                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                             ________________________                U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                    No. 99-13958                           APR 04, 2001
                              ________________________                  THOMAS K. KAHN
                                                                             CLERK

                         D. C. Docket No. 96-02170-CV-JEC-1


BRIDGETTE FREDERICK,

                                                                  Plaintiff-Appellant,

                                            versus

SPRINT/UNITED MANAGEMENT COMPANY;
SPRINT COMMUNICATIONS COMPANY, L.P.,

                                                                  Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________
                                    (April 4, 2001)


Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.




       *
        Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
BARKETT, Circuit Judge:

      Bridgette Frederick appeals from a summary judgment order entered in favor

of her employer, Sprint/United Management Company and the Sprint

Communications Company (collectively “Sprint”), on her Title VII sexual

harassment claim.

I.    BACKGROUND

      On review of a summary judgment order, the court must consider all of the

parties’ evidence, and view it in the light most favorable to the non-moving party’s

claims. Therefore, the following account is drawn from the parties’ deposition

testimony and supporting materials, viewed in the light most favorable to

Frederick’s allegations. Frederick began work at Sprint as a permanent employee

in August 1988. In 1992, she was transferred to the Call Before You Dig

Department (“CBYD”) and was assigned to supervisor Ralph Moore. Frederick

testified that while working at CBYD, Moore subjected her to a range of

discomforting behaviors. Specifically, Moore would stare at her for prolonged

periods, look her up and down, and blow kisses at her. He also visited Frederick’s

work station several times a day, conversing with her up to 15 to 20 minutes at a

time. While at her work station, he would lean over her at her computer and rub

his face and hair against her jaw; on one occasion he kissed her on the cheek.


                                         2
Additionally, Moore touched Frederick’s breasts while standing over her,

ostensibly assisting her in typing on her computer. Frederick testified that

Moore’s sexual harassment continued throughout her pregnancy. Specifically,

Moore made comments about how her pregnancy had likely decreased her sexual

desirability in her husband’s eyes, and he stated that “they should do this” but her

“organs were going to take a long time to get back in place.”

      Soon after Frederick began working at CBYD, she filled out several transfer

request forms. Moore was required to sign these forms and forward them to

Sprint’s Human Resources Department (“Human Resources”) for processing.

Human Resources, however, never acted on Frederick’s transfer requests.

Frederick also testified that she never followed up with Moore about what action

was being taken regarding her requests for a transfer. Also, after six months at

CBYD, Frederick petitioned Moore for a promotion, seeking to move from her

current “Coordinator I” position to a “Coordinator II” position. Frederick attested

that she was qualified for the promotion and that it should have been granted

automatically; however, Moore denied her request, telling her that she “needed to

do more things.” When Frederick asked Moore what additional tasks she needed

to perform, Moore told her that she already knew and he asked her to leave his

office. Taken in combination with what she perceived to be Moore’s overtly


                                          3
sexual behavior, Frederick perceived Moore’s comment to be a demand for sex in

return for the promotion.

      Sprint offered evidence to show that it had an established sexual harassment

policy with reasonable complaint procedures. First, Sprint offered a publication

called “The Employee Resource: A Guide to Human Resource Policy,” which it

contends was distributed after December 1990 to all employees, and was posted

throughout Sprint’s offices (“1990 Policy”). The 1990 Policy defines sexual

harassment as “unwelcome sexual advances, requests for sexual favors, and other

verbal or physical contact that is sexually offensive.” The 1990 Policy also

indicates that employees are to “report sexual harassment . . . to their supervisors

and/or Human Resources immediately.”

      Next, Sprint presented “Sprint’s Code of Ethics,” (the “Code”), a twenty-

page booklet which describes a broad range of employee misconduct. Two lines in

the Code refer to sexual harassment complaints. Specifically, the Code states, “[i]t

is our policy, in accordance with the law, to maintain an environment free from

discrimination on the basis of sex, race . . . or disability. Sexual harassment is both

illegal and unethical and it should be reported immediately.” The Code further

provides that “any questions” about incidents arising under the Code should be

reported to one’s “supervisor, who in turn will work with Human Resources, the


                                           4
Law Department, or the Chief Ethics Office, to get an answer.” The Code last

indicates that an employee can anonymously call the Sprint Ethics Code Hotline

with her questions.

      Sprint also presented a booklet that was copyrighted in 1994, entitled

“Sexual Harassment,” which provides a more detailed account of the company’s

sexual harassment policies (“1994 Policy”). The 1994 Policy describes a range of

behaviors that can be categorized as sexual harassment, and advises an employee

who has been sexually harassed to “report the incident to [her] supervisor, the next

level of management, [her] local Employee Relations or Human Resources

representative, or to another member of management with whom [she is]

comfortable.” Vince Goodwine, the Sprint employee responsible for handling

employees’ complaints in Frederick’s division, testified that it was his impression

that the 1994 Policy simply was “a recommunication” of the existing 1990 sexual

harassment policy, and that Sprint had long required that a low level manager who

received a sexual harassment complaint should report that complaint to persons in

higher levels of management.

      Frederick testified that she retained all of the Human Resources materials

she received when she began working at Sprint, and she did not recall having

received the 1990 Policy. She also testified that the 1990 Policy was not posted on


                                         5
her floor during the period she allegedly was subject to harassment. Frederick

further stated that she had received the Code and recognized that it applied to her

sexual harassment claim, but that she did not understand how to file a complaint

under the Code. Frederick last indicated that she did not receive the 1994 Policy

until she went to Human Resources in 1994 to request a copy.

      Frederick also testified about her attempts to report Moore’s behavior.

Specifically, Frederick indicated that she never complained to Moore, the various

departments listed in the Code, or called Sprint’s Ethics Code Hotline. However in

1993, Frederick and a temporary employee met with Denise Pough, a supervisor in

Sprint’s customer service department, to discuss Moore’s sexually harassing

behavior. Pough took no action on Frederick’s complaint; however, Frederick

recalls that Pough may have told her to report her complaint to Human Resources.

Subsequently, Frederick and the temporary worker met for lunch with Andre

Weathersby, a supervisor in Sprint’s Service Management Center, and complained

about Moore’s sexually harassing behavior. Frederick testified that Weathersby

advised her, and the complaining temporary worker, not to lodge complaints about

Moore with Human Resources or with other managers, and that they should not

retain counsel to pursue their complaints. Weathersby contends that this

conversation never occurred.


                                          6
      Some time later, in 1994, Goodwine learned from Sprint employee Brava

Henson that Moore was allegedly harassing a female subordinate. In August 1994,

Goodwine conducted an investigation of Moore, and he approached Frederick and

many other Sprint employees for interviews. During Frederick’s interview, on

August 15, 1994, she informed Goodwine about Moore’s harassing behavior.

When Goodwine concluded his investigation two weeks later, on August 29, 1994,

Sprint terminated Moore for inappropriate conduct. Nine months later, Frederick

received her promotion to Coordinator II.

      Frederick filed suit in July 1996, raising both “hostile environment” and

“quid pro quo”claims; she alleged that Sprint was liable for Moore’s harassment

because Pough and Weathersby failed to timely act once she told them about the

harassment. The district court granted Sprint summary judgment on Frederick’s

claim in 1997, but a panel of this Court vacated that judgment and remanded the

case for reconsideration in light of the Supreme Court’s decisions in Faragher v.

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

524 U.S. 742 (1998). On reconsideration, the district court again granted summary

judgment to Sprint, on both of Frederick’s claims. This appeal followed.

II.   STANDARD OF REVIEW




                                         7
       We review a district court order granting summary judgment de novo, and

view all of the facts in the record in the light most favorable to the non-moving

party, and draw all inferences in her favor. See Arrington v. Cobb County, 139

F.3d 865, 871 (11th Cir. 1998) (citing Fed. R. Civ. P. 56(c). The Court, however,

will not make credibility determinations, nor weigh the parties’ evidence. See

Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000).

Summary judgment is only proper if there are no genuine disputed issues of

material fact, and the moving party is entitled to judgment as a matter of law. See

id.

III.   DISCUSSION

       In Ellerth and Faragher, the Supreme Court indicated that courts should no

longer use the labels “quid pro quo” and “hostile environment” to analyze whether

an employer should be held liable on an employee’s Title VII claim concerning a

supervisor’s sex-based harassment. Ellerth, 524 U.S. at 753, 765; Faragher, 524

U.S. at 807 (applying new standard).1 Instead, when analyzing whether an

employer should be held liable for a supervisor’s harassment, courts should


       1
          In Ellerth, the Supreme Court explains that the terms “quid pro quo”and “hostile
environment” are still helpful for distinguishing between cases in which an supervisor carries out
his threat to sanction an employee if she does not submit to his sexual demands (“quid pro quo”)
and circumstances in which the supervisor does not carry through on his threats (“hostile
environment.”). Ellerth, 524 U.S. at 751-53.

                                                8
separate these cases 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. Ellerth, 524 U.S. at 761-63, 765; Faragher, 524 U.S. at 790,

807; see also Johnson v. Booker T. Washington Broadcasting Serv., Inc., 234 F.3d

501, 508 (11th Cir. 2000) (recognizing shift in terminology). Under this analysis,

when a supervisor engages in harassment which results in an adverse “tangible

employment action” against the employee, the employer is automatically held

vicariously liable for the harassment. Ellerth, 524 U.S. at 763; Faragher, 524 U.S.

at 790. In contrast, when the supervisor’s harassment involves no adverse

“tangible employment action,” an employer can avoid vicarious liability for the

supervisor’s conduct by raising and proving the affirmative defense described in

the Faragher and Ellerth cases (Faragher/Ellerth affirmative defense). Ellerth, 524

U.S. at 765; Faragher, 524 U.S. at 807. Therefore, although Frederick has styled

this action using the old Title VII categories, we treat her “quid pro quo” claim as

an adverse “tangible employment action” claim, and her “hostile environment”

claim as one in which no adverse “tangible employment action” occurred.

             A.    Adverse Tangible Employment Action Claim


                                          9
      Frederick’s adverse “tangible employment action” claim is based on her

allegation that Moore refused to promote her to Coordinator II because she would

not grant his request for sexual favors. The district court determined that Frederick

failed to provide sufficient evidence to establish a prima facie case on this claim.

After making its finding, the district court stated:

      [H]ad Moore been attempting to signal to plaintiff that she needed to
      perform some sexual act in order to receive a promotion, one would
      reasonably conclude that he might have tried to communicate more
      clearly that particular job requirement; ambiguity is rarely a trait of
      the quid pro quo seducer.

This statement, however, contradicts a long line of cases showing that sexual

asides and insinuations are the well-worn tools of a sexual harasser. See, e.g.,

Harris v. Forklift Systems, Inc., 510 U.S. 17, 19 (1993) (discussing supervisor’s

claim that he was only joking when he suggested to plaintiff that they “go to the

Holiday Inn to negotiate” her raise); Jansen v. Packing Corp. of Am., 123 F.3d

490, 503 (7th Cir. 1997), aff’d sub nom., Ellerth, 524 U.S. 742 (finding that

plaintiff had an actionable quid pro quo claim when her supervisor told her that he

had some hesitation about promoting her because she was “not loose enough for

him”). These cases show that a supervisor may simply intimate that a

subordinate’s career prospects will suffer if she does not submit to his advances,

with the hope of concealing his harassment if his statements are repeated to a third


                                           10
party. Therefore, we take this opportunity to reaffirm the longstanding rule in this

Circuit, that a victim need not provide evidence of a direct and express sexual

demand to make a claim under the “tangible employment action” analysis. See,

e.g., Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1246 (11th Cir. 1998)

(explaining that one can establish a tangible employment action claim with less

than direct statements which allow “inferences [to be] drawn from the observable

facts.”).

       We nonetheless affirm the district court’s grant of summary judgment on

Frederick’s adverse “tangible employment action” claim. Even under the summary

judgment standard, which requires that the Court construe all inferences in

Frederick’s favor, Frederick failed to present sufficient evidence to establish any

causal link between the adverse “tangible employment action” she suffered and the

alleged harassment. At summary judgment, the only evidence Frederick offered on

this point was her own testimony that she was qualified for the Coordinator II

position and was denied the promotion. This testimony provided insufficient basis

to survive a motion for summary judgment because Sprint presented unrebutted

evidence showing that it had denied Frederick the promotion for reasons

independent of her qualifications, namely, that she had a history of attendance

problems. Also the record suggests that Frederick’s supervisors after Moore


                                         11
perceived that she needed more development before advancing to Coordinator II,

as they did not promote her for an additional nine months after Moore was

terminated. In light of the unrebutted evidence showing that Frederick was denied

the promotion to Coordinator II on grounds independent of the alleged harassment,

we affirm the district court’s determination that Sprint was entitled to summary

judgment on Frederick’s adverse “tangible employment action” claim.

      B.     No Adverse Tangible Employment Action Claim

       Frederick also claims that the district court erred in awarding Sprint

summary judgment on her hostile environment claim, where no adverse “tangible

employment action” occurred but Moore’s harassment was sufficient to

constructively alter her experience of workplace conditions. Ellerth, 524 U.S. at

752-53; Faragher, 524 U.S. at 787-88. For the purposes of the summary judgment

motion, the district court assumed, without deciding, that Frederick’s allegations

sufficed to establish sexual harassment, but that Sprint was entitled to summary

judgment on the Faragher/Ellerth affirmative defense. We likewise make the same

assumption when we address Frederick’s argument that the district court erred in

finding that Sprint satisfied its burden on its affirmative defense.

             1.     General Principles of the Faragher/Ellerth Affirmative Defense




                                          12
      In order to prevail on a claim of sexual harassment when no adverse

“tangible employment action” is taken, a plaintiff must present sufficient evidence

to show that the harassment she suffered, objectively and subjectively, was severe

or pervasive. See Gupta v. Florida Bd. of Regents, 212 F.3d 571, 582-83 (11th

Cir. 2000). If the plaintiff satisfies her burden, the defendant-employer is entitled

to assert the Faragher/Ellerth affirmative defense. Faragher, 524 U.S. at 807;

Ellerth, 524 U.S. at 765. The “defense comprises two necessary elements: (1) that

the employer exercised reasonable care to prevent and promptly correct harassing

behavior and (2) that the plaintiff employee unreasonably failed to take advantage

of any preventative or corrective opportunities provided by the employer, or to

otherwise avoid harm.” Faragher, 524 U.S. at 807 (emphasis added); Ellerth, 524

U.S. at 765 (same). Both elements must be satisfied for the defendant-employer to

avoid liability, and the defendant bears the burden of proof on both elements.

Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

      The Supreme Court’s description of the Faragher/Ellerth affirmative defense

is instructive, and we quote it at length to ensure that the rebuttable presumptions

described therein are properly applied. In Faragher and Ellerth, the Supreme Court

explains that:

      proof that an employer ha[s] promulgated an anti-harassment policy with
      complaint procedure is not necessary in every instance as a matter of law[;

                                          13
      however,] the need for a stated policy suitable to the employment
      circumstances may appropriately be addressed in any case when litigating
      the first element of the defense. And while proof that an employee failed to
      fulfill the corresponding obligation of reasonable care to avoid harm is not
      limited to showing an unreasonable failure to use any complaint procedure
      provided by the employer, a demonstration of such failure will normally
      suffice to satisfy the employer’s burden under the second element of the
      defense.

Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Examples of the case law in

this area help clarify the Faragher/Ellerth framework.

      For example, as to the first part of the first element of the Faragher/Ellerth

affirmative defense, an employer does not always have to show that it has a formal

sexual harassment policy to meet its burden of proof on this element. See Lissau v.

Southern Food Serv., 159 F.3d 177, 183 (4th Cir. 1998) (recognizing that small

employers may show that they exercised reasonable care to prevent and correct

sexual harassment through more informal complaint mechanisms). At the same

time, an employer’s showing that it has a sexual harassment policy does not

automatically satisfy its burden. See, e.g., Faragher, 524 U.S. at 808 (denying an

employer the affirmative defense because although it had a sexual harassment

policy it had “entirely failed to disseminate [that] policy”). As to the second part

of the first element of the Faragher/Ellerth affirmative defense, an employer need

not act instantaneously, but must act in a reasonably prompt manner to respond to



                                          14
the employee’s complaint. Madray v. Publix Supermarkets Inc., 208 F.3d 1290,

1302 (11th. Cir. 2000).

      As to the second element of the defense, an employer’s showing that the

plaintiff-employee failed to follow its complaint procedures will often be sufficient

satisfy its burden. See, e.g., Madray, 208 F.3d at 1302 (explaining that amorphous

complaints to persons not authorized to accept complaints constituted evidence that

the employee unreasonably failed to take advantage of her employer’s complaint

procedures); Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1365 (11th Cir. 1999)

(same). However, in some cases, the proof will show that the employee’s non-

compliance was reasonable under the circumstances and, in these cases, the

defendant cannot satisfy the second element of the affirmative defense.

      2.     Application of the Faragher/Ellerth Affirmative Defense in this Case

                   a.     Reasonable Care to Prevent and Correct Harassment

      The first element of the Faragher/Ellerth affirmative defense requires that an

employer demonstrate that it took reasonable care both to prevent and correct

harassment. The district court found that Sprint satisfied its burden to show that it

took steps to prevent and correct the alleged harassment because Sprint presented

the district court with the 1990 Policy and the Code, and indicated that it

investigated Frederick’s complaint in accordance with these policies. However, in


                                          15
order to establish that it took reasonable steps to prevent harassment, Sprint was

required to show that its sexual harassment policy was effectively published, that it

contained reasonable complaint procedures, and that it contained no other fatal

defect. See Madray, 208 F.3d at 1298-99; cf. Faragher, 504 U.S. at 808 (denying

an employer the affirmative defense because the employer had “entirely failed to

disseminate its polic[ies],” the policies did not contain reasonable complaint

procedures, and because the employer failed to supervise management personnel).

Moreover, to establish that it took proper action to correct the harassment, Sprint

was required to show that it acted reasonably promptly on Frederick’s complaint

when it was given proper notice of her allegations as required under its complaint

procedures. See Madray, 208 F.3d at 1299 -1300; Breda v. Wolf Camera & Video,

222 F.3d 886, 889 (11th Cir. 2000). In this case, although it was undisputed that

Sprint had a sexual harassment policy, there were material issues of disputed fact

regarding what Sprint’s complaint procedures were during the relevant period.

      Specifically, the evidence at summary judgment showed that there were

disputes about what Sprint’s sexual harassment complaint procedures were

between 1992 and 1994, when the harassment Frederick complains of allegedly

occurred. Sprint contends that only the 1990 Policy and the Code were in effect

during this period, and therefore employees were required to report their


                                         16
allegations to “their supervisors,” the Human Resources Department, the Chief

Ethics Officer, or the Sprint Ethics Code Hotline. Sprint also contends that the

word “supervisors” refers to employees’ direct supervisors. However, in direct

contravention of this position, Sprint’s Human Resources representative,

Goodwine, testified that the 1994 Policy was functionally effective during 1992-

1994, as the 1994 Policy merely “recommunicated” Sprint’s 1990 sexual

harassment policy. This issue is material because the 1994 Policy does not limit an

employee to complaining to a direct supervisor, but allows the employee to report

her sexual harassment allegations to anyone “in a management position with whom

[she] feels comfortable.” Thus the fact finder must address the first part of the first

element of the Faragher/Ellerth affirmative defense, whether the employer had a

reasonable policy to prevent harassment and what that policy was.

      Moreover, as indicated above, the question of whether an employer timely

acted to correct harassment turns on when it had proper notice of an employee’s

harassment complaint. See Madray, 208 F.3d at 1299; Coates, 164 F.3d at 1366;

Breda, 222 F.3d at 889. Since the evidence showing what Sprint’s policies were

between 1992 and 1994 is in conflict, only the fact finder can determine what date

should be used to decide if Sprint timely acted on Frederick’s complaint. If

Sprint’s interpretation of the Code and the 1990 Policy is correct, then Sprint


                                          17
learned of Frederick’s complaint on August, 15, 1994, in the course of her

interview with Goodwine, and Sprint timely responded by investigating her

complaint, an investigation which in this case resulted in Moore’s termination two

weeks later. If Goodwine’s interpretation of these materials controls, then

Frederick’s complaint to Pough in 1993, if the jury finds that it happened,

establishes that Sprint had constructive notice of Frederick’s complaint for one

year before it took any action.

      We also recognize that there are disputed issues of material fact about

whether Sprint’s sexual harassment policies were effectively published. See

Madray, 208 F.3d at 1298. The summary judgment standard required that the

district court credit Frederick’s testimony, and Frederick identified a number of

defects in the publication of the policy. Specifically, Frederick attested that she

never received the 1990 Policy and that it was not posted in her section of Sprint’s

offices. She also testified that she received the Code, but alleged that the Code

was unclear about how to file a sexual harassment complaint. Last, Frederick

testified that she did not receive the 1994 Policy until she went to Human

Resources in 1994 and requested a copy. Instead of crediting her version of events,

the district court assumed that Sprint’s sexual harassment policies were properly

published. Thus, since there were multiple issues of disputed fact about what


                                          18
Sprint’s complaint procedures were during the relevant period, and whether it

properly published its policies, the record was insufficient to establish that Sprint

satisfied its burden on the first element of the Faragher/Ellerth affirmative defense,

to show that it took reasonable care to prevent and/or to correct harassment.

             b.     Reasonable Care to Avoid Harassment

      The second element of the Faragher/ Ellerth affirmative defense requires that

Sprint show that Frederick unreasonably failed to take advantage of Sprint’s

complaint procedures or otherwise avoid harm. Faragher, 524 U.S. at 807; Ellerth,

524 U.S. at 765. Sprint presented evidence showing that Frederick complained to

Pough and Weathersby instead of following the instructions in the Code or the

1990 Policy, and the district court determined that this proof satisfied Sprint’s

burden to show that Frederick unreasonably failed to use her employer’s complaint

procedures. However, the factual disputes about the interpretation of Sprint’s

policies precluded the district court from making a determination on this element

as well. See Breda, 222 F.3d at 890 (explaining that the question of whether an

employee followed the procedures established in the company’s policy in a

reasonable manner is an issue of fact to be determined by a jury). Again, the

record cannot conclusively establish whether Frederick reasonably complied with

Sprint’s complaint procedures because this issue turns on whether we interpret the


                                          19
1990 Policy and the Code standing alone, or in relation to the 1994 Policy. If only

the 1990 Policy and the Code are considered, then Frederick’s complaints to Pough

and Weathersby could be interpreted as non-compliance with Sprint’s complaint

procedures, and unless there was other evidence justifying Frederick’s decision,

Sprint’s evidence would have satisfied its burden on the second half of the

Faragher/Ellerth affirmative defense. However, if the 1994 Policy is treated as an

elaboration on the 1990 Policy and the Code, then Frederick’s complaints to Pough

and Weathersby would be sufficient to show that she exercised reasonable care to

avoid harassment. Since the finding on the second element of the Faragher/Ellerth

affirmative defense also depends on disputed issues of material fact, the district

court erred in concluding that Sprint made a successful showing on this element as

well.

        In addition to the disputed facts regarding the policy materials, the record

contains factual disputes about whether there were extenuating circumstances that

might explain why Frederick failed to timely use the complaint procedures

identified in the 1990 Policy and the Code. See Greene v. Dalton, 164 F.3d 671,

674-75 (D.C. Cir. 1999) (explaining that the district court invaded the province of

the jury in awarding summary judgment to the defendant when the defendant had

not demonstrated that the employee’s delay in filing a complaint was


                                           20
unreasonable). For one, Frederick contends that she never received the 1990

Policy and that it was unclear about how to report her complaint under the Code,

and this prevented her from reporting her complaint in a timely fashion. Also,

Frederick argues that she did not timely report her complaint in accordance with

these policies because Weathersby told her not to pursue her complaint.

Weathersby, in contrast, claims that this conversation never occurred. Importantly,

the facts relevant to Frederick’s conversation with Weathersby turn on assessments

of witness credibility, which by definition cannot be resolved at summary

judgment. Of course if the jury determines that Weathersby did dissuade Frederick

from filing her complaint, it will have to determine whether she took reasonable

steps to avoid the harassment prior to her report to Weathersby. In short, there are

two issues of disputed fact that could explain why Frederick did not timely file a

complaint under the 1990 Policy and the Code, and therefore the district court

erred in finding that Sprint established that Frederick had, without justification,

failed to use Sprint’s complaint procedures.



IV.   CONCLUSION

      In summary, because the facts in the record support several different

interpretations that could prevent Sprint from establishing either or both elements


                                          21
of the Faragher/Ellerth affirmative defense, we hold that the district court erred in

awarding Sprint summary judgment on Frederick’s “no adverse tangible

employment action” claim. We thus reverse and remand on Frederick’s “no

adverse tangible employment action” claim for proceedings to determine all issues

regarding this claim.

AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.




                                          22
