                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1510
                                   ___________

Suzzette Williams; Angela Conner,       *
                                        *
             Appellants,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Missouri Department of Mental           *
Health; Dan Thornton, Individually      *
and in his official capacity as         *
Superintendent of the Higginsville      *
Habilitation Center, operated by the    *
Missouri Department of Mental Health, *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: January 14, 2005
                                Filed: May 25, 2005
                                 ___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Suzzette Williams ("Williams") and Angela Conner ("Conner") each asserted
a claim for hostile work environment under Title VII against the Missouri Department
of Mental Health ("MDMH") and Dan Thornton ("Thornton"), Superintendent of the
Higginsville Habilitation Center ("HHC"), which is operated by MDMH. The United
States District Court1 for the Western District of Missouri granted summary judgment
in favor of MDMH and Thornton finding that they met the requirements of the
affirmative defense established in Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765
(1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998). Williams
and Conner appeal the district court's grant of summary judgment.

                                   I. Background
      Williams and Conner allege that their former temporary supervisor, Ronald
Dale Miller ("Miller"), created a hostile work environment at HHC's Crestview II
residential unit where they worked. Miller worked at the Crestview II Unit for several
weeks in the Spring of 2000.2 Both Williams and Conner allege that Miller asked
inappropriate personal questions, exposed himself, and offensively touched Williams
and Conner.3 MDMH did not dispute that Miller committed these acts. Instead,


      1
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
      2
       Miller was Williams's direct supervisor, but it is unclear whether he was
Conner's supervisor. For purposes of this appeal, we assume Miller directly
supervised Conner.
      3
        On one occasion, Miller approached Williams and pulled down his pants to
expose his genitals. He then said, "Man, look how hard it is." Miller also exposed
himself to Williams a second time that evening. On another occasion, when Williams
was in a client's room, Miller came to the doorway and exposed and fondled himself
in front of her and the client. Miller also approached Williams when she was on a sofa
with two clients. On this occasion he pulled open the neck of Williams's blouse to
look at her breasts. Another time, Miller asked Williams to go with him to the copy
machine, where he brushed up against her, touched her breasts and buttocks, and
again exposed himself.

        Miller admitted that he exposed himself to Conner on multiple occasions. The
first incident occurred after Miller called Conner into his office and asked her to shut
the door. He then pulled down his pants and exposed himself after asking Conner if

                                          -2-
MDMH raised the affirmative defense announced in Burlington Indus. Inc. v. Ellerth,
524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807–08
(1998), and argued that Conner and Williams were unreasonable in failing to report
the harassment.

      About five months after Miller's temporary assignment ended, Debi Hatheway
("Hatheway"), a supervisor at HHC approached Williams regarding the
appropriateness of her work attire. Williams responded in a tirade and made
statements about an unnamed former supervisor that prompted Hatheway to inquire
further. Williams then, for the first time, related the facts of Miller's misconduct to an
MDMH official. Hatheway promptly reported the allegations to MDMH and shortly
thereafter Miller was placed on administrative leave pending an investigation into



she "wanted to see something grow." That same evening, Miller grabbed Conner's
breasts and buttocks. On approximately three occasions while Conner and Miller
were in HHC's swimming pool watching clients, Miller would swim up behind
Conner and grab her breasts and try to put his hand between her legs. On another
occasion, Conner was asked to assist Miller in transporting a client in the
department's van. On the ride back to HHC, Miller reached over and tried to pull up
Conner's shirt and bra. Miller then exposed his penis and asked Conner if she would
"like to see how fast a worm could grow?" During another ride, Miller groped
Conner, exposed his penis, and kept asking her to touch and stroke it.

        Both Conner and Williams confirmed that there were no competent witnesses
to testify to Miller's acts of misconduct. MDMH's sexual harassment policy requires
employees who are harassed, or perceive that harassment may be occurring in the
workplace, to report the incident to a supervisor, or if the supervisor is the harasser,
other managers or administrators in their section, or to the personnel office. Williams
acknowledged receiving and reading MDMH's sexual harassment policy. Conner
received, but did not read the policy; she did, however, attend training on sexual
harassment during orientation and knew there was a reporting procedure in place to
use if she was being sexually harassed as an employee.


                                           -3-
Williams's allegations. Conner never reported the harassment. Miller resigned from
the department before any further action was taken.

       Both women subsequently filed this hostile work environment sexual
harassment lawsuit. The district court granted summary judgment on their claims,
finding that although both Williams and Conner established a prima facie case,
MDMH promptly prevented and corrected Miller's sexually harassing behavior. The
district court also found that Williams and Conner unreasonably failed to take
advantage of the preventative and corrective opportunities provided by MDMH to
avoid harm. Williams and Conner seek reversal of summary judgment in favor of
MDMH and Thornton arguing that the district court misapplied Faragher and Ellerth.

                                   II. Discussion
      We review the grant or denial of summary judgment de novo, applying the
same standard as the district court and may affirm on grounds supported by the
record. Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997).
Summary judgment is appropriate where the record shows that no genuine issue as
to any material fact exists and that the moving party is entitled to judgment as a
matter of law. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 834 (8th Cir. 2002).
"We remain mindful that summary judgment should seldom be granted in the context
of employment actions, as such actions are inherently fact based." Mayer v. Nextel
West Corp., 318 F.3d 803, 806 (8th Cir. 2003) (citing Keathley v. Ameritech Corp.,
187 F.3d 915, 919 (8th Cir. 1999)).


       To establish a cause of action for hostile-work-environment sexual harassment,
Williams and Conner must prove (1) that they belong to a protected group; (2) that
they have been sexually harassed; (3) that the harassment was based on gender; (4)
that the harassment was unwelcome; and (5) that the harassment affected a term,
condition, or privilege of employment. Scusa v. Nestle USA Co., 181 F.3d 958, 964


                                        -4-
(8th Cir. 1999). "To be actionable, harassment must be both objectively and
subjectively offensive, such that a reasonable person would consider it to be hostile
or abusive." Breeding v. Arthur J. Gallagher and Co., 164 F.3d 1151, 1158 (8th Cir.
1999); see also Moring v. Arkansas Dept. of Correction, 243 F.3d 452, 455 (8th Cir.
2001). It is undisputed that both Williams and Conner established a prima facie case.4


       Because the harassment in this case was committed by an employee who
supervised Williams and Conner, MDMH is vicariously liable for the harassment
unless it can establish the affirmative defense established in Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 765 (1998), and Faragher v. City of Boca Raton, 524 U.S.
775, 807–08 (1998). See Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir.
2004).


      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) authority 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
      preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The
      defense comprises two necessary elements: (a) that the employer
      exercised reasonable 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.


      4
       Williams and Conner argue that the district court erred in holding that Miller's
actions did not affect a term, condition or privilege of employment, however this is
a mischaracterization of the district court's ruling. The district court specifically held
that Williams and Conner established a prima facie case.

                                           -5-
       The district court found MDMH established both elements of the affirmative
defense and granted summary judgment. First, the court found that MDMH's "zero-
tolerance" anti-harassment policy, reporting procedure, and employee training
constituted reasonable actions to prevent harassment under Faragher. Second, the
district court found that MDMH took prompt action upon notification of Miller's
objectionable behavior. Finally, the district court found that Williams and Conner
unreasonably delayed using MDMH's preventative or corrective processes. Over four
months elapsed before MDMH became aware of Miller's conduct and then only
through a report initiated by neither plaintiff but by Williams's supervisor.

      Williams and Conner contend that both elements of the Faragher/Ellerth
affirmative defense require a finding of reasonableness on the employer's and the
victim's actions–questions best left to a jury to determine. While Williams and Conner
concede that very few facts are in dispute, they maintain that the inferences that can
be drawn from those facts remain hotly contested. Specifically, Williams and Conner
argue that (1) a reasonable jury could find that MDMH's sexual harassment policy
was ineffective and deficient; (2) there were material issues of fact whether there was
an unreasonable delay in reporting the harassment; (3) Miller's actions created an
actionable hostile work environment after the first incidents of harassment; and (4)
the district court erred in holding that an employer escapes all liability when a
harassed employee unreasonably delays reporting harassment.

       First, Williams and Conner argue that a reasonable jury could find that
MDMH's sexual harassment policy was ineffective and deficient because MDMH did
very little to implement the policy; the policy failed to include a provision making it
mandatory for all supervisors with knowledge of harassment to report it to those in
a position to take appropriate action; the policy failed to provide for the separation
of the parties involved during the investigation; and another employee's report of
Miller's sexual harassment to her supervisor went unreported. As a result, according



                                         -6-
to Williams and Conner, they were justified in believing that the harassment would
continue until the investigation was complete.

       Williams and Conner rely on Varner v. Nat'l Super Markets, Inc., 94 F.3d
1209, 1213–14 (8th Cir. 1996) for their contentions. However their reliance is
misplaced as that case is factually distinguishable. In Varner, we held insufficient a
sexual harassment policy that allowed a supervisor to remain silent notwithstanding
his knowledge of incidents of sexual harassment when reporting the harassment
would require the supervisor to skip steps in the employer's chain of command. Id.
While we understood the employer's desire to utilize a chain-of-command structure,
its procedure fell short of that which might absolve an employer of liability. Id.
MDMH's policy does not encourage such a rigid chain-of-command structure and
expressly permits victims of sexual harassment to skip steps in the chain-of-command
when reporting sexual harassment.

       MDMH's policy identifies the various employees, not just the immediate
supervisor, of MDMH to whom employees may report a violation either verbally or
in writing. Through its grievance procedure, the policy also provides an alternate
course of complaining about prohibited behavior. The investigatory procedure
provided in the policy gives employees notice of all events that will occur upon filing
a complaint. Non-retaliation and zero tolerance provisions also protect employees
from adverse actions resulting from their complaint. The policy adds that
"[e]mployees will be reassigned if necessary," and states that the investigation will
insure "confidentiality to the maximum extent possible." Like every other employee,
Williams and Conner participated in the new employee orientation upon
commencement of employment. The orientation covered fair employment practices
and grievance procedures. Williams and Conner received and were aware of the
sexual harassment policies and the employee handbook. We agree with the district
court that there are no genuine issues of material fact regarding the reasonableness
of MDMH's sexual harassment policy.

                                         -7-
      Second, Williams and Conner argue that the district court erred in finding that
there was no material issue of fact whether Williams and Conner unreasonably
delayed reporting Miller's harassment. According to Williams and Conner, MDMH
cannot show that they were unreasonable in failing to use the reporting mechanism.
We disagree. Both Williams and Conner admitted that they knew Miller’s conduct
was inappropriate from the very first instance, yet Conner never reported the behavior
to anyone. Williams reported the harassment only after she no longer worked with
Miller when, four months after the fact, a supervisor pressed her for details of
unspecified allegations of misconduct.

       Williams and Conner both argue that their delay, or in Conner’s case complete
failure to report, is excused by their shame, shock and humiliation. As noted by the
Seventh Circuit, "[w]hile a victim of sexual harassment may legitimately feel
uncomfortable discussing the harassment with an employer, that inevitable
unpleasantness cannot excuse the employee from using the company's complaint
mechanisms." Shaw v. AutoZone, Inc., 180 F.3d 806, 813 (7th Cir. 1999). An
employee has a duty under Ellerth to alert the employer to any allegedly hostile
environment and "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 hostile environment." Id. Given the nature of the allegations against
Miller, it was unreasonable not to promptly report his conduct.

       Williams and Conner also argue that they acted reasonably in not reporting
Miller because MDMH’s policy provides that an immediate investigation will be
initiated within five days and, therefore, even if they had reported Miller immediately,
MDMH "had five days to begin an investigation and then enough time to perform a
thorough investigation before they would have taken any action against Miller." This
argument does not square with the undisputed facts. Miller was put on administrative



                                          -8-
leave and a prompt investigation was begun within three days of MDMH learning of
Miller's conduct.

        Third, Williams and Conner argue that Miller created an actionable hostile
work environment after the first one or two incidents of harassment, and thus
Williams and Conner had an actionable claim from the beginning of the harassment.
In Todd v. Ortho Biotech, Inc., 175 F.3d 595, 598 (8th Cir. 1999), we suggested "that
a single severe act of sexual harassment can, without more, constitute a hostile work
environment that is actionable under Title VII." While the issue has not been squarely
addressed, "portions of the opinions in Ellerth and Faragher cast doubt on its
resolution." Id. We noted in Todd that the Faragher/Ellerth "affirmative defense was
adopted to avoid 'automatic' employer liability and to give credit to employers who
make reasonable efforts to prevent and remedy sexual harassment." Id. (citation
omitted).We also noted that "[the Faragher/Ellerth] defense, adopted in cases that
involved ongoing sexual harassment in a workplace, may not protect an employer
from automatic liability in cases of single, severe, unanticipatable sexual harassment
unless, for example, the harassment does not ripen into an actionable hostile work
environment claim until the employer learns that the harassment has occurred and
fails to take proper remedial action." Id.


       Most recently in McCurdy v. Arkansas State Police, 375 F.3d 762, 768 (8th
Cir. 2004), we discussed the applicability of the Faragher/Ellerth affirmative defense
in the context of a factual scenario involving a single incident of sexual harassment
by an employer. We held that "the Supreme Court, in crafting the Ellerth/Faragher
affirmative defense, did not change course in sexual harassment jurisprudence by
holding employers strictly liable for single incidents of supervisor sexual
harassment." Id. at 772. In so holding, we reasoned that "[t]o reach a conclusion that
the affirmative defense is unavailable in single incident cases in which the employee
takes advantage of preventative or corrective opportunities provided by the employer


                                         -9-
and the employer thereafter takes swift and effective action to avoid further offensive
conduct stands the underlying policy behind the affirmative defense on its head." Id.
We noted that "[d]enying such an employer an opportunity to avail itself of the
affirmative defense, when the employer has done all that an employer could
reasonably be expected to do to avoid and remedy the offending behavior, effectively
creates strict liability for employers in a single incident case-contrary to the Supreme
Court's holding in Meritor [Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)]." Id.
Moreover, "[t]o hold otherwise would make the promise of an affirmative defense in
single incident cases not involving a tangible employment action illusory-the
pragmatic result would be to hold . . . employers . . . strictly liable for all single
incidents of supervisor harassment, while allowing other employers an affirmative
defense for multiple and ongoing incidents of supervisor harassment." Id.

      This case does not involve a single, severe, unanticipated act of sexual
harassment. The sexual harassment in this case involved ongoing sexual harassment
of exactly the type Faragher and Ellerth address. The district court did not err in
applying the Faragher/Ellerth affirmative defense to the facts of this case.

       Finally, Williams and Conner argue that the district court erred in holding that
an employer escapes all liability when a harassed employee unreasonably delays
reporting the harassment. This is also a mischaracterization of the district court's
decision.5 The district court granted summary judgment in favor of MDMH because
the district court found that MDMH established both elements of the
Faragher/Ellerth affirmative defense. We agree and affirm the district court's grant
of summary judgment in favor of MDMH and Thornton.




      5
       See footnote 2.

                                         -10-
COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

        I concur in the judgment of the court and most of its opinion, but I would
address the appellants’ third argument a bit differently. The appellants argue that
because the first one or two incidents of sexual harassment in this case were severe
and unanticipated, they had an actionable claim from the beginning of the harassment,
and the affirmative defense to liability announced in Faragher v. City of Boca Raton,
524 U.S. 775, 807-08 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742,
765 (1998), should thus not be available to the employer. It seems to me that the
answer to the appellants’ contention is not merely that this case involved ongoing
harassment (as did Faragher and Ellerth) rather than a single act of harassment. Cf.
ante, at 10. The Court in Faragher and Ellerth did not address an argument that
either employer had created an actionable hostile work environment in the first one
or two incidents of harassment, such that the employees had no opportunity to prevent
the harm before it occurred. In announcing the affirmative defense under the
circumstances of the Ellerth case, the Court seemed to contemplate that it “could
encourage employees to report harassing conduct before it becomes severe or
pervasive,” 524 U.S. at 764 (emphasis added), that is, before it is actionable.
Similarly, in Faragher, the Court explained the affirmative defense by saying that
“[i]f the victim could have avoided harm, no liability should be found against the
employer who had taken reasonable care.” 524 U.S. at 807. The defense was
unavailable in Faragher because the employer had failed to exercise reasonable care
to prevent harassment. Id. at 808.

      The reason why I believe the appellants’ third argument fails is that it is
foreclosed by our decision in McCurdy v. Arkansas State Police, 375 F.3d 762 (8th
Cir. 2004). McCurdy considered a question not directly addressed in Ellerth and
Faragher, and held that an affirmative defense to liability is available even where a
severe act of sexual harassment by a supervisor creates an actionable hostile work
environment before the employee has an opportunity to make a complaint, as long as

                                        -11-
the employer “takes swift and effective action to insulate the complaining employee
from further harassment the moment the employer learns about the harassing
conduct.” Id. at 771. Like the plaintiff in McCurdy, the appellants here claim that
the employer may not rely on an affirmative defense to liability (as opposed to
damages) when a severe act of harassment creates an actionable work environment
prior to the time when the employee reasonably could be expected to report the
harassment. That argument fails in light of McCurdy.
                      ______________________________




                                       -12-
