UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VENEAL WILLIAMS,
Plaintiff-Appellant,

v.

SPARTAN COMMUNICATIONS,
                                                                    No. 99-1566
INCORPORATED; MITCHELL MAUND,
individually and as an employee
and servant of Spartan
Communications, Incorporated,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
William M. Catoe, Jr., Magistrate Judge.
(CA-97-2030-7-13AK)

Argued: February 29, 2000

Decided: March 30, 2000

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Robert E. PAYNE, United States District Judge
for the Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed by unpublished opinion. Judge Motz wrote the majority
opinion, in which Judge Payne joined. Chief Judge Wilkinson wrote
a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: James Gordon Carpenter, JAMES G. CARPENTER,
P.C., Greenville, South Carolina, for Appellant. Kristofer Karl
Strasser, OGLETREE, DEAKINS, NASH, SMOAK & STEWART,
P.C., Greenville, South Carolina, for Appellees. ON BRIEF: Jennifer
J. Miller, JAMES G. CARPENTER, P.C., Greenville, South Carolina,
for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Veneal Williams sold advertising from 1989 to 1995 for Spartan
Communications, Incorporated, which runs a television station in
Spartanburg, South Carolina. Her immediate supervisor was Local
Sales Manager Mitchell Maund, who was promoted to that position
in 1992. Williams alleges that between 1992 and 1995 Maund sexu-
ally assaulted her three times during business trips that the two took
together. The second assault assertedly occurred in Williams' van,
while the two were watching an R-rated movie rented on Maund's
instructions.

On May 24, 1995, Williams reported Maund's assaults to Spartan
General Sales Manager Greg Rose and Spartan Personnel Manager
Donna Groothedde. Maund was out of town that day, but Rose, Groo-
thedde and Spartan Vice President and General Manager Jack West
met with him the following day, May 25. At that time, Maund admit-
ted to renting and watching the movie in Williams' van. That after-
noon, Maund, Rose, Groothedde, and West met again; as a result of
Maund's admitted rental of the movie, he resigned. Maund received
five months severance pay in return for releasing Spartan from liabil-
ity for his dismissal. Due to the distress of continued sexual harass-
ment, Williams left her job with Spartan and is now unemployed and
in counseling.

After filing charges with the EEOC, Williams initiated this action.
A magistrate judge granted summary judgment to Spartan (but not

                    2
Maund). Subsequently, the judge certified the case for immediate
appeal pursuant to Rule 54(b) and Williams noted this appeal. Con-
trary to Spartan's suggestion, the notice of appeal was timely, see 28
U.S.C. § 1291, and the Rule 54(b) certification proper. See Fox v.
Baltimore City Police Dept., 

 (4th Cir. 2000). Accord-
ingly, we turn to the merits of the case.

We agree with Spartan that Williams has failed to allege or offer
competent evidence that she suffered any tangible employment action
at the hands of Spartan management. Although her complaint captions
Count One as a "claim for quid pro quo sexual harassment," in fact
it contains no allegations supporting such a claim. Moreover, in depo-
sition Williams responded "not that I recall" to the question, "in terms
of work did he [Maund] ever retaliate against you in any way?" Wil-
liams further conceded at her deposition that she did not receive nega-
tive evaluations, warnings, or reprimands from Maund and that he
never changed her accounts in any retaliatory way. Williams later
filed an affidavit stating that actually Maund had twice "passed [her]
over for promotions." The magistrate judge rejected the affidavit, rea-
soning that a "plaintiff may not create an issue of fact by submitting
an affidavit that is inconsistent with prior deposition testimony." See
Rohrbough v. Wyeth Laboratories, 

, 975 (4th Cir. 1990).
We review the judge's decision as to whether to credit such an after-
the-fact affidavit for abuse of discretion, Shaw v. Stroud, 

,
804 (4th Cir. 1994), and find no abuse here. See Rohrbough, 916 F.2d
at 976.

The final issue in this case is whether Spartan has established, as
a matter of law, its entitlement to an affirmative defense to Williams'
hostile environment claim. The Supreme Court has explained that
"[w]hen no tangible employment action is taken, a defending
employer may raise an affirmative defense" to a claim of "vicarious
liability . . . for an actionable hostile environment created by a super-
visor with immediate . . . authority over the employee." Faragher v.
Boca Raton, 

, 807 (1998); Burlington Indus. v. Ellerth,

, 765 (1998). To do so an employer must demonstrate
by the "preponderance of the evidence" that (1) it "exercised reason-
able care to prevent and correct promptly any sexually harassing
behavior" and (2) "the plaintiff employee unreasonably failed to take
advantage of any preventative or corrective opportunities provided by

                     3
the employer or to avoid harm otherwise." Id. The magistrate judge
held that Spartan had satisfied both elements of the affirmative
defense as a matter of law and so granted the company summary
judgment.

We believe that this ruling was error. We need only discuss the
first prong of the defense--whether Spartan has established, as a mat-
ter of law, that it "exercised reasonable care to prevent and correct
promptly" the sexually harassing behavior.

The magistrate judge found that the following evidence demon-
strated that Spartan had indisputably satisfied this prong: (1) Williams
admitted that she knew of Spartan's anti-harassment policy, had
attended a meeting at which it was discussed, and saw a posted notice
of it, which identified persons to whom she could report improper
conduct, and (2) Spartan forced Maund to resign as soon as it learned
of Williams' allegations.

This rationale fails to recognize that while the existence of an anti-
harassment policy and prompt corrective action pursuant to it pro-
vides important evidence that an employer has acted to meet the first
prong of the affirmative defense, such evidence does not compel this
conclusion. Rather, any anti-harassment policy offered to satisfy the
first prong of the Faragher-Ellerth defense must be "both reasonably
designed and reasonably effectual." Brown v. Perry, 

,
396 (4th Cir. 1999). Moreover, a prompt response to complaints of
harassment made pursuant to a policy banning harassment does not
necessarily establish the first prong of the affirmative defense. See,
e.g., Jackson v. Quanex Corp., 

, 664-65 (6th Cir. 1999).

The magistrate judge also entirely ignored substantial relevant evi-
dence submitted by Williams that could lead a factfinder to conclude
that Spartan's anti-harassment policy was not an effective preventive
program. This evidence included: (1) Maund's deposition testimony
that he received no training on sexual harassment and did not even
recall any specific discussion of the anti-harassment policy; (2) senior
Spartan management's toleration of and participation in lewd conver-
sations and publication of sexually explicit jokes and cartoons in the
workplace; (3) evidence that an employee's complaint to a Spartan
manager about foul language and sexist jokes in the workplace pro-

                    4
duced no corrective action; (4) General Sales Manager Rose's com-
ment that a secretary had been fired because "she didn't give him a
blow job"; (5) Vice President and General Manager West's remark to
male managers looking at female participants in a management train-
ing function, "Boys, I've stepped over better than that just to jack
off"; (6) General Sales Manager West's comment after a sexual
harassment training meeting, "does this mean we can't fuck the help
any more"; (7) the close relationship between Maund (the alleged
harasser) and West, Rose, and other senior managers at Spartan; and
(8) the anti-harassment policy's failure, in contravention of EEOC
guidelines, to assure those reporting harassment that they would not
be subject to retaliation, particularly when the policy provided that
"[a]n employee who in bad faith falsely accuses another employee of
harassment will be subject to disciplinary action up to and including
termination."

In Faragher, the Supreme Court found a city was vicariously liable
for harassment by lifeguard supervisors, despite the existence of a
sexual harassment policy, when the plaintiff beach employees were
"completely isolated from the City's higher management" and the city
"failed to disseminate its policy against sexual harassment among the
beach employees." 524 U.S. at 808. In Smith v. First Union National
Bank, 

, 245 (4th Cir. 2000), we held that even though
the employer's anti-harassment policy had been disseminated to
employees it did not demonstrate, as a matter of law, that the
employer had satisfied the first prong of the Faragher defense
because the policy referred only to sexual conduct and was read by
the plaintiff not to include non-sexual, gender-based harassment. We
also emphasized that "[e]mployers cannot satisfy the first element of
the Faragher-Ellerth affirmative defense if its management-level
employees are discouraging the use of the complaint process." Id.

Here Spartan disseminated an anti-harassment policy which failed
to provide that complainants would be free from retaliation, and yet
warned that false reports of harassment would subject a complainant
to disciplinary action, "including termination." Although these fea-
tures do not, in themselves, render the policy ineffective, when con-
sidered in conjunction with the conduct of most senior Spartan
management, a policy with such features could be found to be ineffec-
tive. The outrageous comments by Vice President and General Man-

                    5
ager West ("does this mean we cannot fuck the help anymore") and
General Sales Manager Rose (a secretary was terminated because
"she didn't give him a blow job") suggest not only that a complaint
made pursuant to this anti-harassment policy might fall on deaf ears,
but also that such a complaint might cause the complainant's termina-
tion. Indeed, Williams produced evidence that a Spartan employee
decided not to complain of harassment because of fear of being fired.
The long and close personal relationships between those managers
who made the denigrating comments, West and Rose, and the alleged
harasser, Maund, were so well known that several of the witnesses
described them as members of the "Augusta Boys Club." Given these
relationships, a factfinder could conclude that a complaint about
Maund would receive a particularly skeptical response from Spartan
management.

We note that Spartan's policy states that "[a]ny employee who feels
they are being subjected to any form of harassment in violation of this
policy should bring their complaint to the attention" of one of four
members of management: "[1] the[ ] immediate supervisor, [2] the
General Manager, [3] the appointed liaison, or[4] the Manager of
Corporate Human Resources." Providing an employee recourse to
multiple members of management is commendable. But Williams
produced evidence that could lead a factfinder to determine that the
extra protection seemingly afforded by this provision was illusory in
her case. This is so because one of the four suggested recipients of
harassment complaints was the harasser himself, Maund; another was
his good friend, Vice President and General Manager West (the
source of the "does this mean we can't fuck the help any more" and
the "I've stepped over better than that just to jack off" remarks); and
the remaining two managers reported to West, the General Manager
of the station and Vice President of the entire company. Thus, the
conduct of Spartan's senior management could be found to have iso-
lated Williams from effective channels of complaint. See Faragher,
524 U.S. at 808. A factfinder could conclude that the language in the
anti-harassment policy together with the conduct of Spartan's most
senior management "discouraged complaining about a supervisor's
harassing behavior." Smith, 202 F.3d at 245.

This is not to say that Williams has demonstrated that Spartan can-
not establish the first prong of Faragher's affirmative defense. A fact-

                     6
finder may well ultimately conclude that Spartan's anti-harassment
policy and prompt corrective action do establish this prong. However,
we believe that when Williams' evidence is considered in the light
most favorable to her, see Anderson v. Liberty Lobby, 

,
255 (1986), Spartan has not established the first prong as a matter of
law. For these reasons, we reverse the district court's grant of sum-
mary judgment to Spartan.

REVERSED

WILKINSON, Chief Judge, dissenting:

I agree with the district court that Spartan Communications has
established both prongs of the affirmative defense under Faragher
and Ellerth. I would therefore uphold the grant of summary judgment.

The majority properly holds that Veneal Williams failed to demon-
strate that she suffered any tangible employment action by Spartan
management. Spartan may thus raise an affirmative defense to vicari-
ous liability by showing (1) that it "exercised reasonable care to pre-
vent and correct promptly any sexually harassing behavior," and (2)
that Williams "unreasonably failed to take advantage of any preven-
tive or corrective opportunities provided by the employer to avoid
harm." Faragher v. City of Boca Raton, 

, 807 (1998);
Burlington Indus. v. Ellerth, 

, 765 (1998). Spartan has
met its burden of proving both of these elements by a preponderance
of the evidence.

As to the first prong of the defense, Spartan exercised reasonable
care to prevent and correct the sexually harassing behavior that Wil-
liams reported. Spartan put in place a strong anti-harassment policy
that states the "working environment should be free of intimidation
and harassment." The policy defines and prohibits sexual harassment
and encourages employees to come forward with complaints. A com-
plaint may be reported to any one of at least four different people,
including the department head, general manager, appointed EEO liai-
son, and the manager of corporate human resources. Williams admits
that she was aware of this policy. She attended a meeting at which the
policy was discussed by the corporate personnel director and saw a
posted notice prohibiting sexual harassment and identifying various

                    7
persons to whom she could report any improper conduct. Spartan also
took swift action to correct the alleged harassment. When Williams
finally reported Maund's inappropriate behavior, Spartan immediately
conducted an investigation and asked Maund to resign only two days
after receiving Williams' complaint.

Though the existence of an anti-harassment policy is not sufficient
to satisfy the first part of the affirmative defense, the policy here is
"both reasonably designed and reasonably effectual." Brown v. Perry,

, 396 (4th Cir. 1999). The majority attempts to discredit
the effectiveness of the policy by referring to lewd statements by
management and to the fact that Spartan's policy did not contain an
explicit anti-retaliation provision. Yet the majority does not assert that
the policy was ineffective when complaints were reported or that
Spartan had retaliated against any employee who made a complaint.
There is simply "no evidence that [the] employer adopted or adminis-
tered an anti-harassment policy in bad faith or that the policy was oth-
erwise defective or dysfunctional." Id. There is only the evidence that
Spartan immediately terminated Maund when it learned of his mis-
conduct. Because it had an effective policy, Spartan has satisfied the
first part of the affirmative defense.

The majority's litany of crude remarks attributed to management
does not undermine Spartan's affirmative defense. It is a rare case
when some remarks could not be dredged up or alleged in order to
challenge management's reasonableness. The affirmative defense
focuses not on remarks, however, but on the conduct of employers
and employees in preventing and addressing sexual harassment com-
plaints. See Ellerth, 524 U.S. at 764-65. A collection of off-hand
remarks unrelated to the harassment simply does not preclude Spartan
from establishing the first prong of the affirmative defense on sum-
mary judgment. Indeed, the remarks related by the majority were not
directed toward Williams. She was not even present when most of
them were made. While no one would approve of the comments, Title
VII is not intended to allow courts to act as censors of workplace
speech or impose a general workplace civility code. See Oncale v.
Sundowner Offshore Servs., Inc., 

, 80-81 (1998).

As to the second prong of the defense, Williams failed to take
advantage of the opportunities provided by Spartan to avoid the sex-
ual harassment. "[A] demonstration of such failure will normally suf-

                     8
fice to satisfy the employer's burden under the second element of the
defense." Faragher, 524 U.S. at 807-08. In Montero v. Agco Corp.,
the Ninth Circuit held that where the plaintiff knew about the compa-
ny's policy, knew whom to contact with harassment complaints, and
yet waited almost two years to report the harassment, the company
"successfully established the second prong of the Faragher defense"
and was entitled to judgment as a matter of law. 

, 863
(9th Cir. 1999). Similarly, Williams knew about Spartan's policy,
knew whom to contact with grievances, and yet waited three years to
report the harassment. During this time, plaintiff was allegedly
assaulted twice more, once while watching an R-rated movie in her
van with Maund and again while with Maund in her hotel room.
Faragher and Ellerth encourage employees to report such conduct
precisely to avoid continued harassment. See Faragher, 524 U.S. at
806-07; Ellerth, 524 U.S. at 764-65. Spartan has established that Wil-
liams unreasonably failed to take advantage of the company's preven-
tive and corrective measures. Williams "should not recover damages
that could have been avoided if she had done so." Faragher, 524 U.S.
at 806-07.

By denying summary judgment in a case where the affirmative
defense has been clearly established, the majority simply indicates an
aversion to the Supreme Court's mandate in Faragher and Ellerth. In
doing so, the majority creates the worst of all possible worlds. Despite
the existence of a reasonable and effective complaint procedure, the
employee continues to be harassed for nearly three years because no
misconduct was reported. The company in turn has no opportunity to
rectify unacceptable behavior. Such an outcome is the antithesis of
Title VII's primary objective, which is "not to provide redress but to
avoid harm." Faragher, 524 U.S. at 806. The Supreme Court has
explained that employer liability is limited to encourage the creation
of effective anti-harassment policies and also to"encourage employ-
ees to report harassing conduct before it becomes severe or perva-
sive." Ellerth, 524 U.S. at 764. Spartan attempted to prevent and acted
to correct sexually harassing behavior. It should not be held liable
when an employee fails to use the available channels for reporting
harassment. As this court stated in Brown,"The law requires an
employer to be reasonable, not clairvoyant or omnipotent." 184 F.3d
at 396.

I would affirm the judgment.

                    9