Christine Brenneman had been on the job just two weeks when, she alleged, her supervisor, David Ryburn, started to make unwanted sexual advances toward her at a Famous Dave’s restaurant in West Des Moines, Iowa.

Ryburn began by winking at his new assistant manager and blew kisses to her every day. Four weeks after Brenneman’s arrival in February 2003, he started to slap her buttocks. Ryburn also allegedly made off-color and improper remarks: He offered to review Brenneman’s job performance at her home and invited her to go over his “expectations” after hours. When an envelope he gave her turned out to be too small, he suggested she “pretend it was a condom and slip it on real soft.”

Brenneman sued the Minnesota-based national BBQ chain, claiming Famous Dave’s exposed her to a hostile work environment and retaliated against her.
Faced with allegations like these, most employers would have nightmares about being held vicariously liable for sexual harassment. But it didn’t turn out that way for Famous Dave’s of America Inc. On Nov. 16 the 8th Circuit affirmed summary judgment to Famous Dave’s in an encouraging decision for all employers.

The court recognized “a company doesn’t have to be perfect,” explains Jonathan Hyman, an employment lawyer with Kohrman Jackson & Krantz.

“So if a company gets a complaint of harassment, has an adequate policy, undertakes an investigation … and then makes what it thinks is a reasoned remedial step to stop the harassment, courts much more often than not aren’t going to second-guess what the company does. The remedial measures don’t have to be perfect either; they just have to be reasonable and adequate,” he says.

Employee Cooperation
The appeals court also asserted that harassed employees, as upset and victimized as they might feel, must cooperate with their employers’ efforts to investigate the problem and set things right. Failure to do so could torpedo employees’ ensuing Title VII claims.

“The strong message to employers is that … the employee has some obligation to work with the employer to try to resolve whatever issue there is that has been raised,” explains Famous Dave’s counsel George R. Wood, a shareholder in Littler Mendelson.

The 8th Circuit did find a prima facie case that Ryburn’s “offensive touching and humiliating comments” were sufficiently severe or pervasive to create a hostile working environment.

Famous Dave’s was therefore on the hook for Ryburn’s alleged harassment, unless the company could prove it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and also that Brenneman unreasonably failed to take advantage of preventive or corrective opportunities.

But Brenneman argued Famous Dave’s was ineligible to use the so-called Ellerth-Faragher affirmative defense because the company constructively discharged her by making her working conditions intolerable and forcing her to quit. She criticized the company’s actions after she first complained to the HR department, six weeks after the alleged harassment started. HR offered to meet with her and Ryburn to rearrange her schedule and to move her to another Famous Dave’s location.

She said she felt emotionally let down by the company. One week after HR began looking into her complaint, Brenneman resigned. And despite several subsequent invitations from Famous Dave’s asking her to return, a written apology from Ryburn and the company’s written pledge it had instructed him to refrain from inappropriate conduct, Brenneman refused to reconsider.

Sunken Claims
Those actions sunk her Title VII claim. “Brenneman was not constructively discharged,” wrote Justices Duane Benton, Kermit Bye and Bobby Shepherd. “A reasonable person in her position would not have found the working conditions so intolerable that she was compelled to resign. Brenneman asserts she thought the investigation was complete and no action would be taken against Ryburn. This is, however, contrary to her obligation not to assume the worst and not to jump to conclusions too quickly.”

The 8th Circuit held that Famous Dave’s didn’t retaliate against Brenneman, but did take reasonable care to prevent, and promptly correct, any sexual harassment that might have occurred.

The court cited the company’s facially valid anti-harassment policy, which includes a non-retaliation provision and a flexible reporting scheme, listing who employees can contact about harassment. “Most importantly,” the 8th Circuit emphasized, “Brenneman received training specifically about the policy.”

The court also stressed that when HR learned of her complaint, it moved immediately to investigate and stop any harassment. Moreover Brenneman unreasonably failed to take advantage of corrective opportunities Famous Dave’s offered. While she said she feared “repercussions” from Ryburn, “this excuse is unreasonable” given the express anti-retaliation rule in the company’s harassment policy and the fact that “a corporate human resources officer appeared to any reasonable observer to be in charge of the situation and superior to Ryburn,” the 8th Circuit held.

Susan Oxford, an appellate attorney with the EEOC, says the 8th Circuit accepted the agency’s amicus submission that adopting a valid anti-harassment policy, including an express ban on retaliation, is not enough by itself to show that a company is preventing sexual harassment. “It’s very important to note that Famous Dave’s responded right away, and employers should follow that
example,” Oxford says.