Free Response in Opposition to Motion - District Court of Arizona - Arizona

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12.2B HOSTILE WORK ENVIRONMENT CAUSED BY SUPERV[SOR——CLAIM
BASED UPON VICARIOUS LIABILITY—TANGIBLE EMPLOYMENT
ACTION- AFFIRMATIVE DEFENSE
An employer may be liable when a supervisor with immediate or successively higher authority .
over the employee creates a [[racially] [sexually] [other Title VH protected charocteristie]] hostile
_ work environment for that employee. The plaintiff claims that [he] [she] was subjected to a [[racially]
[sexually] [other Title VH protected chorocteristic]] hostile work environment by , .
and that was [his] [her] [immediate supervisor] [a person with successively higher
authority over plaintiff]. e
The defendant denies the plaintiffs claim. The plaintiff must prove [his] [her] claim by a `
preponderance ofthe evidence.
[lf E llerth/F amgher ajirmutive defense applies, add th e following:] _
In addition to denying the plaintiffs claim, the defendant has asserted an affirmative defense. if
Before you consider this affirmative defense, you must first decide whether plaintiff has proved by a ‘
preponderance of the evidence that [he] [she] suffered a tangible employment action as a result of 2
harassment by the supervisor.
If plaintiff has proved that [he] [she] suffered a tangible employment action as a result of U
harassment by the supervisor, you must not consider the affirmative defense. i
if plaintiff has not proved that [he] [she] suffered a tangible employment action, then you must E
decide whether the defendant has proved by a preponderance of the evidence each of the following {
elements:
l. the defendant exercised reasonable care to prevent and promptly correct the ;
[[racia1ly] [sexually]|other Title VII protected charocteristic]] harassing behavior,
and
2. the plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or unreasonably failed to otherwise avoid harm.
lf the defendant proves these elements, the plaintiff is not entitled to prevail on this claim.
Comment
See Introductory Comment to this chapter. This instruction should be given in conjunction with i
Instruction 12.2A (Hostile Work Environment—Harassment Because of Protected
Characteristics—Elements) and, if applicable, Instruction l2.4B (Tangible Employment Action
Defined).
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This instruction is based upon Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65
(1998), Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998) and Swinton v. Potomac
Corporation, 270 F.3d 794, 802 (9th Cir.200l), cert. denied, 535 U.S. 1018 (2002).
This instruction addresses harassment by a supervisor with immediate or successively higher
authority over the plaintiff. Use the first two paragraphs if no Ellerth/Faragher affirmative defense is
applicable. Use the entire instruction if an Ellerth/Faragher defense is to be considered by the jury. p
When harassment is by the plaintiff s immediate or successively higher supervisor, an employer .
is vicariously liable, subject to a potential affirmative defense. Faragher, 524 U.S. at 780; Nichols v. i
Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 875 (9th Cir. 2001). For vicarious liability to
attach it is not sufficient that the harasser be employed in a supervisory capacity; he must have been the `
plaintiff s immediate or successively higher supervisor. Swinton, 270 F.3d at 805, citing Faragher,
514 U.S. at 806. An employee who contends that he or she submitted to a supervisor’s threat to
condition continued employment upon participation in unwanted sexual activity alleges a tangible _
employment action, which, if proved, deprives the employer of an Ellerth/Faragher defense. Holbz D. C-
v. Cal. Inst. of Tech. , 339 F.3d 1158, 1173 (9th Cir.2003) (affirming summary judgment for the
employer due to insufficient evidence of any such condition imposed by plantiff s supervisor). See
Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2349 (2004) for discussion of tangible
employment action. Q
The adequacy of an employer's anti-harassment policy may depend on the scope of its
dissemination and the relationship between the person designated to receive employee complaints and _
the alleged harasser. See, e. g., Faragher, 524 U.S. at 808 (policy held ineffective where (l) the policy i
was not widely disseminated to all branches of the municipal employer and (2) the policy did not Q
include any mechanism by which an employee could bypass the harassing supervisor when lodging a i
complaint). i
"While proof that an employer had promulgated an anti-harassment policy with complaint
procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to
the employment circtunstances may appropriately be addressed in any case when litigating the first I
element ofthe defense." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
Although proof that the plaintiff failed to use reasonable care in avoiding harm is not limited to
showing an unreasonable failure to use any complaint procedure provided by the defendant, a
demonstration of such failure will normally suffice to satisfy this prong. See Ellertlz, 524 U.S. at 765; i
Faragher, 524 U.S. at 807-08.
lf the harasser is not plaintiffs immediate or successively higher supervisor, an employer’s
liability can only be based on negligence. The Ellerth/Faragher affirmative defense is not applicable if
the claim is based on negligence. Use instruction l2.2C for a claim based on negligence.
Approved 8/2004
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