## F I L E D United States Court of Appeals Tenth Circuit 

### APR 30 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEANNE HARRISON,Plaintiff-Counter-DefendantAppellee,

v. No. 00-2221 EDDY POTASH, INC., a New Mexico corporation,Defendant-Counter-ClaimantAppellant, and ROBERT L. BROWN, Defendant-Counter-Claimant.

Appeal from United States District Court for the District of New Mexico (D.C. No. CIV-94-691-JP)

W.T. Martin, Jr., Law Offices of W.T. Martin, Jr., P.A., Carlsbad, New Mexico, for the appellant. Floyd D. Wilson (Richard D. Barish with him on the brief), McCary, Wilson & Pryor, Albuquerque, New Mexico, for the appellee.* The Honorable John R. Gibson, Circuit Judge, Unit ed States Court of

Appeals for the Eighth Circuit, sitting by designat ion. 2 Before SEYMOUR, GIBSON , * and BRISCOE, Circuit Judges.

BRISCOE , Circuit Judge
.
Defendant Eddy Potash, Inc., (EPI) appeals from the district court’s entry of partial summary judgment, as well as the distric t court’s final judgment after trial, in favor of plaintiff Jeanne Harrison on herclaim of Title VII sexual harassment. We exercise jurisdiction pursuant to 2 8 U.S.C. § 1291 and affirm.
I. The relevant underlying facts of this case were setforth in detail in our opinion in Harrison v. Eddy Potash, Inc. , 112 F.3d 1437 (10th Cir. 1997) (Harrison I ): Plaintiff is a resident of Carlsbad, New Mexico. D efendant Eddy Potash, Inc., is a New Mexico corporation doin g business in Eddy County, New Mexico. Defendant Robert L. Brown is a supervisor employed by Potash. Plaintiff began wor king for Potash as an underground potash miner in May 1992 and was the only female working with a crew of approximately 30 men [and was one of only two women miners in the entire operation]. Brown, who worked as the underground shift foreman, was plaint iff'’s supervisor and was in charge of delegating duties and assignin g work to plaintiff. According to plaintiff, Brown was the f irst person she was required to call if she was sick or wanted to take vacation. Brown was also involved in the disciplinary process. The miners at Potash had a “buddy system” where eac h miner was assigned a “buddy” and each set of “buddies” wo rked together in3

a section of the mine away from other members of hi s or her crew. If a miner was not assigned a “buddy” on a particular shift, he or she was designated the “extra person” and was typically assigned to perform miscellaneous duties. On May 4, 1993, Brown approached plaintiff in an is olated portion of the mine and attempted to kiss her on th e mouth. She “pushed him away and told him he was crazy and to g et the hell out of there.” On the following day, Brown ordered pla intiff to leave her work station and accompany him to an abandoned unli t section of the mine to look for empty oil barrels he had allegedly previously noticed. After driving around the mine for awhile, Brown stopped the vehicle and walked around to the side where pla intiff was sitting. He tried to kiss plaintiff, to put his hands on herbreasts and between her legs, and to unzip her pants. At the same time , Brown made various sexually suggestive comments to plaintiff, including asking her if she wanted to have intercourse or oral sex. Plaintiff pushed Brown away and said “No” to each question. Brown “ unbuttoned his pants and exposed his penis, put [plaintiff’s] hand on his penis, and he ejaculated.” Brown then drove plaintiff back to the section of the mine where she normally worked. On May 15, 1993, plaintiff was working with her “bu ddy” to fix a broken machine. Brown arrived where they wer e working and ordered plaintiff to accompany him to the shop to l ook for a part for the machine. Before arriving at the shop, Brown st opped the vehicle in an unoccupied section of the mine, walked around to plaintiff’s side of the vehicle, and again attempted to kiss he r, to touch her, and to unzip her pants. Plaintiff repeatedly told Brow n “No.” Brown started walking back to his side of the vehicle, bu t turned around and returned to where plaintiff was sitting. He unzipp ed his pants and said, “‘Well, at least I can be happy.’” He then f orced plaintiff to masturbate him. Brown then drove plaintiff to the shop and ordered the mechanic to drive her back to where she had bee n working. On May 24, 1993, plaintiff was working a “graveyard ” shift and was designated as the “extra person.” Brown or dered her to accompany him to a section of the mine where they w ere experiencing a high methane gas reading, stating th ey needed to check the readings and make sure the section had be en curtained off correctly. After they completed the work described , Brown drove to a nearby section of the mine that was unoccupied, u nlit, and had a low ceiling. As in the previous incidents, Brown w alked around to4

plaintiff’s side of the vehicle and attempted to ki ss her, touch her, and unzip her pants. He also made various sexually suggestive comments. Plaintiff again told him “No” and attemp ted to push him away. Ultimately, Brown exposed himself and forced plaintiff to masturbate him. On June 7, 1993, Brown ordered plaintiff to clean up around the shifter’s office. After she had finished, Brow n ordered her to accompany him in taking a load of materials to a se ction of the mine. On the way, Brown stopped the vehicle at an old uno ccupied section of the mine and told plaintiff, “Look, I made us a bed out of [burlap] cloth.” Brown asked plaintiff to lie down with him and she did. Brown repeatedly asked her to have sex with him and attempted to kiss and touch her, but plaintiff said “No.” Brown then forced plaintiff to masturbate him. During the period of time in which the incidents to ok place, plaintiff was aware of rumors indicating Brown was going to replace Larry Robertson, who was retiring in the safety off ice. The safety office was located on the surface and plaintiff bel ieved if Brown went to that position she would not be in contact w ith him or under his supervision. However, when plaintiff returned to work on June 21, 1993, after a three-day break, she learned Brow n would not be replacing Robertson. At that point, she knew the “ problem wasn’t going to go away,” and she “was going to have to do something to put an end to it.” However, she was scared that no one in management would believe her and that she would los e her job. On June 26, 1993, plaintiff arrived at work and lea rned her usual “buddy” had been assigned to work with anothe r miner and she was the “extra person.” Afraid Brown would again attempt to harass her, she completed a few of her assigned tasks and told Brown she was sick and was going home. On June 27, 1993, plaintiff was again designated th e “extra person.” Brown ordered her to accompany him to sho vel some tunnels in the mine. When they arrived, Brown agai n began harassing her in the identical manner as in the pre vious incidents. Plaintiff refused his advances and refused to mastu rbate him. Brown drove plaintiff back to his office and told her to go to her machine and work through lunch. Later that same day, Brown ordered plaintiff to help him clean his office. When they were alone, he again began harassing plaintiff, touching her, and repeatedly asking her to have sex. Plaintiff refused Brown’s advance s.5 On June 28, 1993, plaintiff called the line foreman and told him she was having some problems and needed to take some vacation days to finish out the remainder of her eleven-day shift. On her next scheduled work day (July 5, 1993), plaintiff called in sick. She also called in sick the following day. On July 7, 1993, plaintiff called Dale Janway, a ma nager in the safety office, and told him what had happened with Brown. Janway told plaintiff “this is pretty big,” and he would h ave to talk with Ken Leivo, the human resources manager. Later that aft ernoon, Leivo telephoned plaintiff and informed her she would be on administrative leave pending the outcome of his investigation. Le ivo also asked plaintiff to prepare a written statement outlining what had happened. Plaintiff and Leivo talked on the telephone several times between July 7 and July 12. Leivo told plaintiff that Brow n had admitted everything but said the incidents were consensual. On July 14, 1993, Leivo issued a three-page “Determ ination and Disposition,” noting plaintiff’s and Brown’s ve rsions of what happened were substantially similar, with the excep tion that Brown alleged the encounters were consensual. * * * [T]h e document indicated that plaintiff would be “made whole for a ll work time lost as a result of the matter,” that she would be provi ded with counseling services and necessary medical treatment and prescr iption drugs, that she would be moved to a different crew in the mine, that Brown would be formally reprimanded for his involvement i n the incident, that Brown would “be placed on permanent probation for any future activity of this type,” and that Brown would be ord ered to have no contact with plaintiff “other than that which mightbe absolutely necessary as part of his required duties.” Although plaintiff remained on the Potash payroll f or approximately one year, she never returned to work. On June 17, 1994, her employment was terminated due to a reduct ion in force at the mine. Id. at 1440-42 (internal citations omitted). Harrison filed suit against EPI and Brown alleging hostile work environment sexual harassment under Title VII of th e Civil Rights Act of 1964 and violations of New Mexico tort law. A jury retu rned a verdict in favor of1 Brown did not appeal from the judgment entered agai nst him.

2 We also rejected EPI’s argument that it was entitle d to judgment as a matter of law with respect to the affirmative defense outlined in Faragher and Burlington . Harrison II , 158 F.3d at 1377. 6 Harrison and against Brown on her state law claims of intentional infliction of emotional distress and battery, and awarded her compensatory damages of $102,500 and punitive damages of $40,000. The jury found against Harrison, however, with respect to her Title VII claim agains t EPI. Harrison appealed from the judgment on her Title VI I claim, arguing that the district court erroneously instructed the jury as to the requirements for imposing liability on an employer for sexual harass ment perpetrated by one of its supervisory employees. 1 We agreed with Harrison and reversed and remanded for further proceedings on the Title VII claim. Harris on I , 112 F.3d at 1451. Following issuance of its companion decisions in Fa ragher v. City of Boca Raton , 524 U.S. 775 (1998), and Burlington Industries, Inc . v. Ellerth , 524 U.S. 742 (1998), the Supreme Court granted EPI’s petition fo r writ of certiorari, summarily vacated the decision in Harrison I , and remanded the action to this court for further consideration. Eddy Potash, Inc. v. Harris on , 524 U.S. 947 (1998). On remand, we again concluded that the district court improperly instructed the jury with respect to the standards for imposing liability on an employer for sexual harassment perpetrated by one of its supervisory employees. 2Harrison v. Eddy7

Potash, Inc. , 158 F.3d 1371, 1377 (10th Cir. 1998) (Harrison II ). Accordingly, we reversed the judgment in favor of EPI and against H arrison on her Title VII claim and remanded the case to the district court for further proceedings. On remand to the district court, the parties filed cross-motions for summary judgment. EPI asserted in its motion that it was e ntitled to summary judgment on Harrison’s Title VII claim because, in its view, th e uncontroverted facts developed at the first trial demonstrated that it c ould satisfy the affirmative defense outlined in Faragherand Burlington . Harrison, in her motion, argued that she was entitled to partial summary judgment on the issue of whether Brown’s conduct was severe or pervasive enough to constitut e actionable sexual harassment under Title VII. In support of her moti on, Harrison asserted that the jury in the first trial, by finding in her favor on the two tort claims against Brown, effectively found that one or more of the encounter s between herself and Brown were non-consensual. Harrison asserted that EPI wa s bound by the jury’s finding in this regard because, “[a]lthough the judgment in [her] favor [wa]s only against . . . Brown, EPI and Brown [we]re privies . . . wit h a complete identity of interests.” App. at 112. Harrison emphasized that“EPI’s liability was predicated on the conduct of Brown,” and that both Brown and E PI “were represented by the same counsel” and “put on a single, unified defense ” during the first trial. Id. Finally, Harrison asserted that the two defendants shared a single, common8

defense during the first trial, i.e., that the enco unters between Brown and Harrison were consensual. Thus, Harrison asserted, “the only liability issue left for the jury’s determination [wa]s whether or not E PI [wa]s itself liable for . . . Brown’s sexual harassment.” Id. The district court issued an initial order granting in part Harrison’s motion for partial summary judgment and granting in part a nd denying in part EPI’s motion for summary judgment. With respect to Harri son’s motion, the district court concluded that EPI was “collaterally estopped from denying Harrison’s lack of consent to Brown’s physical sexual contact.” Id

. at 280. More specifically, the district court concluded that “[b]ecause one of the elements of battery is that it be non-consensual, and because the jury returned a ver dict in favor of Harrison on her battery claim against Brown, the issue of Harri son’s consent ha[d] already been fully litigated and necessarily decided.” Id. With respect to EPI’s motion, the district court concluded that, consistent with the opinion in Harrison II , there was “a genuine issue of material fact concerning EP I’s affirmative defenses under Faragher .” Id. at 279. Because, however, Harrison conceded she w as not entitled to punitive damages, the district court granted sum mary judgment in favor of EPI on the issue of punitive damages. At the direction of the district court, the parties submitted proposed jury instructions on the issue of unwelcome sexual advan ces. After reviewing the9

parties’ proposed jury instructions, the district c ourt issued an order granting in its entirety Harrison’s motion for partial summary judgment. In doing so, the court noted that EPI had conceded at the May 1999 p retrial conference “that the only physical contact between Brown and Harrison wa s of a sexual nature, so there [wa]s no genuine issue of material fact regar ding the requirement that the conduct be sexually orientated.” Id. at 285J. Thus, the court concluded, “the issues to be decided [we]re whether there [wa]s a g enuine issue of material fact regarding the ‘unwelcome’ element of Harrison’s hos tile work environment claim, and whether Brown’s conduct was sufficiently severe or pervasive as to alter the conditions of Harrison’s employment and create an a busive working environment under both an objective and subjective standard.” Id. After examining “the jury instructions, jury verdict, [and] trial transcript” from the first trial, the district court concluded “there [wa]s no genuine issue of material fact regarding Harrison’s claim that Brown’s conduct created a hos tile work environment,” and that the only issue to be decided at trial was “whe ther the affirmative defense set forth in Faragherand Burlingtoninsulate[d] EPI from liability for Brown’s conduct.” Id. At trial, the jury rejected EPI’s affirmative defen se and found in favor of Harrison on her Title VII claim. Because the parti es had agreed, prior to trial, to be bound by the damage figures assessed in the firs t trial, the jury in the second10

trial did not consider or assess damages. EPI subs equently filed a motion for judgment notwithstanding the verdict or, in the alt ernative, for new trial. EPI argued, in part, that the district court erred in g ranting partial summary judgment in favor of Harrison “on the elements of sexual har assment.” Id. at 339. The district court denied EPI’s post-trial motion.
II. Entry of partial summary judgment EPI contends the district court erred in granting p artial summary judgment in favor of Harrison on the issue of whether she wa s subjected by Brown to actionable sexual harassment. EPI forwards two arg uments in support of its position. First, EPI contends that our mandate in Harrison II required the district court to conduct a trial de novo on all factual iss ues relevant to Harrison’s Title VII claim, and thus effectively precluded the distr ict court from granting summary judgment on any aspect of the Title VII claim. Sec ond, and alternatively, EPI argues that it was improper for the district court, in granting partial summary judgment in favor of Harrison, to “rely upon any fa ctual determination made by the jury in the first trial on any issue of liabili ty.” Aplt. Br. at 20. We review de novo the district court’s grant of sum mary judgment, applying the same legal standard as the district co urt. E.g. , Trujillo v. Univ. of Colo. Health Sciences Ctr. , 157 F.3d 1211, 1213 (10th Cir. 1998). Summary11

judgment is appropriate only if the admissible evid ence shows “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 ). We also review de novo the district court’s application of the doctrine of col lateral estoppel. See Dodge v. Cotter Corp. , 203 F.3d 1190, 1197 (10th Cir.), cert. denied , 121 S. Ct. 71 (2000);

see also Gonzales v. Hernandez , 175 F.3d 1202, 1204 (10th Cir.1999) (reviewing de novo a district court’s entry of summary judgmen t barring claims under the doctrine of collateral estoppel). Addressing EPI’s arguments in order, we note that E PI failed to argue in the district court that our mandate in Harrison II precluded the district court from considering dispositive motions relevant to Harriso n’s Title VII claim. Indeed, EPI filed its own dispositive motion on remand. Th us, EPI has waived the argument for purposes of appeal. See Vitkus v. Beatrice Co. , 127 F.3d 936, 946- 47 (10th Cir. 1997) (deeming issue raised first tim e on appeal waived). Even if we were willing to overlook EPI’s waiver, we are no t persuaded there is any merit to its argument. Nothing in the mandate of Harriso n II precluded the district court from considering dispositive motions on any o r all issues relevant to Harrison’s Title VII claim. See Guidry v. Sheet Metal Workers Int’l Assoc. , 10 F.3d 700, 706 (10th Cir. 1993) (“When further proce edings follow a general remand, the lower court is free to decide anything not foreclosed by the mandate12

issued by the higher court.”) (internal quotations omitted). EPI’s second argument, i.e., that it was improper f or the district court to grant summary judgment based upon any determination made by the jury in the first trial, is more difficult. In its initial ord er discussing Harrison’s motion for partial summary judgment, the district court conclu ded that, based on the jury’s verdict against Brown in the first trial, EPI was “ collaterally estopped from denying Harrison’s lack of consent to Brown’s physi cal sexual contact.” App. at 280. In its second order discussing Harrison’s mot ion, the district court analyzed whether, as a matter of law, Brown’s actions create d an actionable hostile environment for purposes of Title VII. The distric t court noted that EPI had conceded during a May 1999 pretrial conference thatthe only physical contact between Brown and Harrison was of a sexual nature. Based upon this concession, the court concluded there was no genuine issue of m aterial fact concerning whether Brown’s conduct was sexually oriented. The court then reviewed the essential elements of the two tort claims against B rown and concluded, based upon the jury’s findings on those tort claims, thatHarrison had established as a matter of law that Brown’s conduct was both “unwelc ome” and objectively hostile. The court noted it was uncontroverted that Harrison subjectively believed that Harrison’s conduct was hostile. Thus, the cou rt concluded “there [wa]s no genuine issue of material fact regarding Harrison’s claim that Brown’s conduct3 At no time, either in the district court or in this appeal, has EPI argued

that it was not in privity with Brown for purposes of collateral estoppel. 13 created a hostile work environment,” and the only i ssue of fact to be decided at trial was whether EPI was entitled to prevail on th e Faragher/Burlington affirmative defense. Id. at 285J. Although there are some conflicting statements in t he district court’s second order, it is clear that the district court r elied, to some degree, on the doctrine of collateral estoppel. As the Supreme Co urt has noted:

“Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary syst em of justice. It means simply that when an issue of ultimate fact ha s once been determined by a valid and final judgment, that issu e cannot again be litigated between the same parties in any future la wsuit. Ashe v. Swenson , 397 U.S. 436, 443 (1970). To apply collateral es toppel, the following elements must be established: (1) the iss ue previously decided is identical with the one presented in the action in q uestion, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had afull and fair opportunity to litigate the issue in the prior action. Dodge , 203 F.3d at 1198. EPI has challenged only the first element -- whethe r the issue previously decided is identical with the one now presented. 3 In deciding this question, the14

jury instructions from the first trial are the “blu eprint for determining the parameters of the first jury’s verdict.” Id. The jury at the first trial was instructed that, to recover on her claim of outrage , Harrison had to prove: (1) “[t]hat the conduct of . . . Brown was extreme and outrageous under the circumstances,” (2) “[t]hat . . . Brown acted inten tionally or recklessly,” and (3) “[a]s a result of the conduct of . . . Brown, [she] experienced severe emotional distress.” App. at 285K. With respect to the batt ery claim, the jury at the first trial was instructed that Harrison had to prove: (1 ) “[t]hat . . . Brown intentionally touched or struck [her],” (2) “[t]hat such contact by [Brown] was harmful or offensive,” and (3) “[t]hat the contact was withoutconsent of the plaintiff.” Id. As the district court correctly concluded, the jury ’s verdict in favor of Harrison on these two claims means the jury necessarily foun d “that Brown intentionally touched or struck Harrison without her consent, that the contact was harmful or offensive to Harrison, that Brown’s conduct was ext reme and outrageous, that Brown acted intentionally and recklessly, and that Brown’s conduct caused Harrison severe emotional distress.” Id. at 285L. The next question is whether any of the issues deci ded by the first jury are identical to those presented in Harrison’s Title VI I case against EPI. To prevail on her Title VII claim, Harrison had to establish, in part, that Brown’s conduct toward her was (1) unwelcome, (2) based upon her se x, and (3) sufficiently severe4 The district court concluded that the verdict on th e tort claims in the first

trial established that, “on at least one occasion,” Harrison did not consent to Brown’s conduct. App. at 285M. Our view is somewh at different. In light of the testimony of Harrison and Brown, we believe the jury could only have reasonably reached one of two conclusions: either that Harriso n consented to all of the advances, or that she consented to none of them. B y finding against Brown on the tort claims, we believe the jury necessarily found that all of the incidents described by Harrison were nonconsensual. 15 or pervasive as to alter the conditions of her empl oyment and create an abusive working environment. See Faragher , 524 U.S. at 787-89; Harris v. Forklift Sys.,
Inc. , 510 U.S. 17, 20-23 (1993); Meritor Sav. Bank v. V inson , 477 U.S. 57, 65-73 (1986). Obviously, although there is some common g round between these issues and those decided by the jury in the first trial, t hey are not identical. Nevertheless, as the district court noted, EPI’s on ly defense to the Title VII claim, apart from its assertion of the Faragher/Burlington affirmative defense, was that Harrison consented to Brown’s sexual advances. Bec ause the jury in the first trial decided this issue of fact against Brown and EPI, w e conclude the district court was correct in determining that the doctrine of col lateral estoppel prohibited EPI from relitigating that issue. In other words, the doctrine of collateral estoppel did not bar EPI from relitigating any of the essential elements of Harrison’s Title VII claim, but it did prohibit EPI from relitigating th e more narrow factual issue of whether Harrison consented to Brown’s sexual advanc es. 4 Having concluded that Harrison’s lack of consent wa s established and16

controlling for purposes of her Title VII claim, th e remaining question is whether there was a basis for granting partial summary judg ment in Harrison’s favor on any of the essential elements of that claim. The d etails of the encounters between Brown and Harrison, except for the consent issue, w ere unchallenged by EPI. Combined with the collateral estoppel effect of the first jury’s resolution of the consent issue, it was therefore uncontroverted that , on several occasions over a seven-week period, Brown made aggressive sexual adv ances to Harrison and, against her will, intimately touched her body and f orced her to masturbate him. In short, it was uncontroverted that Brown sexually assaulted Harrison on multiple occasions over a relatively brief period. Based upon this uncontroverted evidence, we agree w ith the district court that Harrison was entitled to summary judgment on t hree elements of her Title VII claim. First, it was undoubtedly established that Brown’s conduct was unwelcome, i.e., unwanted and distasteful. Second, there is no doubt that Brown’s conduct was based on Harrison’s sex. E.g. , Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1415 (10th Cir. 1987) (discussing “b ased on sex” element and noting it includes sexual advances). Third, there were no genuine issues of material fact concerning whether Brown’s conduct wa s sufficiently severe or pervasive as to alter the conditions of Harrison’s employment and create an abusive working environment. In Harris , the Supreme Court concluded that, for17

purposes of this third element, the conduct in ques tion must be judged by both an objective and a subjective standard – the conduct m ust be "severe or pervasive enough to create . . . an environment that a reason able person would find hostile or abusive," and the victim must "subjectively perc eive th[at] environment to be abusive.” 510 U.S. at 21. Harris further concluded that, in determining whether a work environment is hostile or abusive, all of the circumstances of the case must be examined, including: (1) the frequency of the di scriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreas onably interfered with the plaintiff’s work performance; and (5) what psycholo gical harm, if any, resulted.
See id. at 23. Here, it was uncontroverted that Harrison subjectiv ely perceived Brown’s assaults as severe enough to create a hostile and a busive working environment. From an objective standpoint, it appears clear thata jury could only have agreed. Although the assaults occurred over a relatively sh ort period, they were extreme in nature, they were physically threatening and hum iliating to Harrison (and would have been to any reasonable person in her pos ition), they clearly interfered with her work performance (causing her to call in s ick on several occasions to avoid contact with Brown), and it was uncontroverte d that they caused5 Although it is arguable that even one of the incide nts, viewed alone,

would have been sufficient to create a hostile or a busive working environment for purposes of Title VII, see Cruz v. Coach Stores, Inc. , 202 F.3d 560, 570 (2d Cir. 2000) (indicating that a Title VII plaintiff can es tablish actionable sexual harassment based upon “a single incident [of sexual harassment that] was extraordinarily severe”); Torres v. Pisano , 116 F.3d 625, 631 n.4 (2d Cir. 1997) (“Of course, even a single episode of harassment, i f severe enough, can establish a hostile work environment.”), we need not decide this issue. 18 psychological harm to Harrison. 5

EPI’s requested jury instructions EPI contends the district court erred in refusing two of its tendered jury instructions. We review a district court’s refusal to give a requested jury instruction under an abuse of discretion standard. Dodoo v. Seagate Tech., Inc. , 235 F.3d 522, 529 (10th Cir. 2000). In doing so, w e consider de novo whether the instructions, as a whole, accurately informed t he jury of the issues and the governing law. See Fed. Deposit Ins. Corp. v. Schuchmann , 235 F.3d 1217, 1221 (10th Cir. 2000). Indestinstruction. EPI tendered, but the district court refused to g ive, the following instruction: “You are instructed that if you find that Plaintiff Jeanne Harrison promptly complained of Robert L. Brown’s h arassing conduct and that Eddy Potash promptly responded, disciplined appropr iately, and stopped the harassment, then you should find for Eddy Potash.” App. at 106. EPI contends19

that the tendered instruction, which was based upon Indest v. Freeman Decorating, Inc. , 164 F.3d 258 (5th Cir. 1999), correctly stated th e law and should have been given to the jury. The sole issue at trial in this case was whether EP I could avoid vicarious liability for Brown’s misconduct by establishing it s entitlement to the affirmative defense outlined in Faragherand Burlington . The Faragher/Burlington affirmative defense can only be raised if “no tangi ble employment action [wa]s taken” by the harassing supervisor against the plai ntiff employee. Faragher , 524 U.S. at 807. If this preliminary requirement is me t, the employer must establish, by a preponderance of the evidence, that (1) it “ex ercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) “the plaintiff employee unreasonably failed to take adva ntage of any preventive or corrective opportunities provided by the employer o r to avoid harm otherwise.” Id. EPI argued in the district court, and continues t o assert on appeal, that Indest correctly modified the Faragher/Burlington affirmative defense and that the district court should have recognized and adopted t his modification. In Indest , the plaintiff employee filed suit against her emp loyer under Title VII alleging she had been sexually harassed by a me mber of the employer’s upper management. More specifically, the plaintiff alleg ed that at a week-long convention where she was working, the alleged haras ser on five occasions made20

crude sexual comments and sexual gestures to her. Following the fifth incident, plaintiff reported the harasser’s conduct to her supervisor. In turn, the employer swiftly investigated the incidents and reprimanded the harasser. Although the harassment ceased, plaintiff filed suit against the employer alleging actionable sexual harassment under Title VII. The district co urt granted judgment as a matter of law in favor of the employer. On appeal, a divided panel of the Fifth Circuit aff irmed. The authoring judge purported to distinguish the case from Faragh erand Burlingtonon the grounds that, “for purposes of imposing vicarious l iability, a case presenting only an incipient hostile environment corrected by promp t remedial action should be distinct from a case in which a company was never c alled upon to react to a supervisor’s protracted or extremely severe acts th at created a hostile environment.” Indest , 164 F.3d at 265. The authoring judge offered fou r reasons for doing so: (1) “when a plaintiff promptly compla ins about a supervisor’s inappropriate sexual actions, she can thwart the cr eation of a hostile work environment”; (2) a “company’s swift response to th e plaintiff’s complaint should have consequences for its vicarious liability expos ure precisely because the company forestalled the creation of a hostile envir onment”; (3) “[i]mposing vicarious liability on an employer for a supervisor ’s ‘hostile environment’ actions despite its swift and appropriate remedial response to the victim’s complaint6 Indest II proposed affirming the district court’s judgment o n the grounds

that the conduct was not severe or pervasive enough to constitute actionable sexual harassment under Title VII. 168 F.3d at 796

. 21 would . . . undermine not only Meritorbut Title VII’s deterrent policy”; and (4) “Faragherimplies that a plaintiff should not wait as long a s it usually takes for a sexually hostile working environment to develop whe n the company has an effective grievance mechanism.” Id. at 265-67. The authoring judge then proceeded to craft her own standard under which, if a plaintiff employee promptly complains of harassing conduct and the employer pro mptly responds, disciplines the harasser and stops the harassment, the employeris relieved of Title VII vicarious liability for the harasser’s conduct. Id

. at 267. There are several major problems with Indest . First, it represents the views of only one member of the three-judge panel that de cided the case. The other two members of the panel concurred in the judgment only , and one of the concurring judges wrote a separate, subsequently published con curring opinion expressly rejecting the analytical framework enunciated in In dest

. 6 Indest v. Freeman Decorating, Inc. , 168 F.3d 795, 796 (5th Cir. 1999) (Indest II ) (“I cannot agree with Judge Jones’s conclusion that the Supreme Court’s remarkably straightforward and perfectly consistent twin opini ons in [Faragherand Burlington ] do not control the present case–and, indeed all c ases in which the plaintiff seeks to hold his employer vicariously li able for a supervisor’s sexual22

harassment.”). Because, as pointed out in Indest I I , the third member of the panel did not join either opinion, “neither enjoys a quor um and thus neither writing constitutes precedent in [the Fifth] Circuit.” Id. at 796 n.1. Second, we have effectively rejected the modified e mployer defense enunciated in Indest . In Gunnell v. Utah Valley State College , 152 F.3d 1253 (10th Cir. 1998), the plaintiff filed suit against her employer under Title VII alleging, in part, that she had been subjected to s exual harassment by her supervisor. The district court (prior to the issua nce of Faragherand Burlington ) granted summary judgment in favor of the employer o n the grounds that "the sexual harassment stopped after [plaintiff] complai ned” about it to the employer’s personnel director. Id. at 1259. We reversed and remanded with directions to the district court to apply the two-pronged defense setforth in Faragherand Burlington . In doing so, we effectively rejected the positio n advanced in Indest , i.e., that an employer’s prompt corrective action c an be sufficient by itself to avoid vicarious liability under Title VII for sexua l harassment committed by a supervisory employee. Third, even assuming that Gunnell did not resolve the issue, the reasoning of Indestis highly suspect and, in our view, should not be adopted. As outlined in Indest II , there is no reason to believe that the “remarkabl y straightforward” framework outlined in Faragherand Burlingtondoes not control all cases in23

which a plaintiff employee seeks to hold his or heremployer vicariously liable for a supervisor’s sexual harassment. Indest II , 168 F.3d at 796. Finally, even ignoring all of the problems already cited, the facts of Harrison’s case are so far removed from the facts o f Indestthat the modified employer defense announced therein would not be app licable here. Indest involved a handful of crude sexual comments and ges tures made during the course of a week-long seminar; in the words of the Indestcourt, it “was neither severe nor pervasive,” Indest , 164 F.3d at 264, and, at most, created what that court characterized as “an incipient hostile environment. ” Id. at 265. Here, in contrast, Brown’s misconduct was most certainly “severe,” and undoubtedly created a hostile work environment for Harrison. We therefore conclude the district court did not ab use its discretion in rejecting EPI’s tendered instruction. In short, th e tendered instruction was not an accurate statement of the governing law, and would have misled the jury in its determination of the issues. Generalized fear of retaliation instruction. EPI asked the district court to give the following instruction: “Generalized fear of retaliation or repercussions related to reporting to an employer of sexual haras sment in the workplace does not constitute reasonable grounds for an employee’s failure to raise a complaint of harassment with her employer.” App. at 107. The d istrict court rejected the24

tendered instruction on the grounds that it “unduly emphasize[d] one narrow area of the law that [wa]s adequately covered” in the co urt’s other instructions. Id. at 577. The instruction tendered by EPI appears to be a cor rect statement of federal law. Although we have never addressed the issue, o ther circuit courts have expressly stated that, for purposes of applying the Faragher/Burlington affirmative defense, “[a] generalized fear of retal iation does not excuse a failure to report sexual harassment.” Barrett v. Applied R adiant Energy Corp. , 240 F.3d 262, 266 (4th Cir. 2001); see Shaw v. Autozone, Inc. , 180 F.3d 806, 813 (7th Cir. 1999) (“[W]e conclude that an employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the employee’s duty under Ellerth to alert the employer to the allegedly hostile environ ment.”), cert. denied , 528 U.S. 1076 (2000); Madray v. Publix Super Mkts., Inc. , 30 F. Supp. 2d 1371, 1375 (S.D. Fla. 1998) (“An employee’s generalized fear o f repercussions cannot form the basis for an employee’s failure to complain to his or her employer.”), aff’d 208 F.3d 1290 (11th Cir. 2000). The question, then, is whether the subject matter o f the requested instruction was adequately covered in the district court’s general instructions.
See Schuchmann , 235 F.3d at 1222. Consistent with Faragherand Burlington , the district court instructed the jury that EPI would b e liable for Brown’s sexual25

harassment of Harrison unless EPI could prove, by apreponderance of the evidence, that (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) “Harrison unreasonably failed to take advantage of any preventive or corrective opportuni ties provided by [EPI] or to avoid harm otherwise.” App. at 314. Although the district court did not provide any further explanation of either prong of the affi rmative defense, we conclude that this general instruction, considered together with the court’s other instructions, properly conveyed to the jury the iss ues to be decided and the governing law. The instruction precisely tracked t he Supreme Court’s description of the employer’s affirmative defense in Faragherand Burlington . See Burlington , 524 U.S. at 765; Faragher , 524 U.S. at 807. Thus, we are unable to conclude the district court abused its discretion i n rejecting the tendered instruction. See generallyUnited States v. Cerrato-Reyes , 176 F.3d 1253, 1262 (10th Cir. 1999) (citing various cases in which it may have been preferable to give a tendered instruction, but where the districtcourt did not err in refusing to do so because the jury was not otherwise misled by the district court’s general instructions).
EPI’s motion for judgment as a matter of law EPI contends the district court erred in denying it s motion for judgment as a matter of law. According to EPI, the evidence pr esented at trial unequivocally26

demonstrated that it was entitled to prevail on the affirmative defense outlined by the Supreme Court in Faragherand Burlington . We review de novo a district court’s disposition of a motion for judgment as a m atter of law, applying the same standard as the district court. Ballard v. Muskoge e Reg’l Med. Ctr. , 238 F.3d 1250, 1252 (10th Cir. 2001). Such a judgment is wa rranted only if the evidence points but one way and is susceptible to no reasona ble inferences supporting the party opposing the motion. Id. Focusing on the first prong of the Faragher/Burling tonaffirmative defense, we conclude the jury could reasonably have found th at EPI failed to exercise reasonable care to prevent any sexually harassing b ehavior. On October 4, 1989, EPI drafted and disseminated to its supervisory per sonnel a written “policy statement on sexual discrimination and sexual haras sment.” App. at 702. At that time, EPI (through its Human Resource Manager, Kenny Leivo) instructed its supervisory personnel to “hold . . . meeting[s] wit h [their respective] crew[s] and read the policy statement to them,” and “[p]ost the Policy on the bulletin board[s] after your meeting[s].” Id. Although there is no indication in the record that EPI’s supervisory personnel failed to comply with t hese directions, the evidence indicates that non-supervisory personnel were not p rovided with copies of the policy, nor were copies of the policy posted on all of the bulletin boards in the mine. In particular, it was uncontroverted that a copy of the policy was not7 Harrison had previously worked for EPI on two separ ate occasions, once

in 1987 and once in 1988. At neither of those time s did EPI have an official policy in place regarding sexual harassment. 27 posted in the changing room used by the women miner s. More importantly, the evidence strongly suggests that, subsequent to Octo ber 4, 1989, the policy was largely ignored. Brown, the harasser in this case, testified without contradiction that no mention was made of the policy by EPI manag ement after October 1989, and that no seminars on the subject of sexual haras sment were ever held by EPI. Further, it was uncontroverted that, when Harrison began working for EPI in May 1992, 7 she was neither informed of the policy nor was a w ritten copy of the policy included in the folder of written materials provide d to her by EPI during orientation. Taken together, this evidence clearly would have allowed the jury to conclude that EPI exercised less than reasonable ca re in preventing sexual harassment by its employees. See Brown v. Perry , 184 F.3d 388, 396 (4th Cir. 1999) (noting “that mere promulgation of . . . a [s exual harassment] policy may well fail to satisfy the employer’s burden” under t he first prong of Faragher ); cf. Shaw , 180 F.3d at 811-12 (concluding that employer exer cised reasonable care to prevent sexual harassment where employer adopted an anti-harassment policy which it distributed to each of its employees, each employee was required as a condition of employment to read and comply with the policy, employer regularly trained managers regarding the policy, and supervis ors were not isolated from28

higher management). The judgment of the district court is AFFIRMED.