United States Court of Appeals

For the First Circuit

No. 07-2694

BONNIE CHALOULT,

Plaintiff, Appellant,

v.

INTERSTATE BRANDS CORPORATION,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

 Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Guy D. Loranger with whom Nichols, Webb & Loranger, PA were on

brief for appellant.

Robert W. Kline for appellee.

August 28, 2008
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LYNCH, Chief Judge. Bonnie Chaloult sued her former

employer, Interstate Brands Corporation ("IBC"), alleging she had

suffered sexual harassment by her supervisor, Kevin Francoeur, in

the six months before she quit her job. The district court entered

summary judgment for the employer.

The issue on appeal turns on the affirmative defense

available to employers when the harassment is by the plaintiff's

supervisor.

Under Title VII, an employer is subject to vicarious

liability for sexual harassment by an employee's supervisor which

does not constitute a tangible employment action. But the employer

may prevail if it demonstrates a two-part affirmative defense:

that its own actions to prevent and correct harassment were

reasonable and that the employee's actions in seeking to avoid harm

were not reasonable. See Faragher v. City of Boca Raton, 524 U.S.

775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

765 (1998). This case turns on the Faragher-Ellerth affirmative

defense.

The question here concerns the employer's affirmative

defense that it is not vicariously liable because on summary

judgment it has established that (i) the employee's own actions

were not reasonable (here plaintiff did not herself complain to

management); (ii) the employer had reasonably set up and educated

employees on appropriate procedures for handling sexual harassment
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allegations; (iii) the employer did reasonably investigate the

original allegation plaintiff made to management at the time of her

resignation; (iv) no one at a managerial level equal to or superior

to the harasser had notice of the different allegations of

harassment made in the lawsuit; and (v) the co-worker who had some

notice of some of the different allegations did not consider the

conduct he knew of to be harassment and did not call it to the

attention of management.

The plaintiff-employee argued that as a matter of law the

knowledge of a co-worker with the title of supervisor, who was in

fact a peer of the plaintiff's and who also reported to the

harasser, was attributed to the employer under the company's policy

and that defeats the Faragher-Ellerth defense. The district court

rejected the plaintiff's argument.

Conducting our independent review of the record, we find

the employer made out its Faragher-Ellerth defense to vicarious

liability. We affirm the entry of summary judgment for the

employer.

I.

We describe the facts, drawing all inferences in the

plaintiff's favor, as we must do in summary judgment. Mellen v.

Trs. of Boston Univ., 504 F.3d 21, 24 (1st Cir. 2007). 

Bonnie Chaloult began working at IBC's Biddeford, Maine

production plant in June 1999. In July 2004, when an entry-level
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bread supervisor position opened up, Chaloult applied for and

received it, and she began working as a bread supervisor in

September 2004. When she first started working as a supervisor,

she was in production, then she was moved to wrapping, and then

back to production. When she was moved back to production in

February 2005, her immediate supervisor became Kevin Francoeur, who

was the assistant production manager. At that time, Chaloult's

shift was the night shift, from 10 p.m. to 8 a.m.

On June 8, 2005, Chaloult and other supervisors attended

a "WARN meeting," under the Worker Adjustment Rehearing

Notification Act, at which they were put on notice that their

positions could potentially be eliminated in sixty days. This was

occasioned by the company's going into bankruptcy. Chaloult

understood that this could mean she was out of a job as of August

12, 2005. Chaloult conceded at deposition that her attendance at

work "deteriorated" after this meeting, and other evidence supports

this.

At no time prior to her resignation did Chaloult complain

about sexual harassment.
The record shows that Chaloult was having a dispute with 1

an oven operator named Dobre in late July 2005. Sue Bisson wrote

a "To whom it may concern" letter, dated August 3, noting two

incidents: on July 28, Chaloult told Dobre not to call a mechanic

regarding a problem with the oven because he was causing the

problem, but it turned out that a mechanic was needed and the

mistake was not Dobre's. On July 29, Chaloult told Bisson that

Dobre was making another mistake involving machinery, which Bisson

informed Chaloult was not Dobre's fault, at which point Chaloult

"proceeded to walk out of the office and leave." On July 30 or 31,

Chaloult wrote a report stating that Dobre had shoved equipment and

made a loud noise as she walked by.

The parties have not argued that the tension between

Chaloult and Dobre (and apparently Bisson) is related to her

problems with Francoeur, but it does suggest that she was unhappy

at work for reasons unrelated to Francoeur in the days before she

wrote her letter of resignation on August 4.

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After an incident with a co-worker, on August 4, 2005, 1

Chaloult submitted a letter of resignation. Chaloult was pregnant

when she left IBC in August 2005, and was not re-employed until

June 30, 2006. The letter of resignation stated, verbatim:

I respectfully request to give forth my

two week notice, in accordance with the

companies involuntary leave slip, my last date

of work will be 8/19/05.

I would like to take the time to thank

you, (Paul) and IBC for the experience I now

have under management.

However, when I filled out my

application for employment with IBC, it never

stated that at any time would my supervisors

above me, have the right to question my

personal affairs and demand information.

This I learned from yet another

supervisor being accused of fore-play.

Is this company Policy? I tried to

change shifts, told I had day hours for 6-

strap production then I was denied. I no
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longer feel comfortable working for this

supervisor.

The letter did not directly accuse her supervisor of harassing her,

but of questioning her personal affairs with another supervisor, a

situation she learned about from the supervisor who, she said, was

accused of having a sexual relationship with her. The letter did

state she no longer felt comfortable working for her own

supervisor.

Chaloult put her letter into the mailbox of her

department manager, Paul Santos. Santos met with her the first day

he was back at work after receiving the letter. Before meeting

with Chaloult, Santos discussed her letter with Joseph Cabral,

Assistant Human Resources Manager, and gave a copy of the letter to

Human Resources so they could put it on file. Cabral and Santos

decided that Santos should ask her what the letter meant, since

they did not know to what she was referring. 

At the meeting, Chaloult said she was referring to an

incident that had taken place on July 15, in which Francoeur had

approached a co-worker, Jim Anderson, and demanded to know whether

Anderson and Chaloult were having sexual relations. Chaloult, who

had a fiancé at the time, had not been present during this

conversation and said that Anderson had told her about it the

following morning.

When asked why she did not come forward sooner, she told

Santos that she was worried about issues "coming back at me." She
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did not say to Santos that there had been any other incidents of

concern involving Francoeur. At deposition she admitted there was

nothing that prevented her from reporting other instances to the

company.

Santos told her that he would follow up with both

Anderson and Francoeur and report the incident to Human Resources.

Santos did what he promised. Immediately after his meeting with

Chaloult, Santos called Cabral and briefed him. Santos then called

Francoeur into his office; they met for about half an hour. He

told Francoeur what Chaloult had said. Francoeur said that was not

what happened. Francoeur explained his version of what happened to

Santos as follows:

[H]e explained to me that he had been calling

for both [Anderson and Chaloult], he had tried

calling for her, tried calling for him on the

radio, neither one of them were responding on

the radio. He was walking from the six strap

makeup area going towards the wrap office. He

had passed Bonnie in transit or she was going

-- he noticed her going one way towards

makeup, and he was going towards wrapping. He

walked into the wrap office and said, Jim,

what, are you and Bonnie fucking with me,

screwing with me? And he said that Jim

started laughing. He was like, no, we didn't

hear the calls on the radio. And that's

pretty much it.
At his deposition, Francoeur confirmed Santos's account 2

of their meeting and of his statement to Anderson. There is no

evidence to the contrary.

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Santos made Francoeur write down his version of events. The

document was submitted into evidence and is consistent with

Santos's description of the meeting.2

Santos then met with Anderson. Anderson told Santos:

[Francoeur] just came in and was like, what,

are you and Bonnie trying to fuck me? I was

like, okay. I go, what else was said? He was

like, nothing. We just laughed and he wanted

some numbers, and I went out on the floor and

that was it. He says he was trying to call

us. I didn't hear him. Maybe our radios were

down, and that was it.

During the interview Santos also asked Anderson what he

said to Chaloult. Santos described his conversation with Anderson

as follows:

[I asked] what did Kevin say to you? What do

you recall Kevin saying to you? He said, he

just came in and he was like, what, are you

and Bonnie trying to fuck me? I was like,

okay. I go, what else was said? He was like,

nothing. We just laughed and he wanted some

numbers, and I went out on the floor and that

was it. He says he was trying to call us. I

didn't hear him. Maybe our radios were down,

and that was it. I go, so he didn't come in

and ask if you guys were fucking? He said,

no. No, he just came in and he wanted to know

if we were fucking with him. 

. . . . 

I said, Bonnie is saying that you went to her

and told her that Kevin asked you if you and

her were having sex. He was like, oh, I don't

remember what I told her. I go, well, you
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just told me that he came in and asked if you

two guys were fucking with him and then you

turn around and went to Bonnie and told Bonnie

that Kevin asked if you and her were fucking.

I go, so which one is it? He was like, no, he

just came in and he said if we were fucking

him. I was like, so then why did you go to

Bonnie and tell her something different? And

he made a comment about, oh, Bonnie and I were

just laughing about it, we were joking about

it, and that was it. I was like, well, it's

not a joking matter because this is where

we're at right now.

When he received Francoeur's statement, Santos discussed

the matter with Cabral. They concluded that what Francoeur had

said to Anderson was "are you guys fucking with me?" As a result,

Francoeur was given a letter, dated September 1, 2005, warning

about the use of inappropriate language ("fuck") and language which

could be taken out of context in the workplace. The letter stated:

"While our investigation to date shows that the broad allegations

made by the employee may not be 100% confirmed, it is clear that,

based on your admission, that your comment was inappropriate and

unwarranted." It also made clear that "[a] manager must never

discriminate, harass, or retaliate against any employee. If a

Manager knowingly condones discrimination, harassment, or

retaliation by another, the Manager will be considered to have

personally engaged in the conduct."

After Chaloult gave her two week's notice on August 4,

she worked only a few more days and did not show up to work after

August 8. As a result, IBC did not have the opportunity to conduct
For summary judgment purposes, we use her testimony at 3

deposition. Her testimony is materially different from some

allegations in her unverified complaint. For example, Chaloult

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its usual exit interview. On November 11, Chaloult met, at his

request, with Joseph Cabral; no specific information is provided

about this meeting, and there is no evidence that Chaloult told

Cabral the allegations she later made. Chaloult also filed an exit

comment form, dated November 11, 2005, in which she made the

comment: "Sexual harassment from upper management for an ongoing

period with other people . . . involved." Santos stated that he

did not see this exit comment form. He said he first became aware

of Chaloult's other allegations after she filed suit.

On October 10, 2006, more than a year after she left her

employment, Chaloult filed suit in federal district court against

IBC, alleging violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000(e), and the Maine Human Rights Act. She

sought general, non-economic, and punitive damages. Chaloult

alleged that she was sexually harassed by her superior, Francoeur,

from February 5, 2005, when she first reported to Francoeur, to

August 2005, when she left the company. For the first time she

related a number of very specific complaints about other

statements.

Chaloult's testimony at deposition included the following

specific allegations, which she had not mentioned to Santos or in

her November 11, 2005 exit comment form. One claim of harassment 3
testified that Francoeur never asked to see her nipples although

that was alleged in the complaint. Chaloult's complaint stated

that Francoeur would tell her that "she looked like she needed to

get laid," but at deposition she said that it was a female coworker who made that comment. 

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is that Francoeur frequently complained about his wife and his lack

of sexual relations with her. At deposition, Chaloult said

Francoeur made these comments openly to supervisors and also said

he wished he could murder his wife. Chaloult did not report the

comments to anyone.

Further, there were comments about breasts. On several

occasions when they were outside on break during the winter,

Francoeur asked Chaloult about the distance between her nipples and

told her to go home and measure this distance. He also at one

point asked if her nipples chafed or stood out like headlights.

She walked away and shook her head but did not report the comments

to anyone. At some point Chaloult walked into an office where

Francoeur was in conversation with another worker named Steve

Leclair and, without using her name but looking right at her,

Francoeur indicated that Chaloult's breasts were "melons. Big

hooters." Chaloult did not report this incident and stated that

nothing prevented her from doing so.

Once, when they were alone in his office Francoeur asked

Chaloult to hold her breath and push her chest out. She did not

understand why he made the comment. She shook her head and walked

off, saying nothing to Francoeur and not reporting the incident.
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She said she did not report it because she did not "want any

retaliation coming back."

She said statements about her relationship with her

boyfriend were harassing. Chaloult had broken up with her

boyfriend in January of 2005. She got back together with him in

April and they became engaged in May 2005. Francoeur made comments

to her to the effect she should not get back together with her

boyfriend. The more serious allegation is that toward the end of

spring, Francoeur offered to come over to her house and have sex

with her; specifically that "he'd come to my house and show me what

fucking was about." Chaloult said that Anderson and a few

maintenance people were in the area at the time Francoeur made this

comment. Chaloult walked away, spurning the offer. Chaloult did

not report the incident.

Another time, Chaloult joined Francoeur and Anderson on

a patio for a smoke. Chaloult and Anderson were discussing a

motorcycle trip that Chaloult had made with her boyfriend.

Francoeur made the statement, "well, girls who ride motorcycles

normally like it from the back side, huh? Is that true, Bonnie[?]"

Chaloult turned and walked off, and shook her head. She did not

report Francoeur for that statement; nothing kept her from

reporting it.

In another instance, Chaloult, another supervisor named

Dan Lariviere, and Francoeur were sitting in an office and
Francoeur also denied making the statements plaintiff 4

attributes to him as evidence of harassment, including the offer to

go home with her, but we take plaintiff's version as true for

summary judgment purposes. As to the eclair statement, Francoeur

said it was made by another supervisor, Dan Lariviere, and that

afterwards he told Lariviere that the statement was inappropriate.

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Lariviere was eating an eclair. Francoeur said he wanted to see

how far Chaloult could stick the eclair down her throat. Lariviere

said he would also like to see that. Then Francoeur said "[i]f

there isn't enough cream in there, . . . I have plenty." Chaloult

said nothing to either of them or to anyone in management above

Francoeur about this. She "may have" told Anderson about the 4

incident.

At some time in May, Chaloult had picked up a piece of

dough off the machinery, and Francoeur made a comment to her that

"if the dough ball wasn't enough for me to play with, he had some

balls that I could play with." Chaloult stated that a production

employee named Amy Ramsell was present when Francoeur made this

comment, but she is not sure whether Ramsell heard it. Chaloult

walked off and did not report the incident; she stated that nothing

prevented her from reporting it.

In another instance, Chaloult was apparently in a bit of

a frenzy in the presence of other workers over having misplaced her

key card to get into the building. A female employee in the

office, Sue Bisson, said "it looks like somebody needs to get laid.

Kevin [Francoeur] turns around and goes yeah, I guess so. Because
Chaloult decided to keep a contemporaneous diary of 5

Francoeur's comments. In that diary, she made no mention of

Francoeur's comments about coming over to her house to have sex; no

mention of the alleged incident involving dough balls; no mention

of Francoeur's gestures about melons, which she took to be about

her breasts; nothing about Sue Bisson's comments; and nothing about

Francoeur's comment about girls who ride motorcycles.

The diary did include references to Francoeur's

complaining about his wife, but nothing about comments regarding

his sexual relations with his wife. The diary also did refer to

Francoeur's comments about the distance between Chaloult's nipples,

chafed nipples, and the eclair incident.

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I was apparently a little too hyper." Chaloult did not complain to

either of them or report them and nothing prevented her from doing

so.

Finally, on July 15, as discussed above, Francoeur

allegedly walked into an office where Anderson was doing some

paperwork and yelled at him, "so how long have you and Bonnie been

fucking?"

There were no objectionable statements by Francoeur

between July 15 and Chaloult's letter of resignation on August 4.5

IBC had in place anti-sexual-harassment policies which

included methods for reporting harassment. The company's Equal

Employment Opportunity Policy stated:

Interstate strictly prohibits sexual

harassment. . . . Examples of the prohibited

conduct include unwelcome sexual advances,

requests for sexual favors, and gender slurs

or other offensive, derogatory, or demeaning

comments, jokes, graffiti, or other verbal or

physical conduct and written or taped

materials relating to gender.

. . . .
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Any person who believes that the person has

been subjected to discrimination,

harassment, or retaliation or who knows of

possible discrimination, harassment, or

retaliation against anyone else should

immediately report it to supervision or to

Richard W. Morgano, [phone number redacted] or

to Rhonda Tracy, [phone number redacted]. Do

not wait until a situation is severe or

pervasive; report any possible discrimination

or harassment or retaliation as soon as you

know of it.

Chaloult signed an updated version of this policy on September 16,

2003, indicating that "I . . . have read and understand IBC's Equal

Employment Opportunity Policy and have participated in 'In this

Together' Harassment Training."

Chaloult had also signed, when she first began working

for the company on June 10, 1999, the company's Sexual Harassment

Policy, which included the following provisions:

II. Awareness

A. Supervisors must be sensitive to the

problem of sexual harassment.

B. Employees shall be encouraged to

report an incident of sexual harassment

to their supervisor.

C. If a supervisor becomes aware of any

violation or possible violation of the

EEOC guidelines, the incident should be

reported immediately to the human

resources manager or plant general

manager.

D. Supervisors have an affirmative duty

to keep their work area free from

sexual harassment of any kind and shall

take appropriate steps to prevent and

eliminate such harassment.
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Chaloult was also aware that IBC had a confidential toll-free

complaint line for employees. 

Chaloult admittedly did not at any time before submitting

her letter of resignation make any complaint about Francoeur to the

Human Resources manager, the plant manager, or to any other person

who was superior or equal to Francoeur's level at the company.

When asked at deposition why she did not come forward

sooner with her complaints, Chaloult responded, "I had talked with

Jim Anderson, and Jim Anderson knew about these comments." When

asked whether she had asked Anderson to report her concerns to

management, Chaloult stated that she had not. She asserted that

Anderson was present at the time of Francoeur's comment about

measuring the distance between nipples, when Francoeur made the

comment about girls who ride motorcycles, and when Francoeur told

Chaloult that he wanted to come over to her house and have sex with

her, and that he told her about Francoeur's comment suggesting that

Chaloult and Anderson were having a sexual relationship on July 15.

Chaloult and Anderson were peers; they, along with one

other person, were entry-level supervisors on the overnight shift

in the bread department; Francoeur, as the assistant bread

production manager in charge of the overnight shift, was their

direct supervisor. There were also three other entry-level

supervisors in the bread department who worked during a second

shift.
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At deposition, Anderson confirmed that it is his

understanding that if supervisors receive a complaint of sexual

harassment, they are supposed to report it right away. However,

when asked whether he was ever aware of behavior which could have

violated the company's sexual harassment policy, he said that he

was not. When asked whether anyone had ever complained to him

about conduct that could have been construed as sexual harassment,

Anderson said no.

Anderson further testified that he was never present when

anyone objected to something that Francoeur said, nor did he ever

get the impression that something Francoeur said upset someone.

Anderson testified that the group of supervisors of whom he and

Chaloult were part got along "pretty good. I mean, we were loosey

goosey. We joked around with each other."

As to Chaloult's specific allegations of harassment,

Anderson said that one day Francoeur said to other workers during

a smoke break that he had heard people on a radio program referring

to the distance between nipples as "spread points," and "we all got

a laugh out of it." Anderson said that Francoeur asked a group of

people, not just Chaloult, to measure their "spread points." More

specifically, "[h]e made a general statement for all of us to go

home and do it. . . . I didn't think nothing of it at the time. I

didn't think there was nothing wrong because we all just laughed

about it and we left the office." When asked whether he thought
When asked whether he knew if Lariviere had been 6

disciplined for his comment, Anderson stated that was "none of

[his] business . . . as far as an entry-level supervisor. Only

upper management would know if something like that happened."

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that Francoeur violated the company's sexual harassment policy when

he made comments about "spread points" to a group of people that

included women, Anderson stated, "I didn't read nothing into it

because we all had a chuckle about it. So, I mean, I don't think

any of us read anything into it because we all laughed and went

on . . . ." Chaloult has not called this testimony into question.

Anderson had a different recollection of the incident

involving an eclair. He stated that one day he, Francoeur,

Chaloult, and Lariviere were eating a box of eclairs they had

brought back from the shipping dock, something that they did fairly

often. On this particular occasion: "Bonnie would take a bite of

one and Kevin [Francoeur] made a noise out of his mouth. Then Dan

had said, like, how far can it go. And we all laughed, and that

was the end of that. We finished eating, and we all went back out

on the floor." Anderson testified that of all the times when they

ate eclairs, this was the only occasion when a comment was made

about someone putting an eclair in their mouth. He did not

consider this to be sexual harassment.6

Anderson also testified that Francoeur once in a while

talked about his own nipples being chafed or irritated. One time,

when Chaloult as well as others, both male and female, were
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present, Francoeur asked if other people had hard nipples.

Anderson said that he heard Francoeur talk about the breasts of

female employees "once or twice," but never about Chaloult's in

particular, and never in her presence. When asked why he did not

report to management Francoeur's comments about breasts, Anderson

replied that Francoeur "was talking to me -- I mean, at that point

I felt it was a guy to guy talk. I mean, you just talk; and I

didn't really think nothing of it. I mean, it was just me and him

in the office or outside." Again, Anderson did not consider this

to be harassment. Chaloult has not rebutted this testimony.

With respect to the incident Chaloult referred to in her

letter of resignation, Anderson testified that Francoeur did not

ask him whether he and Chaloult were having sexual relations.

Rather, Francoeur came into the office where Anderson was sitting

and asked whether Anderson and Chaloult were "f[]ing with him" by

not answering their radios because Francoeur had unsuccessfully

been trying to get a hold of them. Anderson said that he told

Chaloult about the episode a few days later: "[I]t got worked into

the conversation . . . . I was telling her, Kevin came in the

office and he was pretty mad that we weren't answering our radios

and he asked if we were F-ing, if we were F-ing with him and stuff

like that." Chaloult also has not called this testimony into

question.
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Anderson testified that Chaloult never asked him to do

anything with, or about, Francoeur's comments. There is no

testimony from Chaloult that she ever used the term "sexual

harassment" in her conversations with Anderson about Francoeur.

II.

The Supreme Court has rejected the idea that an employer

is strictly liable for a hostile environment created by a

supervisor when the employer neither knew nor reasonably could have

known of the alleged misconduct. Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 70-72 (1986).

In Faragher and Ellerth, the Court adopted as an

alternative to an automatic liability rule an affirmative

"composite" defense under which an employer may show, under the

first prong, that "the employer had exercised reasonable care to

avoid harassment and to eliminate it when it might occur," and,

under the second prong, that "the complaining employee had failed

to act with like reasonable care to take advantage of the

employer's safeguards and otherwise to prevent harm that could have

been avoided." Faragher, 524 U.S. at 805.

We separately evaluate the two prongs, recognizing that

there may be a relationship between the two. For example, if the

company has not provided information about a complaint procedure,

that may affect whether the employee's failure to use the procedure

is reasonable, and vice versa. Reasonable effort is required on
Clearly Chaloult's behavior in not complaining was not 7

reasonable. There is absolutely no evidence of Chaloult's having

"more than ordinary fear or embarrassment," as Reed v. MBNA

Marketing Systems, Inc., 333 F.3d 27, 35 (1st Cir. 2003), requires.

To the contrary, Chaloult was a supervisor herself who had worked

for the company for over five years.

In Reed, this circuit held that a jury question was

presented on the second prong regarding whether it was unreasonable

for a seventeen-year-old plaintiff to fail to complain about her

supervisor's sexual assault when the supervisor was twice her age

and told her that they would both be fired if she reported and that

his father was good friends with the company's owner. Id. at 37.

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both sides. As we said in Reed v. MBNA Marketing Systems, Inc.,

333 F.3d 27 (1st Cir. 2003), the Supreme Court "certainly knew[]

its regime necessarily requires the employee in normal

circumstances to make [the effort to put the company on notice] if

the employee wants to impose vicarious liability on the employer

and collect damages under Title VII." Id. at 35; see also, e.g.,

Freytes-Torres v. City of Sanford, No. 05-15805, 2008 WL 763216, at

*3 (11th Cir. Mar. 25, 2008); Nurse "BE" v. Columbia Palms W. Hosp.

Ltd. P'ship, 490 F.3d 1302, 1309-12 (11th Cir. 2007); Hardage v.

CBS Broad., Inc., 427 F.3d 1177, 1186 (9th Cir. 2005).

Plaintiff does not contest that IBC has met the second

prong of the Faragher-Ellerth defense. The district court found

that Chaloult had waived any challenge to the company's claim that

she had not acted reasonably by failing to report the harassment.

We take it as true then that Chaloult "unreasonably failed to take 7

advantage of any preventive or corrective opportunities provided by
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the employer or to avoid harm otherwise." Faragher, 524 U.S. at

807.

Chaloult has posed the question as one under the first

prong of Faragher-Ellerth, that is, whether the company acted

reasonably. We agree that, depending on the facts, there may be

instances in which the employee acted unreasonably, but the

employer also did not exercise reasonable care. But that is not

the case. Chaloult concedes that IBC did have an acceptable sexual

harassment policy and complaint process in place, that the company

had trained its employees regarding its policies, and that Chaloult

knew of these policies. Chaloult thus concedes that the employer

has met the initial aspect of the first prong -- that the employer

took reasonable care to avoid sexual harassment. She argues that

the employer failed to meet the second aspect -- that the employer

failed to take reasonable care to eliminate harassment when it

might occur.

Specifically, Chaloult argues that Anderson's putative

knowledge of Chaloult's being harassed in the manner described in

the lawsuit must be attributed to IBC, and that given the

attributed knowledge, IBC failed to take appropriate corrective

actions. It is important to note that there is no claim of any

actual knowledge on the part of any IBC personnel who were superior

to Francoeur, or anyone superior to Chaloult, other than Francoeur.

Nor is there a claim the company routinely ignored harassment
-23-

complaints or that there were prior complaints against others.

Moreover, Chaloult does not claim that the company acted

unreasonably in responding to a complaint after she submitted her

letter of resignation and put it on notice of Francoeur's comments

regarding an alleged sexual relationship between Chaloult and

Francoeur.

Chaloult argues that case law requires imputation to a

company of a co-worker's knowledge so long as the co-worker had any

obligation to report harassment, and that the scope of the

Faragher-Ellerth defense is defined, as a matter of law, by the

company's own sexual harassment policies. Here, because the

company voluntarily required all supervisors to report any

harassment, as a matter of law the knowledge of anyone bearing the

title of supervisor must be attributed to the company for purposes

of the company's obligation to eliminate harassment.

We disagree with the plaintiff's argument. Given the

combination of factors from the events in this case, we think that

the company was entitled to summary judgment under FaragherEllerth. Here, the employer had an appropriate policy, it was

widely known and disseminated, it was known to the plaintiff, and

the plaintiff failed to use the complaint procedures for the

matters at issue. It is also clear, as to the second aspect of the

first prong, that as to the one matter reported to the employer by

plaintiff's August 4 letter, the company did act reasonably in
-24-

response. The employer promptly interviewed Chaloult, Francoeur,

and Anderson and concluded that Chaloult's account of what

Francoeur said to Anderson was inaccurate, but that Francoeur

should be punished for using inappropriate language. Further, the

complaint Chaloult made in her letter of resignation actually had

to do with invasion of personal privacy and reasonably could be

viewed as not being about sexual harassment. The employer also

reasonably viewed the matter as closed since Chaloult had raised no

other issues in her letter or in her meeting with Santos. Thus the

employer was fully in compliance with the second aspect of the

first prong of Faragher-Ellerth as to information of which

management had actual notice.

Nor is there knowledge that should be imputed to the

company that would render unreasonable its response under the

second aspect of the first Faragher-Ellerth prong. Chaloult argues

that whatever Anderson knew must be attributed to the company and

that what Anderson knew was the full range of behavior that

Chaloult complains about in her lawsuit. We outline our reasoning

for rejecting Chaloult's proposition that the employer here was on

adequate notice and failed to take appropriate steps.

Chaloult's position is not supported by the case law.

Chaloult relies on cases which she characterizes as holding that

the unreported knowledge of sexual harassment by any employee

bearing the title supervisor, even peers with no authority over the
-25-

harasser, is sufficient itself to attribute knowledge to the

employer. As a general proposition this cannot be consistent with

the defense outlined by the Supreme Court, which provides

incentives for employers to develop sexual harassment reporting

policies and to educate employees about and promote compliance with

such procedures in order to avoid vicarious liability. 

Chaloult relies heavily on Dees v. Johnson Controls World

Services, Inc., 168 F.3d 417 (11th Cir. 1999), a case which is not

at all like this. Dees concerned the adequacy of evidence that the

harasser's supervisors had knowledge of the harassment and did

nothing. In Dees, there was evidence that superiors of the

harasser had actual knowledge of harassment prior to plaintiff's

complaint. Specifically, a Human Resources employee told plaintiff

that the employer was aware of prior sexual harassment in

plaintiff's department, and plaintiff's superior informed her on

multiple occasions that he had reported the harassment up the

ladder "because he realized that [plaintiff] could not file a

complaint herself." Id. at 422-23.

Chaloult's argument about attribution to the company

turns on the fact that Anderson's title was supervisor. In fact,

that was plaintiff's title as well. Anderson was her co-worker,

and they both reported to the alleged harasser. This situation is

unlike other cases in which people in management at levels above or

at the same level as the harasser either observed directly or were
The case Clark cites in support of this proposition, 8

Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11th Cir. 1999), says

no such thing. The language from Coates, that a company "itself

answered the question of when it would be deemed to have notice of

the harassment," was used in the context of whether an employee had

sufficiently reported harassment to the company, not whether the

company was liable for a co-worker supervisor's knowledge. Id. at

1364.

-26-

told of the harassment. Cf., e.g., Arrieta-Colon v. Wal-Mart P.R.,

Inc., 434 F.3d 75, 81-82 (1st Cir. 2006); Dees, 168 F.3d at 423;

Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir.

1999); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir.

1998).

This raises the question of whether the company's

voluntary adoption of a policy requiring all supervisors,

regardless of whether they are co-workers, to report sexual

harassment increases the scope of the company's legal liability as

a matter of law under Title VII. We think not, although one

circuit has adopted such an approach. See Clark v. United Parcel

Serv., Inc., 400 F.3d 341, 350 (6th Cir. 2005). Adoption of this 8

view would set a legal standard different from the Supreme Court's

reasonableness approach in Faragher-Ellerth. It would also

discourage and penalize voluntary efforts which go beyond what the

law requires. And it would be inconsistent with approaches to

voluntary efforts in other areas of Title VII law. See, e.g.,

Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1279

(11th Cir. 2002) (an employer's deviation from a voluntarily
This does not mean that Anderson had no duty to report 9

harassment under IBC's policy. But the existence of any such duty

does not, as a matter of law, automatically impute to IBC all of

Anderson's knowledge for the purpose of determining the

reasonableness of IBC's actions under Faragher-Ellerth.

In an affidavit accompanying her opposition to summary 10

judgment, Chaloult added new information: that after Francoeur made

the offer to go to her house and have sex with her, Anderson "said

that Mr. Francoeur's behavior was getting worse, and, it would get

him into trouble at some point." Since this statement is

inconsistent with Chaloult's deposition testimony, we disregard it.

Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir.

2008); Abreu-Guzman v. Ford, 241 F.3d 69, 74 (1st Cir. 2001).

-27-

adopted affirmative action policy cannot be used as evidence of

pretext); Long v. Runyon, No. 92-6078, 1993 WL 264669, at *3 (6th

Cir. July 12, 1993) (same).9

Even if all of Anderson's knowledge were imputed to IBC,

this would not make IBC's actions unreasonable, since it is clear

that Anderson did not consider himself on notice of harassment.

Anderson testified that he did hear several comments by Francoeur

which Chaloult attributed to Francoeur, but Anderson believed the

comments were not harassing, and so there was no basis to report.

As to the most suggestive of the alleged comments, i.e., that

Francoeur offered to go and have sex with Chaloult, Anderson says

he did not hear them. Chaloult did not testify that Anderson did

hear them or that he must, of necessity, have heard them.10

Anderson also testified that had he observed or known of any claims

by Chaloult of harassment, he would have reported them up the

chain.
This is also not a case where the employer was aware of 11

prior instances of Francoeur's harassment through complaints made

by other people. There is no indication that any complaints were

made about Francoeur by anyone else at any time. 

-28-

The effect of the acceptance of plaintiff's argument

would be to undercut the policy judgment the Supreme Court made in

Faragher-Ellerth. The defendant met the reasonableness standard.

This is not an instance in which the employer is trying to utilize

its sexual harassment reporting chain to immunize itself from

knowledge it actually had of the harassment allegations. Varner 11

v. Nat'l Super Markets, Inc., 94 F.3d 1209, 1213-14 (8th Cir.

1996). Rather, this is a case where the company was deprived of

the opportunity to take remedial action because -- with the

exception of the one incident Chaloult reported, which Santos

promptly investigated and acted on -- Chaloult did not make

allegations of sexual harassment until she filed suit over a year

after leaving her job at IBC.

We affirm the entry of summary judgment for defendant.

-Dissenting Opinion Follows-
-29-

LIPEZ, Circuit Judge, dissenting. Three propositions

underlie the decision of the majority to affirm summary judgment

for IBC: (1) the terms of the sexual harassment policy that IBC

chose to adopt should not be applied as written, (2) with the

policy cast aside, Chaloult's unreasonable failure to take

advantage of any preventive or corrective opportunities provided by

IBC's sexual harassment policy (the second element of the FaragherEllerth affirmative defense) becomes the decisive factor in

determining that IBC exercised reasonable care to prevent and

correct promptly sexually harassing behavior (the first element of

the Faragher-Ellerth affirmative defense), and (3) there is no

genuine issue of material fact about whether Anderson was aware of

the sexual harassment of Chaloult. 

I disagree with each of these propositions. Therefore,

I respectfully dissent. 

I.

IBC's sexual harassment policy states without

qualification: 

If a supervisor becomes aware of any violation or

possible violation of the EEOC guidelines, the incident

should be reported immediately to the human resources

manager or plant general manager . . . . Supervisors have

an affirmative duty to keep their work area free from

sexual harassment of any kind and shall take appropriate

steps to prevent and eliminate such harassment.

Although the majority acknowledges that Anderson was a supervisor,

it insists that his awareness of sexual harassment could not be
-30-

attributed to IBC because Chaloult also was a supervisor on the

same level as Anderson, and both reported to Francoeur, the alleged

harasser. The majority also notes that no one in management at

Francoeur's level or above had knowledge of the harassment.

Therefore, according to the majority, IBC should be entitled to the

affirmative defense. 

The majority has added its own gloss to the company's

clearly stated policy. As drafted, the policy did not qualify

Anderson's obligations under the company's sexual harassment policy

simply because he and Chaloult were supervisors at the same

employment level. Likewise, as drafted, the policy did not qualify

Anderson's obligations because the alleged harasser was the

immediate supervisor of both Anderson and Chaloult. 

Indeed, that policy demonstrates that IBC knew how to

distinguish between a particular category of supervisor and

supervisors generally. The "Awareness" section of the company's

sexual harassment policy reads in its totality as follows: 

II. Awareness

A. Supervisors must be sensitive to the problem

of sexual harassment.

B. Employees shall be encouraged to report an

incident of sexual harassment to their

supervisor.

C. If a supervisor becomes aware of any

violation or possible violation of the EEOC

guidelines, the incident should be reported

immediately to the human resources manager or

plant general manager.

D. Supervisors have an affirmative duty to keep

their work area free from sexual harassment of
-31-

any kind and shall take appropriate steps to

prevent and eliminate such harassment.

(emphases added). 

Pursuant to this policy, employees experiencing

harassment are specifically "encouraged to report an incident of

sexual harassment to their supervisor." However, supervisors

generally "must be sensitive to the problems of sexual harassment,"

and must "report immediately to the human resources manager or

plant general manager" any violation or possible violation of the

EEOC guidelines. They also "have an affirmative duty to keep their

work area free from sexual harassment of any kind and shall take

appropriate steps to prevent and eliminate such harassment."

Anderson understood that these obligations of a

supervisor to deal with sexual harassment applied to him. As the

majority points out, Anderson confirmed at his deposition that "it

is his understanding that if supervisors receive a complaint of

sexual harassment, they are supposed to report it right away."

Although Chaloult never said to Anderson "I am being sexually

harassed by Francoeur and I want you to help me," she alleges that

she did complain to Anderson about Francoeur's conduct and she

asserts that Anderson was aware of many of her encounters with

Francoeur independently of any complaint by her. Yet the majority

insists that Anderson had no legal obligation to do anything - and

the company thus could not be found to have acted unreasonably -

because IBC's policy requires more than Title VII demands. The
In footnote 9 of its opinion, the majority states that it 12

is not saying that Anderson had no duty to report harassment under

IBC's policy. Rather, the majority insists that Anderson had no

duty to report Francoeur's harassment of Chaloult under the

circumstances of this case. Those circumstances include two

indefensible legal propositions put forth by the majority. First,

as explained above, the majority says that Anderson's status as a

supervisor under the IBC policy does not matter here because

Chaloult was a supervisor at the same level as Anderson and because

the harasser, Francoeur, was the supervisor for both of them.

Second, as I explain more fully in Parts II and III of the dissent,

the majority says that Anderson's knowledge of Francoeur's

treatment of Chaloult did not constitute awareness of sexual

harassment as a matter of law.

-32-

majority simply ignores as improvident or legally irrelevant IBC's

policy choice to imbue all supervisors with the responsibility for

reporting and preventing sexual harassment.12

Other courts have agreed that a company's stated sexual

harassment policy is critical to an evaluation of the question

posed by the first element of the affirmative defense -- whether

"the employer exercised reasonable care to prevent and correct

promptly any sexually harassing behavior." Faragher v. City of

Boca Raton, 524 U.S. 775, 807 (1998). In Clark v. United Parcel

Serv., Inc., 400 F.3d 341 (6th Cir. 2005), the court rejected the

employer's argument that, as a matter of law, supervisors who "were

not high enough in the company hierarchy and had no authority to

control [the harasser]" had no duty to convey their knowledge of

harassment to higher management. Id. at 350. The court observed

that "[t]his argument might have merit but for the fact that UPS

itself has, through its sexual harassment policy, placed a duty on
 In Coates, the court held that when an employer's sexual 13

harassment policy designates the people responsible for reporting

misconduct, the company "itself answered the question of when it

would be deemed to have notice of the harassment sufficient to

obligate it or its agents to take prompt and appropriate remedial

measures." 164 F.3d at 1364. The majority correctly notes that

the court in Coates was considering whether an employee had

sufficiently reported harassment to the company and did not address

the issue of whether a company was liable for a co-worker

supervisor's knowledge. Even with this factual distinction, the

central point remains the same -- a company's own harassment policy

answers the question of who within the company is responsible for

reporting and responding to known incidences of harassment.

-33-

all supervisors and managers to 'report[] incidents of sexual

harassment to the appropriate management people.'" Id. (emphasis

in original); see also Coates v. Sundor Brands, Inc., 164 F.3d

1361, 1364 (11th Cir. 1999). 

13

The majority justifies its decision not to enforce IBC's

policy as written on the ground that to do so would "set a legal

standard different from the Supreme Court's reasonableness approach

in Faragher-Ellerth." According to the majority, allowing

knowledge of sexual harassment by "any employee bearing the title

supervisor" to be sufficient to attribute knowledge to the employer

is inconsistent with the Faragher-Ellerth affirmative defense,

which "provides incentives for employers to develop sexual

harassment reporting policies and to educate employees about and

promote compliance with such procedures."

The majority misapprehends Title VII's "basic policies of

encouraging forethought by employers and saving action by objecting

employees." Faragher, 524 U.S. at 807. The animating principle of
-34-

Title VII is "not to provide redress [for employment

discrimination] but to avoid harm." Faragher, 524 U.S. at 806. By

involving supervisors at all levels in the reporting and prevention

of sexual harassment, IBC's sexual harassment policy seeks

comprehensively to avoid harm. If the failures of a particular

supervisor in the reporting of sexual harassment belie the promise

of that comprehensive policy, a court should not forgive the

failure of the supervisor by declaring the policy too ambitious. 

Not surprisingly, I can find no other cases in which an

employer prevailed on the first element of the Faragher-Ellerth

affirmative defense because a court thought its sexual harassment

policy imposed a broader reporting obligation than the law

required. If the majority believes that IBC's policy states the

reporting responsibilities of supervisors too broadly to justify

vicarious liability, IBC should rewrite that policy, not the court.

II.

I agree with the majority that there may be instances in

which there is a relationship between the two prongs of the

Faragher-Ellerth affirmative defense. That is, facts relevant to

an assessment of the unreasonableness of the employee in not taking

advantage of any preventive or corrective opportunities afforded by

a company's sexual harassment policy may also be relevant to an

assessment of the reasonable care taken by an employer to prevent

and correct promptly sexual harassment. Some of the cases cited by
-35-

the majority present such scenarios. For example, in Nurse "BE" v.

Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302 (11th Cir.

2007), an employee explicitly "requested that [her supervisor] not

report the incident [of sexual harassment] and premised the

complaint on [the supervisor]'s promise of confidentiality." Id.

at 1310. Similarly, in Hardage v. CBS Broad., Inc., 427 F.3d 1177

(9th Cir. 2005), the employee told the supervisor with whom he had

discussed the allegedly harassing behavior that he wanted to

"handle the situation by himself." Id. at 1186. In Nurse "BE" and

Hardage, the employee's conduct -- telling the supervisor not to

address the harassment -- appropriately affected the court's

inquiry into the reasonableness of the measures taken by the

employer. However, those cases are inapplicable here because there

the employees took affirmative steps to thwart their supervisors'

compliance with the reporting requirements. Here, Chaloult merely

failed to act. That is often the case in sexual harassment cases

for many different reasons. That failure has no relationship to

Anderson's responsibilities as a supervisor if he was aware of the

harassing conduct by Francoeur.

The majority sees it differently. With its disregard of

IBC's sexual harassment policy, it seeks to minimize the importance

of Anderson's knowledge of Francoeur's conduct notwithstanding the

obligation to report imposed on him by IBC's policy, and it makes

Chaloult's failure to use the complaint procedures of the company
-36-

the decisive factor in deciding that the company acted reasonably.

In effect, the majority double counts Chaloult's failure to report

sexual harassment to higher management (once in each element of the

affirmative defense). It gives little or no weight at all to

Anderson's awareness of Chaloult's encounters with Francoeur. For

this approach, the majority cites language from Reed v. MBNA Mktg.

Sys., Inc., 333 F.3d 27 (1st Cir. 2003), where we said that the

Supreme Court "certainly knew [] its [Faragher-Ellerth] regime

necessarily requires the employee in normal circumstances to make

[the effort to report sexually offensive conduct] if the employee

wants to impose vicarious liability on the employer and collect

damages under Title VII." Id. at 35 (emphasis in original).

This statement is merely an explanation of why there is

a second element of the Faragher-Ellerth affirmative defense that

focuses on the reporting responsibilities and conduct of the

employee. That statement did not mean, because it could not mean,

that the unreasonable failure of the employee to report sexual

harassment trumps the failure of the employer to exercise

reasonable care to prevent and correct promptly sexual harassment

in a case where the employer has knowledge of the sexual harassment

independently of any reporting by the employee. It is only because

of the majority's insistence that Anderson's knowledge of

Francoeur's treatment of Chaloult cannot be imputed to IBC under

element one of the Faragher-Ellerth affirmative defense that the
-37-

majority can rule as a matter of law that IBC prevails on that

defense.

III.

Near the end of its opinion, the majority qualifies its

insistence that Anderson's knowledge of Francoeur's treatment of

Chaloult cannot be imputed to IBC. The majority says that “[e]ven

if all of Anderson's knowledge were imputed to IBC, this would not

make IBC's actions unreasonable, since it is clear that Anderson

did not consider himself on notice of harassment.” I do not

understand how the majority can ascribe such dispositive

significance to Anderson's alleged insensitivity to sexual

harassment. Chaloult describes a number of encounters with

Francoeur that Anderson admittedly witnessed. She also describes

other encounters which she says Anderson was aware of and he denies

it. Those encounters are central to my view that we must vacate

the district court's grant of summary judgment. Taking the facts

in the light most favorable to Chaloult - as we must - Anderson was

aware of a series of episodes that a jury could view as sexual

harassment. Even accepting only what Anderson acknowledges he

heard and observed, a jury could still find that he should have

reported the conduct to IBC and that his failure to do so is

properly imputed to the company. The majority looks at those same

encounters and sees grounds for affirming summary judgment.
-38-

It does so by the misapplication of the summary judgment

standard. That misapplication includes an inappropriate effort to

undermine Chaloult's credibility. The majority notes that

Chaloult's contemporaneous diary of Francoeur's comments did not

include all of the incidents alleged in the complaint; that she

conceded in a deposition that her work deteriorated after she was

put on notice that her position could be eliminated; and that she

acknowledged her displeasure with her job for reasons unrelated to

the alleged sexual harassment. Although these details are fair

game for a trial, they have no place in the summary judgment

analysis, where we are not permitted to draw negative inferences

about Chaloult's credibility. That is a job for the jury at trial.

Then there is the majority's curious treatment of

Chaloult's insistence that Anderson knew of some incidents that he

does not acknowledge. For example, Chaloult alleges that Anderson

and a few maintenance people were in the area when Francoeur told

her that he was going to come to her house to show her what

“fucking was about.” The obvious import of Chaloult's statement is

that Anderson overheard the remark. In response, the majority

observes that Anderson says that he did not hear those comments.

The majority apparently accepts Anderson's denial. In so doing,

the majority distorts the summary judgment standard that requires

us to take all facts in the light most favorable to Chaloult.
-39-

Finally, there is the majority's odd treatment of

undisputed portions of the summary judgment record. It is

undisputed that Anderson heard Francoeur: remark that women who

rode motorcycles enjoyed sex from the backside after he learned

that Chaloult had recently taken a motorcycle trip; make an

inappropriate noise while Chaloult ate an eclair and another

supervisor "asked how far can it go"; state that he had heard a

radio program that discussed "spread points" between breasts; and

ask other employees to measure their "spread points." With respect

to this spread points incident, the majority recounts in detail

Anderson's version, including his insistence that he "read nothing

into it because we all had a chuckle about it." The majority then

says that "Chaloult has not called this testimony into question,"

without explaining how or why Chaloult has to challenge Anderson's

statement that he did not view this particular conduct as sexual

harassment.

Anderson's dismissal of such conduct as "guy talk" and

funny incidences that provoked laughter may only mean that he was

a company supervisor who did not understand the nature of sexual

harassment. Contrary to the inapt observation of the majority that

Chaloult never "used the term 'sexual harassment' in her

conversations with Anderson about Francoeur," Chaloult had no

obligation to explain to Anderson the significance of what he was

seeing. The testimony about those encounters described by Chaloult
-40-

should have been heard by a jury charged with determining whether

Anderson was placed on notice of sexual harassment, which would

then be imputable to IBC under the terms of its own sexual

harassment policy. Therefore, I respectfully dissent from the

decision of the majority to terminate this case.