McDaniel v. Skillsoft CV-04-311-PB 08/14/07
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Scott McDaniel
v. Case No. 04-cv-311-PB
Opinion No. 2007 DNH 094
SkillSoft Corporation
MEMORANDUM AND ORDER
Scott McDaniel charges that he was sexually harassed by his
supervisor, Rob Brown, while both men worked at SkillSoft
Corporation's ("SkillSoft") office in Nashua, New Hampshire.
McDaniel seeks damages for alleged violations of Title VII of the
Civil Rights Act of 1964 and the New Hampshire Civil Rights Act,
as well as for the common law torts of intentional infliction of
emotional distress and constructive discharge. Because the
undisputed evidence establishes that SkillSoft has properly
asserted a Ellerth-Faragher affirmative defense, I grant its
motion for summary judgment.
I. BACKGROUND
SkillSoft, a company that provides computer-based training
to business and information technology professionals, hired
McDaniel in July 2000 as an inside sales representative. On
McDaniel's first day of work at SkillSoft, his supervisor
reviewed SkillSoft's anti-discrimination policy with him on the
company's computer system, and the two read through it together.1
In November 2000, Rob Brown became McDaniel's supervisor in the
inside sales department in the company's Nashua, New Hampshire
office.
According to McDaniel, Brown sexually harassed him over an
extended period of time by making suggestive comments, sending
him e-mails laden with sexual content, and touching him
inappropriately. In March 2001, McDaniel sought mental health
counseling. On September 21, 2001, at the suggestion of his
doctor, McDaniel stopped working and started collecting
disability benefits.
McDaniel first told SkillSoft's human resources department
about Brown's conduct in a telephone conversation on October 1,
2001 after he was already on leave. At the department's request,
he set forth his allegations in writing in a letter dated October
1 Additionally, in his deposition, McDaniel acknowledged
that he knew how to return to the policy on the computer system
if he needed to review it.
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1, 2001. SkillSoft received McDaniel's letter on October 11,
2001 and Thomas McDonald, SkillSoft's Chief Financial Officer,
responded by letter the following day. In the letter, McDonald
indicated that SkillSoft was taking McDaniel's concerns "very
seriously" and asked to interview McDaniel later that week as
part of an investigation into his allegations. The letter also
stated, "Please rest assured that you will not be retaliated
against in any way for having filed this complaint."
SkillSoft promptly investigated McDaniel's allegations by
interviewing McDaniel and Brown separately, and reviewing e-mail
correspondence between McDaniel and Brown. At the conclusion of
its investigation, SkillSoft determined that although no sexual
harassment had occurred. Brown's conduct had been unprofessional.
Accordingly, SkillSoft terminated Brown by giving him the
opportunity to resign on October 29, 2001.
At the time of Brown's departure from SkillSoft, McDaniel
was still on leave. Thereafter, McDaniel remained on leave for
an extended period, ultimately exhausting both his short-term and
long-term disability benefits. McDaniel has never resigned from
SkillSoft and acknowledges that no one from SkillSoft ever told
him that his employment was terminated; nor has he received any
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letters to that effect from SkillSoft.
II. STANDARD OF REVIEW
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In this
context, "a fact is 'material1 if it potentially affects the
outcome of the suit and a dispute over it is 'genuine1 if the
parties' positions on the issue are supported by conflicting
evidence." Intern'1 Ass'n of Machinists and Aerospace Workers.
AFL-CIO v. Winship Green Nursing Ctr.,
103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted); see Anderson v. Liberty Lobby.
Inc.,
477 U.S. 242, 248 (1986). All reasonable inferences and
all credible issues are resolved in favor of the nonmoving party.
See Anderson.
477 U.S. at 255-56.
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Once the moving party has properly carried its burden, the
burden shifts to the nonmoving party to "produce evidence on
which a reasonable finder of fact, under the appropriate proof
burden, could base a verdict for it; if that party cannot produce
such evidence, the motion must be granted." Avala-Gerena v.
Bristol Mvers-Squibb Co.. 95 F.3d 86, 94 (1st Cir. 1996) (citing
Celotex.
477 U.S. at 323; Anderson.
477 U.S. at 249).
Il l . ANALYSIS
SkillSoft seeks to assert an Ellerth-Faragher affirmative
defense, claiming that McDaniel suffered no tangible employment
action, that SkillSoft exercised reasonable care to prevent and
correct promptly any harassing behavior, and that McDaniel
unreasonably failed to take advantage of preventive or corrective
opportunities afforded him by SkillSoft. McDaniel responds by
contending that facts that are material to SkillSoft's defense
remain in genuine dispute. In the sections below, I describe the
law governing the Ellerth-Faragher affirmative defense and then
apply that legal framework to the facts of this case. Because I
conclude that SkillSoft has met its burden as to each element of
the defense, I grant its motion for summary judgment.
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A. Legal Framework of the Ellerth-Faragher Affirmative Defense
In certain Title VII cases, "a defending employer may raise
an affirmative defense to liability or damages, subject to proof
by a preponderance of the evidence." Arrieta-Colon v. Wal-Mart
Puerto Rico. Inc.. 434 F.3d 75, 86 (1st Cir. 2006) (quoting
Faragher v. City of Boca Raton.
524 U.S. 775, 807 (1998)
(internal quotation marks omitted). This defense is known as the
Ellerth-Faragher defense. The defense is only available,
however, "when the supervisor's harassment [has not] culminate[d]
in a tangible employment action, such as discharge, demotion, or
undesirable reassignment."
Id. (quoting Faragher,
524 U.S. at
808) (internal quotation marks omitted).
When available, the defense "comprises two necessary
elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any . . . 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." Id. (quoting
Faragher,
524 U.S. at 807) (internal quotation marks omitted).
The first element "typically is addressed by proof that the
employer /had promulgated an antiharassment policy with [a]
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complaint procedure.'’" Marrero v. Gova of Puerto Rico. Inc.. 304
F.3d 7, 20 (1st Cir. 2002) (quoting Burlington Industries. Inc.
v. Ellerth,
524 U.S. 742, 765 (1998). With respect to the second
element, "proof that the employee failed to meet his obligation
of using reasonable care is not limited to an unreasonable
failure to use such a procedure, although such proof will
normally suffice to meet the employer's burden." Reed v. MBNA
Marketing Systems. Inc..
333 F.3d 27, 34 (1st Cir. 2003) (citing
Faragher,
524 U.S. at 807-08) (additional citations omitted).
As it is an affirmative defense, "[t]he employer bears the
burden of proof as to both elements." Arrieta-Colon. 434 F.3d at
86 (citing Faragher.
524 U.S. at 807-08). Despite this,
"summary judgment for the employer is still possible so long as
raw facts are undisputed or assumed in favor of the plaintiff."
Reed.
333 F.3d at 34. However, "the judgment call as to
reasonableness is itself a jury issue unless no reasonable jury
could decide it in the plaintiff's favor." I d . (citation
omitted). It is against this legal framework that I now turn to
McDaniel's claims.
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B. Application
1. Availability of the Defense: Was There a Tangible
Employment Action?
Here, SkillSoft contends that the Ellerth-Faragher defense
is available because McDaniel has not suffered a tangible
employment action. In support of this argument, SkillSoft points
to evidence that McDaniel was never terminated from SkillSoft.
Affidavit of Thomas McDonald, Doc. 19, Attach. 7 ("McDonald
Aff.") at 2. Moreover, McDaniel does not contend that he was
demoted or undesirably reassigned.
In short, McDaniel has not presented sufficient evidence to
rebut SkillSoft's showing that McDaniel was not subjected to a
tangible employment action. Rather, McDaniel's sole argument on
this point is his assertion that while he was collecting
disability benefits, "[his] [mental health] care provider was
never forwarded any additional inquiries by SkillSoft as to [his]
ability to return to work" and that he "received information from
SkillSoft regarding COBRA enrollment for ongoing health insurance
coverage, reasonably leading [him] to believe that his employment
had been terminated." Plaintiff's O b j . at 6. For obvious
reasons, such bald assertions are insufficient to rebut the
evidence SkillSoft has presented with respect to this issue.
Moreover, McDaniel's claim regarding COBRA enrollment is belied
by his own deposition testimony, where he clearly acknowledges
that he was informed of the need to pay for COBRA enrollment not
by SkillSoft, but by his disability insurance company, presumably
because his benefits had expired. Deposition of A.J. McDaniel,
Doc. 19, Attach. 3 ("McDaniel Dep.") at 217-19. Because
SkillSoft has shown by a preponderance of the evidence that it
did not subject McDaniel to a tangible employment action, I hold
that SkillSoft is entitled to assert the Ellerth-Faragher
defense.
2. First Element: Did SkillSoft Exercise Reasonable Care?
With respect to the first element of the defense--!.e .,
whether SkillSoft exercised reasonable care to prevent and
correct promptly any harassing behavior--SkillSoft has shown that
it promulgated and publicized an anti-discrimination policy that
prohibited unlawful discrimination, including unlawful sexual
harassment. McDonald Aff. at 1. This policy contained a
complaint procedure for employees to report incidents of sexual
harassment. Id. McDaniel does not dispute this contention and,
in fact, admitted during his deposition that he reviewed the
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policy when he began working at SkillSoft and that he knew how to
access the policy if he wanted to find it again. McDaniel Dep.
at 70-73. Thus, I hold that SkillSoft has satisfied its burden
with respect to the first element of the Ellerth-Faragher
defense. See Reed. 333 F.3d at 34-35 (affirming district court's
summary judgment determination that defendant satisfied the first
element of the defense by promulgating an anti-harassment policy
with a complaint procedure).
3. Second Element: Did McDaniel Unreasonably Fail to Take
Advantage of Preventive or Corrective Opportunities?
I now turn to the second element of the defense--!.e .,
whether McDaniel unreasonably failed to take advantage of the
complaint procedure in SkillSoft's anti-discrimination policy.
With respect to this element, SkillSoft has presented evidence,
which McDaniel does not dispute, that McDaniel did not report
Brown's alleged harassment to SkillSoft until October 1, 2001,
after he was already on leave. McDonald Aff. at 1. Thus,
SkillSoft argues, McDaniel unreasonably failed to take advantage
of SkillSoft's complaint procedure, thus rendering SkillSoft
unable to prevent or correct the alleged harassment.
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In his brief, McDaniel offers only a cursory explanation for
his failure to follow the procedures. Specifically, he asserts
that he "felt trapped by the structure of SkillSoft and by Mr.
Brown's capacity as his supervisor," that he believed another
employee who complained to Human Resources regarding Mr. Brown
had been terminated, and that a co-worker advised him to refrain
from making complaints to the Human Resources department out of
concern for McDaniel's job security. However, as the First
Circuit has explained, "a nebulous fear of retaliation is not an
adequate basis for remaining silent." See Reed. 333 F.3d at 36
(citing Matvia v. Bald Head Island M q m t .. Inc.
259 F.3d 261, 270
(4th Cir. 2001) (internal quotation marks omitted)). Here,
McDaniel has presented no evidence of anything but a "nebulous
fear." Simply pointing to the fact that Brown was his
supervisor, to sheer speculation as to why a co-worker was
terminated, and to a conversation he had with a co-worker
evidences nothing more the "nebulous fear," deemed insufficient
by the First Circuit to rebut SkillSoft's showing on this point.
Accordingly, I hold that SkillSoft has met its burden with
respect to the second element of the defense.
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IV. CONCLUSION
Because SkillSoft has shown by a preponderance of the
evidence that McDaniel did not suffer a tangible employment
action, that SkillSoft exercised reasonable care to prevent or
correct sexual harassment, and that McDaniel unreasonably failed
to take advantage of SkillSoft's preventive and corrective
opportunities, I hold that SkillSoft has successfully asserted a
Ellerth-Faragher defense. Accordingly, I grant SkillSoft's
motion for summary judgment (Doc. No. 57) as to McDaniel's Title
VII claim. I decline to exercise supplemental jurisdiction over
his related state law claims. The clerk is instructed to enter
judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 14, 200 7
cc: Mary Notaris, Esq.
Edmond J. Ford, Esq.
Elizabeth A. Bailey, Esq.
Christopher Cole, Esq.
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