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Pullen v. Caddo Parish school Board, No. 15-30871 (5th Cir. July 20, 2016)

The existence of a formal anti-harassment policy in the workplace does not guarantee results for the employer if it does not do the important work of publicizing and training on the policy.  The Fifth Circuit reverses summary judgment (in part) owing to a factual dispute about whether a school board did what it needed to do to make its policy a reality. It's an important case on the application of the first prong of the Faragher-Ellerth defense against supervisor-harassment liability.

Pullen v. Caddo Parish school Board, No. 15-30871 (5th Cir. July 20, 2016): Ms. Pullen, a temporary clerical employee, alleged that during 2011 to 2013 her supervisor (named Graham) blatantly harassed her by unwanted touching, lewd comments, and exposure to pornographic pictures. 

Graham supervised Ms. Pullen only during certain periods of her employment, while she was assigned to the purchasing department, although he allegedly continued to harass her even when he did not supervise her (when she worked in human resources and the central office).

The Board investigated Graham and, although it resisted calling his conduct "harassment," he was suspended without pay for a week and required to undergo counseling. The investigation and suspension was not a result of Ms. Pullen's efforts, though. She initially failed to report Graham's conduct. Ms. Pullen's allegations surfaced when a co-worker (named Woolforlk) brought her own complaint against Graham to management. Ms. Pullen was interviewed during the investigation. Only in 2013 did she finally contact the EEOC; she eventually filed a charge.

The district court held that Ms. Pullen's failure to avail herself of the Board's anti-harassment complaint procedure doomed her supervisor-harassment claim under Title VII. Supervisor-harassment claims may be blocked by the employer's assertion of the Faragher/Ellerth affirmative defense. This requires that the employer prove both "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually 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." EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir. 2013) (en banc). The judge held that the Board proved both prongs as a matter of law.

The periods when Graham did not supervise Ms. Pullen directly, the district court held, were governed by the co-worker harassment standard that requires that the plaintiff prove negligent supervision by the employer. The court held that Ms. Pullen failed to establish a genuine dispute that the Board was negligent under this stricter standard.

The Fifth Circuit reverses the supervisor-harassment portion of the district court decision. The opinion focuses on the first prong, i.e., that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior.

The panel notes that relevant to the first prong is "[b]oth the harasser's knowledge of the [employer's anti-harassment] policy and the victim's awareness of it (and of associated complaint procedures) are relevant to whether the company acted reasonably." Where the employee concedes awareness of a policy, this typically enough to estabish the first prong.

Yet "a company's policy and complaint mechanisms [may be] unreasonable or ... not sufficiently publicized to employees for the company to prevail at summary judgment." Here, the panel holds, Ms. Pullen adduced enough evidence to create a jury issue about whether the Board's policy was unreasonable:

"Pullen produced evidence that, if believed, would show that employees at the central office were not trained on sexual harassment, were not informed of the existence of a policy, were not shown where to find it, and were not told whom to contact regarding sexual harassment. This would be a sufficient basis for a reasonable jury to find that the company did not take reasonable steps to prevent and remedy sexual harassment."

The witnesses sharply disagreed over whether they had ever received a copy of the harassment policy or any training on the subject. While There was evidence that the Board may have posted the policy on bulletin boards, witnesses testified that the postings were not publicized and may have been incomplete.

"Pullen presented testimony from employees who indicated that they were given no training or information about the sexual-harassment policy and were not even aware of its existence. The evidence, construed in Pullen's favor, also shows that Graham was never given a copy of the policy, never saw it, and was never trained regarding its contents. Moreover, the evidence generates a reasonable inference that the policy was not posted in a conspicuous location (given that several employees said they had never noticed it)."

The Board presented contrasting evidence that the policy was conspicuously posted and that the Board conducted sexual-harassment training for the majority of its employees. Yet such a record conflict only underscores the need for a jury to weigh the facts.

On the remaining claims, the Fifth Circuit affirms that Ms. Pullen could not prove liability for the periods when she was assigned to human resources. or the central office.  The panel rejects Ms. Pullen's arguments that Graham continued to be her supervisor even when she was assigned to other offices, and that Graham's conduct was of such an open and notorious nature that the Board was constructively on notice of the harassment.

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