On November 6, 2015, the U.S. Court of Appeals for the Fourth Circuit, in McKinnish v. Brennan, an unpublished decision, confirmed that an employee’s failure to report his or her supervisor’s allegedly sexually explicit text messages can provide employers with a limited defense against claims of sexual harassment in violation of Title VII.  The decision reiterates that employers can assert a limited defense to claims that a supervisor engaged in sexual harassment in violation of Title VII if the employee unreasonably fails to report the conduct to the employer in a timely fashion and does not suffer tangible harm to his or her employment.

In McKinnish, the plaintiff claimed that she exchanged sexually explicit text messages and videos with a coworker she referred to as her supervisor in order to receive favorable work assignments. The plaintiff alleged that she received “favorable treatment” when she engaged in the text message exchanges and was brought “in to work after the other workers” and given “bad routes” when she did not. The plaintiff did not report this conduct to her employer, the United States Postal Service. Instead, her husband found the messages and reported them to the Postal Service.

The Fourth Circuit found that the plaintiff did not present sufficient evidence to show that the alleged supervisor’s conduct constituted a tangible employment action. Though the plaintiff was sometimes called in to work later than her coworkers, the plaintiff admitted that her hours remained fairly constant during the period of alleged harassment, and a review of her timesheets did not demonstrate that her hours or compensation were reduced. Moreover, because the plaintiff’s job called for her to be assigned varying routes, the court reasoned that periodic assignment to “bad routes” did not constitute a tangible employment action either.

Moreover, the Fourth Circuit found that the Postal Service properly availed itself of the Faragher-Ellerth defense, which allows an employer to escape liability for the harassment of a supervisor where the employer establishes that (1) it exercised reasonable care to prevent and correct any harassing behavior, and (2) the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided. First, the court found that the Postal Service’s dissemination of an effective anti-harassment policy and its swift action to correct the alleged harassment satisfied the first element of this defense. Second, the court found that the plaintiff’s reasons for not reporting the alleged harassment—being made to feel uncomfortable and fearing negative repercussions—were insufficient to eliminate her burden of complying with the second element, noting that an employee’s subjective fears do not alleviate his or her duty to alert the employer to the allegedly hostile environment.   

Although the Fourth Circuit  affirmed the district court’s dismissal of the case on summary judgment, the court declined to adopt the district court’s finding that the coworker was not the plaintiff’s supervisor within the meaning of Title VII and based on the Supreme Court’s recent decision in Vance v. Ball State Univ., 133 S. Ct. 2434 (2013). The district court found that, though the coworker had the ability to control the plaintiff’s hours and assignments within her job description, he was not empowered to take tangible employment actions against the plaintiff. The district court reasoned that because the coworker’s immediate supervisor worked in the same location as the plaintiff and the coworker, the impact of the coworker’s ability to control the plaintiff’s hours was tempered. The Fourth Circuit found that it did not need to affirm the district court’s holding on this reasoning, instead finding that the plaintiff’s failure to produce sufficient evidence that she suffered a tangible employment action and that the Postal Service’s showing that it was entitled to the benefit of the Faragher-Ellerth defense provided sufficient grounds to dismiss the case.

Accordingly, while McKinnish v. Brennan stands for the proposition that, for the purposes of Title VII, (1) a change in work schedule does not represent a tangible employment action where an employee cannot show a decrease or increase in hours worked during the relevant time period, and (2) an employee must report alleged harassment to take advantage of preventative or corrective opportunities provided by an employer to prevent the application of the Faragher-Ellerth defense, it also leaves open the issue of whether a coworker who has control over an employee’s hours can be deemed a supervisor within the meaning of Title VII such that the employer can be vicariously liable for the employee’s harassing conduct.