NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0989n.06

                                              No. 10-4494                                    FILED
                                                                                         Sep 07, 2012
                            UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

CHASTITY SHIELDS                                    )
                                                    )
        Plaintiff,                                  )
and                                                 )
                                                    )
THEAH BARBER; MERCEDES DAVIS;                       )
ANGELA WILLIAMS                                     )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
        Plaintiffs - Appellants                     )    SOUTHERN DISTRICT OF OHIO
                                                    )
v.                                                  )                      OPINION
                                                    )
FEDERAL EXPRESS CUSTOMER                            )
INFORMATION       SERVICES                          )
INCORPORATED; FEDERAL EXPRESS                       )
CORPORATION                                         )
                                                    )
        Defendants - Appellees                      )


        Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.

        JANE B. STRANCH, Circuit Judge. Theah Barber, Mercedes Davis, and Angela Williams

filed suit in Ohio state court against their employer, Federal Express Customer Information Services,

Inc. (“FCIS”) alleging sexual harassment by their direct supervisor, Operations Manager James

Klingenberg, in violation of Ohio Rev. Code Ann. § 4112.02(A) (West 2009). FCIS removed the

action to federal court on the basis of diversity jurisdiction. Applying Title VII law, the district court

assumed the plaintiffs could establish a hostile work environment claim, but nonetheless granted

summary judgment in favor of FCIS. The court concluded as a matter of law that FCIS was entitled


                                                    1
to the affirmative defense to supervisor liability set forth in Faragher v. City of Boca Raton, 

(1998), and Burlington Indus., Inc. v. Ellerth, 

(1998), because FCIS maintained

an effective sexual harassment policy and the plaintiffs unreasonably failed to follow the policy to

report Klingenberg’s harassment to FCIS. Because there are genuine issues of material fact on the

applicability of the affirmative defense, we REVERSE and REMAND for trial.

                                              I. FACTS

        FCIS employed Barber, Davis, Williams, and Chastity Shields as customer service

representatives in a southwest Ohio call center.1 The plaintiffs were assigned to a unit managed by

Klingenberg, a long-time employee.

        In January 2007, manager Robert Williams found a substantial number of inappropriate

instant messages that Klingenberg sent to Shields on work computers between December 18, 2006,

and early January 2007. Many of the messages contained overt sexual content. Williams provided

copies of the messages to Harold Schmid, Klingenberg’s direct supervisor. It appears that Schmid’s

office is not located at the call center, but Schmid visited the call center occasionally.

        Upon receiving copies of Klingenberg’s messages to Shields, Schmid consulted with

Marianne Mutter, Managing Director, Eastern Region Customer Service in Pennsylvania; Deborah

Baur, in the Human Resources department in Tennessee; and the company’s legal department.

Schmid suspended Klingenberg for three days with pay pending an investigation.

        Schmid required Klingenberg to provide a written statement explaining his conduct. In a

letter dated January 18, 2007, Klingenberg referred to his broken marriage of 24 years and stated that

       1
        Although Shields is not a party to this appeal, the facts of her sexual harassment claim are
pertinent to our analysis.


                                                   2
he became fond of Shields because she was appreciative of the many personal things he did for her.

Klingenberg explained that Shields was the mother of three children living in different homes.

During a fourth pregnancy she asked him for advice about whether to have an abortion. Although

Klingenberg advised against the abortion, Shields had the procedure, but she then suffered guilt and

attempted suicide. Klingenberg claimed that he served as Shields’s counselor during this period.

He warned her to use birth control and avoid sexually transmitted diseases, but not long thereafter,

she became pregnant again and decided to have the baby. Shields purchased a small home against

Klingenberg’s advice. When she started having financial trouble, he told her he could not give her

money, but he made some repairs to the house. He denied having a physical relationship with

Shields. He said he felt sorry for her and tried to help her make better decisions. He conceded that

he used poor judgment in sending the instant messages and asked for discipline short of termination.

       Schmid did not discuss the contents of this statement with Klingenberg. No one interviewed

Shields or asked Williams to examine Klingenberg’s instant messages to see if he had sent any others

to Shields before December 18, 2006. Schmid, Mutter, and Baur agreed that Klingenberg was likely

having an affair with Shields due to the personal nature of the messages and because Shields had not

filed a sexual harassment complaint under the company’s Anti-Harassment Policy.

       On January 24, 2007, Schmid issued an “Acceptable Conduct Warning” letter to Klingenberg

for “Leadership Failure” and allowed him to continue in his managerial position supervising Shields

and the other plaintiffs. In the warning letter, Schmid stated that Klingenberg’s conduct in sending

the instant messages to Shields violated the Acceptable Conduct Policy, the Computer Resources

Policy, and the Anti-Harassment Policy. Schmid further stated that, “[b]y sending messages of a

personal and suggestive nature to an employee who reports directly to you, you have exhibited poor


                                                 3
leadership, poor judgment and decision making skills, and you failed to demonstrate the highest

degree of integrity, responsibility and professionalism required to be a leader.” Schmid also stated:

“Based on your past history, it is very important that you understand that any additional letters, while

you are a manager in FCIS, will result in termination of your employment.” Schmid modified the

three-day paid suspension to a three-day unpaid suspension.

        Klingenberg’s past history, as documented in his personnel file, included a sexual harassment

charge filed against him by another direct-report employee, Janelle Hocker, in September 1998.

Hocker reported to management that Klingenberg inappropriately leaned into the back of her chair,

touched her arms and legs and commented on her muscles, and, “after rejection,” started scrutinizing

her work more than the work of other employees. She alleged that he threatened to fire her on

numerous occasions when there was no cause for disciplinary action. As a result of Hocker’s

complaint, Senior Customer Service Manager Chris Jones issued a “Counseling/Professionalism”

letter to Klingenberg on February 23, 1999. Jones stated there was no evidence that sexual

harassment had occurred, but he warned Klingenberg to avoid any action or conduct that might be

viewed as sexual harassment. He also directed Klingenberg to have no future contact with Hocker

except for business. Klingenberg’s past history also included three other disciplinary writeups and

one suspension for poor managerial behavior.

        On January 30, 2007, six days after issuing the “Acceptable Conduct Warning” letter to

Klingenberg for sending computer messages to Shields, Schmid completed Klingenberg’s annual

evaluation. Schmid awarded Klingenberg an overall rating of 3.4 out of 4 and evaluated his

judgment and decision-making as “fully meeting expectations.” Schmid added a comment that

Klingenberg’s conduct in sending instant messages violated the company’s computer policy and


                                                   4
displayed “poor judgment,” but Schmid did not make any reference to Klingenberg’s violation of

the Anti-Harassment Policy. In the rating section for employee selection, development, and

affirmative action, including “development of minorities and females,” Schmid rated Klingenberg

as “outstanding.” Schmid commented that Klingenberg’s personal messages “to a direct report

displayed a very serious lack of leadership and could have put our company in a tenuous situation,”

but Schmid added that Klingenberg “accepted total responsibility for his actions and dealt with the

situation in an honest, open, and professional manner.” There is no evidence that Schmid monitored

Klingenberg’s subsequent behavior.

       In the fall of 2007, Schmid reorganized the call center and determined that it was a good time

to move Shields to a different department so that she no longer reported directly to Klingenberg.

Shields’s new supervisor was Pam Frye. On November 14, 2007, Shields disclosed to Frye that

Klingenberg had been sexually harassing her for months, and his conduct had escalated to the point

that she feared him. Shields revealed that Klingenberg coerced her to allow him to suck her breasts

in his office and in his car on threat of firing her if she did not comply, and he forced her to have

sexual relations with him during a weekend vacation. Shields also reported that Klingenberg

removed her from telephone duties by using codes for coaching time. He then directed her to his

office where he expected sexual favors. Shields further divulged that Klingenberg showed up at her

house uninvited on multiple occasions, and Shields knew that he watched her through the windows

because he correctly told her the color of the undergarments she wore on a particular date.

Klingenberg’s voyeuristic behavior prompted Shields to install an alarm system at her home. She

complained that Klingenberg sent sexual text messages to her personal cell phone during and after

work hours, and he gave her notes and gifts. Shields urged Frye to speak to plaintiffs Barber and


                                                 5
Williams because Shields knew that Klingenberg had also made inappropriate sexual advances to

them.

        Frye approached Barber and Williams separately and asked if Klingenberg had ever done

anything inappropriate to them. Both disclosed that he had made numerous sexual comments to

them, touched them inappropriately, sent many sexual and vulgar text messages to their personal cell

phones during and after work hours, and gave them sexual notes. Frye asked the women why they

had not reported Klingenberg’s conduct. Barber and Williams responded that they feared the loss

of their jobs because Klingenberg had told them that if anyone ever found out about his conduct, he

would do whatever it took to protect himself. He also threatened their employment by making

comments that Wendy’s or McDonald’s was hiring. He also persuaded them that he was friends

with the other call center managers and no one would believe them if they reported his behavior.

        Barber knew that Klingenberg also sexually harassed Davis. Barber asked Davis for

permission to disclose her name to Frye, and Davis agreed. Davis then divulged to Frye that

Klingenberg had sexually harassed her as well. All three women disclosed to Frye the stress they

suffered as a result of Klingenberg’s conduct and how his behavior had adversely affected their work

and private lives.

        Frye provided EEO paperwork to the employees, which they completed the same day. Frye

made copies of Klingenberg’s text messages on the women’s cell phones. Frye then notified her

supervisor, Schmid, who in turn notified Mutter and Baur. Klingenberg left work on sick leave and

began a medical leave of absence. Barber, Williams, and Davis did not see him at work again.




                                                 6
        While Klingenberg was on medical leave, Mutter and Baur conducted an investigation into

the plaintiffs’ allegations of sexual harassment. Schmid was not included on the investigation team

because one of the women mentioned in her EEO paperwork that Schmid was Klingenberg’s friend.

        At the conclusion of the medical leave, Schmid instructed Klingenberg to return to work on

January 23, 2008, and report directly to a hotel to meet with Mutter and Baur, who would be waiting

to receive his statement about his conduct. After Mutter and Baur received Klingenberg’s response

to the allegations, they told him to leave the hotel and return in a few hours. When he returned,

Mutter terminated his employment.

        Mutter issued two letters to Klingenberg on January 23, 2008. In the first one, Mutter placed

Klingenberg on suspension with pay pending investigation of his violation of the Anti-Harassment

Policy. In the second letter, Mutter issued an Acceptable Conduct Warning for leadership failure

and terminated Klingenberg’s employment.

                                  II. STANDARD OF REVIEW

        Summary judgment is appropriate only if the pleadings, depositions, answers to

interrogatories, and affidavits show there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) & (c). The burden to show that

there are no genuine issues of material fact falls upon FCIS as the party seeking summary judgment.

See Celotex Corp. v. Catrett, 

, 322-23 (1986). “Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,

not those of a judge[.]” Anderson v. Liberty Lobby, Inc., 

, 255 (1986). We consider

the evidence presented in the light most favorable to the plaintiffs and draw all justifiable inferences

in their favor. 

question is whether the evidence presents a sufficient factual


                                                   7
disagreement to require submission of a particular legal claim to the jury or whether the evidence

on the claim is so one-sided that FCIS should prevail as a matter of law. See 

                                          III. ANALYSIS

       Ohio courts have held that “federal case law governing Title VII actions is generally

applicable to cases involving alleged violations of” Ohio Rev. Code § 4112.02(A). Williams v. Ford

Motor Co., 

, 538 (6th Cir. 1999). Consequently, we look to Title VII cases to guide our

resolution of this appeal.

       To make out a hostile work environment claim based on sexual harassment, each plaintiff

must show that: (1) she was a member of a protected class; (2) she was subjected to unwelcome

sexual harassment; (3) the harassment was based on sex; (4) the harassment created a hostile work

environment; and (5) there is a basis for holding the employer liable. Randolph v. Ohio Dep’t of

Youth Servs., 

, 733 (6th Cir. 2006). Although FCIS may dispute the plaintiffs’ proof

on all of these elements, in this appeal the focus is on employer liability: whether the plaintiffs can

establish a basis on which to hold FCIS vicariously liable for the conduct of its supervisor,

Klingenberg. Clark v. UPS, Inc., 

, 348 (6th Cir. 2005). FCIS contends that, because

the plaintiffs did not suffer any negative tangible employment action, it is entitled to the

Faragher/Ellerth affirmative defense, thus absolving it of liability for any sexual harassment

Klingenberg may have committed. See 

on the affirmative defense, FCIS must prove by a preponderance of the evidence

that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,”

and that the plaintiffs “unreasonably failed to take advantage of any preventive or corrective

opportunities provided by [FCIS] or to avoid harm otherwise.” 

; Ellerth,


                                                  

. This defense requires FCIS to prove that it acted reasonably to prevent and correct

harassment, 

, and because FCIS “is in the best position to know what remedial

procedures it offers to employees and how those procedures operate,” both Faragher and Ellerth

“place the burden squarely on [FCIS] to prove that the plaintiff[s] unreasonably failed to avoid or

reduce harm.” Pa. State Police v. Suders, 

, 146 & n.7 (2004). Contrary to the district

court’s rulings that FCIS “promulgated and enforced an effective sexual harassment policy,” that

FCIS used reasonable care to prevent further sexual harassment by Klingenberg, and that the

plaintiffs unreasonably failed to take advantage of the sexual harassment policy, we conclude that

there are genuine issues of material fact on both elements of the Faragher/Ellerth affirmative

defense. Accordingly, we disagree with the district court’s determination that FCIS is entitled to the

affirmative defense as a matter of law at the summary judgment stage. See 

.

A.     Whether FCIS used reasonable care to prevent and correct promptly sexually
       harassing conduct

       Employers are “subject to a strong inducement to ferret out and put a stop to any

discriminatory activity in their operations as a way to break the circuit of imputed liability.”

Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., 

, 278 (2009). Under the

first element of the affirmative defense, FCIS has a duty to prevent sexual harassment by its

supervisors. 

. While reasonable sexual harassment policies may take many

forms, we have held that an effective policy should at least require supervisors to report incidents

of sexual harassment, allow employees to make both formal and informal complaints of harassment,

provide a method for employees to bypass a harassing supervisor when making a complaint, and

provide for training concerning the policy. 

                                                  9
       The Anti-Harassment Policy promulgated by FCIS provides in pertinent part:

       Complaints
       If any employee believes that he or she has been subjected to harassment by anyone,
       including supervisors, . . . he or she must immediately report this to management or
       Human Resources. . . . Any member of management who receives a report or
       complaint of sexual or other harassment must immediately report the complaint to
       Human Resources even if the complaining employee asks that no action be taken.
       Any manager who fails to take action upon receiving a complaint of harassment may
       be subject to discipline, up to and including discharge.

       Complaints of sexual or other illegal harassment will be treated as internal EEO
       complaints and follow the internal EEO procedure as outlined in 5-5 Fair and
       Impartial Review Procedure/EEO Complaint Process, Table 2, Internal EEO
       Discrimination or Harassment Complaint Procedure. All complaints will be
       promptly investigated in as confidential a manner as is possible while still conducting
       a thorough investigation.

R. 72-3, Page ID# 539. The policy further prohibits retaliation against any employee who reports

sexual harassment or participates as a witness in a harassment investigation. 

whether FCIS’s Anti-Harassment Policy facially satisfies all of the requirements

of an effective policy that we previously set forth in 

–50. While the policy

allows employees to make “reports” of harassment, it does not inform employees that their

complaints may be informal and need not be placed in a formal writing. And while the language

requiring a report to “management or Human Resources” conceivably permits employees to report

harassing behavior of a supervisor to a higher level of management or to Human Resources, the

policy does not expressly instruct the employees on any particular mechanism to bypass a harassing

supervisor when making a complaint of harassment.

       Even assuming the Anti-Harassment Policy satisfies Clark, however, FCIS’s affirmative duty

to prevent or correct sexually harassing behavior does not end with the promulgation of a reasonable

sexual harassment policy. See 

The first element of the affirmative defense “requires an


                                                 10
inquiry that looks behind the face of a policy to determine whether the policy was effective in

practice in reasonably preventing and correcting any harassing behavior.” 

consider not

only the written policy, but also its implementation because a policy’s efficacy “depends upon the

effectiveness of those who are designated to implement it.” 

       The plaintiffs presented sufficient evidence to require a jury to decide whether FCIS

effectively enforced its Anti-Harassment Policy to prevent or correct Klingenberg from sexually

harassing women he supervised. Management received a formal, written complaint from employee

Janelle Hocker in 1998 alleging that Klingenberg was sexually harassing her. Hocker’s description

of her supervisor’s conduct is strikingly similar to the allegations made by these plaintiffs.

Management responded to Hocker’s complaint by issuing a letter to Klingenberg stating that no

sexual harassment had occurred, but warning him to avoid any action or conduct that might be

viewed as sexual harassment. Even if the company determined that there was insufficient evidence

to sustain Hocker’s charge of sexual harassment, “that does not mean that it had no responsibility

to take other remedial steps to ensure that [Klingenberg] did not harass other women.” Hawkins v.

Anheuser-Busch, Inc., 

, 344 (6th Cir. 2008). FCIS produced no evidence that it took

steps to monitor Klingenberg’s conduct after receiving Hocker’s complaint or after disciplining

Klingenberg for his “leadership failure” with regard to Shields. Both Barber and Williams testified

that Klingenberg bragged to them that he had committed sexual harassment previously, but that “all

[FCIS] did was transfer him to the call center.” It is not clear whether Klingenberg’s comment

referred to Hocker or some other employee, but a jury could infer from this testimony that

management was, or likely should have been, on notice that Klingenberg engaged in inappropriate

conduct with female employees under his supervision.


                                                11
       A jury reviewing the evidence in this record could also reasonably find that, when Robert

Williams discovered Klingenberg’s instant messages to Shields in January 2007, Schmid, Mutter,

and Baur—all of whom are members of management charged with implementing the Anti-

Harassment Policy, see 

—should have conducted a more thorough

investigation into Klingenberg’s conduct. The sexual content of the messages, coupled with

Klingenberg’s own bizarre account of his relationship with Shields, may convince a jury to find that

FCIS responded inadequately. Without even interviewing Shields, FCIS managers summarily

concluded that Klingenberg and Shields were having a consensual affair.            Schmid warned

Klingenberg about “leadership failure” and suspended him for three days without pay. Schmid also

allowed Klingenberg to continue managing Shields and other female employees without any

apparent monitoring. Within days thereafter, Schmid issued a performance evaluation that rated

Klingenberg’s judgment and decision-making skills as fully meeting expectations. Whether these

measures were reasonable, sufficient, and taken in good faith are matters for the jury to decide.

       In addition, a jury hearing this evidence could find credible Barber’s testimony that, if

Schmid had done a more thorough investigation and interviewed Shields, then Shields likely would

have disclosed Klingenberg’s sexual harassment of the other women, just as Shields did months later

when she approached Frye, and this would have given Barber “an outlet to tell somebody.”2 A jury

could also believe Barber’s testimony that when she asked Klingenberg why he had been suspended

in January 2007, Klingenberg confessed that he sent sexual messages to another female employee’s

computer, but “thanks to Howard [Schmid] he didn’t get fired,” and he and Schmid “were cool, you



       2
       FCIS contends that Barber’s testimony is sheer speculation, as found by the district court.
Whether the testimony amounts to speculation is for the jury to decide.

                                                12
know, that was his buddy.” Thus, the plaintiffs knew that Klingenberg had committed sexual

harassment before and gotten away with it. As a result, a jury could accept their testimony that they

had no confidence that reports to Schmid, Mutter, or Baur under FCIS’s Anti-Harassment Policy

would be effective to address Klingenberg’s ongoing sexual harassment.

       Because FCIS management knew that Klingenberg had been accused of sexual harassment

before, FCIS could be held liable if a jury determines the company’s response to Klingenberg’s

ongoing harassing conduct “demonstrate[d] an attitude of permissiveness” and was not “reasonably

calculated to end [Klingenberg’s] pattern of harassment.” Id.; Jackson v. Quanex Corp., 

, 664 (6th Cir. 1999) (holding that reprimand of supervisor with history of discriminating against

African Americans was not adequate by itself to prove that company took reasonable steps to prevent

and correct harassment); 

(“An employer’s responsibility to prevent future

harassment is heightened where it is dealing with a known serial harasser and is therefore on clear

notice that the same employee has engaged in inappropriate behavior in the past.”). On this record,

a jury could well find that, had FCIS management performed a more comprehensive investigation

in January 2007, management would have uncovered the sexual harassment of Shields, Barber,

Williams, and Davis and terminated Klingenberg’s employment sooner than it did. See 

(“A company faced with a pattern of harassment must both respond appropriately

and take increasingly effective steps designed to end the harassment.”).

       Based on the evidence before us, we conclude that FCIS “cannot benefit from the affirmative

defense at the summary judgment stage because it failed to show that there is no genuine issue of

material fact regarding whether it exercised reasonable care” to prevent and correct promptly any

sexually harassing behavior. See 

; Smith v. First Union Nat’l Bank, 

234, 246 (4th Cir. 2000) (reversing summary judgment on Title VII sexual harassment claim where

employer conducted inadequate investigation, failed to mention or discuss sexual harassment with

the offender, and kept harassed employee working in close proximity to the offender).

B.     Whether plaintiffs unreasonably failed to take advantage of preventive or corrective
       opportunities or to avoid harm otherwise

       The plaintiffs concede that they were aware of the Anti-Harassment Policy and that they did

not initiate a report of sexual harassment to Human Resources. They argue that they complied with

the policy, however, because they complained directly to Klingenberg, a manager, and they asked

him to stop his sexually harassing conduct. This argument has some appeal due to the policy’s

general language that employees must make reports of sexual harassment “to management” and the

policy’s lack of any specific instruction to employees about how to bypass a harassing supervisor

in making a report of sexual harassment. But we have indicated that complaining directly to the

harasser may not be sufficient to show compliance with an anti-harassment policy. See Balding-

Margolis v. Cleveland Arcade, 352 F. App’x 35, 44 (6th Cir. 2009) (affirming summary judgment

where plaintiff testified “she never complained to anyone concerning Schultz’s harassment . . . other

than to Schultz himself.”) We have also observed that employees may not rely on their own

subjective fear of confrontation, retaliation, or general unpleasantness in the workplace to avoid a

duty under Ellerth to alert the employer to the hostile work environment, Thornton v. Fed. Express

Corp., 

, 457 (6th Cir. 2008), nor may employees “pass their own judgments—absent

supporting facts—about how effectively an employer’s sexual harassment policies operate.” Idusuyi

v. Tenn. Dep’t of Children’s Servs., 30 F. App’x 398, 404 (6th Cir. 2002).




                                                 14
        Nonetheless, the Faragher/Ellerth defense should not be applied as a matter of law if

circumstances suggest that there are questions of material fact for a jury to decide. See Gorzynski

v. JetBlue Airways Corp., 

(2d Cir. 2010). In Gorzynski, the employer, like FCIS, argued

that it was unreasonable as a matter of law for the plaintiff not to take advantage of the alternative

avenues provided in the harassment policy, including complaining to other members of management

or the “People Department.” 

The Second Circuit rejected “such a brittle reading of the

Faragher/Ellerth defense” reasoning:

        There is no requirement that a plaintiff exhaust all possible avenues made available
        where circumstances warrant the belief that some or all of those avenues would be
        ineffective or antagonistic. Considering the courage it takes to complain about what
        are often humiliating events and the understandable fear of retaliation that exists in
        many sexual harassment situations, we decline to read the rule so rigidly.
        Accordingly, we hold that an employer is not, as a matter of law, entitled to the
        Faragher/Ellerth defense simply because an employer’s sexual harassment policy
        provides that the plaintiff could have complained to other persons as well as the
        alleged harasser. Instead, we conclude that the facts and circumstances of each case
        must be examined to determine whether, by not pursuing other avenues provided in
        the employer’s sexual harassment policy, the plaintiff unreasonably failed to take
        advantage of the employer’s preventative measures.

In some situations, it may be unreasonable for a harassment victim to complain only

to the harasser if, as a realistic and practical matter, there are other adequate channels that are open

and accessible to the employee. 

“But in other cases, there may be reasons why the

plaintiff failed to complain to those other than the harasser, who are listed as available. And in such

cases, a genuine issue of fact may be raised as to whether it was reasonable not to pursue other

options.” 

the Second Circuit’s reasoning in Gorzynski instructive. All of the facts and

circumstances must be evaluated to determine whether the plaintiffs unreasonably failed to take



                                                  15
advantage of FCIS’s harassment policy. Moreover, our law permits an employee to avoid a policy

requirement to initiate an internal company complaint about sexual harassment if the plaintiff can

demonstrate that she was under a “‘credible threat of retaliation.’” 

(quoting Walton v. Johnson & Johnson Servs., Inc., 

, 1290–91 (11th Cir. 2003)).

Considering all of the facts and circumstances, jury questions exist concerning whether other

avenues for making complaints were available to the plaintiffs and whether they were under credible

threats of retaliation.

        According to the plaintiffs, Klingenberg told them repeatedly that the other managers located

at the call center were his peers and social friends, so no one would believe them if they reported his

conduct. The plaintiffs discussed Klingenberg’s conduct among themselves, but they did not know

which manager to approach because Klingenberg enjoyed close relationships with all of the other

managers at the call center. They testified they did not feel comfortable contacting any of the

managers. They also knew that none of the managers physically present at the call center had the

authority to discipline or fire Klingenberg. A jury could give credence to the plaintiffs’ beliefs that

contacting Schmid would be futile because Klingenberg openly told them that Schmid was his

“buddy” and protected his job when the instant messages to Shields were discovered. In addition,

Mutter’s office was located in Pennsylvania and Baur’s office was located in Tennessee, so those

two managers were not available for in-person consultation. The plaintiffs would have been required

to obtain Klingenberg’s permission to leave the customer service telephones in order to place

complaint calls to higher management about his behavior. In light of these facts, it is the jury’s role

to decide whether the Anti-Harassment Policy required the plaintiffs to contact Mutter or Baur by

telephone or email to complain about Klingenberg’s behavior. We also conclude that whether the


                                                  16
plaintiffs held a reasonable belief that there was no one to tell, especially in light of the sexual

harassment training they received, is a jury question.

       The plaintiffs’ testimony also tends to show that Klingenberg achieved their tacit agreement

not to report his harassing conduct by making credible threats of retaliation against them.

Klingenberg repeatedly threatened the plaintiffs’ employment. For example, when Williams told

Klingenberg that she intended to report his harassment, he replied, “It wouldn’t be in your best

interest; you wouldn’t have a job.” He reminded the plaintiffs that they would “look good as

Wendy’s cashiers” or that “McDonald’s was hiring.” The district court ruled as a matter of law that

Klingenberg’s comments about Wendy’s or McDonald’s were “too vague to constitute credible

threats of retaliation.” Yet, in denying summary judgment to FCIS in Shields’s case, the district

court observed that Klingenberg’s similar comments to Shields amounted to positive evidence

supporting her sexual harassment claim. There is no principled basis for giving Klingenberg’s

threats different weight in different cases. A reasonable jury could accept the plaintiffs’ testimony

that they interpreted Klingenberg’s comments as credible threats of retaliation to keep them quiet.

The plaintiffs also testified they honestly feared Klingenberg would retaliate against them through

physical violence. He warned them that he would take any action necessary to protect himself if they

revealed his conduct. They knew Shields installed an alarm system at her home after Klingenberg

showed up there uninvited on multiple occasions and on at least one occasion peered through her

windows. They knew that Klingenberg was the primary provider for his family, that he intended to

retire from FCIS, and that there was a very strong probability that he would blame them if he lost

his job. On the day the plaintiffs informed Frye of the sexual harassment and completed EEO

paperwork, Klingenberg was furious. Although he left the office on medical leave, he retained


                                                 17
access to the office. Under the circumstances presented, a jury reasonably could find that the

plaintiffs’ safety concerns justified their failure to initiate complaints against Klingenberg.

       Once Frye questioned the plaintiffs about Klingenberg, they immediately disclosed their

reasons for not reporting his harassing conduct sooner pursuant to the sexual harassment policy.

Frye included their explanations in her written report to Schmid. Mutter later documented similar

explanations the plaintiffs gave to her and Baur during the investigation into Klingenberg’s conduct

that led to the termination of his employment. While we have held that it is not reasonable for

employees to pass their own judgments about the operative effectiveness of an employer’s sexual

harassment policy “absent supporting facts,” see Idusuyi, 30 F. App’x at 404, here, the plaintiffs

presented supporting facts explaining why they believed the Anti-Harassment Policy would not be

effectively enforced even if they disclosed the harassment. Under the facts of this case, it cannot be

said as a matter of law that plaintiffs unreasonably failed to seek assistance under the Anti-

Harassment Policy or to avoid the harm they suffered.

                                        IV. CONCLUSION

       Because jury questions exist concerning whether FCIS exercised reasonable care to prevent

and correct promptly any sexually harassing behavior of Klingenberg and whether the plaintiffs

unreasonably failed to take advantage of any preventive or corrective opportunities provided by FCIS

or to avoid harm otherwise, FCIS is not entitled to the benefit of the Faragher/Ellerth affirmative

defense as a matter of law. We express no opinion on whether the plaintiffs will ultimately prevail

on their hostile work environment claims—that is a matter for the jury. For the reasons stated, we

REVERSE the grant of summary judgment in favor of FCIS and REMAND for trial.




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