Evidence Of Employer’s Prompt Investigation Of Sexual Harassment Complaint Is Key To Avoiding Liability

Rejecting a jury’s verdict that found that the U.S. Postal Service (USPS) failed to respond in a “prompt and appropriate” manner to an employee’s sexual harassment complaint, the U.S. Court of Appeals for the Ninth Circuit reversed a judgment in favor of the employee in Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001).

Facts

Melody Swenson, a USPS employee since 1977, was working as a mail sorter in August 1993 when she met Philip Feiner, who had been assigned to the same general area. Though Feiner started making unwelcome advances toward Swenson soon thereafter, a supervisor was not made aware of his conduct until January 1994. An internal investigation initiated three days later found Feiner not guilty of sexual harassment, and discussions among the employees, their union representatives, and management failed to resolve the situation.

In June 1994, Swenson filed a complaint with the Equal Employment Opportunity Commission. The EEOC found Feiner had harassed Swenson and that the USPS investigation was inadequate. Shortly before EEOC issued its findings in mid-1995, Swenson quit, claiming her work situation was intolerable. She sued in federal court alleging USPS had not taken “prompt and appropriate” remedial action to her complaint, in violation of Title VII of the Civil Rights Act. The jury agreed with Swenson, and judgment was entered in her favor for $85,000. USPS appealed.

The Court of Appeals’ Decision

A majority of the Ninth Circuit Court of Appeals’ three-member panel, which heard the case, found the evidence was insufficient to support the verdict. An employer’s obligation to take prompt corrective action to a sexual harassment complaint has two parts, the Court said: first, to adopt temporary measures dealing with the situation while the employer determines whether the complaint is justified; and second, to take permanent remedial action once the investigation is completed. The Court found the evidence clearly showed USPS had fulfilled both obligations, and that the case should never have been submitted to a jury.

The Court found it extremely significant that USPS had opened an investigation into the matter within three days after a supervisor first received information that Swenson was being harassed. Stating an employer faced with a sexual harassment complaint is in the difficult position of balancing the rights of an alleged victim of harassment against those of the accused employee, the Court said the most significant action an employer can take is to launch a prompt investigation to determine whether the complaint is justified.

The Court also noted USPS immediately warned Feiner to stay away from Swenson, and, ultimately, moved Swenson to a more favorable new work area to minimize her contact with him. In addition, the Court said USPS was entitled to consider the fact that both parties were members of and represented by their union, in deciding what remedial steps to take.

The majority opinion was accompanied by a strongly worded dissent that criticized the majority’s version of the facts, and accused the Court of usurping the role of the jury by reweighing the evidence. According to the dissent, the majority improperly adopted USPS’ version of events, despite the fact that the jury had chosen to believe Swenson.