseled by BNSF on

its antiharassment policies.

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Appellants contend that Duran's superiors were aware of his harassing conduct

through informal comments but that they failed to take any action in response. The

first example was a conversation between Duran and his superior Beau Price

overheard by Meadows, in which Duran joked that there might be "peter tracks" on

Price's hat. Price responded by asking Meadows if Duran always behaved like that. 

Meadows said yes. Meadows also stated at his deposition that after he heard Joe

Hall, another superior of Duran's, complaining about Duran for unrelated reasons, he

told Hall that Duran was "doing some inappropriate things and he was probably going

to get himself fired for it." According to Meadows, Hall responded by saying he did

not want to listen or be involved. Meadows did not pursue the matter further and did

not explain to Hall the nature of any inappropriate conduct by Duran. Appellants also

note two times when Duran called other employees insulting names and another

incident when he allegedly slapped a female employee's rear end but received only

"minimal" discipline. 

In October 2008, months after the alleged harassment began, each appellant

filed discrimination charges with the Nebraska Equal Opportunity Commission

(NEOC) and the Equal Employment Opportunity Commission (EEOC). After filing

charges, on October 28, 2008, Crawford reported Duran's conduct for the first time

to BNSF. She told Joe Hall thatshe and four other employees had filed or were filing

NEOC complaints because of Duran's conduct. 

As soon as BNSF received Crawford's complaint, it began an investigation,

including interviewing four of the appellants. Within two days, BNSF placed Duran

on administrative leave. After completing its investigation, BNSF informed Duran

on November 10, 2008 that he was being terminated from his general foreman

position. Duran chose to resign. Appellants explained in their depositions that they

had delayed reporting Duran's conduct due to their concern about retaliation but also

due to their desire to build up evidence against him. 

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After receiving right to sue letters, appellants filed suit in federal court,

alleging that BNSF had subjected them to sexual and racial harassment in violation

of Title VII and seeking declaratory and injunctive relief and damages. The district

court granted summary judgment in favor of BNSF. It declined to decide whether the

employees had established the elements of their sexual and racial harassment claims,

concluding that BNSF was not liable because it was entitled to its Ellerth-Faragher

affirmative defense. The court concluded that BNSF had exercised reasonable care

to prevent and correct promptly any harassing behavior and the appellants had

unreasonably failed to take advantage of the company's reporting procedures for

workplace harassment. The five employees appeal, arguing that BNSF failed to take

corrective action despite knowing about Duran's behavior and that they had acted

reasonably in not reporting his conduct to the company until Crawford notified it

about the charges they had filed with the NEOC.

II.

We review de novo the district court's grant of summary judgment, "viewing

all evidence and all reasonable inferences most favorably" to appellants. 

Young-Losee v. Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir. 2011). 

Summary judgment is appropriate only if there is no genuine issue of material fact

and BNSF is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Title VII of the Civil Rights Act of 1964 prohibits employers from

discriminating against any individual "with respect to his compensation, terms,

conditions, or privileges of employment" because of the individual's "race, color,

religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment may

violate Title VII where it is sufficiently "severe or pervasive" so as to create an

"objectively hostile or abusive work environment." Harris v. Forklift Sys., Inc., 510

U.S. 17, 20 (1993). 

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An employer is vicariously liable for a supervisor's actionable sexual or racial

harassment of employees unless the employer can establish the Ellerth-Faragher

affirmative defense. Gordon v. Shafer Contracting Co., Inc., 469 F.3d 1191, 1195

(8th Cir. 2006). An employer may only assert this affirmative defense when it has

taken no tangible employment action against the allegedly harassed employee. Id. 

The Ellerth-Faragher affirmative defense protects an employer otherwise vicariously

liable for a harassing supervisor's conduct if the employer can show that (a) it

exercised "reasonable care to prevent and correct promptly any sexually harassing

behavior"; and (b) the employee "unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid harm

otherwise." Faragher, 524 U.S. at 807; see Ellerth, 524 U.S. at 765. 

The first part of this defense furthers Title VII's "primary objective" of

avoiding harm by "recogniz[ing] the employer's affirmative obligation to prevent

violations and giv[ing] credit . . . to employers who make reasonable efforts to

discharge their duty." Faragher, 524 U.S. at 806. The second part "reflects an equally

obvious policy imported from the general theory of damages, that a victim has a duty

to use such means as are reasonable under the circumstancesto avoid or minimize the

damages that result from violations of the statute." Id. (internal quotations and

citation omitted).

A.

Appellants concede that "distribution of a valid antiharassment policy provides

compelling proof" that an employer exercised reasonable care to prevent and correct

promptly harassing behavior, see Weger v. City of Ladue, 500 F.3d 710, 719 (8th Cir.

2007) (citation omitted), but they argue that BNSF's policy was not actually enforced

and thus cannot satisfy the first part of the Ellerth-Faragher defense. See Adams v.

O'Reilly Auto., Inc., 538 F.3d 926, 930 (8th Cir. 2008). Appellants cite alleged

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experiences of other coworkers and their own interactions with Duran's superiors to

support their contention that BNSF failed to enforce its antiharassment policy. 

Appellants argue that although other employees had complained to BNSF

about Duran, BNSF had taken only "minimal action" such as counseling. They cite

an incident in which Duran called employee Adele Kreta a "fucking whore or bitch"

and another where he called employee Ryan Twogood a "faggot and white trash." 

The record reveals however that BNSF investigated these incidents and took action

in response. This included meeting with Duran, counseling him on appropriate

workplace behavior, and requiring him and the others involved to attend a seminar

on workplace harassment. We "afford an appropriate degree of deference to business

judgment" where the record shows that the employer conducted a reasonable

investigation in good faith, as here. Adams, 538 F.3d at 930. The fact that appellants

would have desired harsher responses does not make BNSF's otherwise valid policy

ineffective. 

Magdaleno stated at his deposition that a third employee, Ann Osborn, told him

that Duran had "slapped her on the ass" and that she was going to report it on the

hotline. Magdaleno conceded he was not sure if Osborne ever reported the incident,

and BNSF's hotline records do not show any such report. In fact the hotline records

do not show any harassment complaints against Duran. Even if Osborne did report

the alleged harassment, a "single failure by [BNSF] to implement its anti-harassment

policy" would not be sufficient to conclude that it had not effectively implemented

its policy where there was other evidence that it enforced its policy. Id. at 931. Of

special significance was BNSF's "extremely swift action" in investigating and

terminating Duran once Crawford finally reported Duran's behavior. See id.

Appellants contend that the hotline records show that BNSF never took any

action regarding complaints it received. Magdaleno stated that a number of

coworkers had told himthat they had reported various harassing incidents through the

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hotline but had not been satisfied with the response. Magdaleno said they felt that

reporting to the hotline was a waste of time. The hotline records reveal that each

complaint was investigated and the relevant parties were interviewed but that the

allegations could not be substantiated or were outside the scope of the hotline's

intended purpose. BNSF's business judgment is owed some deference in evaluating

its response to those calls. See id. at 930. 

Finally, appellants argue that Duran's superiors knew of his harassing behavior

prior to Crawford's complaint but failed to take any action. In assessing whether an

employer exercised reasonable care to correct promptly any sexually harassing

behavior, "the employer's notice of the harassment is of paramount importance." 

Weger, 500 F.3d at 720 (citation omitted). Appellants' attempt to show that BNSF

knew of Duran's harassing behavior prior to Crawford's complaint to Hall is not

supported by the record. Meadows's comment to Hall that Duran was doing

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"inappropriate things" did not mention anything about sexual harassment, and the

reference to "peter tracks" was ambiguous and would not have provided actual notice

of sexual harassment. Because BNSF had a "published policy that provides a

procedure for reporting suspected harassment, [appellants] must have invoked this

procedure in order to establish actual notice." Id. at 721. 

Contrary to appellants' contention, the circumstances of this case are quite

distinct from those in Ogden v. Wax Works, Inc., where we upheld a jury verdict in

favor of a plaintiff who had been subjected to sexual harassment by a supervisor. 214

F.3d 999 (8th Cir. 2000). In concluding that the employer was not entitled to the

Ellerth-Faragher affirmative defense, we noted that the employer had minimized the

plaintiff's complaints of sexual harassment, performed a cursory investigation, and

In addition to arguing actual knowledge, appellants contend that BNSF had

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constructive knowledge of Duran’s conduct. Constructive knowledge is irrelevant

for Ellerth-Faragher purposes where an effective antiharassment policy is in place. 

See Adams, 538 F.3d at 932.

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eventually forced her to resign without disciplining the harasser. See id. at 1007. 

Here, in contrast, BNSF took prompt remedial action as soon as Crawford reported

the harassment. Duran was terminated less than two weeks later. See Weger, 500

F.3d at 722 (where harassment ended soon after report was made, employer "satisfied

its duty under the correction prong of the first element of the Ellerth-Faragher

affirmative defense").

Given the evidence of BNSF's comprehensive antiharassment policy and its

prompt and effective response when it was notified about Duran's harassment, we

conclude that the company exercised reasonable care to prevent and promptly correct

any harassing behavior, meeting the first part of the Ellerth-Faragher affirmative

defense as a matter of law. 

B.

We next consider whether appellants "unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the employer or to avoid

harm otherwise." Faragher, 524 U.S. at 807. Establishing that employees failed to

avail themselves of a proper complaint procedure "normally suffice[s] to satisfy the

employer's burden under the second element of the defense." Id. at 807–08. 

Appellants do not dispute that they failed to avail themselves of BNSF's complaint

procedure for approximately eight months, until after they filed the NEOC

complaints. As soon as Crawford reported the harassment, BNSF took prompt and

effective action in investigating the complaint, putting Duran on administrative leave,

and terminating himlessthan two weeks later. These facts create a "strong inference"

that appellants were unreasonable in not invoking BNSF's complaint procedure

sooner. Adams, 538 F.3d at 932. 

Appellants contend that their failure to report Duran was reasonable because

they feared retaliation. While a "truly credible" threat of retaliation may make a

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delayed report reasonable, Weger, 500 F.3d at 725 (citation omitted), here appellants

point to no evidence to show that their fear of retaliation was either "genuine or

reasonable." Adams, 538 F.3d at 932. The record is devoid of any evidence of prior

retaliation or threats of retaliation by BNSF for reporting harassment. Appellants

concede that they felt comfortable approaching supervisors on other issues and that

those supervisors acted professionally. Moreover, BNSF's antiharassment policy

contained an antiretaliation provision and appellants could have availed themselves

of an anonymous hotline. 

We conclude that appellants' alleged fear of retaliation does not make their

delay in reporting reasonable. Weger, 500 F.3d at 725. Nor does the fact that

appellants felt their reports would have fallen on deaf ears excuse their delay in

reporting. Id. at 725–26. Further, the record indicates that part of the reason for

appellants' delay in reporting was to gather more evidence against Duran. An effort

to obtain additional evidence against a harasser does not make delay in reporting

reasonable. See Adams, 538 F.3d at 932. We conclude that appellants "unreasonably

failed to take advantage of any preventive or corrective opportunities provided by the

employer or to avoid harm otherwise." Faragher, 524 U.S. at 807.

Since we agree with the district court that BNSF has established both parts of

the Ellerth-Faragher affirmative defense as a matter of law and is entitled to summary

judgment on that basis, we also decline to address the merits of appellants' sexual and

racial harassment claims.

III.

Accordingly, the judgment of the district court is affirmed.

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