                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0091n.06
                           Filed: February 8, 2005

                                           No. 03-2101

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


KIM COLLETTE,                                        )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )       ON APPEAL FROM THE
               v.                                    )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
STEIN-MART, INC.,                                    )       DISTRICT OF MICHIGAN
A Florida Corporation,                               )
                                                     )
       Defendant-Appellee.                           )
                                                     )


       BEFORE: SUTTON and COOK, Circuit Judges; ALDRICH, District Judge.*

       ALDRICH, District Judge. Ms. Collette worked at a clothing store owned by Stein Mart,

Inc. (“SM”). She went to a Christmas party held at the home of an assistant manager after work

hours on a Sunday night. On Monday, Collette reported to work. On Tuesday, however, she did

not report to work, and her lawyer notified SM that general manager John Davidson had sexually

harassed her at the party. SM immediately suspended Davidson and initiated an investigation, but

Collette did not return to work. The following Monday, SM terminated Davidson. SM advised

Collette of this and asked her to return, but she never did. She claims constructive discharge.

       Collette filed suit in district court, alleging that SM committed sex discrimination by

permitting a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., as amended, and Michigan’s Elliot-Larson Civil Rights Act, MCL § 37.2101

______________________

         * The Honorable Ann Aldrich, United States District Judge, Northern District of Ohio,
sitting by designation.
et seq. (“MELCRA”).1 The court granted summary judgment to SM, finding that the harassment

was not sufficiently severe or pervasive to create a hostile work environment. The court also held

that SM had an affirmative defense under the Supreme Court’s Ellerth and Faragher decisions

because (1) it exercised reasonable care to prevent harassment and promptly foreclosed any

possibility of further harassment, and (2) Collette unreasonably failed to take advantage of

corrective opportunities. For the reasons that follow, we affirm.



                                      I. BACKGROUND

       On July 30, 2001, SM hired Collette as an associate in its new Portage, Michigan store. The

store’s staff included GM John Davidson and assistant managers Debbie Schafer and Jessie Schmidt.

Collette admits that she worked comfortably with all three on a daily basis. See JA 171-77.

       On Sunday, December 2, 2001, Davidson, Schmidt and Schafer held a party at Schmidt’s

home. After the store closed around 6:00 p.m., Collette and departmental managers Jennifer

Overmyer and Amy Harbin bought beer and sat together in Collette’s car drinking and talking. Then

they drove to Schmidt’s home, arriving at about 7:00 p.m. Seven people were in attendance:

Davidson, Schmidt, Schafer, Collette, Overmyer, Harbin, and a Janel Raber. See JA 181-87.

       Collette alleges that when she arrived, Davidson was already intoxicated and soon began to

direct sexual comments at her and engage in unwelcome sexual behavior that humiliated her.

Between her arrival and around 8:30-9:00 p.m., Davidson (1) pulled Collette onto his lap and said


       1
               The court also granted SM summary judgment on Collette’s claim for intentional
               infliction of emotional distress. Collette does not appeal that part of the decision.
               Davidson is not involved in the appeal, as Collette stipulated to the voluntary
               dismissal without prejudice of her claims against him. At oral argument Collette’s
               counsel explained that she has sued Davidson in state court.

                                                -2-
“come sit on Daddy’s lap”; (2) sang her a song entitled “The Roof is on Fire” and told her he would

blow her through the roof with his large penis; and (3) told her he would “f— her until she squealed

like a pig,” which he illustrated by imitating pig noises. See JA 213, see also JA 187-91 (Collette

dep. at 38 to 42).

       The partiers then played a game, during which Collette sat on the floor. Davidson sat behind

her and pushed himself against her, asking if she could “feel that,” referring to his penis. Davidson

told Collette that he knew she was married but would like to “do her.” He bragged about his

prowess and said that sex with him would be “so good.” The game lasted about thirty minutes. See

JA 17-18; JA 193-97. The record does not disclose whether Collette and Davidson interacted

between the game’s conclusion at 9:00-9:30 and 10:30 p.m.

       At about 10:30 Collette spoke with Schmidt and told him that Davidson was “out of line,”

whereupon Schmidt told her to ignore Davidson and never discuss the incident again. See JA 196-

98. Collette went back to the living room and sat on the sofa next to Overmyer; Davidson joined

them and the three talked. Davidson put his arm around Collette and placed his hand on her thigh.

She got off the sofa, went to the kitchen, and told Schafer that someone had to talk to Davidson

because he was “out of line.” Schafer suggested Collette was partly at fault because she had

laughed at some of Davidson’s behavior. Dissatisfied, Collette left the party. See JA 199-201.

       The next day, Monday, December 3, Collette worked a 5 to 9 p.m. shift, while Davidson,

Schmidt and Schafer stood behind her whispering. See JA 202-204 and 208. Collette did not bring

Davidson’s conduct the night before to anyone else’s attention. On Tuesday, December 4, however,

Collette did not report for work, and her attorney advised SM counsel O’Toole that Davidson had

sexually harassed her at the party. It is undisputed that O’Toole (1) immediately began investigating


                                                -3-
by calling Davidson, Schmidt and Schafer, (2) suspended Davidson pending the outcome, and (3)

contacted SM District Director Monty Bibb and asked him to come to Portage to investigate. Bibb

arrived on Friday, December 6 and took written statements from everyone who had been at the party.

       On three occasions SM contacted Collette’s counsel and unconditionally asked her to return

to work: by phone on December 7, while Davidson was suspended; by letter on January 16, 2002,

over a month after SM terminated Davidson; and by letter in August 2002. Both letters advised

Collette that Davidson no longer worked for SM, but she refused to return to work. See JA 209-11.

       In March 2002 Collette filed a charge with the EEOC, which issued a right to sue letter.

Collette brought suit in the U.S. District Court for the Western District of Michigan, alleging that

SM violated Title VII’s prohibition on sex discrimination by intentionally “creating an objectively

hostile and intimidating work environment of the severity which” injured her. She further alleged

that SM ratified Davidson’s conduct, thereby creating “an objectively intimidating and hostile and

offense [sic] work environment” in violation of MELCRA. See id. ¶¶ 14-22 (JA 19-21). In August

2003 the district court granted summary judgment to SM, and Collette timely appealed.



                                 II. STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. See Bridgeport Music, Inc.

v. Diamond Time, Ltd., 371 F.3d 883, 889 (6th Cir. 2004) (citation omitted). The district court’s

findings of fact are reviewed only for clear error. See Howard v. City of Beavercreek, 276 F.3d 802,

805 (6th Cir. 2002) (citation omitted). Where there are no disputed material facts, however, we

simply determine de novo whether the district court properly applied the governing legal principles.

See Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2004) (citation omitted).




                                                -4-
                            III. COLLETTE’S TITLE VII CLAIM

A.     Legal Standard: Summary Judgment

       The purpose of a motion for summary judgment is to determine if genuine issues of material

fact exist to be tried. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). As the party seeking

summary judgment, SM bore the burden of showing that the pleadings, depositions, interrogatory

answers, admissions and affidavits established the absence of genuine issues of material fact. See

id. at 323. SM had to discharge that burden by showing that there was an absence of evidence to

support Collette’s case. See id.

       Summary judgment was appropriate if Collette failed to establish the existence of an element

essential to her case, and on which she would have borne the burden of proof at trial. See Whitley

v. Spencer Cty. Police Det., 178 F.3d 1298, 1999 WL 196499, at *2 (6th Cir. Mar. 26, 1999) (citing

Celotex, 477 U.S. at 322). Collette was not entitled to rest on her pleadings, but had to come

forward with evidence that would allow a rational factfinder to find in her favor. See Bridgeport

Music, 371 F.3d at 889 (citation omitted). Because Collette was opposing summary judgment, her

factual allegations were to be believed and all justifiable inferences drawn in her favor. See DiCarlo

v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (citation omitted). But the ultimate burden of

demonstrating the existence of a genuine issue of material fact always remained on Collette. See

id.

B.     Employer Liability for Supervisor Sexual Harassment under Title VII

       1.      Sexual Harassment Giving Rise to Hostile Work Environment

       Title VII provides, in pertinent part: “It shall be an unlawful employment practice for an

employer ... to discharge any individual, or otherwise to discriminate against any individual with


                                                 -5-
respect to his compensation, terms, conditions, or privileges of employment, because of such

individual's ... sex ....” 42 U.S.C. § 2000e-2(a)(1). Collette alleged that SM allowed the harassment

to create a hostile work environment which resulted in her constructive discharge.

       To hold SM liable, Collette had to show that she was subjected to unwelcome harassment

based on her sex, the harassment created a hostile work environment, and SM failed to take

reasonable action to prevent and correct the harassment. See Schramm v. Slater, 2004 WL 1595195,

at *4, __ Fed. Appx. __ (6th Cir. July 14, 2004) (citing Williams v. GMC, 187 F.3d 553, 560-61 (6th

Cir. 1999)). To establish a hostile environment she had to show that the harassment was

“sufficiently severe or pervasive to alter the conditions of [her] employment.” Meritor Savings Bank

FSB v. Vinson, 477 U.S. 57, 67 (1986) (internal citations omitted).

       2.      Constructive Discharge in the Wake of Sexual Harassment

        Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) is our seminal decision on constructive

discharge. There we held that “[p]roof of discrimination alone is not a sufficient predicate for a

finding of constructive discharge; there must be other ‘aggravating factors.’January 25, 2005” Id.

at 637. “The plaintiff must show more than a Title VII violation to prove constructive discharge,

so the fact that plaintiff may have proven a hostile work environment is not enough by itself to prove

constructive discharge also.” Moore v. KUKA Welding Systems & Robot Corp., 171 F.3d 1073,

1080 (6th Cir. 1999). This heightened constructive discharge standard requires an objective

assessment of the employee’s feelings, and an inquiry into the employer’s intent and the

foreseeability of the impact its conduct had on the employee. See Peters v. Lincoln Elec. Co., 285

F.3d 456, 478 (6th Cir. 2002).




                                                 -6-
       The objective inquiry focuses on whether “working conditions would have been so difficult

or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”

Smith v. Henderson, 376 F.3d 529, 533-34 (6th Cir. 2004) (citations omitted); see also Pa. State

Police v. Suders, __ U.S. __, 124 S.Ct. 2342, 2347 (2004) (plaintiff must show that “the abusive

working environment became so intolerable that her resignation qualified as a fitting response.”).

       The “employer” inquiry focuses on whether the employer intended the work environment

to cause the employee to resign. See Yates, 819 F.2d at 637; accord MacGregor v. Mallinckrodt,

Inc., 373 F.3d 923, 928 (8th Cir. 2004) (“constructive discharge occurs when an employee resigns

after the employer has created an intolerable working environment in a deliberate attempt to compel

such a resignation”) (emphasis added) (citation omitted). In ascertaining the employer’s intent, the

court may consider whether it was reasonably foreseeable that the harassment and the employer’s

handling of it would cause the employee to resign. See Moore, 171 F.3d at 1080. Under this test,

“the feelings of a reasonable employee would not be enough to show discharge without at least some

foreseeability on the part of the employer.” Starks v. New Par, 181 F.3d 103, 1999 WL 357757, at

*5 (6th Cir. May 11, 1999) (quoting Yates, 819 F.2d at 637).

        3.     Employer’s Liability for Supervisor’s Sexual Harassment of Employee

       The Supreme Court distinguishes between supervisor harassment unaccompanied by an

adverse official act and supervisor harassment accompanied by “a tangible employment action.”

An employer is strictly liable for supervisor harassment that “culminates in a tangible employment

action, such as discharge, demotion, or undesirable reassignment.” Burlington Industries v. Ellerth,

524 U.S. 742, 765 (1998); accord Faragher v. Boca Raton, 524 U.S. 775, 808 (1998). But when

the employer takes no tangible adverse action, it may raise a defense comprised of two elements:


                                                -7-
“(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.”

Suders, __ U.S. at __, 124 S.Ct. at 234 (quoting Ellerth, 524 U.S. at 765). This is known as the

Ellerth/Faragher defense.

C.     Discussion 2

       We need not consider the district court’s holding that Collette failed to make a prima facie

case of hostile work environment sex discrimination and constructive discharge, because even if she

had, SM had a meritorious Ellerth-Faragher defense. “[W]hen no tangible employment action is

taken, the employer may defeat vicarious liability for supervisor harassment by establishing, as an

affirmative defense, both that ‘the employer exercised reasonable care to prevent and correct

promptly any sexually harassing behavior,’ and that ‘the plaintiff employee unreasonably failed to

take advantage of any preventive or corrective opportunities provided by the employer or to avoid

harm otherwise.’” Suders, 124 S.Ct. at 2253-54 (citations omitted).

       Collette alleges constructive discharge, but the Supreme Court recently held that “an

employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s

official act precipitates the constructive discharge; absent such a ‘tangible employment action,’

however, the defense is available to the employer whose supervisors are charged with harassment.”



       2
               Harassment is actionable under Title VII “only if it is so severe and pervasive as to
               alter the conditions of [the victim’s] employment and create an abusive working
               environment.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (citations
               and internal quotations omitted). The district court did not address whether the
               harassment was sufficiently “severe or pervasive.” We need not address that issue
               either, because other factors suffice to sustain the grant of summary judgment to SM.

                                                -8-
Suders, 124 S.Ct. at 2351; see also id. at 2355 n.9 (“Tellingly, we stated that Ellerth ‘ha[d] not

alleged she suffered a tangible employment action,’ despite the fact that her complaint alleged

constructive discharge.”) (quoting Ellerth, 524 U.S. at 766). Thus constructive discharge cannot

serve as an adverse employment action for this purpose, since SM took no action that could be

construed as such against Collette. Therefore SM may assert the Ellerth-Faragher defense.



       1.      SM Could Not Have Known About the Harassment Until at Least Dec. 3

       It is undisputed that the only harassment took place on the night of Sunday, December 2.

Collette did not report it to SM’s counsel or upper management until Tuesday, December 4, but she

complained to assistant managers Schmidt and Schafer on the night of the 2nd. They could have

informed SM’s counsel or upper management of Collette’s complaint when they went to work on

Monday the 3rd. If they did not do so, SM would have first learned of Collette’s complaint when her

counsel contacted SM’s on Tuesday the 4th. Cf. Courtney v. Landair Transport, 227 F.3d 559, 565

(6th Cir. 2000) (“It was not until December 4, 1996, when defendant received the lawyer’s letter

asking defendant to stop the harassment, that defendant had notice of the harassment.”).

       Moreover, Collette testified that she worked comfortably with Davidson and everyone else

without incident in the months before the party, so SM had no reason even to suspect that Davidson

or anyone else might harass her. Cf. Stone-Graves v. Coop. Elevator Co., 2003 WL 1867921, at *6

(E.D. Mich. Mar. 12, 2003) (plaintiff had praised alleged harasser’s “exceptional management” and

“affirmatively indicated that she had no complaints with any other employees or customers,” so a

jury could not find that the employer had notice of the alleged harassing behavior).




                                                -9-
       Thus SM could not have known about Collette’s allegation until at least Monday, December

3. Compare Stevens v. USPS, 21 Fed. Appx. 261, 264, 2001 WL 1298955, at *2 (6th Cir. Aug. 7,

2001) (employer had no reason to know of alleged harassment before employee reported it) with

Minnich v. Cooper Farms, 39 Fed. Appx. 289, 2002 WL 1396910 (6th Cir. June 26, 2002) (genuine

issued existed as to whether employer knew or should have known about harassment, as plaintiffs

had complained numerous times over course of months).

       2.      SM Took Sufficient Steps to Prevent Sexual Harassment Generally

       The next element of the Ellerth/Faragher defense requires SM to show that it “exercised

reasonable care to prevent” this type of harassment.3 SM satisfies this element.

       Preliminarily, there was no evidence that SM generally tolerated sexual harassment or did

not take it seriously. Contrast Dysert v. Whirlpool Corp., 167 F. Supp. 2d 967, 973 (N.D. Ohio

2001) (coworker confirmed plaintiff’s allegation that department where alleged harassment occurred

had “a sign reading ‘sexual harassment will not be tolerated, but will be graded’”). On the contrary,

it is uncontested that SM had policies explicitly prohibiting workplace sexual harassment and that


       3
               We had held that “mere negligence as to the content of the response cannot be
               enough to make the employer liable. When an employer responds with good faith
               remedial action, * * * it can be liable for sex discrimination in violation of Title VII
               only if that remedy exhibits such indifference as to indicate an attitude of
               permissiveness that amounts to discrimination.” Weigold v. ABC Appliance Co.,
               2004 WL 1543165, at *7-8 (6th Cir. July 7, 2004) (quoting Blankenship v. Parke
               Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997), cert. denied, 522 U.S. 1110 (1998)).

       Ellerth and Faragher, however, speak of the employer’s duty to exercise “reasonable care”
       in fashioning a remedy for unlawful discrimination. Thus an employer may be held liable
       when its remedial response is merely negligent, however well-intentioned. See Madeja v.
       MPB Corp., 821 A.2d 1034, 1042-43 (N.H. 2003) (Ellerth and Farragher effectively
       overruled Blankenship); cf. Petty v. DHL Airways, 176 F. Supp. 2d 773, 778 (S.D. Ohio
       2003) (employer’s reliance on Blankenship was misplaced); Farra v. GMC, 163 F. Supp. 2d
       894, 906 n.8 (S.D. Ohio 2001) (discussing compatibility of Blankenship with Ellerth).

                                                -10-
it distributed materials informing the employees of these policies. SM’s “Standard Operating

Procedures” memorandum on Sexual Harassment stated, in part:

       Policy
       Stein Mart is committed to providing a work environment for all associates that is free from
       all forms of discrimination, including harassment. Harassment of an associate because of
       the associate’s ... sex ... is a form of discrimination and will not be tolerated. Any associate
       who engages in such conduct will be made to bear the full responsibility of [sic] such
       unlawful conduct and will be subject to appropriate discipline up to and including
       termination of employment.
               Prohibited Conduct
                                                   ***
       While it is impossible to provide an exhaustive list of the types of behavior that could
       constitute harassment or sexual harassment, the following list contains examples of behavior
       that will not be tolerated:

       •       Unwanted sexual advances, flirtation, or propositions;
       •       Verbal abuse of a sexual nature, including offensive noises and gestures;
       •       Explicit or degrading comments or jokes about another individual or his or her
               appearance, race, age, etc.
       •       The display of sexually suggestive pictures or objects;
       •       Any offensive or abusive physical contact;....

                                                ***
       Reporting Harassment
       Any associate who believes that he or she has been the victim of harassment or sexual
       harassment, or who has witnessed such behavior, or who has any knowledge of such
       behavior should promptly report it to his or her immediate supervisor. If the associate’s
       immediate supervisor is involved in the conduct, or if for any other reason the associate is
       not comfortable reporting it to the immediate supervisor, the associate should report the
       behavior to the Store Manager, Regional Vice President, Director of Associate Relations,
       or the Vice President of Human Resources.

       Associates can use the following toll-free telephone number to contact any member of
       management at Stein Mart’s corporate headquarters, including Kevin O’Toole, Director of
       Associate Relations, and Hunt Hawkins, Vice President of Human Resources: * * *

       Associates may also mail information to corporate headquarters at: * * *

JA 132, 133. The policy promised thorough and appropriate remedial action. See JA 134. On the

day Collette was hired, she signed a form acknowledging that she had received, read and understood


                                                -11-
the policy. She also testified that assistant manager Schmidt went over the policy with her during

her orientation. See JA 135 (signature page) and JA 178-80 (Collette dep. at 21:17 to 23:12).

       The Supreme Court has stated, “While proof that an employer had promulgated an anti-

harassment policy with complaint procedure is not necessary in every instance as a matter of law,

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.” Faragher, 524 U.S. at 807.

We have elaborated that giving employees written notice of such policies and how they are enforced

constitutes an adequate general preventive measure.          See Leugers v. Pinkerton Security &

Investigative Servs., 205 F.3d 1340, 2000 WL 191685, at *3 (6th Cir. Feb. 3, 2000); accord Roelen

v. Akron Beacon Journal, 199 F. Supp. 2d 685, 693-94 (N.D. Ohio 2002).

       Our decision in Leugers was unpublished and therefore not binding precedent. It bears

noting, then, that other Circuits also treat the existence of an anti-harassment policy (with complaint

procedures) as strong evidence that the employer took sufficient general measures to prevent

harassment. See An v. Regents of Univ. of Calif., 2004 WL 188192, at *5, 94 Fed. Appx. 667, 674

(10th Cir. Feb. 2, 2004) (“the sexual harassment policy and its dissemination generally evidence

appropriate efforts to prevent sexual harassment”); Caridad v. Metro-North Commuter R.R., 191

F.3d 283, 295 (2d Cir. 1999) (“not necessarily dispositive” but “an important consideration”), cert.

denied sub nom. Metro-North Commuter R.R. v. Norris, 529 U.S. 1107 (2000); Gawley v. Indiana

Univ., 276 F.3d 301, 312 (7th Cir. 2001) (“In the face of this evidence that the university had a

procedure in place to handle harassment, Gawley has no evidence that the university failed to

exercise reasonable care in preventing ... the harassing behavior”).




                                                 -12-
        The employer cannot merely have an anti-harassment policy; it must also disseminate or

publicize it. See Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (4th Cir. 2001). It

is undisputed that by the time of the party, Davidson had received and understood SM’s anti-

harassment policy. See JA 97-99, 105. SM still had to show, of course, that it took adequate

corrective measures after learning of Collette’s particular complaint, i.e. that it enforced its policy.

        3.      SM Acted Promptly and Decisively to Stop the Specific Sexual Harassment

        As noted above, SM initiated an investigation, including interviews of everyone else who

attended the party, as soon as Collette relayed her complaint to SM’s counsel. “The most significant

immediate measure an employer can take in response to a sexual harassment complaint is to launch

a prompt investigation to determine whether the complaint is justified.” Swenson v. Potter, 271 F.3d

1184, 1193 (9th Cir. 2001). By doing so, “the employer puts all employees on notice that it takes

such allegations seriously and will not tolerate harassment in the workplace.” Id.

        SM also immediately suspended Davidson pending investigation, then terminated him six

days later. There were only two days when Collette could have been forced to work in the same

store with Davidson: Monday, December 3, when her counsel had not yet reported the harassment

to SM, and Tuesday, December 4, when SM learned of the allegation and suspended Davidson.

        SM’s corrective measures epitomized how a responsible employer should act when

confronted with an allegation of employment discrimination. By comparison, in one case the

plaintiff complained that management did not immediately assign work schedules that kept her apart

from her harasser, requiring her to work with him for three days. “Under the circumstances,” we

held, “a three-day delay does not constitute an unreasonable failure to take prompt corrective

action.” Stevens v. USPS, 21 Fed. Appx. 261, 264, 2001 WL 1298955, at *2 (6th Cir. Aug. 7, 2001);


                                                 -13-
see also Harris v. Lincoln Electric, 54 F. Supp. 2d 719, 724 (N.D. Ohio 1998) (employer did not

exhibit indifference by letting week and a half go by between victim’s request to be moved and

decision to move her away from harasser), aff’d o.b., 181 F.3d 101, 1999 WL 357770 (6th Cir. May

14, 1999).4

       4.      Collette Unreasonably Failed to Avail Herself of Corrective Measures

       The last element of the Ellerth/Faragher defense requires the employer to show that the

plaintiff failed to take advantage of opportunities to prevent or correct the harassment. SM satisfies

this element. Collette knew she could call a toll-free number to elevate her complaint directly to

headquarters, but she never did so. See JA 211-12. Most significantly, knowing that SM had

terminated Davidson, Collette failed to avail herself of the ultimate corrective opportunity: returning

to work with the harasser permanently out of the picture.

       As we stated in a similar case, “after her complaint to ... management resulted in the firing

of one supervisor and the disciplining of another, Plaintiff knew that the company would take any

other complaint seriously. ... [N]o reasonable person in Plaintiff’s situation would have felt forced

to quit when she did.” Montero v. Agco Corp., 192 F.3d 856, 861 (9th Cir. 1999). Cf. Stacy v.

Shoney’s, 955 F. Supp. 751, 756 (E.D. Ky. 1997) (“Because Stacy never returned to work ..., she

cannot show that Shoney’s action was ineffective.”), aff’d, 142 F.3d 436, 1998 WL 165139 (6th Cir.

Mar. 31, 1998); contrast Stewart v. Cartessa Corp., 771 F. Supp. 876, 881 (S.D. Ohio 1990) (“Based


       4
               See also, holding that employer did enough to avoid liability, Fenton v. HiSan, Inc.,
               174 F.3d 827, 830-31 (6th Cir. 1999) (immediately relayed complaint to HR, met with
               alleged harasser five days later, and moved his workstation, and further action was
               rendered unnecessary by accuser’s resignation); Wathen v. GE, 115 F.3d 400, 406-
               407 (6th Cir. 1997) (terminated one harasser, disciplined another, and publicly
               apologized to victim); Flenor v. Hewitt Soap Co., 81 F.3d 48 (6th Cir.) (reprimanded
               harasser, and harassment stopped thereafter), cert. denied, 519 U.S. 863 (1996).

                                                 -14-
upon a history of nonresponsiveness to her complaints about [harasser]’s conduct, plaintiff declined

to return to work after her meeting with the president,....”) (emphasis added).



                            IV. COLLETTE’S MELCRA CLAIM

A.     Legal Standard

       When interpreting state law, we look first and foremost to decisions of the state’s own courts.

See Bernstein v. Lopez, 321 F.3d 903, 909 (9th Cir. 2003) (Pregerson, J. dissenting). If state court

precedent is definitive, we must follow it. See Foster v. Caterpillar Tractor Co., 714 F.2d 654, 657

n.3 (6th Cir. 1983) (citation omitted). Under MELCRA, “an employer may not discriminate on the

basis of sex, and this also prohibits sexual harassment.” James v. TCF Nat’l Bank, 2003 WL

22161828, at *1 (Mich. App. Sept. 18, 2003) (citing Chambers v. Trettco, Inc., 614 N.W.2d 910

(Mich. 2000)). “Sexual harassment includes unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct or communication of a sexual nature if: (1) submission to the

conduct of communication is made a term or condition, either explicitly or implicitly, to obtain

employment; (2) submission to or rejection of the conduct or communication is used as a factor in

determining the individual’s employment; or (3) the conduct or communication has the purpose or

effect of substantially interfering with an individual’s employment by creating a hostile

environment.” James, 2003 WL 22161828 at *1 (citing Mich. C.L. 37.2103(i) and Chambers, 614

N.W.2d 910).

       To establish a sexual harassment claim based on a hostile work environment under

MELCRA, Collette had to show that she belonged to a protected group, that she was subjected to

unwelcome sexual conduct or communication on the basis of her sex which was intended to or did


                                                -15-
substantially interfere with her employment or created an intimidating, hostile, or offensive work

environment. See James, 2003 WL 22161828 at *1 (citing Chambers, 614 N.W. 2d 910).

       The court considers whether, under all the circumstances, a reasonable person would

perceive the conduct at issue as substantially interfering with his employment or as having the

purpose or effect of creating a hostile, intimidating, or offensive employment environment. See

James, 2003 WL 22161828 at *2 (citing Burns v. City of Detroit, 660 N.W.2d 85 (Mich. 2002),

modified in part o.g. and app. denied in part, 658 N.W.2d 468 (Mich. 2003)). See, e.g., Shepard

v. Uniboring, 72 Fed. Appx. 333, 335-36, 2003 WL 21782604, at *1-2 (6th Cir. July 31, 2003)

(supervisor’s offensive and annoying comments and behavior, without physical touching or

threatening, did not create hostile work environment under MELCRA), cert. denied, __ U.S. __, 124

S.Ct. 1435 (2004).

       Unlike federal case law interpreting Title VII, a hostile work environment claim under

MELCRA requires the employee to show that the harassment was “sufficiently severe and persistent

to affect seriously [her] psychological well being.” Langlois v. McDonald’s Restaurants of Mich.,

385 N.W.2d 778, 782 (Mich. App. 1986).

       Once an employee satisfies the elements of a hostile work environment sex discrimination

claim, he can hold the employer liable under MELCRA for his supervisor’s harassing behavior only

if he shows that “the employer failed to take prompt and adequate remedial action after having been

put on notice of the sexual harassment.” Schemansky v. California Pizza Kitchen, 122 F. Supp. 2d

761, 772 (E.D. Mich. 2000) (citing Radtke v. Everett, 501 N.W.2d 155 (Mich. 1993)).

       Moreover, under Michigan case law, a single incident is generally insufficient to constitute

a hostile work environment unless it was “severe and perpetrated by an employer in a closely-knit


                                               -16-
working environment.” James, 2003 WL 22161828 at *2 (citing Radtke v. Everett, 501 N.W.2d 155

(1993) (employer physically restrained employee for more than one minute while he tried to kiss

her)). See, e.g., Langlois, 385 N.W.2d 778 (hostile work environment not created by one incident

where supervisor requested “some fun” and touched employee on breast and buttocks).

B.     Discussion

       For the reasons discussed in the Title VII analysis, Collette’s MELCRA claim fails because

she did not raise a genuine issue as to whether the unwelcome conduct or communication

substantially interfered with her employment or created an intimidating, hostile or offensive work

environment. Similarly, Collette did not raise a genuine issue as to whether she was constructively

discharged. See, e.g., Hartleip v. McNeilab, Inc., 83 F.3d 767, 775-76 (6th Cir. 1996) (applying

Michigan law); Selph v. Gottlieb’s Financial Servs., 35 F. Supp. 2d 564, 568 (W.D. Mich. 1999)

(under Michigan law, female employee’s testimony that male coworker ceased alleged harassment

one day after she reported it precluded finding that she was constructively discharged).

       Lastly, even if Collette showed a genuine issue as to each element of her MELCRA claim,

as a matter of law SM took prompt, decisive action to ensure that Davidson could never harass her

again. Under Michigan law, the critical test of whether the employer’s corrective action was

adequate is whether it stopped the harassment. See Houghtaling v. Bay Med. Ctr., 1997 WL

33353513, at *1 (Mich. App. Mar. 14, 1997) (“Defendant’s actions were effective in that the doctor

was thwarted from future misconduct, as evidenced by the fact that he did not harass plaintiff again

after the initial incident.”), app. denied, 577 N.W.2d 685 (Mich. 1998).




                                               -17-
                                       V. CONCLUSION

       “It is a fair question to ask who should bear the responsibility for a single incident of

supervisor sexual harassment, an innocent employee like [Collette] or an employer like [Stein Mart]

who effectively stops the harassment after it learns about it. One could argue [that Stein Mart]

should bear the risk of supervisor sexual harassment, as opposed to the innocent [Collette].

However, the Court has rejected this theory of vicarious liability. * * * The underlying theme under

Title VII is employers should nip harassment in the bud. That is exactly what happened here.”

McCurdy v. Arkansas State Police, 375 F.3d 762, 772 (8th Cir. 2004). Therefore we affirm the grant

of summary judgment to Stein Mart.




                                               -18-
       COOK, Circuit Judge, concurring. I agree with the majority that Stein Mart established

entitlement to the Ellerth-Faragher affirmative defense to Title VII liability and, similarly, that its

prompt remedial response foreclosed Collette’s sexual harassment claims under Michigan law.

Accordingly, I concur in the decision to affirm the district court’s grant of summary judgment to

Stein Mart.




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