Constructive Notice Bars Summary Judgment

On September 2, 2008, the U.S. Court of Appeals for the 8th Circuit issued its decision in Jenkins v. Winter, Secretary of the Navy, Case No. 07-2049. The 8th Circuit reversed the trial court's grant of summary judgment and remanded the case for trial.

Jenkins was a civilian contact employee working as a statistician at the Navy Recruiting District Office in Kansas City, Mo. from 2001 to 2006. In October 2003, a new supervisor (Jones, an enlisted member of the Navy) was assigned to her office. Within two days of his arrival, Jones began making daily comments regarding Jenkins' appearance and requests for sexual favors from Jenkins. When Jenkins refused, Jones became hostile, swearing at her and intimating possible reprisal. In a November 2003 incident witnessed by a coworker, Jones groped Jenkins.

Jenkins contacted the EEO office during the week of November 17, 2003. Jenkins reported Jones' comments and conduct at that time, but omitted mention of the touching incident. Jenkins stated that she did not want to file a formal complaint at that time. The EEO officer, Williamson, encouraged Jenkins to handle the problem informally with Jones consistent with Navy policy (which encouraged victims of harassment to attempt to resolve their issues with the alleged offender, and then to notify the chain of command).

Jenkins then met with Jones and notified him that his conduct was unwelcome. During the week of November 21-28, 2003, Williamson sent two e-mails to military personnel in the office discouraging sexual harassment without identifying specifics of Jones' conduct. Nonetheless, Jenkins was approached by several supervisors, including her 2nd level supervisor (Borrosh), and Hartman (who had both been notified of Jones' conduct by Waranch, a witness to the conduct). Hale, Jenkins' 3rd level supervisor, then called a meeting with Jones, Jenkins, Williamson, Borrosh and others on December 4, 2003, and ordered Jenkins to recount her allegations. Jenkins reluctantly obeyed. Harassment ceased on that date. A formal investigation was completed on January 24, 2004; Jones was placed on permanent administrative leave on January 26, 2004, and was permanently discharged on February 23, 2004.

When the case came to the trial court, the trial judge granted the Navy's motion for summary judgment, finding that Jenkins (a) had not properly controverted the Navy's factual assertions under the formal requirements of the local rules, thus deeming the Navy's statement of facts admitted and excluding consideration of Jenkins' own statement of facts; (b) found Jenkins' factual assertions unsupported by competent evidence in that two of the witness (Hartman and Waranch) affidavits contained a quantum of hearsay; and (c) that the Navy had proven its Ellerth-Faragher affirmative defense. Jenkins then appealed this summary judgment determination to the 8th Circuit.

The 8th Circuit reversed and remanded the case for further proceedings. First, the 8th Circuit found that the trial court erred in applying an overly technical reading of the local rules, and thus was required to have considered Jenkins' statement of facts in deciding on summary judgment. Second, the 8th Circuit found error in the trial judge's exclusion of the entirety of Hartman and Waranch's affidavits as opposed to merely excluding from consideration those limited portions containing hearsay. Turning to the merits, the 8th Circuit found that the Navy had failed to meet its burden in proving the Ellerth-Faragher affirmative defense. For the affirmative defense to apply, the Navy had to show that "prompt and effective remedial action" had been taken to terminate Jones's harassment. Whether or not the remedial action is "prompt" depends on the chronology of remedial action compared to when Navy management had notice (actual or constructive) of Jones' conduct. Based on Hartman and Waranch's affidavits, the record indicated a genuine issue of material fact as to whether the Navy had constructive notice of Jones's misconduct prior to December 2004. With a genuine issue of material fact as to the timing of notice (and therefore the promptness of remedial action), summary judgment was inappropriate.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/

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