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When the U.S. Supreme Court handed down a pair of sexual harassment decisions in 1998, the justices seemed to be giving savvy and careful defendants a “silver bullet” that could ensure victory in some cases for any employer that could show it had drafted and implemented an effective workplace discrimination policy. But while the so-called Faragher-Ellerth defense has proven to be a powerful arrow in the defense lawyer’s quiver, plaintiffs lawyers are now finding its weaknesses. A recent decision by U.S. District Judge Michael M. Baylson illustrates how the Faragher-Ellerth defense can sometimes hinge on factual issues that must be decided at trial, and, as a result, fail to deliver the summary judgment victory a defendant seeks. In Wells v. Happy Tymes Family Fun Center Inc., a defense lawyer argued that it was a “classic case” in which the Faragher-Ellerth defense should bar the plaintiff’s claims. “The alleged misconduct was committed by a low-level manager and there is no allegation that his management role aided in the alleged harassment, as his alleged harassment is the type that could have been committed by any other co-worker,” attorney Scott H. Wolpert of Timoney Knox in Fort Washington, Pa., wrote. Wolpert argued that under the Supreme Court’s decisions in Faragher v. Boca Raton and Burlington Industries v. Ellerth, “an employer who receives notice of alleged harassment and sits idly by without investigating and/or taking prompt and effective remedial action, if appropriate, should be liable.” But the defendant is entitled to summary judgment, Wolpert argued, when the evidence shows that the employer had “no notice whatsoever of the occurrence of the alleged improper conduct because plaintiff consistently failed to report such conduct throughout her employment.” In such a case, Wolpert said, the defendant “cannot be held vicariously liable for the conduct of a low level manager.” The plaintiff’s “admitted failure” to report the alleged harassment and her failure to “avoid or reduce harm,” he said, mandates that summary judgment be granted in favor of the defendant. But Baylson refused to dismiss the case, finding there were factual disputes about several of the key elements in the defendant’s Faragher-Ellerth defense. Baylson found that a jury must decide whether the defendant truly had in place an effective anti-harassment policy, and, if so, whether it made “reasonable efforts” to make the plaintiff aware of it. Significantly, Baylson also ruled that the jury must decide whether the plaintiff was “constructively discharged” from her job due to intolerable working conditions that would have made a reasonable employee quit. According to court papers, plaintiff Keri Wells was 15 years old when she worked at the Happy Tymes amusement center for six months beginning in March 2001. Wells claimed that her assistant manager, Dan Rutledge, made inappropriate remarks and subjected her to inappropriate body contact at least once a week, totaling roughly 50 incidents. But Wells also admitted that she did not complain about the incidents to any manager at Happy Tymes until the day she quit when she complained to general manager Colleen Garomon. Baylson found that in Faragher and Ellerth, the Supreme Court announced an affirmative defense assertable in sexual harassment cases where no “tangible employment action” is taken, meaning that the plaintiff was not fired or demoted. For the defense to succeed, Baylson said, the employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” When the defense is asserted, Baylson said, the plaintiff has a duty to show that she mitigated the harm, but the employer has the burden to prove that the plaintiff unreasonably failed to avoid or reduce harm. Wells’ lawyer, Ari Karpf of Timothy M. Kolman & Associates in Langhorne, Pa., argued that Happy Tymes failed to prove its defense because it cannot show that Wells was aware of its policy. “Defendant never provided handbooks to employees, had no policy against sexual harassment, and argues throughout its motion that newly hired 15- and 16-year-old employees may have seen a state-required poster on a bulletin board,” Karpf wrote. But Wolpert argued in his brief that the evidence showed the policy was posted in the area where the employees hang their coats and punch the time clock. “The posted sexual harassment policy … included statements that sexual harassment was unlawful and unacceptable in the workplace, defined sexual harassment, stated that sexual harassment was illegal, including harassment initiated by a supervisor or manager, and identified the procedure for investigation and resolution of harassment complaints,” Wolpert wrote. The policy also stated that an employee could report a harassment issue to one of two managers, Garomon or Jon McHutchinson, he said. Karpf argued that the defense was taking too simplistic a view of the fact that Wells did not complain until the day she quit. When Wells did complain, he said, she was not taken seriously and decided to quit because she could not endure the harassment any longer. Baylson concluded that the case must go to trial because Wells is entitled to have a jury decide several critical issues relating to the Faragher-Ellerth defense. “Although defendant advances its Faragher-Ellerth defense based on numerous ‘undisputed facts’ regarding the circumstances of the plaintiff’s departure and the existence of a well-developed sexual harassment policy that was made known to plaintiff, many of these facts are in dispute,” Baylson wrote. At trial, Baylson said, the jury must decide whether Wells “was constructively discharged or left defendant’s employ for other reasons.” The jury must also decide whether Happy Tymes had an effective anti-harassment policy in place and whether it made “reasonable efforts to make plaintiff aware of it by, for example, explaining the policy, providing plaintiff with an employee handbook and/or otherwise notifying plaintiff,” Baylson wrote. Finally, Baylson said, if the jury finds that an effective policy was in place, it must also decide “whether plaintiff was actually aware of such policy.”

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