In a case that demonstrates how important it is for employers to have a comprehensive anti-harassment policy with a complaint and investigation procedure, the US Court of Appeals for the Fourth Circuit recently affirmed a grant of summary judgment to an employer where the plaintiff employee unreasonably failed to fully cooperate by providing information during an investigation of her sexual harassment complaint. Crockett v. Mission Hospital, Inc., 2013 WL 2350454 (4th Cir. May 30, 2013).

Relevant Facts

Stephanie Crockett (Crockett) began working in a full-time capacity at Mission Hospital (Mission) in 2002 as a radiologic technologist. In February 2008, she was reassigned and Harry Kemp (Kemp) became her supervisor. He remained Crockett’s supervisor until his death in March 2010. Despite his title as a supervisor, Kemp did not have the authority to hire or fire any employee, including Crockett.

Crockett had documented disciplinary issues throughout her employment. On February 16, 2010, Mission issued Crockett a final warning, which required, among other things, that Crockett stop using cell phones during work. Crockett signed the final warning, which included the consequence that any further misconduct would result in the termination of her employment. Kemp had no involvement in the decision to issue the final warning.

On February 18, 2010, Crockett saw Kemp in the break room. When Kemp took out a copy of Crockett’s final warning, she asked if she could speak with him about the situation. He agreed to do so, but she asked if they might speak later in a non-public area of the hospital. Around 8:30 pm that evening, Kemp came to get Crockett from the diagnostic area of the radiology department so that they could speak. Kemp led Crockett to an office which was no longer occupied and locked the door. During the meeting, Kemp expressed to Crockett that he thought his office had been bugged, which is why they were in an unoccupied office, and required that Crockett prove to him that she was not wearing a wire.

After about 20 minutes of discussion on the issue of whether she was wearing a wire, Kemp told Crockett that he had been given her termination papers. Crockett felt that if she did not prove that she was not wearing a wire, Kemp would fire her on the spot. Finally, Kemp lifted his shirt to show that he was not wearing a wire and offered to remove his trousers down to his shorts, an offer Crockett refused. She began crying but finally lifted her shirt as fast as she possibly could to expose her bra. Kemp was still not satisfied, so Crockett finally lifted her bra to expose the underside of her breasts. Kemp did not make any sexual overtures to her and did not make any comment about her breasts. He calmly stated that they were now able to speak.

At the end of an approximately 30-minute conversation, Crockett asked what else he wanted to tell her and Kemp replied that she should only trust him. Kemp then stated that they should “seal it with a kiss.” Crockett refused to kiss him, but replied, “(h)ow about a hug,” while she leaned forward to pat him on the back. As Crockett turned away, Kemp kissed her right cheek and said, “I’'ve always wanted just one kiss.” Crockett again refused. As she turned her head, Kemp kissed her cheek again. Kemp then said, “You’re not going to tell anybody, are you?” to which Crockett replied that she would not. Later that night, Kemp again sought reassurance that Crockett would not report the incident and on two more occasions asked for a kiss.

Crockett did not report the incident to Human Resources and instead took leave pursuant to the Family Medical Leave Act from February 19–24, 2010, and retained an attorney. When Crockett returned to work on February 25, 2010, she was summoned to a meeting with Mission’s Human Resources Department (HR). Crockett was told that Kemp had reported continued misuse by Crockett of her cell phone and accused her of “flashing” him with her shirt in order to persuade him not to report the misuse.

In response to these accusations, Crockett told them that Kemp had done something “horrific” to her and was trying to cover it up. Crockett, however, refused to elaborate, stating that her attorney had advised her not to do so. Crockett also did not tell anyone in management at Mission about the incident. At the conclusion of the meeting, Crockett took an HR representative to her locker in order to prove that her cell phone was in the locker and had not been used. The HR representative told Crockett that she would “get to the bottom of this,” but placed Crockett on suspension pending the conclusion of the investigation.

HR met with Kemp about Crockett’s allegation that he had done something “horrific” to her. Kemp denied that anything unusual had occurred between them. On March 1, 2010, HR met with Crockett and asked if the “horrific” incident was sexual in nature. Crockett nodded yes. She refused, however, to provide any additional details. During that meeting, Crockett was provided with a copy of Mission’s sexual harassment policy and advised of the process used to report a claim of harassment or discrimination. Crockett again refused to provide any details or to file a formal complaint.

HR conducted a number of interviews, but found no wrong-doing on Kemp’s part. When Crockett pleaded with them not to make her work under Kemp, she was told that if she did not report to work on March 8, 2010, she would be terminated. Crockett acknowledged that an employee who was in corrective action, such as she, was not eligible for a transfer.

When Crockett returned to work on March 8, 2010, she was told that both she and Kemp were instructed to conduct themselves as “business as usual.” Crockett asked whether Mission had received her EEOC Charge and was told that the complaint had been received. On March 9, 2010, Crockett completed Mission’s form complaint to report the incident with Kemp.

After Crockett returned to work on March 8, 2010, she did not experience any further harassing treatment from Kemp. On March 17, 2010, Crockett had a meeting with HR during which Crockett disclosed that she had surreptitiously tape recorded a conversation with Kemp on February 25, 2010. During that meeting, Crockett — for the first time — told HR the complete details of the February 18, 2010 incident. HR met with Kemp a third time on March 18, 2010, and he once again denied the allegations. After that meeting, Kemp left work and committed suicide.

HR also met with Crockett on March 18, 2010, at which time Crockett played the tape recording she had made on February 25, 2010. Crockett had left the recorder functioning while she was treating and working with patients on that day, thereby surreptitiously recording conversations with and statements made by her patients. Crockett had also tape recorded, without HR’s knowledge, the meeting she had with HR on March 17, 2010. At one point towards the end of the March 18, 2010 meeting, HR asked if Crockett was recording the meeting. Crockett admitted that she was doing so.

On March 24, 2010, Crockett’s employment was terminated for tape recording her interactions with and treatment of patients in violation of the Health Insurance Portability and Accountability Act (HIPAA), and for secretly tape recording her co-workers and her meeting with HR. Crockett acknowledged that Mission had a policy against such conduct which was clearly stated in Mission’s employee handbooks. Additionally, Crockett admitted that she knew violations of that policy could result in termination of employment, as well as civil and criminal penalties. Crockett also acknowledged that Mission’s harassment and discrimination policy contained a prohibition against tape recording investigatory interviews conducted by HR and/or management after a complaint of harassment or discrimination.

After Crockett filed suit, Mission moved for summary judgment on Crockett’s hostile work environment claim, which the district court granted. The district court found that Crockett could not establish that she had suffered a tangible employment action. The district court further found that Mission was entitled to an affirmative defense to defeat liability because it had exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and Crockett had unreasonably failed to take advantage of any preventive or corrective opportunities provided by Mission.

The Fourth Circuit Opinion

On appeal, Crockett contended that the district court erred in concluding that she failed to establish that she had suffered a tangible employment action. Crockett also contended that the district court erred in finding that Mission was entitled to raise the affirmative defense.

According to the Fourth Circuit, to establish a hostile work environment based on sexual harassment, a plaintiff-employee must prove that (1) the conduct was unwelcome; (2) it was based on the plaintiff’s sex; (3) it was sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) it was imputable on some factual basis to the employer. “If the plaintiff’s claim is based on the actions of her supervisor, the employer is subject to vicarious liability [where the harassment culminated in a tangible employment action]. If the plaintiff did not suffer a tangible employment action, the employer has available to it an affirmative defense that may protect it from liability or damages.”

Crockett argued only that her seven-day suspension beginning on February 25, 2010, constituted a tangible employment action, and not her termination, which was clearly due to her violation of HIPAA. Crockett alleged that she was suspended because she reported Kemp’s harassment. The Fourth Circuit agreed with the district court that, at the time of her February 25 suspension, Kemp’s behavior could not have served as the impetus for her suspension because Crockett had not properly reported the harassment to HR. Moreover, Crockett had already been given a final written warning regarding unauthorized cell phone usage, and when HR had received another complaint on this front, Mission was within its rights to place Crockett on suspension.

The Fourth Circuit considered Crockett’s contention that the district court erred in finding that Mission was entitled to raise an affirmative defense, specifically that Crockett had unreasonably failed to comply with Mission’s established policies. Crockett conceded that Mission established, disseminated, and enforced an anti-harassment policy and complaint procedure and took reasonable steps to prevent harassment. Crockett, however, argued that Mission failed to correct Kemp’s harassment promptly because, on February 25, 2010, Mission suspended Crockett rather than investigate her vague allegation that Kemp had done something “horrific” to her. Crockett further argued that Mission’s failure was exacerbated when HR refused to transfer her so that Kemp would no longer be her supervisor.

The Fourth Circuit disagreed, stating that “the existence of a viable anti-harassment policy is accompanied by other undisputed evidence of Mission’s prompt and reasonable care.” Mission had promptly and properly conducted an investigation and was entitled to raise the affirmative defense. The Fourth Circuit concluded that, even viewing this evidence in the light most favorable to Crockett, no reasonable factfinder could reach any conclusion other than that Crockett “unreasonably failed to take advantage of any preventive or corrective opportunities.”

The Fourth Circuit concluded that Mission had satisfied the elements of the affirmative defense and, therefore, Mission could not be held vicariously liable for Kemp’s alleged harassment of Crockett.

Conclusion

The employer in this troubling case was able to escape potential liability because it had a comprehensive anti-harassment policy and a complaint and investigation procedure in place, and it continued to investigate the complaint as best it could despite the plaintiff’s failure to cooperate.