UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LISA OCHELTREE,
Plaintiff-Appellant,

v.
                                                                     No. 97-2506
SCOLLON PRODUCTIONS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-96-1215-3-10BD)

Submitted: January 20, 1998

Decided: August 11, 1998

Before MURNAGHAN, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Lisa Ocheltree, Appellant Pro Se. Sue C. Erwin, NELSON, MUL-
LINS, RILEY & SCARBOROUGH, Columbia, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Lisa L. Ocheltree filed this action against her employer,
Scollon Productions, Incorporated ("Scollon Productions"), alleging
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§ 2000e (West 1994 & Supp. 1998) and South Carolina state law. Her
claims were based on her contention that one of her supervisors and
other employees created a sexually hostile work environment. The
district court adopted the recommendation of the magistrate judge
granting summary judgment to the Appellee. On appeal, Ocheltree
contends that the district court erred in concluding that her employer
did not have constructive knowledge of the offensive activity. Since
the district court's dismissal of this case, the Supreme Court decided
Burlington Indus., Inc. v. Ellerth, #6D6D 6D# U.S. ___, 66 U.S.L.W. 4634
(U.S. June 26, 1998) (No. 97-569), and Faragher v. Boca Raton, ___
U.S. ___, 66 U.S.L.W. 4643 (U.S. June 26, 1998) (No. 97-282),
which held that an employer is vicariously liable for a hostile environ-
ment created by a supervisor, subject to an affirmative defense. We
vacate the judgment of the district court as to the hostile work envi-
ronment claim and remand for further proceedings in light of Ellerth
and Faragher. Insofar as Ocheltree alleged that she was fired in retali-
ation for having complained of being sexually harassed, the judgment
of the district court is affirmed. Ocheltree's objections to the magis-
trate judge's recommendation did not challenge the findings with
regard to this claim and accordingly, she has waived appellate review.
See Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). Like-
wise, the district court's dismissal of her state law claim is affirmed
because Ocheltree has waived appellate review of that claim as well.
See 4th Cir. R. 34(b).

Scollon Productions builds character costumes. Edward Scollon,
President, and Ellery Locklear, Vice-President, are the only two mem-
bers of the corporation active in the day-to-day management. Scollon

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is in the costume shop on a daily basis. Ocheltree was employed at
the shop from February 1994 until her discharge for excessive absen-
teeism and telephone usage in August 1995. In June 1994, an
employee told Scollon that another employee told an off-color joke
which Ocheltree found offensive. The offending employee was dis-
charged. The first time either Scollon or Locklear were directly
informed by Ocheltree of other allegations of sexual harassment was
during her testimony before the Employment Security Commission in
October 1995, after she was discharged.

In her sworn deposition taken in the course of these proceedings,
Ocheltree testified to numerous incidents of offensive behavior.
According to Ocheltree, the largely male staff engaged in open con-
versations about sex, made sexual comments about females and the
sexual habits of others on the staff, and arranged a mannequin in
obscene positions. The shop supervisor, Harold Hirsch, showed a
photograph of a nude woman around the shop and was involved in
several open sexually explicit conversations with Ocheltree's co-
workers. She complained on numerous occasions to Hirsch and her
immediate supervisor, Bill Kollman. Ocheltree asserted that Hirsch
was ineffective in taking action because he would either do nothing
or merely "slap the wrists" of the offending employees. Kollman was
also ineffective. Ocheltree also went to speak to Scollon and Locklear
on different occasions, but she was never given the opportunity to
meet with either. According to Ocheltree, on at least one occasion,
Scollon told her that he did not have time to meet with her and
instructed her to speak to Locklear. On another occasion, Ocheltree
wrote Locklear a note as he was on the phone stating that she needed
to speak with him. As she waited for him to get off the phone, Hirsch
told her to get back to work and that if either Scollon or Locklear
wanted to talk to her, they would come and find her.

Scollon Productions' Employee Handbook does not have a specific
policy against sexual harassment. The handbook does refer to an
"Open Door Policy." Under this policy, employees are informed that
any work-related problem not resolved after a discussion with their
supervisor should be brought to the attention of either Scollon or
Locklear.

In his report and recommendation, the magistrate judge concluded
it was uncontested that Ocheltree established a pervasive hostile work

                    3
environment. However, the magistrate judge found there was no basis
for imposing liability on Scollon Productions because neither Scollon
nor Locklear were aware of or should have known of the offending
activity. Ocheltree objected to the magistrate judge's findings by con-
tending that knowledge of the offending activity should be imputed
to the employer because: (1) she complained on numerous occasions
to her two immediate supervisors; (2) one of the supervisors who was
engaged in the offending activity prevented her from making a com-
plaint to Locklear; and (3) she attempted to make use of the open door
policy on numerous occasions, but neither Locklear nor Scollon made
themselves available. Ocheltree contended that the employer should
not be permitted to escape liability on the basis of lack of knowledge
by insulating itself from complaints. The district court concluded that
Ocheltree failed to object to the finding that neither Scollon nor Lock-
lear knew of the offending activity, adopted the magistrate judge's
recommendation, and granted summary judgment to the Defendant.

We review a district court grant of a motion for summary judgment
de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir.
1995). A summary judgment motion should only be granted if there
is no genuine dispute as to an issue of material fact and the moving
party is entitled to judgment as a matter of law. Id. (citing Fed. R.
Civ. P. 56(c); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986)). The district court must evaluate the evidence in the light
most favorable to the non-moving party and draw all reasonable infer-
ences from the facts in that party's favor. See United States v. Die-
bold, Inc., 369 U.S. 654, 655 (1962). The district court's function at
the summary judgment stage "is not [it]self to weigh the evidence and
determine the truth of the matter but to determine whether there is a
genuine issue for trial." Anderson, 477 U.S. at 249. Accordingly, the
court must believe the evidence of the non-movant. Id. at 255.

Generally, appellate review is precluded if the appellant fails to file
specific objections to a magistrate judge's report and recommenda-
tion. See Wright, 766 F.2d at 845-46. Insofar as Ocheltree's objec-
tions to the report and recommendation are concerned, the sole
remaining issue is whether she objected to the finding that there was
no basis to impute liability to her employer. We find that Ocheltree's
contentions that knowledge should be imputed to the employer based
on Hirsch's conduct and her unsuccessful attempts to use the open

                    4
door policy sufficiently objected to the magistrate judge's findings on
this point. Accordingly, appellate review is not waived on the basis
of failing to specifically object to the magistrate judge's report and
recommendation. The district court did not consider whether
Ocheltree's arguments could be the basis for imputing knowledge of
the offending activity to the employer in those situations where the
employer was not directly informed of the offending activity.

Under Title VII, for persons alleging a hostile work environment
based upon sex, it must be shown that: (1) the conduct in question
was unwelcome; (2) the harassment was based on sex; and (3) the
harassment was sufficiently severe or pervasive to create an abusive
working environment. See Swentek v. USAIR, Inc. , 830 F.2d 552,
557-58 (4th Cir. 1987). In order to hold the employer liable for the
actionable conduct of low-level or mid-level employees, we have
required that there be some factual basis in which to impute liability
to the employer. See Reinhold v. Virginia, 135 F.3d 920, 929 (4th Cir.
1998). Generally, we have required the plaintiff to show that the
employer had actual or constructive knowledge of the existence of the
hostile working environment and fail to take remedial action. See
Swentek, 803 F.2d at 558. In Ellerth and Faragher, the Supreme
Court disregarded the actual or constructive knowledge element and
held that "[a]n employer is subject to vicarious liability to a victim-
ized employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the
employee."1 Ellerth, 66 U.S.L.W. at 4640; Faragher, 66 U.S.L.W. at
4652. Employers may assert an affirmative defense."The defense
comprises two necessary elements: (a) that the employer exercised
reasonable care to prevent and correct promptly any sexually harass-
ing behavior, and (b) that the plaintiff employee unreasonably failed
to take advantage of any preventive or corrective opportunities pro-
vided by the employer or to avoid harm otherwise." Id.

In the instant case, the first three elements of the prima facie case
are not disputed by Scollon Productions. Scollon Productions' sole
_________________________________________________________________
1 The Supreme Court did not address the extent to which an employer
may be vicariously liable for actionable conduct cause by a non-
supervisor. Presumably, in those instances, a plaintiff must still show
actual or constructive knowledge.

                    5
contention was that it did not have knowledge of the offensive con-
duct. As for the fourth element, one of Ocheltree's supervisors was
at least in part responsible for creating the hostile work environment.
Thus, Scollon Productions may be vicariously liable for his conduct.
Obviously, neither the district court nor the parties had the benefit of
the recent Supreme Court decisions. If Scollon Productions had the
opportunity to present the affirmative defense, from the record it
appears that it would contend that it exercised reasonable care to cor-
rect any sexually harassing behavior, as evidenced by its prompt
action when it was actually informed of sexually harassing conduct.
In addition, Scollon Productions' open door policy, although informal
and without any mention of sexual harassment, may also be disposi-
tive of reasonable care to correct problems. But in this instance, it
appears that the open door policy was ineffective because neither
Scollon nor Locklear availed themselves to Ocheltree when she
wanted to speak to them.2 In addition, she was prevented from making
a complaint by the supervisor responsible for some of the offensive
conduct. See Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 73
(1986) (employer's contention that employee failed to use the griev-
ance procedure "might be substantially stronger if its procedures were
better calculated to encourage victims of harassment to come for-
ward").

As for the second element of the affirmative defense, we find there
is a genuine dispute as to a material issue of fact. Ocheltree took
advantage of her employer's corrective measures by informing her
immediate supervisors. It is also uncontested that she attempted to
_________________________________________________________________
2 The magistrate judge found that Ocheltree's efforts to inform Scollon
and Locklear were not made in "good faith." The open door policy out-
lined in the Employee Handbook does not provide any specific instruc-
tions to the employee on how to inform Scollon and Locklear. The policy
states that "[a]ny one having a complaint or problem should first try to
resolve it with their immediate supervisor. Ellery or Bill are usually
available throughout the day to help resolve complaints or problems not
resolved by supervisors." The policy appears to require nothing more
than going to their offices. Under this informal policy, Ocheltree was not
required to do anything else. Further, to the extent that the magistrate
judge's finding was a credibility determination, on a motion for summary
judgment, it is not the role of the court to determine the truth of the mat-
ter. See Anderson, 477 U.S. at 249.

                    6
speak to both Scollon and Locklear. Scollon directed Ocheltree to
speak to Locklear, and Locklear did not respond to her note. Whether
the failure to inform Scollon or Locklear was unreasonable on
Ocheltree's part is at issue. Furthermore, the record before us does not
support an argument that Ocheltree unreasonably failed to take other
corrective measures.

In conclusion, evaluating the evidence in the light most favorable
to Ocheltree, we find genuine issues of material fact with regard to
her hostile work environment claim that preclude summary judgment.
We therefore vacate the district court's grant of summary judgment
on that claim and remand that issue for further proceedings in light
of Ellerth and Faragher. We affirm the district court's order in all
other respects. We deny Ocheltree's motion for appointment of coun-
sel. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

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