No Sexual Harassment Found When Incident Went Unreported

Upholding a lower court’s opinion, the 7th US Circuit Court of Appeals found the employer was not liable for a hostile work environment created by a supervisor’s sexual harassment of an employee because there was no tangible employment action and the employee failed to make use of the employer’s reporting procedures.   Further, once the worker did complain, the employer acted promptly to remedy the situation, the appellate court found.

Leslie McPherson a clerical worker for the City of Waukegan, Illinois claims that from March 1999 to March 2001 her second-level manager, Randall Copenharve, created a hostile work environment through his unwanted verbal sexual advances.   However, McPherson did not report any of the alleged sexual harassment until March 2001, when Copenharve’s conduct became physical.  

Following an incident on March 26, in which Copenharve groped McPherson in his office, McPherson told her sister-in-law Mary Vanderventer, who happened to be the mayor’s daughter, what had happened. Vanderventer in turn reported the events to her father. Later that same day, the city offered Copenharve the opportunity either to resign or accept suspension while the city investigated. He resigned immediately even though he insisted that the conduct had been consensual.

Beginning March 28, the city granted McPherson 30 days of paid leave. When that ran out, the city told her she could take additional leave using up her accrued paid leave; after that she would have to apply for a leave of absence. On June 28, 2001, a point when the city considered McPherson absent without leave, the city notified her that her position remained available, explained that the perceived hostile work environment could no longer possibly exist and encouraged her to come back to work. The same day McPherson tendered her resignation through her attorney.

McPherson sued the city for sexual harassment under Title VII of the Civil Rights Act of 1964. The city countered, claiming there was no constructive discharge, that no tangible employment action had occurred, that it had exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that McPherson had unreasonably failed to use the city’s reporting procedures.

The court agreed, finding that a lthough McPherson was aware of the city’s sexual harassment and workplace violence policies, except for her report to Vanderventer, she neither complained nor filed a grievance under her union contract.  Once the city became aware of the sexual harassment, it acted immediately to investigate, correct and prevent future occurrences.

The case is McPherson v. City of Waukegan, 7th Circuit Court of Appeals, No. 03-2738.