UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SONYA CONSTANCE DOWDY,
Plaintiff-Appellant,

v.

STATE OF NORTH CAROLINA
DEPARTMENT OF CORRECTION,
Department of Adult Probation and                                       No. 99-1457
Parole,
Defendant-Appellee,

and

GEORGE J. MCCLEASE, JR.,
Defendant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, Chief District Judge.
(CA-96-37-2-BO)

Submitted: December 29, 1999

Decided: February 8, 2000

Before WILKINS and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

Branch W. Vincent, III, THE TWIFORD LAW FIRM, L.L.P., Eliza-
beth City, North Carolina, for Appellant. Michael F. Easley, Attorney
General, Michelle Bradshaw, Assistant Attorney General, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Sonya Constance Dowdy appeals the district court's order granting
the State of North Carolina Department of Correction's ("NCDOC")
motion to dismiss her claims of sexual harassment under Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17
(West 1994 & Supp. 1999). Dowdy, a former probation/parole officer
for NCDOC, claims that her immediate supervisor, George J. Mc-
Clease, Jr., made improper sexual advances and engaged in improper
physical contact with her on five different occasions.1

In her complaint, Dowdy alleged that these acts created a hostile
work environment and that her rejection of McClease's unwelcome
advances "was used [by NCDOC] as a basis for employment deci-
sions." The district court rejected both arguments. With regard to the
first, it found that Dowdy had not alleged facts showing NCDOC had
"actual or constructive notice" of McClease's misconduct and so,
under then-controlling circuit precedent, she had demonstrated no
basis for vicarious liability. As to the second argument, the court
determined that Dowdy did not allege facts showing that, as a result
of her rejection of McClease's advances, "she suffered any adverse
job consequences" or any threat of such consequences. On appeal,
Dowdy does not contend that she suffered any adverse employment
action but she does claim that NCDOC should be held vicariously lia-
ble for the hostile work environment created by McClease's actions.
_________________________________________________________________
1 McClease entered into a consent judgment with Dowdy, and he is not
a party to this appeal.

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After the district court's dismissal of this case, the Supreme Court
decided Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). In these cases,
the Court articulated the following standard by which federal courts
must now assess the vicarious liability of employers for a hostile
environment created by a supervisor:

          An employer is subject to vicarious liability to a victimized
          employee for an actionable hostile environment created by
          a supervisor with immediate (or successively higher) author-
          ity over the employee. When no tangible employment action
          is taken, a defending employer may raise an affirmative
          defense to liability or damages, subject to proof by a pre-
          ponderance of the evidence. The defense comprises two
          necessary elements: (a) that the employer exercised reason-
          able care to prevent and correct promptly any sexually
          harassing behavior, and (b) that the plaintiff employee
          unreasonably failed to take advantage of any preventive or
          corrective opportunities provided by the employer or to
          avoid harm otherwise.

Faragher, 524 U.S. at 807 (citation omitted); Ellerth, 524 U.S. at 765
(citation omitted). The employer may establish the second prong of
an affirmative defense by demonstrating that it"provided a proven,
effective mechanism for reporting and resolving complaints of sexual
harassment, available to the employee without undue risk or
expense," and that the employee unreasonably failed to take advan-
tage of that mechanism. Faragher, 524 U.S. at 806.

Because the district court did not have the benefit of these cases in
rendering its decision, we reverse the order of the district court and
remand for further proceedings in light of Faragher and Ellerth.2 We
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2 We note that the evidence in the record does not establish whether
NCDOC's sexual harassment policy was in fact "proven" and "effec-
tive." If the policy was not "proven" and"effective," Dowdy might be
able to justify her failure to make an unverifiable complaint, particularly
in light of the violent nature of the conduct against her. Our remand,
however, should not be construed as intimating a view as to either the
merits of Dowdy's claims or the viability of NCDOC's affirmative or
other defenses.

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dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

REVERSED AND REMANDED

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