                               Bridgette FREDERICK, Plaintiff-Appellant,

                                                     v.
     SPRINT/UNITED MANAGEMENT COMPANY & Sprint Communications Company, L.P.,
Defendants-Appellees.

                                               No. 99-13958.
                                      United States Court of Appeals,

                                             Eleventh Circuit.

                                               April 4, 2001.

Appeals from the United States District Court for the Northern District of Georgia. (No. 96-02170-CV-JEC-
1), Julie E. Carnes, Judge.
Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.

         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. 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



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

        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, 118 S.Ct. 2275, 141

L.Ed.2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633

(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

           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,

118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275 (applying new standard).1 Instead, when

analyzing whether an employer should be held liable for a supervisor's harassment, courts should 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.


       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,
118 S.Ct. 2257.
Ellerth, 524 U.S. at 761-63, 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 790, 807, 118 S.Ct. 2275; 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, 118 S.Ct. 2257; Faragher, 524 U.S. at 790, 118 S.Ct.

2275. 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, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275. 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

         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, 114 S.Ct.

367, 126 L.Ed.2d 295 (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. Packaging Corp. of America, 123

F.3d 490, 503 (7th Cir.1997), aff'd sub nom., Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (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 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 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, 118

S.Ct. 2257; Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275. 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
         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, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765,

118 S.Ct. 2257. 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, 118 S.Ct. 2275 (emphasis added); Ellerth, 524 U.S. at

765, 118 S.Ct. 2257 (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, 118 S.Ct. 2275;

Ellerth, 524 U.S. at 765, 118 S.Ct. 2257.

         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[; 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, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. 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, 118 S.Ct.

2275 (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 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 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, 524 U.S. at 808, 118 S.Ct. 2275 (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 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 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 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, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. 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 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 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 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.
