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Walton v. Johnson & Johnson Services, Inc., Ortho McNeil Pharmaxeutical, Inc.
16 Fla. L. Weekly Fed. C1219a (11th Circuit October 20, 2003)
Walton sued Ortho under Title VII claiming the company was responsible for sexual harassment committed by her supervisor. The company's investigation found that the affair between Walton and her supervisor was consensual or that, at the very least, it could not rule out such a possibility. Walton began collecting short-term benefits. When she was placed on long-term disability status, her active employment had to be terminated. This suit followed. The district court held that, although there was a genuine issue of material fact as to whether there was actionable harassment, the employer was entitled to summary judgment on the basis that there was no genuine issue of material fact as to whether Ortho acted reasonably to prevent and then promptly correct any sexually harassing behavior. On appeal, the court considered Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) to determine whether Ortho was vicariously liable for the actions of Watson's supervisor. Those cases held that this type of harassment should be separated into two groups: (1) harassment which culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment, and (2) harassment in which no adverse tangible employment action is taken but which is sufficient to constructively alter an employee's working conditions. Under the first category, the employer is held directly liable for the harassment. In the second category, the employer can avoid vicarious liability for the supervisor's conduct by raising and proving the affirmative defense that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise.
Walton claimed the discharge itself amounted to a tangible employment action; she claimed that, because the disability was the product of her supervisor's harassment, any discharge resulting from that disability must be charged against the company. The court disagreed. Even though a discharge is a tangible employment decision, Walton was not discharged because of her sex, but because she failed to return to work.
The affirmative defense for employer liability has two elements: (1) the employer must have exercised reasonable care to prevent and correct promptly any sexual behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Watson claimed Ortho failed to check her supervisor's references, failed to provide adequate work space and had a defective complaint procedure. The court disagreed. Ortho adequately researched the supervisor's background and provided adequate public accommodations in which employees could meet. Ortho also had a anti-discrimination policy that was distributed to Watson and the company effectively handled her complaint. Thus, there was no genuine issue as to the first element. As for the second element, the court held that Watson did not reasonably avail herself of the protections afforded by Ortho's anti-discrimination policies because of her delay in reporting the incidents and the fact that she continued to return to her supervisor's apartment for private meetings. Thus, the district court was correct in holding that Ortho was entitled to the affirmative defense as a matter of law.
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