The federal appellate court with jurisdiction over Georgia employers recently dismissed a lawsuit brought by a nurse who claimed that she was retaliated against after complaining about a doctor’s alleged sexual advances. According to the Eleventh Circuit Court of Appeals, the employer successfully raised the Faragher/Ellerth defense by arguing that the nurse’s initial complaint did not place it on notice of the alleged sexual harassment. Nurse “Be” v. Columbia Palms West Hospital Limited Partnership, No. 06-12159, Eleventh Circuit Court of Appeals (July 6, 2007).

Factual Background

Bobbie Eicke O’Brien was employed by Columbia Palms West Hospital Limited Partnership (Palms West) as a nurse. Michael Chaparro was a pediatric neurosurgeon with hospital privileges to practice medicine at Palms West.

Beginning in late 2002 or early 2003, Chaparro began calling O’Brien late at night to ask her out. According to O’Brien, she always indicated that she was not interested. After receiving several calls from Chaparro, O’Brien asked her supervisor, Cindy Stowers, to remove her phone number from the staff directory. She also told Stowers that she did not want the matter reported to hospital administration. After her number was removed from the directory and she changed her phone number, O’Brien stopped receiving phone calls from Chaparro.

In May 2003, Chaparro allegedly began making lewd and sexual comments directed at O’Brien, and inappropriately touched her whenever he saw her. The conduct culminated on November 11, 2003, according to O’Brien, when Chaparro made sexual advances toward her when they were in a supply room. O’Brien rebuffed the advances and fled the room. Later that same day, however, Chaparro allegedly touched O’Brien in an inappropriate manner and she reported his conduct to nurse supervisors David Knight and Rhonda Stoops.

O’Brien’s complaint was forwarded to HR director Katie Kato, who met with O’Brien and initiated an internal investigation. Kato also forwarded O’Brien’s complaint to Heather Rohan, the CEO of Palms West, and Mike Patterson, Chaparro’s immediate supervisor.

During a meeting between Kato, Rohan, and Patterson, Chaparro claimed that he and O’Brien had a long history of flirting and that the November 11 incident was the first time O’Brien rebuffed his advances. As a result, Chaparro was disciplined. The disciplinary action form stated that Chaparro admitted to hugging and kissing O’Brien in the workplace, and that any further unprofessional contact with O’Brien would result in his immediate termination.

In the meantime, Kato switched O’Brien’s schedule and work assignment to avoid possible encounters with Chaparro. O’Brien, however, claimed that after she complained about Chaparro, Palms West began to impermissibly schedule her and reprimand her for failing to show up for shifts for which she was not apprised. She also claimed that she was ignored by supervisors both at work and in her request to transfer to the day shift. On December 31, 2003, O’Brien resigned, claiming that Kato’s investigation report downplayed Chaparro’s conduct. She then filed suit against Palms West alleging hostile work environment sexual harassment and illegal retaliation. A jury returned a verdict in O’Brien’s favor. Palms West filed a motion for judgment as a matter of law, which the trial judge denied. Palms West then appealed this decision.

Legal Analysis

To establish the Faragher/Ellerth defense to hostile work environment claims, an employer must show that: (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior”; and (2) the employee “unreasonably failed to take advantage of any preventive or corrective opportunities [it] provided.” In this case, the Eleventh Circuit focused on the second requirement in examining whether O’Brien failed to place Palms West on notice when she reported Chaparro’s phone calls to Stowers. O’Brien argued that Stowers was a designated representation for purposes of reporting sexual harassment and thus was required under the terms of Palms West’s sexual harassment policy to advise human resources of her complaint.

The Eleventh Circuit disagreed. According to the court, when O’Brien referred to Chaparro’s phone calls as “harassing,” Stowers took that to mean “annoying” since Chaparro didn’t make any sexually explicit remarks or innuendos during the calls. “At best,” the court noted, “the phone calls, as described by O’Brien, amounted to co-worker congeniality. At worst, they described a persistent but non-threatening suitor, which still does not amount to harassment.”

Moreover, the court found it relevant that O’Brien requested that Stowers not report the matter to hospital administration. Thus, the court concluded that O’Brien’s complaint did not place Palms West on notice of the alleged harassment. Since O’Brien “never gave Palms West an opportunity to rectify Dr. Chaparro’s behavior until after it had persisted for almost ten months,” the court ruled that Palms West could not be held accountable for his behavior.

Finally, the Eleventh Circuit held that once Palms West was put on notice of Chaparro’s behavior on November 11, 2003, it responded by taking “reasonable and prompt corrective action.” According to the court, O’Brien’s complaint was immediately forwarded to the hospital’s HR director (who commenced an investigation the following day). Following the investigation, the court noted, Chaparro received a disciplinary notice advising him that any further unprofessional contact with O’Brien would result in his “immediate termination.” Based on this evidence, the Eleventh Circuit concluded that “it is clear that Palms West . . . met its duty by taking prompt and corrective action.” Thus, the trial judge’s denial of judgment as a matter of law in favor of Palms West was reversed and the jury verdict was vacated.

Practical Impact According to William Steinhaus, a shareholder in Ogletree Deakins’ Atlanta office: “Employers should be cautious in reading this decision as insulating an employer when mild ‘harassment’ complaints are accompanied by a request to keep the complaint confidential. While not significantly changing existing law in the Eleventh Circuit, the decision provides a textbook description of how an employer properly responded to a complaint of sexual harassment when effective notice was received.”