Applying a new U.S. Supreme Court standard for the first time, a federal appeals court Wednesday reinstated a former Utah Valley State College worker's sexual harassment case.
Rosalie Gunnell sued the Orem school, co-workers and supervisors for $100,000 in 1994, alleging she was subjected to sexual harassment, retaliation and denied family medical leave.U.S. District Thomas Greene dismissed the harassment and family leave claims, and a jury ruled in UVSC's favor on the retaliation allegation in 1996.
While upholding the jury verdict and Greene's ruling on family leave, the U.S. 10th Circuit Court of Appeals in Denver said the harassment complaint must be reheard under the guidelines established by the Supreme Court earlier this summer.
Gunnell, who worked as a secretary in UVSC's plant operations department, complained to personnel officials in 1993 that she was being sexually harassed by her supervisor, Robert Clark, and campus Police Chief Robert Greenleaf.
According to Gunnell, the harassment took the form of gestures, obscene jokes, pictures and unwelcome physical contact, such as hugs. Personnel director Karla Holm met with Clark, who admitted that some of the conduct had occurred.
Holm reported her findings to Patrick Hayes, associate vice president for facilities, who directed Clark to distribute UVSC's harassment policy to the staff and give employees an opportunity to bring forth any other allegations. None did. Hayes also instructed Clark, Greenleaf and others that there was to be no retaliation.
Gunnell alleged in her suit that although the harassment stopped, her job duties were diminished, co-workers treated her badly and she was given inferior office equipment. She filed a complaint with the Utah Anti-Discrimination Division in September 1993.
In November, Hayes placed her on probation for taking notes about her co-workers and creating a hostile work environment through excessive complaining and lack of cooperation. A few days later, she was dismissed for insubordination and disruptive behavior.
On the sexual harassment claim, Greene granted summary judgment in UVSC's favor on grounds Gunnell had failed to appeal within the university system, the harassment stopped after she complained, and her complaint to the anti-discrimination division addressed only the retaliation issue.
But the three-judge appeals panel reversed Greene, saying there was no requirement that Gunnell appeal decisions within the university system and that she had sufficiently presented her harassment complaint to the state agency.
As for Greene's finding that the harassment stopped following the complaint, the judges said that standard changed with the U.S. Supreme Court ruling last month in the landmark cases of Burlington Industries vs. Ellerth and Faragher vs. City of Boca Raton.
In those cases, the high court said an employer can be held liable for the sexual harassment of a supervisor over an employee. But the justices also articulated a defense for employers:
"That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
Writing for the appeals court, Judge David Ebel said, "Under Faragher and and Burlington Industries, an employer whose supervisory personnel has harassed subordinates will be liable for the harassment that occurred even though the employer ultimately stopped further harassment."
However, Ebel said an employer may escape liability by showing that it had reasonable mechanisms in place to prevent and cure discriminatory practices and that the plaintiff unreasonably failed to take advantage of those opportunities.
UVSC had argued before Greene that it acted promptly to correct any inappropriate behavior.
"However, given that Faragher and Burlington Industries have now set forth a specific defense to employer liability for sexual harassment by a supervisor, we reverse summary judgment on this claim and remand to allow the district court to evaluate Gunnell's claim in light of these recent Supreme Court case," Ebel wrote.
The appeals judges directed the district court to specifically consider:
- Whether there was a hostile work environment based on sexual harassment of Gunnell within the limitations period.
- Whether UVSC had a reasonable policy in place to prevent and promptly correct sexually harassing behavior.
- And whether Gunnell unreasonably failed to take advantage of such policies or to avoid harm otherwise.