UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Scott McDaniel

v. Case No. 04-cv-311-PB

Opinion No. 2007 DNH 094

SkillSoft Corporation

MEMORANDUM AND ORDER

Scott McDaniel charges that he was sexually harassed by his

supervisor, Rob Brown, while both men worked at SkillSoft

Corporation's (“SkillSoft”) office in Nashua, New Hampshire. 

McDaniel seeks damages for alleged violations of Title VII of the

Civil Rights Act of 1964 and the New Hampshire Civil Rights Act,

as well as for the common law torts of intentional infliction of

emotional distress and constructive discharge. Because the

undisputed evidence establishes that SkillSoft has properly

asserted a Ellerth-Faragher affirmative defense, I grant its

motion for summary judgment.

I. BACKGROUND

SkillSoft, a company that provides computer-based training

to business and information technology professionals, hired 

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1 Additionally, in his deposition, McDaniel acknowledged

that he knew how to return to the policy on the computer system

if he needed to review it.

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McDaniel in July 2000 as an inside sales representative. On

McDaniel’s first day of work at SkillSoft, his supervisor

reviewed SkillSoft’s anti-discrimination policy with him on the

company’s computer system, and the two read through it together.1

In November 2000, Rob Brown became McDaniel’s supervisor in the

inside sales department in the company’s Nashua, New Hampshire

office.

According to McDaniel, Brown sexually harassed him over an

extended period of time by making suggestive comments, sending

him e-mails laden with sexual content, and touching him

inappropriately. In March 2001, McDaniel sought mental health

counseling. On September 21, 2001, at the suggestion of his

doctor, McDaniel stopped working and started collecting

disability benefits.

McDaniel first told SkillSoft's human resources department

about Brown's conduct in a telephone conversation on October 1,

2001 after he was already on leave. At the department’s request,

he set forth his allegations in writing in a letter dated October

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1, 2001. SkillSoft received McDaniel’s letter on October 11,

2001 and Thomas McDonald, SkillSoft’s Chief Financial Officer, 

responded by letter the following day. In the letter, McDonald

indicated that SkillSoft was taking McDaniel’s concerns “very

seriously” and asked to interview McDaniel later that week as

part of an investigation into his allegations. The letter also

stated, “Please rest assured that you will not be retaliated

against in any way for having filed this complaint.” 

SkillSoft promptly investigated McDaniel's allegations by 

interviewing McDaniel and Brown separately, and reviewing e-mail

correspondence between McDaniel and Brown. At the conclusion of

its investigation, SkillSoft determined that although no sexual

harassment had occurred, Brown’s conduct had been unprofessional. 

Accordingly, SkillSoft terminated Brown by giving him the

opportunity to resign on October 29, 2001. 

At the time of Brown’s departure from SkillSoft, McDaniel

was still on leave. Thereafter, McDaniel remained on leave for

an extended period, ultimately exhausting both his short-term and

long-term disability benefits. McDaniel has never resigned from

SkillSoft and acknowledges that no one from SkillSoft ever told

him that his employment was terminated; nor has he received any

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letters to that effect from SkillSoft.

II. STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this

context, "a fact is 'material' if it potentially affects the

outcome of the suit and a dispute over it is 'genuine' if the

parties' positions on the issue are supported by conflicting

evidence." Intern'l Ass'n of Machinists and Aerospace Workers,

AFL-CIO v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st

Cir. 1996) (citations omitted); see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). All reasonable inferences and

all credible issues are resolved in favor of the nonmoving party. 

See Anderson, 477 U.S. at 255-56.

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Once the moving party has properly carried its burden, the

burden shifts to the nonmoving party to "produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for it; if that party cannot produce

such evidence, the motion must be granted." Ayala-Gerena v.

Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citing

Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 249).

III. ANALYSIS

SkillSoft seeks to assert an Ellerth-Faragher affirmative

defense, claiming that McDaniel suffered no tangible employment

action, that SkillSoft exercised reasonable care to prevent and

correct promptly any harassing behavior, and that McDaniel

unreasonably failed to take advantage of preventive or corrective

opportunities afforded him by SkillSoft. McDaniel responds by

contending that facts that are material to SkillSoft’s defense

remain in genuine dispute. In the sections below, I describe the

law governing the Ellerth-Faragher affirmative defense and then

apply that legal framework to the facts of this case. Because I

conclude that SkillSoft has met its burden as to each element of

the defense, I grant its motion for summary judgment.

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A. Legal Framework of the Ellerth-Faragher Affirmative Defense

In certain Title VII cases, “a defending employer may raise

an affirmative defense to liability or damages, subject to proof

by a preponderance of the evidence.” Arrieta-Colon v. Wal-Mart

Puerto Rico, Inc., 434 F.3d 75, 86 (1st Cir. 2006) (quoting

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

(internal quotation marks omitted). This defense is known as the

Ellerth-Faragher defense. The defense is only available,

however, “when the supervisor's harassment [has not] culminate[d]

in a tangible employment action, such as discharge, demotion, or

undesirable reassignment.” Id. (quoting Faragher, 524 U.S. at

808) (internal quotation marks omitted).

When available, the defense “comprises two necessary

elements: (a) that the employer exercised reasonable care to

prevent and correct promptly any . . . 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.” Id. (quoting 

Faragher, 524 U.S. at 807) (internal quotation marks omitted). 

The first element “typically is addressed by proof that the

employer ‘had promulgated an antiharassment policy with [a]

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complaint procedure.’” Marrero v. Goya of Puerto Rico, Inc., 304

F.3d 7, 20 (1st Cir. 2002) (quoting Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 765 (1998). With respect to the second

element, “proof that the employee failed to meet his obligation

of using reasonable care is not limited to an unreasonable

failure to use such a procedure, although such proof will

normally suffice to meet the employer's burden.” Reed v. MBNA

Marketing Systems, Inc., 333 F.3d 27, 34 (1st Cir. 2003) (citing

Faragher, 524 U.S. at 807-08) (additional citations omitted). 

As it is an affirmative defense, “[t]he employer bears the

burden of proof as to both elements.” Arrieta-Colon, 434 F.3d at

86 (citing Faragher, 524 U.S. at 807-08). Despite this,

“summary judgment for the employer is still possible so long as

raw facts are undisputed or assumed in favor of the plaintiff.” 

Reed, 333 F.3d at 34. However, “the judgment call as to

reasonableness is itself a jury issue unless no reasonable jury

could decide it in the plaintiff's favor.” Id. (citation

omitted). It is against this legal framework that I now turn to

McDaniel’s claims.

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B. Application

1. Availability of the Defense: Was There a Tangible

 Employment Action?

Here, SkillSoft contends that the Ellerth-Faragher defense

is available because McDaniel has not suffered a tangible

employment action. In support of this argument, SkillSoft points

to evidence that McDaniel was never terminated from SkillSoft.

Affidavit of Thomas McDonald, Doc. 19, Attach. 7 (“McDonald

Aff.”) at 2. Moreover, McDaniel does not contend that he was

demoted or undesirably reassigned. 

In short, McDaniel has not presented sufficient evidence to

rebut SkillSoft’s showing that McDaniel was not subjected to a

tangible employment action. Rather, McDaniel’s sole argument on

this point is his assertion that while he was collecting

disability benefits, “[his] [mental health] care provider was

never forwarded any additional inquiries by SkillSoft as to [his]

ability to return to work” and that he “received information from

SkillSoft regarding COBRA enrollment for ongoing health insurance

coverage, reasonably leading [him] to believe that his employment

had been terminated.” Plaintiff’s Obj. at 6. For obvious

reasons, such bald assertions are insufficient to rebut the

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evidence SkillSoft has presented with respect to this issue. 

Moreover, McDaniel’s claim regarding COBRA enrollment is belied

by his own deposition testimony, where he clearly acknowledges

that he was informed of the need to pay for COBRA enrollment not

by SkillSoft, but by his disability insurance company, presumably

because his benefits had expired. Deposition of A.J. McDaniel,

Doc. 19, Attach. 3 (“McDaniel Dep.”) at 217-19. Because

SkillSoft has shown by a preponderance of the evidence that it

did not subject McDaniel to a tangible employment action, I hold

that SkillSoft is entitled to assert the Ellerth-Faragher

defense.

2. First Element: Did SkillSoft Exercise Reasonable Care?

With respect to the first element of the defense--i.e.,

whether SkillSoft exercised reasonable care to prevent and

correct promptly any harassing behavior--SkillSoft has shown that

it promulgated and publicized an anti-discrimination policy that

prohibited unlawful discrimination, including unlawful sexual

harassment. McDonald Aff. at 1. This policy contained a

complaint procedure for employees to report incidents of sexual

harassment. Id. McDaniel does not dispute this contention and,

in fact, admitted during his deposition that he reviewed the

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policy when he began working at SkillSoft and that he knew how to

access the policy if he wanted to find it again. McDaniel Dep.

at 70-73. Thus, I hold that SkillSoft has satisfied its burden

with respect to the first element of the Ellerth-Faragher

defense. See Reed, 333 F.3d at 34-35 (affirming district court’s

summary judgment determination that defendant satisfied the first

element of the defense by promulgating an anti-harassment policy

with a complaint procedure). 

3. Second Element: Did McDaniel Unreasonably Fail to Take

 Advantage of Preventive or Corrective Opportunities?

I now turn to the second element of the defense--i.e.,

whether McDaniel unreasonably failed to take advantage of the

complaint procedure in SkillSoft’s anti-discrimination policy. 

With respect to this element, SkillSoft has presented evidence,

which McDaniel does not dispute, that McDaniel did not report

Brown’s alleged harassment to SkillSoft until October 1, 2001,

after he was already on leave. McDonald Aff. at 1. Thus,

SkillSoft argues, McDaniel unreasonably failed to take advantage

of SkillSoft’s complaint procedure, thus rendering SkillSoft

unable to prevent or correct the alleged harassment.

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In his brief, McDaniel offers only a cursory explanation for

his failure to follow the procedures. Specifically, he asserts

that he “felt trapped by the structure of SkillSoft and by Mr.

Brown’s capacity as his supervisor,” that he believed another

employee who complained to Human Resources regarding Mr. Brown

had been terminated, and that a co-worker advised him to refrain

from making complaints to the Human Resources department out of

concern for McDaniel’s job security. However, as the First

Circuit has explained, “a nebulous fear of retaliation is not an

adequate basis for remaining silent.” See Reed, 333 F.3d at 36

(citing Matvia v. Bald Head Island Mgmt., Inc. 259 F.3d 261, 270

(4th Cir. 2001) (internal quotation marks omitted)). Here,

McDaniel has presented no evidence of anything but a “nebulous

fear.” Simply pointing to the fact that Brown was his

supervisor, to sheer speculation as to why a co-worker was

terminated, and to a conversation he had with a co-worker

evidences nothing more the “nebulous fear,” deemed insufficient

by the First Circuit to rebut SkillSoft’s showing on this point. 

Accordingly, I hold that SkillSoft has met its burden with

respect to the second element of the defense.

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IV. CONCLUSION

Because SkillSoft has shown by a preponderance of the

evidence that McDaniel did not suffer a tangible employment

action, that SkillSoft exercised reasonable care to prevent or

correct sexual harassment, and that McDaniel unreasonably failed

to take advantage of SkillSoft’s preventive and corrective

opportunities, I hold that SkillSoft has successfully asserted a

Ellerth-Faragher defense. Accordingly, I grant SkillSoft’s

motion for summary judgment (Doc. No. 57) as to McDaniel’s Title

VII claim. I decline to exercise supplemental jurisdiction over

his related state law claims. The clerk is instructed to enter

judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro

Paul Barbadoro

United States District Judge

August 14, 2007

cc: Mary Notaris, Esq.

Edmond J. Ford, Esq.

Elizabeth A. Bailey, Esq.

Christopher Cole, Esq.

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