                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    April 5, 2011
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    PATRICIA CALLOWAY,

                Plaintiff-Appellant,
                                                         No. 10-4133
    v.                                         (D.C. No. 1:08-CV-00162-DAK)
                                                          (D. Utah)
    AEROJET GENERAL
    CORPORATION,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



         Patricia Calloway appeals the district court’s grant of summary judgment in

favor of her former employer, Aerojet General Corporation, in her Title VII

action alleging sexual harassment. We affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      Because “[s]ummary judgment was granted for the employer, . . . we must

take the facts alleged by the employee to be true.” Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 747 (1998). In late 2003, shortly after Ms. Calloway began

working as a receptionist at Aerojet’s small facility in Utah, she began a

consensual sexual affair with David Dibell, the highest-ranking Aerojet employee

in Utah. During their extramarital relationship, which lasted approximately two

years, Ms. Calloway was promoted to a position as Mr. Dibell’s secretary.

      Ms. Calloway did not complain about the situation, but other people did.

In August 2004 an employee telephoned Aerojet’s human-resource department at

its corporate headquarters in Gainesville, Virginia, to report that the couple’s

workplace behavior was attracting unfavorable notice, particularly from an

employee of Aerojet’s prime contractor. And another individual called the

contractor’s compliance hotline to complain that Ms. Calloway received

preferential treatment due to her relationship with Mr. Dibell.

      In response to these reports, Aerojet began an investigation and

scheduled a special training session on sexual harassment in the Utah office. A

human-resources representative traveled to Utah and taught the sexual-harassment

session, which Ms. Calloway attended. The representative also met with several

employees, who related their perception that Mr. Dibell and Ms. Calloway were

engaged in a consensual sexual relationship. As a result, the employees believed,

                                         -2-
Mr. Dibell displayed favoritism toward Ms. Calloway. When Mr. Dibell was

questioned, however, he denied any personal relationship with Ms. Calloway.

      The next week, the director of human resources and division counsel came

to Utah to conduct further interviews. Mr. Dibell again denied any relationship

with Ms. Calloway beyond that of supervisor and friend. Ms. Calloway, too,

denied any improper conduct on the part of Mr. Dibell. At the end of the

interview with Ms. Calloway, the company officials reviewed Aerojet’s

anti-sexual harassment policies and reporting procedures. They gave her their

business cards, asking her to call if she were subjected to any harassing behavior.

      Mr. Dibell’s and Ms. Calloway’s repeated disclaimers meant an

inconclusive end to the investigation. Mr. Dibell, however, was reprimanded for

creating the perception of an improper relationship with Ms. Calloway and

warned against any further unprofessional conduct. Mr. Dibell told Ms. Calloway

about the letter and stated that they should not be seen together.

      But the affair continued for at least another year. In the summer or fall of

2005, Ms. Calloway informed Mr. Dibell that she would not be intimate with him

until he started proceedings to divorce his wife. Mr. Dibell did not comply with

her demand. Notwithstanding her ultimatum, they engaged in perhaps five more

consensual sexual encounters before Ms. Calloway took disability leave for

mental-health problems in mid-2007. She alleges that Mr. Dibell sexually

harassed her during this on-again-off-again period, in that he pressured her to

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renew their affair and became critical and caustic when she resisted his advances.

Within this same time-frame, she received pay increases and a promotion.

      Ms. Calloway confided her relationship problems with Mr. Dibell to her

friend Kathy Ova, an Aerojet contract specialist, who may have been referred to

as a manager in some contexts. 1 Ms. Calloway was seeking personal advice, and

did not believe it was Ms. Ova’s “responsibility to report [the] harassment.”

Aplt. App., Vol. 1 at 68. For her part, Ms. Ova felt that “Ms. Calloway was just

generally complaining that she did not like to get up in the morning and come to

work.” Id., Vol. II at 298. Ms. Ova did not consider herself an Aerojet manager

and, in any event, did not relay the conversations to a human-resource

representative.




1
       Ms. Calloway has provided unauthenticated evidence of a business card and
reports to an outside organization referring to Ms. Ova as a subcontracts manager.
On company records, Ms. Ova is listed as a “Senior Subcontract Administrator”
or “Procurement Subcontracts Specialist.” She supervised no employees and had
no human-resources responsibilities. The district court determined that, as a
matter of law, Ms. Ova was not a manager for purposes of Aerojet’s
sexual-harassment policy. See Parkins v. Civil Constructors of Ill., Inc., 163 F.3d
1027, 1033 (7th Cir. 1998) (distinguishing between employees “who are
supervisors merely as a function of nomenclature from those who are entrusted
with actual supervisory powers” in determining Title VII liability). Because we
rely on other grounds to decide that Ms. Calloway’s conversations with Ms. Ova
had no effect on Aerojet’s entitlement to the Ellerth/Faragher affirmative
defense, we do not analyze this aspect of the district court’s ruling. We may
affirm the district court’s grant of summary judgment on any ground supported by
the record. See Bolden v. PRC Inc., 43 F.3d 545, 548 (10th Cir. 1994).

                                        -4-
      Ms. Calloway herself never reported harassment through Aerojet’s

complaint process or by direct contact with the officials who had interviewed her.

In fact, Aerojet officials were not notified of the harassment allegations until

Ms. Calloway was on short-term disability leave and her husband telephoned their

corporate office to complain that Mr. Dibell had sexually harassed his wife.

      Aerojet promptly launched another investigation, which led to Mr. Dibell’s

retirement in lieu of termination. Ms. Calloway did not return to the workforce.

Her short-term disability was converted to long-term leave, then she began

receiving Social Security insurance disability benefits.

      Ms. Calloway sued Aerojet, alleging that she had been sexually harassed by

Mr. Dibell. Aerojet moved for summary judgment based on the Ellerth/Faragher

affirmative defense, which may be available to employers in instances in which

the employee allegedly “refuses the unwelcome and threatening sexual advances

of a supervisor, yet suffers no adverse, tangible job consequences.” Ellerth,

524 U.S. at 747; see also Faragher v. City of Boca Raton, 524 U.S. 775, 807

(1998). The district court concluded that Aerojet had established its entitlement

to the defense and therefore entered summary judgment on Ms. Calloway’s

claims. Ms. Calloway now appeals.

                                          II.

      We review the district court’s grant of summary judgment de novo.

Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011).

                                         -5-
Summary judgment is appropriate if “there is no genuine dispute as to any

material fact” and “the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). Although courts may not make credibility determinations

or weigh evidence at the summary judgment stage, “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party,

there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (quotations omitted).

      The purpose of the Ellerth/Faragher defense is “to recognize the

employer’s affirmative obligation to prevent violations and give credit . . . to

employers who make reasonable efforts to discharge their duty.” Faragher,

524 U.S. at 806. It also acknowledges that the employee has “a coordinate duty

to avoid or mitigate harm” by “avail[ing] herself of the employer’s preventive or

remedial apparatus.” Id. at 806-07. Under Ellerth/Faragher, the employer must

prove by a preponderance of the evidence both that “(1) it exercised reasonable

care to prevent and correct promptly any sexually harassing behavior, and (2) the

plaintiff unreasonably failed to take advantage of any preventive or corrective

opportunities provided by the employer or to avoid harm otherwise.” Pinkerton v.

Colo. Dep’t of Transp., 563 F.3d 1052, 1058-59 (10th Cir. 2009) (citing Ellerth,

524 U.S. at 765; Faragher, 524 U.S. at 807) (quotations omitted).

      Ms. Calloway does not contest Aerojet’s reasonable care to prevent sexual

harassment. It “had in place an adequate sexual harassment policy” that

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“prohibits sexual harassment, identifies the complaint procedure, and informs

employees that disciplinary action might be taken against those who violate the

policy.” Pinkerton, 563 F.3d at 1062. Aerojet’s policy committed “to promptly

and thoroughly investigate all reports of” harassing conduct. Aplt. App., Vol. 2

at 258. An employee was to “immediately notify . . . [a] Human Resources

Representative, your designated facility ethics officer, or a Company attorney” or

use the “Compliance Hotline.” Id. “These are the individuals who are authorized

to receive and act upon complaints of harassment or discrimination.” Id.

      “However, the existence of a sexual harassment policy and training

alone does not satisfy the employer’s burden under the first prong of the

Ellerth/Faragher defense because the employer not only must take reasonable

care to prevent sexually harassing behavior but also to correct promptly any such

behavior.” Pinkerton, 563 F.3d at 1062. Ms. Calloway claims a disputed issue of

fact about the promptness of Aerojet’s actions by calling attention to a policy

provision that requires “[a]ny manager or supervisor” who becomes aware of

possible sexual harassment “to report immediately to . . . [a] Human Resources

Representative.” Aplt. App., Vol. 2 at 258. Under this provision, she argues, once

“any Aerojet manager or supervisor” learns of problematic conduct, the company

is immediately on notice of harassment. And the timing of its first notice “is of

paramount importance [in applying the Ellerth/Faragher defense because] if [it]

had notice of the harassment . . . then it is liable unless it took prompt corrective

                                          -7-
action.” Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1299 (11th Cir.

2000) (quotation omitted).

      Ms. Calloway asserts that, by submitting evidence showing references to

Ms. Ova as a manager, she has raised a disputed issue of fact on the promptness

of Aerojet’s actions. In her view, her confidences to Ms. Ova put Aerojet on

notice of sexual harassment and obligated it to launch an immediate inquiry into

her change of heart about Mr. Dibell. And Aerojet did not investigate the

situation until it received the telephone call from her husband.

      The First Circuit has considered analogous circumstances and decided the

question of “whether the company’s voluntary adoption of a policy requiring all

supervisors . . . to report sexual harassment increases the scope of the company’s

legal liability as a matter of law under Title VII.” Chaloult v. Interstate Brands

Corp., 540 F.3d 64, 76 (1st Cir. 2008). Its emphatic answer: “[w]e think not.”

Id. In reaching this conclusion, the court recognized the existence of a contrary

case, which held that a corporation’s policy requiring “all supervisors and

managers to report incidents of sexual harassment” meant that a supervisor’s

awareness constituted notice to the employer. Clark v. United Parcel Serv., Inc.,

400 F.3d 341, 350 (6th Cir. 2005) (alteration and quotation omitted). The First

Circuit, however, determined that “[a]doption of [the Clark] view would set a

legal standard different from the Supreme Court’s reasonableness approach” in

Ellerth/Faragher and “also discourage and penalize voluntary efforts which go

                                         -8-
beyond what the law requires.” Chaloult, 540 F.3d at 76. It would lead to

“undercut[ting] the policy judgment the Supreme Court made” in

Ellerth/Faragher. Id.

      “Given the combination of factors from the events in this case,” id. at 75,

we determine that Chaloult provides the better approach to our analysis of

Ms. Calloway’s argument. The relevant question is not whether Ms. Ova was a

manager but whether Aerojet acted reasonably in correcting any harassing

behavior. Thus, a dispute over Ms. Ova’s title does not raise an issue of material

fact precluding summary judgment based on the Ellerth/Faragher defense. See

Frank v. U.S. West, Inc., 3 F.3d 1357, 1361 (10th Cir. 1993) (“Factual disputes

about immaterial matters are irrelevant to a summary judgment determination.”).

      The uncontested material facts demonstrate that Aerojet exercised

reasonable care in addressing Mr. Dibell’s conduct. Its swift reaction to earlier

allegations about his inappropriate relationship with Ms. Calloway included a

training session and a series of personal interviews. This initial investigation was

thwarted by Ms. Calloway’s own false statements. But as soon as her husband

complained through the company process, Aerojet began another investigation

and eventually disciplined Mr. Dibell. Further, “the context surrounding

[Ms. Calloway’s] comments to [Ms. Ova] compels the conclusion that [she] could

not reasonably have been expected to act to address [Ms. Calloway’s]

complaints.” Madray, 208 F.3d at 1300.

                                         -9-
      In sum, Aerojet met its burden of proof on the first element of the

Ellerth/Faragher defense. And because Ms. Calloway admits that she

unreasonably failed to take advantage of the company’s preventive and corrective

opportunities, Aerojet satisfied the second element as well. Accordingly, we

affirm the district court’s entry of summary judgment.

                                         III.

      Aerojet’s appellate brief includes a request for an award of attorneys’ fees

on appeal. Rule 38 of the Federal Rules of Appellate Procedures provides for an

award of fees “[i]f a court of appeals determines that an appeal is frivolous” and

the appellee submits “a separately filed motion” or this court issues a notice. “An

appeal is frivolous when the result is obvious, or the appellant’s arguments of

error are wholly without merit.” Braley v. Campbell, 832 F.2d 1504, 1510

(10th Cir. 1987) (en banc) (quotation omitted). Aerojet’s request satisfies neither

the procedural or substantive requirements of Rule 38.

      AFFIRMED.

                                       Entered for the Court


                                       Stephen H. Anderson
                                       Circuit Judge




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