                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 15, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    MICHELLE CHRISTIAN,

                Plaintiff-Appellant,

    v.                                                   No. 10-5020
                                            (D.C. No. 4:08-CV-00622-GKF-TLW)
    AHS TULSA REGIONAL MEDICAL                           (N.D. Okla.)
    CENTER, LLC, d/b/a OSU Medical
    Center,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         Michelle Christian appeals the grant of summary judgment in favor of her

former employer, AHS Tulsa Regional Medical Center (“the Hospital”), on her

Title VII sex discrimination claims. We agree with the district court that

Ms. Christian was unable to demonstrate the existence of a genuine dispute of


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
material fact with regard to either prong of the Hospital’s two-part affirmative

defense, and therefore affirm.
                                   I. Background

      Ms. Christian began working for the Hospital as a pharmacy clerk in June

2005. Aplt. App., Vol. I at 105, 168. She became a pharmacy technician in July

2005 and worked in that job until she resigned at the end of January 2008. Id.

at 168, 175-76. Mr. Terry Moorhead became Ms. Christian’s immediate

supervisor in February 2006. Id., Vol. II at 398. She claims he sexually harassed

her and other female pharmacy technicians during the nearly two years that he

was her supervisor, and that his actions created a hostile work environment.

      Specifically, Ms. Christian describes four situations where Mr. Moorhead

made sexually charged comments, and two situations where he leaned against her

while she was at a computer or copy machine. She alleges that the two incidents

involving physical touching occurred in early 2007, and three of the four

comments occurred between February and May 2007. The last comment occurred

on October 17, 2007.

      Ms. Christian made her first complaint to the Hospital’s Human Resources

department (HR) on October 18, 2007. But her initial complaint was not just

about sexual harassment—it was primarily about her work schedule. She had

started taking classes at a community college in August 2007, and Mr. Moorhead

was no longer willing to accommodate her work schedule. He also had recently


                                         -2-
assigned her to work Christmas day, even though she had children at home. After

discussing these complaints with the HR representative, Ms. Christian raised her

allegation of sexual harassment. She described one unwelcome touching incident

that occurred in early 2007, and one crude comment Mr. Moorhead had made the

day before her complaint. She also asserted that three other women in the

pharmacy had been subjected to inappropriate behavior by Mr. Moorhead. Given

the allegations of unwelcome sexual conduct, the HR representative told

Ms. Christian that HR would have to investigate the charges.

      Later that day, Ms. Christian attempted to retract the complaint, but was

told the investigation would have to go forward. Ms. Christian was asked to

provide additional information in writing that detailed Mr. Moorhead’s conduct.

After receiving a reminder from HR, Ms. Christian provided a brief list of her

harassment allegations on October 26, 2007. An HR representative explained that

HR needed a complete and detailed description of the events that took place, and

Ms. Christian agreed to return later that day with more information. However,

she did not do so.

      In the weeks following the complaint, HR interviewed several of the

women and men who worked in the pharmacy. Investigators interviewed one of

the other women Ms. Christian named as having been a victim of harassment, but

did not interview the other two after learning from Ms. Christian and another

co-worker that the women were unwilling to be involved and unhappy that

                                        -3-
Ms. Christian had named them. HR also interviewed the two co-workers

Ms. Christian named as potential witnesses.

      The pharmacy witnesses the Hospital interviewed did not confirm the

allegation of sexual harassment. One woman Ms. Christian identified as another

victim denied having experienced harassment. She stated further that while

Ms. Christian was her friend and she wished to support her, she had never

witnessed any inappropriate behavior from Mr. Moorhead. Another employee

told HR that Mr. Moorhead would joke and play around with staff, but that she

never witnessed any behavior she thought inappropriate. A male employee did

confirm Ms. Christian’s account of Mr. Moorhead standing too close behind her

as she replaced the paper in the copy machine, causing her to stand into him, but

could not describe other inappropriate comments or behavior.

      Finally, Mr. Moorhead denied the allegations made against him. After

evaluating the conflicting but ultimately inconclusive evidence, HR counseled

Mr. Moorhead about his workplace conduct and specifically warned him not to

retaliate against Ms. Christian because of her allegations. On November 5, 2007,

HR notified Ms. Christian that it had completed the investigation and considered

the matter closed. Shortly thereafter, Ms. Christian went on pre-approved

medical leave. Id. at 346, 348.

      On November 27, 2007, while she was still on medical leave, Ms. Christian

sent a detailed written account of her allegations. The document contained four

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additional and previously undisclosed allegations of inappropriate comments and

touching occurring in February, April, and May of 2007, but did not identify new

witnesses or any events taking place after her original complaint. HR responded

with a letter explaining that the new information did not change its decision. The

letter stated further that if Ms. Christian disagreed with this decision, she could

pursue a fair hearing process.

      When Ms. Christian returned to work in January 2008, she claims other

pharmacy employees harassed her because of the complaint she had lodged

against Mr. Moorhead. Claiming intolerable working conditions as a result, she

resigned.

                           II. The District Court’s Ruling

      Ms. Christian subsequently brought this action against the Hospital, raising

claims of a hostile work environment, retaliation, negligent supervision, and

intentional infliction of emotional distress. The Hospital sought summary

judgment on each of the claims. The district court made two rulings relevant to

this appeal: (1) Ms. Christian failed to establish a prima facie case of

discrimination because no rational jury could conclude that the conduct she

alleged, however obnoxious, was sufficiently severe or pervasive to have altered

the conditions of her employment; and (2) the Hospital successfully asserted an

affirmative defense by establishing that its investigation was reasonable and that




                                          -5-
Ms. Christian had hindered the investigation by unreasonably failing to cooperate.

Aplt. App., Vol. II at 549-52.

                                   III. Discussion

      “On appeal, we review the district court’s grant of summary judgment

de novo, applying the same standards that the district court should have applied.”

EEOC v. C.R. England, Inc., Nos. 09-4207, 09-4217, 2011 WL 1651372, at *5

(10th Cir. May 3, 2011) (brackets omitted) (internal quotation marks omitted).

“The district court’s grant of summary judgment must be affirmed ‘if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). 1

“In reviewing a motion for summary judgment, we consider the evidence in the

light most favorable to the non-moving party.” Id. (internal quotation marks

omitted).

      To establish a hostile workplace claim, a plaintiff must satisfy the

requirements set forth in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57

(1986), and Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Under Meritor,

“for sexual harassment to be actionable, it must be sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

1
      Fed. R. Civ. P. 56 was recently amended, effective December 1, 2010.
Under the amended rule, the standard previously enumerated in subsection (c)
was moved to subsection (a), and the term genuine “issue” became genuine
“dispute.” See Rule 56 advisory committee’s notes (2010 Amendments).
However, “the standard for granting summary judgment remains unchanged.” Id.

                                          -6-
working environment.” Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1412

(10th Cir. 1997) (internal quotation marks omitted) (brackets omitted)).

      We explained in Smith that the plaintiff must make a two-part showing to

satisfy this standard. First, the plaintiff must establish that a reasonable person

would find the work environment hostile or abusive. Smith, 129 F.3d at 1413

(citing Harris, 510 U.S. at 21-22). And second, the plaintiff must show that she

subjectively perceived the work environment to be hostile or abusive. Id.

      We determine whether an environment is “hostile” or “abusive” by
      looking at the totality of circumstances, such as “the frequency of the
      discriminatory conduct; its severity; whether it is physically
      threatening or humiliating, or a mere offensive utterance; whether it
      unreasonably interferes with an employee’s work performance”; and
      the context in which the conduct occurred.

Id. (quoting Harris, 510 U.S. at 23) (ellipsis omitted).

      In a case of discrimination that did not result in a tangible employment act,

such as discharge or demotion, an employer may avoid liability by raising the

affirmative defense outlined by the Supreme Court in Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton,

524 U.S. 775, 807 (1998). Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052,

1059 (10th Cir. 2009). The purpose of this defense is “to recognize the

employer’s affirmative obligation to prevent violations and give credit . . . to

employers who make reasonable efforts to discharge their duty,” and acknowledge

that the employee has “a coordinate duty to avoid or mitigate harm” by


                                          -7-
“avail[ing] herself of the employer’s preventive or remedial apparatus.”

Faragher, 524 U.S. at 806-07. To succeed in this defense, the employer must

establish by the preponderance of evidence that: (1) the employer “exercised

reasonable care to prevent and correct promptly any sexually harassing 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.” Pinkerton, 563 F.3d 1059 (internal quotation marks omitted).

      Ms. Christian argues on appeal that the district court erred in ruling:

(1) that she failed to establish that the sexually hostile work environment was

severe or pervasive and therefore objectively hostile; and (2) that the Hospital

succeeded in making its Ellerth/Faragher affirmative defense. Since we agree

with the second of the district court’s rulings, we need not reach the issue of

whether the workplace was sufficiently hostile. In short, Ms. Christian cannot

establish a genuine factual dispute as to either prong of the Ellerth/Faragher

affirmative defense—the Hospital took reasonable preventive and corrective

actions based on the information provided to it, and Ms. Christian unreasonably

failed to take advantage of the hospital’s corrective processes.

        A. The Hospital Took Sufficient Preventive and Corrective Action

      First, the district court was correct in concluding the undisputed material

facts show that the Hospital took reasonable preventive and corrective actions and

therefore satisfied the first prong of the defense. See Pinkerton, 563 F.3d

                                         -8-
at 1062-63. Generally, an employer can show it took reasonable preventive

measures by establishing that it promulgated and enforced an effective sexual

harassment policy. Thornton v. Fed. Express Corp., 530 F.3d 451, 456 (6th Cir.

2008); Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1286 (11th Cir.

2003).

         An employer’s reasonable remedial measures “should be designed to stop

the harassment, correct its effects on the employee, and ensure that the

harassment does not recur.” Walton, 347 F.3d at 1288 (internal quotation marks

omitted). “The most significant immediate measure an employer can take in

response to a sexual harassment complaint is to launch a prompt investigation to

determine whether the complaint is justified.” Swenson v. Potter, 271 F.3d 1184,

1193 (9th Cir. 2001). But “there is nothing in the Faragher or Ellerth decisions

requiring a company to conduct a full-blown, due process, trial-type proceeding in

response to complaints of sexual harassment.” Baldwin v. Blue Cross/Blue Shield

of Ala., 480 F.3d 1287, 1304 (11th Cir. 2007). “All that is required of an

investigation is reasonableness in all of the circumstances, and the permissible

circumstances may include conducting the inquiry informally in a manner that

will not unnecessarily disrupt the company’s business, and in an effort to arrive at

a reasonably fair estimate of truth.” Id.

         The Hospital’s preventive policies and investigation meets these standards.

The undisputed evidence shows that the Hospital had a sexual harassment policy

                                            -9-
which set forth employee rights in detail. Ms. Christian was given a copy of the

employee handbook and was familiarized with the harassment policy at an

orientation meeting shortly after she began work. Aplt. App., Vol. I at 105, 194.

She also attended a training session where employees were encouraged to

promptly report any incidents of sexual harassment to HR. See Walton, 347 F.3d

at 1286 (“At a minimum, employers must ‘establish a complaint procedure

designed to encourage victims of harassment to come forward without requiring a

victim to complain first to the offending supervisor.’” (quoting Faragher,

524 U.S. at 806) (internal quotation marks omitted) (brackets omitted)).

      And after Ms. Christian made her complaint, the Hospital engaged in a

timely and reasonably thorough investigation that included interviews with

Ms. Christian, other employees in the pharmacy, and Mr. Moorhead himself. In

addition, although Mr. Moorhead was not formally disciplined, he remained

subject to more serious sanctions if improper behavior was alleged again. In

these circumstances, the Hospital’s response to and investigation of

Ms. Christian’s allegations were reasonable.

      Ms. Christian’s arguments to the contrary are unpersuasive. First, she

claims the investigation was unreasonable because it discredited her allegations in

the face of Mr. Moorhead’s denial of misconduct. But “[t]he requirement of a

reasonable investigation does not include a requirement that the employer credit

uncorroborated statements the complainant makes if they are disputed by the

                                        -10-
alleged harasser. Nothing in the Faragher-Ellerth defense puts a thumb on either

side of the scale in a he-said, she-said situation.” Baldwin, 480 F.3d at 1303.

And, in fact, HR did interview other employees in the pharmacy. Ms. Christian

claims that additional employees should have been interviewed, but HR spoke to

those Ms. Christian identified as having observed conduct directed at her and had

a reasonable explanation for not interviewing others. The pharmacy witnesses the

Hospital interviewed did not provide evidence that would support a charge of

sexual harassment against Mr. Moorhead. In short, the results of the investigation

were inconclusive, yet the Hospital still counseled Mr. Moorhead in light of its

anti-discrimination policy.

      Next, Ms. Christian claims the Hospital failed to adequately investigate an

earlier complaint against Mr. Moorhead. In April 2006, an anonymous complaint

had been lodged against Mr. Moorhead, but it was later withdrawn. The Hospital

had begun an investigation, but discontinued it after the complaint was

withdrawn. Nonetheless, Mr. Moorhead was issued a reprimand and counseled

against inappropriate comments or touching. Nothing about the previous incident

calls into question the reasonableness of the Hospital’s investigation of

Ms. Christian’s allegations. If anything, it shows that the Hospital took the prior

allegation seriously, and underscores its unwillingness to allow Ms. Christian’s

allegations to go uninvestigated.




                                        -11-
      In addition, Ms. Christian claims the Hospital should have suspended

Mr. Moorhead while it conducted the investigation. But the Hospital had no

obligation to suspend Mr. Moorhead during this time. It is true that, “[i]n certain

circumstances, an employer’s failure to remove a supervisor from close working

proximity with a subordinate who has alleged sexual harassment against that

supervisor might be seen as unreasonable.” Pinkerton, 563 F.3d at 1062. But this

is not so where, as here, the complaining subordinate did not ask for such a

separation, and the employer acted quickly to investigate and resolve the

complaint. See id.

      Finally, Ms. Christian argues the Hospital should have launched a second

investigation based on events that took place after the first complaint. She alleges

that after she returned to work from medical leave in January 2008, Mr. Moorhead

commented that he was glad that she was feeling better, and that her “husband’s

taking care of you now.” Aplt. App., Vol. II at 356. She also alleges that when

she told Mr. Moorhead a co-worker was “on” a customer’s request, he replied

“Oh, he’s on it? How is he on it?” Id. at 350. She perceived both remarks as

sexual. She argues the Hospital was unreasonable for failing to initiate a second

investigation on the basis of these allegations. But we agree with the district

court that the remarks were too ambiguous to support a hostile workplace claim,

and, in any event, Ms. Moorhead was asked to put the accusation in writing and

she refused to do so.

                                         -12-
      In sum, we agree with the district court that given the undisputed facts

regarding the Hospital’s investigation into Ms. Christian’s allegations, “we see no

genuine issue left for trial about the reasonableness of [the Hospital’s] response.”

See Pinkerton, 563 F.3d at 1063.

                 B. Ms. Christian Unreasonably Failed to Take
                 Advantage of the Hospital’s Corrective Process

      We also conclude that Ms. Christian unreasonably failed to take advantage

of the Hospital’s corrective processes set forth in its policy handbook by delaying

in reporting her allegations. Though all but one of the incidents are alleged to

have taken place between January and May of 2007, Ms. Christian did not make a

complaint to HR until October. Cf. Pinkerton, 563 F.3d at 1063-64 & n.6

(concluding that employee’s two-month delay in reporting alleged harassment was

unreasonable as a matter of law). Even then, she reported only two incidents, and

delayed in reporting four additional incidents until the end of November.

Moreover, she failed to cooperate with the HR investigation by providing the

written detail they asked for—until three weeks after she received notification

that the investigation had closed. Ms. Christian does not attempt to explain this

delay, and we conclude that it is unreasonable.




                                         -13-
                                III. Conclusion

      Accordingly, we AFFIRM the district court’s decision to grant the Hospital

summary judgment on the claim of a hostile working environment.



                                                  ENTERED FOR THE COURT


                                                  Timothy M. Tymkovich
                                                  Circuit Judge




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