May 23, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C
05924-Charles R. Norgle, Judge.
Bauer, Manion, and Brennan, Circuit Judges.
Hunt worked the overnight shift in the electronics department
of a Wal-Mart store and Daniel Watson was her supervisor.
After Watson made several unprofessional remarks toward Hunt
over a four-month period, Hunt filed a complaint with human
resources. Wal-Mart promptly investigated the claims but was
unable to substantiate them. Hunt then filed a complaint in
federal court alleging Watson sexually harassed her by
creating a hostile work environment in violation of Title VII
of the Civil Rights Act of 1964. At summary judgment, the
district court held that Wal-Mart established the
Faragher-Ellerth affirmative defense to liability
because it reasonably prevented and corrected sexual
harassment, and Hunt unreasonably delayed in reporting the
harassment. We agree and affirm.
Watson and Hunt worked together on the night shift, Watson
worked as a supervisor on the day shift. While working on the
day shift Watson was accused of sexually harassing an
individual he supervised, Toyanna Campbell. Campbell filed a
complaint on October 24, 2012, which informed human resources
that Watson had told Campbell he liked her several times.
After she said she did not like him he closed the door and
window to his office, put his hand on her arm, and refused to
let go of her until she screamed. Watson was provided with a
written "coaching" for the conduct described in the
complaint. "Coaching" is the Wal-Mart equivalent of
being written up and is intended to provide instruction and
assistance when an employee's performance is not up to
November 7, 2012, Campbell filed another complaint alleging
Watson had acted inappropriately. According to the complaint
he asked her what perfume she was wearing, complimented her
on her "musk," implied that she liked him when she
called him to the front of the store, informed her that he
was single and asked if she was single, told her he was
looking for a girlfriend, and told her he really liked her.
In response to this incident, Wal-Mart provided Watson with a
second written coaching and moved him to the overnight shift.
met Watson for the first time during a shift in May 2013.
Watson came up to her and asked her why she was wearing a
particular shirt, saying that he could see her breasts, and
then commented that he did not understand how a woman could
have breasts so large despite having a small body. Hunt was
uncomfortable and walked away from the incident to avoid
further comments. About a month later, Watson walked up
behind Hunt while she was bending over, stood close to her,
and made another comment about her breasts. Hunt told him
that his comments were inappropriate and again walked away.
This time Watson followed her and told her he wanted to
shower with her and feel her breasts.
25, 2013, Hunt showed Watson a picture of a fallen tree on
her phone to explain that inclement weather had caused her to
miss the previous workday. Watson took the phone from her
hand and indicated he was looking through it for naked
pictures. Hunt asked him to stop and took her phone back.
Watson replied that he would not excuse her absence and again
asked when he could see her breasts.
August Watson made similar offensive comments towards Hunt
and in mid-September, Watson asked to see Hunt's breasts
several times within a few days. On September 27, 2013, after
Hunt refused another advance, Watson gave her written
coaching for not working her scheduled shifts and cited her
June 24 absence as one such absence. Immediately following
this formal discipline, Hunt decided to report Watson's
harassment to the store manager, Mark Turner, at the end of
asked Turner for a complaint form when he arrived for his
shift. This was the first time Hunt informed Turner of any
issues between her and Watson. When Turner asked Hunt if she
knew of any witnesses, she told him to ask around about
Watson's behavior. Turner collected the complaint from
Hunt and provided it to human resources. Later that day,
human resources informed Turner that he needed to complete an
investigation into Hunt's complaint. Turner opened an
investigation immediately and interviewed Watson eight days
later. Watson denied making any sexual comments towards Hunt.
Turner concluded Hunt's claims could not be substantiated
without corroborating witnesses. Nonetheless, he required
Watson to retake the company's ethics training course
which included anti-harassment training. Watson completed the
course on November 6, 2013. Hunt reported no incidents of
harassment following the discipline.
filed a complaint in federal court on June 7, 2016, and an
amended complaint on July 1, 2016. Hunt alleged she was
subjected to a hostile work environment by being sexually
harassed on a daily basis for five months. Wal-Mart moved for
summary judgment arguing that Watson's actions did not
create a hostile work environment or in the alternative that
Wal-Mart had established an affirmative defense to liability
as a matter of law. The district court admitted it was
"unable to determine whether Plaintiff suffered a
hostile work environment claim," but granted summary
judgment in favor of Wal-Mart, holding it had proved the
affirmative defense outlined by the Supreme Court in
Burlington Indus, v. Ellerth, 524 U.S. 742 (1998),
and Faragher v. City of Boca Raton, 524 U.S. 775
(1998). Because we agree, we affirm.