counseling portion of the EEO complaint process." Poster 72
(italics in original).
Piccola's Weekly Talks
As Postmaster of the Sparta Post Office, Piccola gave his employees
weekly talks to apprise them or remind them of Postal Service policies.
Piccola Depo., Ex. 2 to Kirsch Decl., at 75:5-17, 76:12-16. Piccola
reiterated the Postal Service's sexual-harassment policies at these
Swingle's Union Contract
Swingle's union contract, a copy of which she produced to the
defendants on November 9, 2000, prior to her second deposition, Swingle
Depo. II, at 51:23-25, 52:1-7, clearly states that the Postal Service and
the union agreed that union-affiliated postal employees would not be
subjected to sex discrimination on the job, and that union-affiliated
employees would be entitled to file grievances based upon such
discrimination pursuant to the grievance procedures set forth in the
contract. Agreement between United States Postal Service and National
Rural Letter Carriers' Association, 1995-1999, Ex. 18 to Kirsch Decl., at
2-3. Those grievance procedures, set forth in Article 15 of the
contract, id. at 57-63, set forth the protocol when a union employee has
filed an EEO complaint alleging discrimination. Id. at 62-63.*fn6
Swingle referred to these grievance procedures at least once before
filing two grievances; Swingle Depo. I, at 107:5-25, 108:1-24.
Postal Life Magazine
Swingle received in the mail at her home copies of Postal Life, a
quarterly magazine published by the Postal Service for its employees.
Swingle Depo. I, at 32:17-25 through 35:8; Declaration of Pamela G. York
("York"), 2/16/01, Ex. 20 to Kirsch Decl., ¶ 2, at 1. The
September/October 1996 issue of Postal Life, attached to the York
declaration, featured a cover story listed on the cover as, and
entitled, "SEXUAL HARASSMENT: It's about abuse of power not sex." Postal
Life, Sept./Oct. 1996, cover (uppercase in original, punctuation added).
The cover story refers to the Postal Service's formal, avowed policy on
sexual harassment in the workplace, and describes what postal employees
who think they have been sexually harassed should do to stop the
harassment. Id. at 18.
"[W]here, as here, there is no evidence that an employer adopted or
administered an anti-harassment policy in bad faith or that the policy
was otherwise defective or dysfunctional, the existence of such a policy
militates strongly in favor of a conclusion that the employer `exercised
reasonable care to prevent' and promptly correct sexual harassment."
Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999) (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 2293, 141 L.Ed.2d
The foregoing recitation of undisputed facts establishes unequivocally
that the Postal Service exercised reasonable care to prevent sexual
harassment and gender-based discrimination during the time Swingle
alleges she was subjected to a hostile work environment. Though Swingle
does not dispute these facts, see Swingle Memo. Opp. Mot. Summ. J. at
33-37, she relies on Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th
Cir. 1997), to support her untenable argument that Henderson should not
be able to make out the first element of the affirmative defense enounced
in Ellerth because Swingle had no actual knowledge of the Postal
Service's anti-harassment policies and remedies until Tucker's February
20, 1997 sexual-harassment seminar. Harrison is distinguishable from the
instant case because the plaintiff's employment materials in that case
made no mention of the employer's sexual-harassment policy; see
Harrison, 112 F.3d at 1442. Moreover, Ellerth nowhere requires that an
employee must have had actual knowledge
of the employer's anti-discrimination and anti-harassment policies before
the discrimination or harassment allegedly occurred for the employer to
avail itself of the affirmative defense to respondeat superior
The Postal Service Exercised Reasonable Care Promptly To Correct Any
The Postal Service's exercise of reasonable care promptly to correct
any sexual harassment to which Swingle might have been subjected is not
only borne out by the Postal Service's repeated, widespread, and
intensive dissemination of its clear and comprehensive anti-harassment
and anti-discrimination policies, but also by the successful actions
Piccola took to prevent Swingle from being subjected to sexual
discrimination or sexual harassment.
Following Swingle's meeting with Sprich and Piccola on May 14, 1997,
Piccola forthwith relocated Swingle's work space within the Sparta Post
Office.*fn7 See supra p. 8. Significantly, twice Swingle was offered a
new supervisor to replace Krysiak, yet twice she refused the offer. See
supra p. 8. Most importantly, however, Swingle herself alleges that
Krysiak's sexual harassment ended on February 21, 1997, in the wake of
Tucker's anti-harassment seminar the previous day — almost three
months before her meeting with Sprich and Piccola on May 14, 1997. See
supra pp. 6-7. "[W]hen an employer's response stops harassment, there
cannot be Title VII liability." Kunin v. Sears Roebuck & Co., 175 F.3d 289,
294 (3rd Cir. 1999); accord Newsome, 103 F. Supp.2d at 819 — 820.
These undisputed facts establish unequivocally that the Postal Service
exercised reasonable care promptly to correct alleged sexual harassment
and gender-based discrimination during the time Swingle alleges she was
subjected to a hostile work environment.
Swingle Unreasonably Failed To Take Advantage of Opportunities Provided by
the Postal Service To Prevent Further Alleged Sexual Harassment
As noted above, Swingle twice refused the offer of a replacement
supervisor for Krysiak. Swingle's refusal was an unreasonable failure to
take advantage of an opportunity provided by the Postal Service to
prevent further alleged sexual harassment by Krysiak and to alleviate the
hostile work environment his conduct allegedly created. If an employer
chooses an adequate remedy to prevent sexual harassment, the aggrieved
employee cannot object to such a remedy and dictate instead that her
employer take such remedial action as the employee deems appropriate.
Knabe v. Boury Corp.,