                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0613n.06
                            Filed: August 22, 2007

                                           No. 06-4356

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DARLENE DETERS,                                          )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellant,                              )       UNITED STATES DISTRICT
                                                         )       COURT     FOR    THE
v.                                                       )       SOUTHERN DISTRICT OF
                                                         )       OHIO
ROCK-TENN COMPANY, INC., ROCK-TENN                       )
CONVERTING COMPANY,                                      )                OPINION
                                                         )
       Defendant-Appellee.                               )




       BEFORE: MARTIN, McKEAGUE, Circuit Judges; and GREER, District Judge.*

       McKEAGUE, Circuit Judge. Plaintiff Darlene Deters was subjected to sexual harassment

by her male supervisor for some three years before reporting it. When she complained, her employer

took prompt and effective corrective action, firing the wrongdoer. Unfortunately for plaintiff, the

replacement supervisor, a woman, was not much easier to get along with. Within six months after

the new supervisor took over, plaintiff had taken a three-month medical leave of absence for work-

related stress, and shortly thereafter commenced this action against her employer for both sexual

harassment and retaliatory constructive discharge. The district court granted the employer’s motion

for summary judgment on all claims, concluding plaintiff had failed to adduce sufficient evidence

__________________________
No. 06-4356
Deters v. Rock-Tenn Co.

       * Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
to establish essential elements of her claims. After carefully considering the record, we are

convinced that the district court’s award of summary judgment to the defendant employer was

proper, but we affirm on different grounds.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Darlene M. Deters was hired by Rock-Tenn Converting Company in April 1999 as scale clerk

at its paper recycling plant in Fairfield, Ohio, near Cincinnati. At that time, the plant general

manager was Dan Huschke. Huschke processed Deter’s paperwork and acquainted her with

company policy, including the company’s sexual harassment policy. Robert Webber was the office

manager. He had started working at the Fairfield plant in 1990. Webber trained Deters in her

responsibilities as scale clerk.   Webber and Deters became friends, developed a romantic

relationship, and in 2000, began living together. Although intimate relations between them ceased

in early 2002, they continued to live together on separate floors of the same townhouse and remained

good friends.

       In November 1999, Chuck Wuchter became the new plant general manager, the highest

ranking employee at the Fairfield plant, and Deters’ immediate supervisor. Wuchter’s immediate

supervisor was Steve Flanagan, Vice President of Rock-Tenn’s Recycle Division. Flanagan’s office

was in Atlanta.

       Shortly after Wuchter took over, he began making inappropriate comments to Deters,

describing his sex life with his wife and affairs with other women. Deters described Wuchter as

“manipulative” and “very full of himself.” He would casually suggest various sex acts, make

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Deters v. Rock-Tenn Co.

sexually explicit comments, and make sexually suggestive and obscene gestures. In April 2000,

Wuchter invited Deters out to lunch on Secretary’s Day and asked her to have an affair with him.

She declined the invitation. Shortly thereafter, Wuchter hired his stepson and commenced an affair

with his stepson’s wife. Wuchter would often describe his sexual relations with the stepson’s wife

to Deters. The sex talk and sexual gestures were daily occurrences, even after Deters consistently

rejected Wuchter’s overtures.

       Deters did not appreciate Wuchter’s continuous sex talk, but she didn’t tell him so; she

believed he would fire her if she told him to stop. Although other employees noticed that Wuchter

was in Deters’ office an inordinate amount of time, even Webber, with whom she lived, did not

know of the ongoing harassment.

       On October 24, 2002, Rock-Tenn CEO Jim Rubright issued a memorandum to all company

management personnel, urging them to report any suspected unlawful or unethical conduct in the

workplace. Webber received the memo. Although he was unaware of Wuchter’s inappropriate

conversations with Deters, Webber informed her that he was preparing a report to send to Rock-Tenn

headquarters regarding alleged financial and other improprieties in the management of the Fairfield

plant. This prompted Deters to inform Webber about Wuchter’s inappropriate conversations.

Webber in turn reported Deters’ complaint, among other concerns, to Bill Smith, Divisional Director

for Employees in Organizational Effectiveness.

       Smith received a letter from Webber, dated November 18, 2002, detailing his concerns. Out

of 15 paragraphs, one is devoted to Deters’ concerns. On December 5, 2002, Smith traveled from

Atlanta to Cincinnati to investigate the concerns raised by Webber. He met with Deters and Webber

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Deters v. Rock-Tenn Co.

to discuss the matter of Wuchter’s inappropriate conversations. He also interviewed two other

employees, Tim Vannatta and Hoa Nguyen, regarding their relationship with Wuchter and plant

superintendent Ernie Young. Among the concerns communicated by Webber and targeted by

Smith’s investigation, Deters’ problems with Wuchter appear to have been secondary to the reported

tensions between Young and Vannatta and Nguyen, tensions reportedly exacerbated by Wuchter’s

mismanagement.

       Based on what he learned in the interviews, Smith recommended to Flanagan that both

Wuchter and Young be terminated. Smith characterized the plant as a “powder keg,” “an extremely

volatile working environment.” He considered management’s tolerance of sexually explicit

comments in the workplace, and the fact that Vannatta and Nguyen felt physically threatened by

Young to be evidence of mismanagement by Young and Wuchter. Flanagan agreed with the

recommendation, but he decided to postpone the terminations until after the Christmas and New

Year’s Day holidays.

       In the meantime, Wuchter was not advised of the pendency of the investigation. In the

interest of honoring confidences, minimizing retaliation, and safeguarding employee safety, Flanagan

attempted to proceed as discreetly as possible. For this reason, Deters was not separated from

Wuchter during the weeks leading up to the actual termination. In addition, Smith explained that

he did not believe Deters had been intimidated by Wuchter or had requested they be separated; she

just wanted the inappropriate comments stopped. On December 9, 2002, Deters advised Smith by

e-mail that she was uncomfortable with the situation and that if Wuchter’s inappropriate behavior

continued, she might have to “get up and walk out.” Smith reassured her that a plan of action was

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Deters v. Rock-Tenn Co.

in the works. He urged her to “hang in there” and “absolutely let [him] know if anything goes on.”

There is no evidence that Deters complained of any continuing sex talk in the next weeks.

       Flanagan terminated Wuchter in a face-to-face meeting on January 15, 2003. Prior to the

termination, Flanagan had informed Deters that he would take Wuchter off-site to terminate him and

that he would not be allowed to return to the plant. However, during the course of the off-site

meeting, in which he did not specifically mention Deters’ complaint to Wuchter, Flanagan

reconsidered and decided to allow Wuchter to return to the plant. Flanagan hoped that allowing

Wuchter to return to say good-bye to his coworkers would help defuse the potential for violence in

Young’s reaction, as Young was contemporaneously advised of his own termination. Prior to

returning to the plant, Flanagan called Deters and alerted her, saying that if she was uncomfortable,

she could go home. Instead, Deters, feeling stunned and panicky, chose to lock herself in Webber’s

office. As Wuchter returned and met with the other employees, he repeatedly called for Deters to

come out, but she refused. Wuchter said good-bye to the others and left.

       To replace Wuchter as plant general manager, Flanagan transferred Sue Beene from

Chattanooga. Smith and Flanagan informed Beene of the reasons behind Wuchter’s and Young’s

terminations, although Beene testified that she did not remember the conversation. Beene eventually

did learn from others about Wuchter’s affair with an employee’s wife and about his degrading

behavior toward Deters.

       Initially, Deters was happy to be supervised by a woman. Once Beene settled in, however,

she brought changes that Deters had trouble adjusting to. For one, Deters thought Beene was

unpleasant and unfriendly toward her. Deters identified three incidents when Beene “yelled” at her

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Deters v. Rock-Tenn Co.

unnecessarily: (1) in response to Deters inquiring about whether a raise would accompany her

acceptance of increased duties; (2) when Deters, per prior custom, allowed a truck to drive around

the plant; and (3) after Webber acted on Deters’ suggestion to leave early one day when he wasn’t

feeling well. Also, Beene prohibited Deters’ prior practice of working overtime during the week in

order to leave early on Fridays.

       Apart from her general discomfort working under Beene, Deters acknowledged that she had

not received any disciplinary action or suffered other adverse treatment in the terms and conditions

of her employment. Nor was Deters able to identify anything said by Beene that indicated her harsh

actions were motivated by any discriminatory or retaliatory motive. However, Deters noted (1) that

Beene had yelled similarly at both Vannatta and Nguyen; and (2) that Vannatta, Nguyen and Webber,

the three other employees who had participated in the investigation that led to Wuchter’s and

Young’s firings, were all terminated within six months after Beene began working at the plant.

Deters also felt that she was being set up to fail in that she was asked to assume greater

responsibilities, but was not afforded the training she needed. She felt that Beene had been sent there

by Flanagan to “get rid of the troublemakers, the whistle blowers.”

       Deters complained to Smith about Beene’s management style and her suspicion that there

was a retaliatory motive behind Beene’s actions. Smith made inquiry of Beene and was satisfied that

Beene’s actions and expectations were “business-based” and “reasonable.” In regard to Beene’s

communication style, Smith acknowledged that she is “not warm and fuzzy and she’s very, very

matter-of-fact, businesslike, and direct.” Smith did not find anything inappropriate in Beene’s

actions.

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Deters v. Rock-Tenn Co.

          Immediately after Webber was terminated in August 2003, Deters experienced such severe

anxiety that she was admitted to an outpatient treatment program for work-related stress. She

requested and was granted a leave of absence under the Family and Medical Leave Act. Deters

understood that her position at the Fairfield plant awaited her on completion of treatment, with the

same wages and benefits. In fact, Beene thought that Deters was professional and competent and

had made improvements in response to instruction. However, prior to her anticipated return in

November 2003, Deters submitted her resignation by e-mail, explaining: “Due to the hostile

working conditions that existed there for me, I can no longer for my health sake, continue to work

there.”

          Even before she had tendered her resignation, Deters had, on October 1, 2003, filed a

discrimination charge against Rock-Tenn with the Ohio Civil Rights Commission and the Equal

Employment Opportunity Commission. She complained of sexual harassment by Wuchter and

retaliatory harassment by Beene. After receiving her Right to Sue notice, Deters commenced this

action by filing her complaint in the Southern District of Ohio on November 30, 2004. The

complaint contains nine counts. Counts I through IV assert claims for sexual harassment and sex

discrimination under Title VII and Ohio law. Counts V and VI assert claims for retaliation under

Title VII and Ohio law. Counts VII, VIII and IX assert state common law tort claims for breach of

public policy, sexual harassment, and negligent retention.

          On September 21, 2006, the district court granted Rock-Tenn’s motion for summary

judgment in its entirety. The district court construed Deters’ sexual harassment claims as the

premise for a constructive discharge theory of relief. The court held Rock-Tenn was entitled to

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No. 06-4356
Deters v. Rock-Tenn Co.

summary judgment for three reasons: (1) Deters’ EEOC charge was not filed within 300 days after

the last alleged act of sexual harassment by Wuchter; (2) Deters’ EEOC charge did not include a

claim for constructive discharge; and (3) considering the lengthy period of time between Wuchter’s

harassment and Deters’ resignation, no reasonable jury could find that Deters was compelled to

resign in November 2003 due to intolerable working conditions resultant from sexual harassment

that terminated in January 2003.

       The district court also held that the record failed to substantiate Deters’ retaliation claims.

The court characterized the adverse treatment visited upon Deters by Beene as “petty slights” not

sufficiently serious to support a retaliation claim. The court further held that Deters had failed to

demonstrate the existence of a causal connection between Beene’s alleged retaliation and Deters’

earlier complaint about Wuchter’s harassment.

       On appeal, Deters challenges these rulings, maintaining that she did present sufficient

evidence to create genuine issues of material fact on her sexual harassment and retaliation claims.1

                                          II. ANALYSIS

       A. Summary Judgment Standard

       The court of appeals reviews de novo an order granting summary judgment. Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to a


       1
      On appeal, Deters has not challenged the award of summary judgment to Rock-Tenn on the
common law tort claims contained in counts VII, VIII and IX of her complaint.

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No. 06-4356
Deters v. Rock-Tenn Co.

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court must view the evidence in the light

most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. Not just

any alleged factual dispute between the parties will defeat an otherwise properly supported motion

for summary judgment; the dispute must present a genuine issue of material fact. Leadbetter v.

Gilley, 385 F.3d 683, 689-90 (6th Cir. 2005). A dispute is “genuine” only if based on evidence upon

which a reasonable jury could return a verdict in favor of the non-moving party. Hedrick v. W.

Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004). A factual dispute concerns a “material” fact

only if its resolution might affect the outcome of the suit under the governing substantive law. Id.

       B. Hostile Work Environment Sexual Harassment

       1. Threshold Matters

       Counts I and II of Deters’ complaint set forth sexual harassment and sex discrimination

claims, respectively, under Title VII, 42 U.S.C. § 2000e et seq. Counts III and IV set forth

complementary sexual harassment and sex discrimination claims under Ohio law, Revised Code §

4112. The sex discrimination claims are premised on the same allegations as the sexual harassment

claims. That is, Deters has not alleged that Rock-Tenn engaged in sex-based discrimination against

her in the terms and conditions of her employment in any way distinct from the sexual harassment

she experienced under Wuchter’s supervision. In other words, the sex discrimination claims are

entirely superfluous under the facts of this case; they rise or fall with the sexual harassment claims.

Indeed, the district court did not address the discrimination claims separately from the sexual

harassment claims and the parties have not argued the sex discrimination claims separately from the



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Deters v. Rock-Tenn Co.

sexual harassment claims. Consistent with the approach of the lower court and the parties, we do

not address the sex discrimination claims independently from the sexual harassment claims.

       Regarding a second threshold point, the district court correctly recognized that sexual

harassment claims under Ohio Revised Code § 4112 are generally governed by the same standards

as sexual harassment claims under Title VII, citing Little Forest Med. Ctr. of Akron v. Ohio Civil

Rights Comm’n, 61 Ohio St. 3d 607, 609-10 (1991). See also Singfield v. Akron Metro. Housing

Auth., 389 F.3d 555, 564 (6th Cir. 2004). Accordingly, like the district court and the parties, we

analyze Deters’ sexual harassment claims collectively under federal law standards.

       2. Timeliness of Claim

        Deters’ sexual harassment claims are based on the hostile work environment allegedly

created by her supervisor Chuck Wuchter from November 1999, when he commenced work at the

Fairfield plant, until January 15, 2003, when he was discharged. As a first reason for granting

defendant Rock-Tenn’s motion for summary judgment, the district court summarily concluded that

Deters’ sexual harassment claims are time-barred because she failed to comply with Title VII’s

requirement that her EEOC charge be filed within the requisite time period after an alleged unlawful

employment practice occurred. The governing time period in this case is 300 days, under 42 U.S.C.

§ 2000e-5(e).

       Deters maintains that her EEOC charge, filed on October 1, 2003, was timely filed because

she suffered continuing harassment from Wuchter in December 2002 and January 2003, less than

300 days prior to the filing of her charge. Although Deters has not identified any particular incident

of harassment during December 2002 and January 2003, her deposition testimony and other record

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Deters v. Rock-Tenn Co.

evidence indicate that Wuchter’s sex talk was pervasive, “a daily, daily, daily thing.” Deters dep.

p. 143, JA 587. That Deters continued to perceive the workplace as a hostile environment during

the last two months of Wuchter’s employment is also substantiated by e-mail memos sent by Deters

and Webber to Smith on December 9, 2002, and January 6, 2003, respectively, JA 788, 789.

Inasmuch as Deters did not expressly state her objection to Wuchter, and neither Flanagan nor Smith

advised Wuchter of Deters’ complaint or the pending investigation, there is no reason to believe that

Wuchter’s “daily” boorish behavior suddenly abated during the last month of his employment.

       Viewing the record in the light most favorable to Deters, it is sufficient to give rise to a

genuine fact issue regarding the timeliness of Deters’ EEOC charge. The district court’s unexplained

and unwarranted reliance on the untimeliness of the charge as a basis for summary judgment is

erroneous.

       3. Constructive Discharge Theory

       A second reason given by the district court for granting Rock-Tenn’s motion for summary

judgment on the sexual harassment claims is Deters’ failure to include her constructive discharge

claim in her EEOC charge. The district court improperly conflated Deters’ constructive discharge

theory with her sexual harassment claims. Deters’ complaint does not contain any independent

claim for constructive discharge. Counts I and III are sexual harassment claims, based on Wuchter’s

misconduct. They include no allegations of constructive discharge. Constructive discharge is

alleged only in connection with Deters’ retaliation claims, counts V and VI, which are based on the

harsh treatment she received from Sue Beene, not on Wuchter’s harassment. Dismissal of Deters’



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Deters v. Rock-Tenn Co.

sexual harassment claims, which do not embody a constructive discharge theory, because the EEOC

sexual harassment charge does not include the constructive discharge theory simply makes no sense.

       The district court implicitly recognized this in its truncated assessment of the merits of

Deters’ sexual harassment claims. The court held that “a reasonable jury could not find that

plaintiff’s decision to resign [in November 2003] was a foreseeable consequence of the harassment

to which she had been subjected while Mr. Wuchter was employed by the company [ending in

January 2003].” Opinion p. 12, JA 468. The district court is right: a reasonable jury could not so

find. Indeed, Deters did not even so allege. The fallacy lies in the district court’s conflation of the

sexual harassment claims with the constructive discharge theory actually asserted in relation to the

retaliation claims. Yet, though Deters is clearly not entitled to a judgment on a hypothetical claim

that Wuchter’s harassment resulted in her constructive discharge, this does not dispose of the

question whether she is entitled to a judgment on the asserted claims that Wuchter’s harassment

resulted in other injuries for which Rock-Tenn is liable.




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Deters v. Rock-Tenn Co.

        4. Hostile or Offensive Environment

        The district court paid lip service to the governing standards, but failed to apply them.2 “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 working environment.’” Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 67 (1986). In order to establish a prima facie case of hostile work

environment based on sexual harassment, Deters must show by a preponderance of the evidence: (1)

that she was a member of a protected class; (2) that she was subjected to unwelcome sexual

harassment; (3) that the harassment was based on sex; (4) that the harassment unreasonably

interfered with her work performance by creating a hostile, offensive, or intimidating work

environment; and (5) that there is a basis for employer liability. Hafford v. Seidner, 183 F.3d 506,

512 (6th Cir. 1999).

        It is undisputed that the first three elements of this standard are met on the present record.

To assess the fourth element, the court must consider “‘all of the circumstances,’ including ‘the

frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an


        2
          One alternative is to vacate the district court’s summary judgment on the hostile work
environment claims and remand the matter for the district court to conduct the appropriate analysis
in the first instance. On the other hand, because we review the grant of summary judgment de novo,
we may affirm the judgment on grounds other than those employed by the lower court, as long as
the party opposing summary judgment is not denied the opportunity to respond. Carver v. Dennis,
104 F.3d 847, 849 (6th Cir. 1997). Here, the factual record has been adequately developed and both
parties have asserted appellate arguments under the governing standards. We therefore proceed to
address the question whether there is a genuine issue of material fact on the merits of Deters’ hostile
environment claims, or on Rock-Tenn’s affirmative defense, that should forestall summary
judgment.

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Deters v. Rock-Tenn Co.

employee’s performance.’” Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (quoting

Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). The “conduct in question must be judged by both

an objective and a subjective standard: the conduct must be severe or pervasive enough to create an

environment that a reasonable person would find hostile or abusive, and the victim must subjectively

regard that environment as abusive.” Id. at 658 (quoting Black v. Zaring Homes, Inc., 104 F.3d 822,

826 (6th Cir. 1997)).

       Rock-Tenn feebly attempts to minimize the offensive nature of Wuchter’s comments and

behavior. Although there is no evidence that Wuchter was physically intimidating, his undisputed

and seemingly constant preoccupation with, and unwelcome communications about, his own sexual

prowess, often while alone with the only female employee in the workplace, are, judged by any

reasonable standard, degrading, abusive and inexcusable.

       Rock-Tenn nonetheless questions whether Deters herself subjectively perceived the attention

she received from Wuchter as offensive. In support, Rock-Tenn cites her failure to inform anyone

about the inappropriate conversations for some three years. She did not register an objection with

Wuchter. She did not report any concern even to Webber, the officer manager, with whom she

resided day in and day out as the harassment was ongoing. Rock-Tenn also cites Smith’s

understanding, gleaned from his interview with Deters, that although “she felt uncomfortable with

some of the comments, . . . she was not offended by them;” and that although she “wanted the

comments to stop, . . . she didn’t want him to lose his job.” Smith dep. pp. 28-29, JA 730-31.

       Again, however, viewing the record in the light most favorable to Deters—particularly her

deposition testimony, Deters dep. at 138-147, JA 582-91; the e-mail messages from Deters and

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Webber to Smith, JA 788-89; and Webber’s letter to Smith, JA 697-700—it is clear that a triable

issue of fact has been presented on the fourth element, the offensiveness of the work environment.

       5. Employer Liability

       As to the fifth element of Deters’ prima facie case, Rock-Tenn is vicariously liable for sexual

harassment of Deters by Wuchter, her supervisor, even though it did not result in tangible adverse

actions in the conditions of her employment (e.g., discharge, demotion or undesirable reassignment)

unless Rock Tenn establishes its affirmative defense by a preponderance of the evidence. Rock-Tenn

does this by demonstrating (a) that it exercised reasonable care to prevent and correct promptly any

sexually harassing behavior; and (b) that Deters unreasonably failed to take advantage of any

preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Industries, Inc. v. Ellerth, 524

U.S. 742, 765 (1998); Jackson, 191 F.3d at 659.

       Generally, an employer satisfies the first element of this two-part standard when it has

promulgated and enforced a sexual harassment policy. Ellerth, 524 U.S. at 765; Faragher, 524 U.S.

at 807. Courts have not set an exact formula for assessing sexual harassment policies, but the Sixth

Circuit has provided the following guidance: “[A]n effective harassment policy should at least: (1)

require supervisors to report incidents of sexual harassment; (2) permit both informal and formal

complaints of harassment to be made; (3) provide a mechanism for bypassing a harassing supervisor

when making a complaint; and (4) provide for training regarding the policy.” Clark v. United Parcel

Service, Inc., 400 F.3d at 341, 349-50 (6th Cir. 2005) (citations omitted).



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       The record evidence demonstrates that Rock-Tenn had promulgated and posted a facially

effective sexual harassment policy. Huschke aff., JA 341-44; Caldwell aff., JA 346-50. Dan

Huschke, the plant general manager who preceded Wuchter, and the administrator who completed

Deters’ new-hire paperwork, attested to the facts that he advised her of the sexual harassment policy,

and that she had access to the policy manual that included the policy. Huschke aff. ¶¶ 8, 9; JA 341-

42. Mark Caldwell, who served as interim plant superintendent at the Fairfied plant from February

2003 to April 2003, attested to having observed that the policy was prominently posted at the plant

prior to January 2002. Caldwell aff. ¶¶ 4, 6; JA 346-47. Deters admitted knowing that the policy

was posted on the bulletin board, but she testified that no one pointed it out to her and she never

bothered to read it. Unemployment comp. hrg. tr. p. 4, JA 335. That Deters was familiar with the

policy and knew how to use it is demonstrated, however, by the fact that she had earlier lodged a

complaint with Flanagan concerning inappropriate conduct of a sexual nature by a truck driver.

Deters dep. pp. 28-29, 65, JA 528-29, 560.

       The closer question in connection with Rock-Tenn’s affirmative defense is whether Deters

has been shown to have been unreasonable in failing to report Wuchter’s misconduct. Deters

justifies her three-year failure to report the ongoing misconduct by explaining that she valued her

first office job since the early 1980s as an opportunity to build her skills and start a new life for

herself. Deters dep. at 60, JA 556. She didn’t want to jeopardize the opportunity by complaining

to Wuchter, her boss, because she feared he might fire her. Id. at 135-38, JA 579-82. She felt she

could not complain to Flanagan, because she believed Flanagan and Wuchter were friends. Id. at

65-66, JA 560-61. Deters argues that, under these circumstances, her failure to report the

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misconduct was reasonable. In support, she cites EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 511

(6th Cir. 2001), where Judge Gilman observed that an employee’s “reluctance” to report harassment

by a supervisor was “entirely understandable.” Id. (quoting Williams v. General Motors Corp., 187

F.3d 553, 566 (6th Cir. 1999)).

       What Deters fails to point out is that Judge Gilman’s opinion in Harbert-Yeargin carries no

controlling weight (1) because it is a dissenting opinion; and (2) because the language borrowed from

Williams is pure dictum, as the Williams court expressly declined to rule on whether the plaintiff’s

“understandable reluctance” amounted to an “unreasonable failure to take advantage of available

preventive or corrective opportunities provided by the employer.” See Williams, 187 F.3d at 567.

       In opposition, Rock-Tenn relies on various authorities from other circuits. First, Rock Tenn

cites Howard v. Winter, 446 F.3d 559, 567 (4th Cir. 2006), where the court emphasized that an

employee is obliged to make “a concerted effort to inform the employer that a problem exists.”

Howard is inapposite, because it is a co-worker harassment case, rather than a supervisor harassment

case. In a co-worker harassment case, the employer’s liability is direct, not vicarious, and is based

on its knowledge, whether actual or constructive, of wrongdoing and failure to correct it. See

Jackson, 191 F.3d at 659.

       Second, Rock-Tenn cites Williams v. Missouri Dep’t of Mental Health, 407 F.3d 972, 977

(8th Cir. 2005). In Williams, the Eighth Circuit expressly rejected the plaintiffs’ argument the

reasonableness of their failure to report the supervisor harassment posed a question of fact. The

court held as a matter of law 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

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Deters v. Rock-Tenn Co.

hostile environment.” Id. (quoting Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999)).

       Third, Rock-Tenn cites another Fourth Circuit ruling, Barrett v. Applied Radiant Energy

Corp., 240 F.3d 262, 268 (4th Cir. 2001). Barrett is a supervisor harassment case where the court

expressly rejected arguments like those here made by Deters, i.e., that nebulous fear of retaliation

and perceived futility (because members of the management team happened to be friends) excused

the employee’s failure to report supervisor harassment.

       Although the analysis employed in this line of cases, Williams, Shaw, and Barrett, is not

controlling, it is persuasive. To be sure, Deters’ reluctance to complain is “understandable” and her

suffering in silence may even be characterized as an arguably “reasonable” way, viewed from her

perspective, of ensuring that she retained her cherished position at Rock-Tenn. However, the

calculus changes when the reasonableness of Deters’ silence is scrutinized with an eye toward

whether the law should hold the employer liable for Wuchter’s clearly offensive, yet unreported, sex

talk. Where, as here, Rock-Tenn had no knowledge of Wuchter’s misconduct until November 2002;

Rock-Tenn conducted a professional and discrete investigation in December 2002 once the

misconduct was reported; and Rock-Tenn took swift and firm corrective action in January 2003 by

firing Wuchter; the record strongly suggests that Deters’ three-year failure to complain was

unreasonable—rendering her unwittingly complicit in Wuchter’s ongoing harassment, and depriving

Rock-Tenn of the wherewithal to earlier take appropriate corrective action, for her sake and the sake

of the company’s other employees.

       Paradoxically, Deters now argues, despite her three-year delay in complaining, that Rock-

Tenn has failed to establish the affirmative defense: because its corrective response, postponing

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Deters v. Rock-Tenn Co.

Wuchter’s termination from mid-December 2002 until mid-January 2003, was too slow; because it

failed to separate her from Wuchter in the meantime; and because Wuchter was allowed to

momentarily return to the plant after he was advised of his termination. Our review of the record,

however, indicates that Rock-Tenn handled her complaint with sensitivity and professionalism.

Postponing Wuchter’s actual termination until after the holidays seems an unnecessary courtesy, but

it gave Rock-Tenn a reasonable opportunity to plan for Wuchter’s and Young’s replacement.

Further, considering that Deters had not even complained for three years and was not subject to any

apparent physical threat or increased risk of harm, Rock-Tenn can be excused if it failed to

apprehend a sense of urgency. Rock-Tenn’s decision not to separate Deters and Wuchter during the

pendency of the investigation appears to have been deliberately and reasonably calculated to

minimize any risk of retaliation, inasmuch as Wuchter was not advised of Deters’ complaint until

he was terminated. Similarly, Flanagan’s decision to allow Wuchter to return to the plant at the time

he was terminated appears to have been motivated by reasonable concerns for workplace safety, as

Flanagan sought to defuse the possibility of a a violent reaction by Ernie Young. Yes, this created

an awkward, embarrassing situation for Deters, but she contributed to it by deciding to stay in

Webber’s office rather than removing herself from the plant before Wuchter returned.

       Given the benefit of hindsight, Rock-Tenn might have handled some things differently, but

the record clearly supports the finding by a preponderance of the evidence that Rock-Tenn’s response

to Deters’ report of harassment was reasonable under the all the circumstances. It also supports the

finding, for the reasons stated, that Deters’ failure to earlier report Wuchter’s harassment was

unreasonable. We therefore conclude that Rock-Tenn established its Ellerth/Faragher affirmative

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Deters v. Rock-Tenn Co.

defense to employer liability. The award of summary judgment to Rock-Tenn on Deters’ sexual

harassment claims is affirmed, on grounds other than those relied on by the district court.

       C. Retaliation

       1. Threshold Matters

       Deters’ count V and VI retaliation claims are premised on allegations that Rock-Tenn,

through the actions of new plant general manager Sue Beene between February and August 2003,

retaliated against her for having complained of Wuchter’s harassment by creating working conditions

so hostile that she was compelled to resign. The district court granted Rock-Tenn’s motion for

summary judgment on these claims, concluding Deters had failed to adduce sufficient evidence that

she was subject to materially adverse actions or that the actions, even if sufficiently adverse, were

causally connected to her earlier sexual harassment complaint.

       Again, the district court correctly recognized that the federal and state law retaliation claims

are governed by the same standards. See Abbott v. Crown Motor Co., Inc.,, 348 F.3d 537, 541-42

(6th Cir. 2003).

       Although, as discussed above, the district court erroneously held that Deters’ failure to

include her constructive discharge theory in her EEOC charge precluded her prosecution of her

sexual harassment claims, the court did not invoke this reasoning in connection with the retaliation

claims, where Deters has actually asserted the constructive discharge theory. Rock-Tenn contends

it should have.

       Deters’ EEOC charge, filed in October 2003, one month before she tendered her resignation,

does not assert that Beene’s retaliatory harassment resulted in her constructive discharge. Nor did

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Deters v. Rock-Tenn Co.

Deters amend her charge to include such an allegation after she had resigned. Yet, the Sixth Circuit

has, under such circumstances, construed an EEOC retaliation charge prepared by a pro se claimant

liberally as including retaliation so naturally growing out of an underlying charge that it should have

been foreseeable to the defendant. Tisdale v. Federal Express Corp., 415 F.3d 516, 527-28 (6th Cir.

2005); Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998). This rule applies

perfectly in this case. When Deters filed her EEOC charge while still on medical leave due to work-

related stress, Rock-Tenn clearly should have been able to foresee the possibility that Deters would

pursue relief for constructive discharge if she did not eventually return to work. It follows that

Deters’ failure to expressly include the constructive discharge theory in her EEOC charge is no

impediment to exercise of federal jurisdiction over the the constructive discharge theory of Deters’

retaliation claims.

       2. Materially Adverse Action

       In order to establish a prima facie case of retaliation, Deters must show that:

       (1) she engaged in activity protected under Title VII; (2) the defendant knew that she
       engaged in protected activity; (3) the defendant subsequently took an adverse,
       retaliatory action against the plaintiff, or the plaintiff was subjected to severe or
       pervasive retaliatory harassment by a supervisor; and (4) the protected activity and
       the adverse action were causally connected.

Randolph v. Ohio Dep’t of Youth Services, 453 F.3d 724, 736 (6th Cir. 2006). There is no dispute

that the first two elements of Deters’ prima facie case are satisfied. The district court found the

record wanting in connection with elements three and four, however.

       The district court quoted at length from the Supreme Court’s recent ruling in Burlington

Northern & Santa Fe Ry. Co. v. White, 548 U.S. — , 126 S.Ct. 2405, 2414-15 (2006), emphasizing

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Deters v. Rock-Tenn Co.

that action is “materially adverse” if it is not trivial, petty or slight, but might well have dissuaded

a reasonable worker from making or supporting a charge of discrimination. The district court went

on to consider the various asserted adverse actions taken by Beene, i.e., her request that Deters take

on more responsibilities, her alleged failure to provide Deters with needed training to assume more

responsibilities, her unfriendliness toward Deters, and her occasional yelling at Deters. In the

language of White, the district court characterized these actions as “petty slights, minor annoyances,

and simple lack of good manners.”

        Deters contends the district court erred in its assessment by expressly excluding from

consideration the impact of Wuchter’s past sexual harassment on her reaction to Beene’s adverse

actions. Deters recognizes that the court must, per White, apply an objective standard and consider

the reaction of a “reasonable employee,” but she urges the court to heed White’s admonition to

consider all the circumstances from the perspective of “a reasonable person in the plaintiff’s

position.” White, 126 S.Ct. at 2416.

        The district court did note, with reference to White, that it was not required to consider the

nature and seriousness of Wuchter’s sexual harassment in assessing whether Beene’s actions would

dissuade a reasonable person in Deters’ position from making or supporting a charge of

discrimination. Rather, the court observed, the “materially adverse” determination is made with

reference to the challenged retaliatory acts, not the underlying discriminatory conduct originally

complained of. Still, the court also correctly observed that whether adverse action would deter a

reasonable employee depends on the facts of the particular case. Per White, “context matters.” 126

S. Ct. at 2415. “The real social impact of workplace behavior often depends on a constellation of

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Deters v. Rock-Tenn Co.

surrounding circumstances, expectations, and relationships which are not fully captured by a simple

recitation of the words used or the physical acts performed.” Id. (quoting Oncale v. Sundowner

Offshore Services, Inc., 523 U.S. 75, 81-82 (1998)).

        The district court correctly ruled that Wuchter’s past harassment could not be considered to

be retaliatory conduct by Rock-Tenn because it occurred before Deters engaged in the protected

activity of complaining about it. Yet, this truism does not preclude consideration of Wuchter’s past

harassment as bearing on the objective reasonableness of Deters’ reaction to the subsequent actions

by Beene—if relevant. To the extent there is a factual basis, beyond Deters’ subjective perception,

for her contention that Beene’s harsh treatment of her was motivated by retaliatory animus stemming

from Deters’ complaint about Wuchter, her sense of outrage, injustice and oppression could

reasonably be expected to grow, rendering the wrongfulness of the underlying harassment more

relevant to the “materially adverse” determination.

        There is thus an interconnectedness between the third and fourth elements of Deters’ prima

facie case. We therefore look to the evidence of a causal nexus between Beene’s actions and Deters’

earlier sexual harassment complaint in assessing the reaction of a reasonable person in Deters’

position to Beene’s actions. If there is no factual basis for the perceived retaliatory animus, the

perception is purely subjective; not that of an objectively reasonable person in the plaintiff’s

position. If, on the other hand, there is sufficient evidence to create a triable issue regarding causal

nexus, that same evidence would tend to support a finding that Deters’ reaction was reasonable and

that Beene’s actions toward her were “materially adverse.”



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Deters v. Rock-Tenn Co.

       3. Causal Nexus

       The district court held that the only evidence of a causal nexus between Deters’ sexual

harassment complaint and Beene’s adverse treatment of her consisted of temporal proximity, which

it correctly held was insufficient, standing alone, to create a genuine issue of material fact. See

Randolph, 453 F.3d at 737. Deters objects, insisting there are other indicia of retaliatory conduct,

which combine with temporal proximity to create a genuine issue of material fact regarding

causation. These other indicia of retaliatory conduct are said to consist of the terminations, one by

one, of all three other employees who participated in the investigation that culminated in Wuchter’s

and Young’s firings. The terminations of Vannatta, Nguyen and Webber are said to evidence a

“campaign of retaliation.” Deters contends the district court erred by ignoring this evidence.

       The record surrounding these three terminations is not well-developed.             While the

terminations arguably represent curious circumstantial evidence, their significance is ambiguous.

Deters acknowledges there is no direct evidence that Beene’s actions against her were motivated by

retaliatory animus. Nor is there any apparent reason in logic to believe that Rock-Tenn intended to

retaliate against Deters. She had finally come forward with the complaint that helped Rock-Tenn

rid its Fairfield plant of a poor manager whose abusive misconduct has been never been disputed,

defended or excused. She appears to have been treated as a valued employee, as evidenced by Rock-

Tenn’s willingness to fire Wuchter and keep her. Even Beene, despite her apparent personality clash

with Deters, “thought Darlene was professional” and “that she tried to handle the things that she did

very well.” Beene dep. p. 55, JA 508. Smith, who by all appearances treated Deters fairly in relation

to Wuchter’s harassment, investigated her concerns about Beene and determined that Beene’s actions

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No. 06-4356
Deters v. Rock-Tenn Co.

were “business-based,” “reasonable,” and not “inappropriate.” Smith dep. pp. 98, 114, JA 773, 777.3

Three months after Deters had taken a medical leave of absence, Rock-Tenn still had kept her

position available for her return, at the same wages and benefits. Deters dep. at 121-22, JA 573-74.

        Nevertheless, Deters contends that her difficulties with Beene, coupled with Rock-Tenn’s

termination of Vannatta, Nguyen and Webber within eight months after Wuchter and Young had

been removed, evidence retaliatory animus. She does not however, explain why such an inference

is justified.

        The record indicates that the decision to terminate Vannatta was made by Beene with

Flanagan because Vannatta was not generating new customers and was not producing the sales that

the company expected him to produce. Beene dep. pp. 64-65, JA 512-13. Beene’s testimony is in

this respect is corroborated by Webber, who had informed Smith and Flanagan of Vannatta’s

performance deficiencies months earlier. Webber dep. ex. 4, JA 339.

            The circumstances surrounding Nguyen’s “termination” are also unclear. According to

Flanagan, Nguyen was not terminated, but had been injured on the job and received workers’

compensation benefits. Upon his return to work, he could only perform light duty work. Flanagan

dep. pp. 81-82, JA 683-84. It appears Nguyen’s employment with Rock-Tenn came to an end when

there was no longer any suitable light duty work available for him. Beene dep. p. 101, JA 518.




        3
       See also Rock-Tenn’s November 20, 2003 response to Deters’ EEOC charge, authored by
Smith and explaining the structural changes introduced by Beene at Fairfield.

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No. 06-4356
Deters v. Rock-Tenn Co.

       Webber was terminated by Flanagan in August 2003 because he had “developed a pattern

of leaving early every day for a period of time,” and because he was insubordinate to Beene when

she called him on one such day to ask where he was. Beene dep. pp. 68-69, JA 515-16.

       In other words, the record substantiates legitimate non-retaliatory reasons why Vannatta,

Nguyen and Webber ceased to be employed by Rock-Tenn. Deters has made no effort to rebut this

showing with evidence that the given reasons are false or pretextual. On the present record, there

is no reason why the other employees’ terminations should give rise to an inference that Beene’s

unpleasant treatment of Deters was motivated by retaliatory animus. There is no genuine fact issue

going to the causal nexus element of Deters’ prima facie case. Because the temporal proximity of

Beene’s adverse actions to Deters’ sexual harassment complaint stands alone, it is insufficient to

justify a reasonable inference that Beene’s conduct was retaliatory.

       Accordingly, the district court’s award of summary judgment to Rock-Tenn on Deters’

retaliation claims must be affirmed for lack of evidence of causation. Further, as explained above,

this lack of evidence of a causal nexus also undermines Deters’ establishment of the third element

of her prima facie case, requiring materially adverse action.      That is, there being no evidence

substantiating Deters’ suspicion that Beene’s harsh treatment of her was motivated by retaliatory

animus, Deters’ rather extreme reaction to Beene is seen to stem from subjective perceptions and has

not been shown to be the reaction of an objectively reasonable person.

                                       III. CONCLUSION

       The district court’s opinion is marked by incorrect reasoning, but closer inspection of the

record confirms that the court reached the right result on the claims presented to it. While plaintiff

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No. 06-4356
Deters v. Rock-Tenn Co.

Darlene Deters appears to have suffered from poor working relationships with both Chuck Wuchter

and Sue Beene, the record offers insufficient evidentiary support for her claims against her employer,

defendant Rock-Tenn. The district court’s summary judgment order must therefore be and is

AFFIRMED.




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