28 Risk Management and Harassment 28 Risk Management and Harassment

One of the key areas of risk management in Title VII involves the handling of sexual and other forms of harassment. In 1998, the Supreme Court decided Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), involving a supervisor and victim away from the office on a business trip and Farragher v. Boca Raton, 524 U.S. 775 (1998), a case about  lifeguards who were harassed at a beach remote from the city employer. The key issue in the case was when employers would be held vicariously liable for the acts of their workers. The Court found employers responsible any time a  “supervisor” subjects plaintiff to “a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Faragher, 524 U.S. at 808. But when there is no tangible employment action, the employer can raise an affirmative defense. Finally, when a co-worker or customer is involved with harassment, an employer may still be liable, but only for negligence. See Vance v. Ball State University, 570 U.S. 421, 427 (2013) (“[A]n employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior.”). 

In this section, we will study the Farragher-Ellerth defense and the incentives it creates for employers and employees.

28.1 Williams v. Spartan Communications Inc., 210 F.3d 364 (4th Cir. 2000) 28.1 Williams v. Spartan Communications Inc., 210 F.3d 364 (4th Cir. 2000)

Veneal Williams sold advertising from 1989 to 1995 for Spartan Communications, Incorporated, which runs a television station in Spartanburg, South Carolina. Her immediate supervisor was Local Sales Manager Mitchell Maund, who was promoted to that position in 1992. Williams alleges that between 1992 and 1995 Maund sexually assaulted her three times during business trips that the two took together. The second assault assertedly occurred in Williams' van, while the two were watching an R-rated movie rented on Maund's instructions.
On May 24, 1995, Williams reported Maund's assaults to Spartan General Sales Manager Greg Rose and Spartan Personnel Manager Donna Groothedde. Maund was out of town that day, but Rose, Groothedde and Spartan Vice President and General Manager Jack West met with him the following day, May 25. At that time, Maund admitted to renting and watching the movie in Williams' van. That afternoon, Maund, Rose, Groothedde, and West met again; as a result of Maund's admitted rental of the movie, he resigned. Maund received five months severance pay in return for releasing Spartan from liability for his dismissal. Due to the distress of continued sexual harassment, Williams left her job with Spartan and is now unemployed and in counseling.
After filing charges with the EEOC, Williams initiated this action. A magistrate judge granted summary judgment to Spartan (but not Maund). Subsequently, the judge certified the case for immediate appeal pursuant to Rule 54(b) and Williams noted this appeal. Contrary to Spartan's suggestion, the notice of appeal was timely, see 28 U.S.C. § 1291, and the Rule 54(b) certification proper. See Fox v. Baltimore City Police Dept., 201 F.3d 526 (4th Cir.2000). Accordingly, we turn to the merits of the case.
 
We agree with Spartan that Williams has failed to allege or offer competent evidence that she suffered any tangible employment action at the hands of Spartan management. Although her complaint captions Count One as a “claim for quid pro quo sexual harassment,” in fact it contains no allegations supporting such a claim. Moreover, in deposition Williams responded “not that I recall” to the question, “in terms of work did he [Maund] ever retaliate against you in any way?” Williams further conceded at her deposition that she did not receive negative evaluations, warnings, or reprimands from Maund and that he never changed her accounts in any retaliatory way. Williams later filed an affidavit stating that actually Maund had twice “passed [her] over for promotions.” The magistrate judge rejected the affidavit, reasoning that a “plaintiff may not create an issue of fact by submitting an affidavit that is inconsistent with prior deposition testimony.” See Rohrbough v. Wyeth Laboratories, 916 F.2d 970, 975 (4th Cir.1990). We review the judge's decision as to whether to credit such an after-the-fact affidavit for abuse of discretion, Shaw v. Stroud, 13 F.3d 791, 804 (4th Cir.1994), and find no abuse here. See Rohrbough, 916 F.2d at 976.
*2 The final issue in this case is whether Spartan has established, as a matter of law, its entitlement to an affirmative defense to Williams' hostile environment claim. The Supreme Court has explained that “[w]hen no tangible employment action is taken, a defending employer may raise an affirmative defense” to a claim of “vicarious liability ... for an actionable hostile environment created by a supervisor with immediate ... authority over the employee.” Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998). To do so an employer must demonstrate by the “preponderance of the evidence” that (1) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.” Id. The magistrate judge held that Spartan had satisfied both elements of the affirmative defense as a matter of law and so granted the company summary judgment.
We believe that this ruling was error. We need only discuss the first prong of the defense-whether Spartan has established, as a matter of law, that it “exercised reasonable care to prevent and correct promptly” the sexually harassing behavior.
 
The magistrate judge found that the following evidence demonstrated that Spartan had indisputably satisfied this prong: (1) Williams admitted that she knew of Spartan's anti-harassment policy, had attended a meeting at which it was discussed, and saw a posted notice of it, which identified persons to whom she could report improper conduct, and (2) Spartan forced Maund to resign as soon as it learned of Williams' allegations.
This rationale fails to recognize that while the existence of an anti-harassment policy and prompt corrective action pursuant to it provides important evidence that an employer has acted to meet the first prong of the affirmative defense, such evidence does not compel this conclusion. Rather, any anti-harassment policy offered to satisfy the first prong of the Faragher-Ellerth defense must be “both reasonably designed and reasonably effectual.” Brown v.. Perry, 184 F.3d 388, 396 (4th Cir.1999). Moreover, a prompt response to complaints of harassment made pursuant to a policy banning harassment does not necessarily establish the first prong of the affirmative defense. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 664-65 (6th Cir.1999).
The magistrate judge also entirely ignored substantial relevant evidence submitted by Williams that could lead a factfinder to conclude that Spartan's anti-harassment policy was not an effective preventive program. This evidence included: (1) Maund's deposition testimony that he received no training on sexual harassment and did not even recall any specific discussion of the anti-harassment policy; (2) senior Spartan management's toleration of and participation in lewd conversations and publication of sexually explicit jokes and cartoons in the workplace; (3) evidence that an employee's complaint to a Spartan manager about foul language and sexist jokes in the workplace produced no corrective action; (4) General Sales Manager Rose's comment that a secretary had been fired because “she didn't give him a blow job”; (5) Vice President and General Manager West's remark to male managers looking at female participants in a management training function, “Boys, I've stepped over better than that just to jack off”; (6) General Sales Manager West's comment after a sexual harassment training meeting, “does this mean we can't fuck the help any more”; (7) the close relationship between Maund (the alleged harasser) and West, Rose, and other senior managers at Spartan; and (8) the anti-harassment policy's failure, in contravention of EEOC guidelines, to assure those reporting harassment that they would not be subject to retaliation, particularly when the policy provided that “[a]n employee who in bad faith falsely accuses another employee of harassment will be subject to disciplinary action up to and including termination.”
*3 In Faragher, the Supreme Court found a city was vicariously liable for harassment by lifeguard supervisors, despite the existence of a sexual harassment policy, when the plaintiff beach employees were “completely isolated from the City's higher management” and the city “failed to disseminate its policy against sexual harassment among the beach employees.” 524 U.S. at 808. In Smith v. First Union National Bank, 202 F.3d 234, 245 (4th Cir.2000), we held that even though the employer's anti-harassment policy had been disseminated to employees it did not demonstrate, as a matter of law, that the employer had satisfied the first prong of the Faragher defense because the policy referred only to sexual conduct and was read by the plaintiff not to include non-sexual, gender-based harassment. We also emphasized that “[e]mployers cannot satisfy the first element of the Faragher-Ellerth affirmative defense if its management-level employees are discouraging the use of the complaint process.” Id.
Here Spartan disseminated an anti-harassment policy which failed to provide that complainants would be free from retaliation, and yet warned that false reports of harassment would subject a complainant to disciplinary action, “including termination.” Although these features do not, in themselves, render the policy ineffective, when considered in conjunction with the conduct of most senior Spartan management, a policy with such features could be found to be ineffective. The outrageous comments by Vice President and General Manager West (“does this mean we cannot fuck the help anymore”) and General Sales Manager Rose (a secretary was terminated because “she didn't give him a blow job”) suggest not only that a complaint made pursuant to this anti-harassment policy might fall on deaf ears, but also that such a complaint might cause the complainant's termination. Indeed, Williams produced evidence that a Spartan employee decided not to complain of harassment because of fear of being fired. The long and close personal relationships between those managers who made the denigrating comments, West and Rose, and the alleged harasser, Maund, were so well known that several of the witnesses described them as members of the “Augusta Boys Club.” Given these relationships, a factfinder could conclude that a complaint about Maund would receive a particularly skeptical response from Spartan management.
We note that Spartan's policy states that “[a]ny employee who feels they are being subjected to any form of harassment in violation of this policy should bring their complaint to the attention” of one of four members of management: “[1] the[ ] immediate supervisor, [2] the General Manager, [3] the appointed liaison, or[4] the Manager of Corporate Human Resources.” Providing an employee recourse to multiple members of management is commendable. But Williams produced evidence that could lead a factfinder to determine that the extra protection seemingly afforded by this provision was illusory in her case. This is so because one of the four suggested recipients of harassment complaints was the harasser himself, Maund; another was his good friend, Vice President and General Manager West (the source of the “does this mean we can't fuck the help any more” and the “I've stepped over better than that just to jack off” remarks); and the remaining two managers reported to West, the General Manager of the station and Vice President of the entire company. Thus, the conduct of Spartan's senior management could be found to have isolated Williams from effective channels of complaint. See Faragher, 524 U.S. at 808. A factfinder could conclude that the language in the anti-harassment policy together with the conduct of Spartan's most senior management “discouraged complaining about a supervisor's harassing behavior.” Smith, 202 F.3d at 245.
*4 This is not to say that Williams has demonstrated that Spartan cannot establish the first prong of Faragher's affirmative defense. A fact-finder may well ultimately conclude that Spartan's anti-harassment policy and prompt corrective action do establish this prong. However, we believe that when Williams' evidence is considered in the light most favorable to her, see Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986), Spartan has not established the first prong as a matter of law. For these reasons, we reverse the district court's grant of summary judgment to Spartan.
REVERSED.

28.2 Watson v. Home Depot (N.D. Ill. 2003) 28.2 Watson v. Home Depot (N.D. Ill. 2003)

B. Facts
1. Watson's Employment and Orientation
In August 1999, Home Depot hired Watson as a sales associate for its North Avenue store in Chicago, Illinois. Shortly after being hired, Watson participated in Home Depot's orientation program, which lasted for about two weeks. Like all Home Depot employees, Watson received copies of Home Depot's Respect, Harassment/Discrimination, Equal Employment Opportunity, and Open Door Policies as well as training on those polices. The Harassment/Discrimination Policy prohibits harassment or discrimination and states that “[a]nyone who condones or fails to take appropriate action to address a violation of Home Depot's harassment/discrimination policy will be subject to disciplinary action up to and including termination.” It further “prohibits retaliation against any associate who comes forward to report harassment and/or discrimination.” The policy emphasizes the importance of reporting any harassing or disrespectful behavior and sets forth resources that an employee may use if they feel that the policy has been violated. These resources include contacting a member of management, the Store Manager, District Manager, Human Resource Manager, or Division Vice President of Human Resources, or using the Alert Line, a phone line that enables employees to report harassment anonymously. Watson also participated in a Respect for All People training program, which further addressed workplace harassment and discrimination issues and which again informed employees about procedures available at Home Depot for resolving harassment or discrimination concerns.
*3 A few months after hiring Watson, Home Depot transferred her to the Pro Sales Department, where her responsibilities included building relationships with and selling products to industrial, commercial, and other business customers. She appears to have performed her job satisfactorily and received a raise on July 3, 2000.
2. The Performance Notice
In the afternoon of July 13, 2000, however, Watson received an Associate Performance Notice (the “Performance Notice”) for allegedly violating company policies or procedures. According to the Performance Notice, Watson's supervisors in the Pro Sales Department, Terrell, who served as Assistant Store Manager, and Ford Neubert (“Neubert”), the Department Supervisor, found Watson in a friend's car in the Home Depot parking lot while she was supposed to be at her desk. Terrell and Neubert prepared the Performance Notice, which warned Watson to stay at her desk in the future and Terrell asked Watson to “clock out and go home.” The Performance Notice was placed in Watson's file, but Home Depot took no further disciplinary action for this incident. Indeed, despite the fact that Watson had only worked for part of that day, Home Depot paid her for a full shift.
3. Events After July 13, 2000
Watson's relationship with Home Depot changed swiftly in the wake of the parking lot incident. Before leaving the store on July 13, she complained to Co–Store Manager, Al Stermer, about the confrontation and about being sent home for the day. Watson also contacted Home Depot's Midwest Region Human Resources Manager, James Owens (“Owens”), that day to complain that Terrell had belittled her and disciplined her unfairly.
According to a sworn statement that Watson submitted to Home Depot on July 24, 2000, and which Home Depot attaches as an exhibit to its 56.1 Statement, on July 14, Watson learned that her work schedule had been changed. Instead of working Monday to Friday from 8:00 a.m. to 5:00 p.m., she was now expected to work on the weekends with two weekdays off. As a single mother, Watson found this change burdensome and also complained about it to Owens.
On July 20, 2000, Owens called Jay Tippieconnic (“Tippieconnic”), the Store Manager, to tell him that Watson had complained about a write-up she received. The next day, after a week of confusion about Watson's new schedule, Tippieconnic met with Watson to discuss the entire situation. During their conversation, Watson broke down and explained that the situation went beyond the write-up. She described how on April 6, 2000, Terrell had followed her home during lunch, had asked to come into her apartment, and had then forced her into having sex with him. In Watson's statement, she alleges that she also described Terrell's poor treatment of her, but it is unclear what poor treatment she described. After hearing Watson's story, Tippieconnic sent Watson home, telling her he would pay her for the rest of that day and for the weekend and assuring Watson that he would have Michelle Williams (“Williams”), a Loss Prevention Specialist with whom Watson appeared to be comfortable, contact her over the weekend. Tippieconnic next called Owens and District Manager Ron Johnston to set up a meeting with Watson for the following Monday. Over the weekend, he spoke with Watson twice, reassuring her that Home Depot would not abandon her.
*4 The following Monday, Owens, Williams, and Tippieconnic waited to meet with Watson. Watson arrived several hours late, and handed them the sworn statement in which she detailed her interactions with Terrell prior to, including, and after the alleged April 6 sexual encounter. Watson stated that Terrell had kissed her on January 27, 2000, while they were having lunch together, and that he continued to flirt with her throughout February and March 2000. She also contended that during those months, Terrell failed to support her professionally, yelled at her at work, and was physical with her, at times grabbing her arm to move her from one spot to another. Watson stated that she complained to Terrell about his behavior and that he promised to improve. On April 6, however, Watson alleged that during her lunch hour, Terrell followed her home and, despite being told not to come into her apartment, entered Watson's home and raped her repeatedly. After the alleged rape, Watson stated that Terrell had become increasingly hostile toward her. Watson conceded that she was in a friend's car when Terrell and Neubert issued the Performance Notice. She claimed, however, that the friend was also her customer and had asked Watson to walk with her to explain Home Depot's credit and sales programs. She asserted that Terrell had punished her for the parking lot incident and changed her schedule in retaliation for Watson's refusal to engage in a sexual relationship with him.
After reading Watson's statement, Owens attempted to ask Watson questions about what she had written. Watson refused to provide additional information or to answer his questions and replied that everything she had to say was in the statement itself. Watson did express concern that she would be terminated and that Terrell would harm her, however, Owens assured Watson that Home Depot would immediately begin a complete investigation of her allegations and that she would not lose her job. He also asked Watson to think about whether she wished to continue to work at the North Avenue store, or whether she would prefer to be transferred elsewhere. During the investigation, Home Depot placed Watson on paid administrative leave and suspended Terrell.
4. The Investigation
At the end of July, Watson contacted the Chicago Police Department to report the April 6 incident. Meanwhile, as promised, Owens began the investigation of Watson's claim. Together with EEO Specialist Doris Stephenson (“Stephenson”) and Associate Relations Manager Chris Nichols (“Nichols”), Owens interviewed twenty-one people, including Terrell, Home Depot managers, supervisors, and employees, and non-Home Depot personnel whom Watson had identified as witnesses. None of the relevant witnesses corroborated Watson's allegations that Terrell had acted inappropriately toward her or had mistreated her. Owens, Stephenson, and Nichols interviewed Terrell twice, once on July 27 and again on August 9. Terrell denied all of Watson's allegations regarding inappropriate behavior. He denied ever having visited Watson's home and contended that he was at his apartment on April 6 at the time of the alleged assault. Although Watson had described Terrell as leaving her apartment at 5:15 p.m. on April 6, Terrell's landlady told Home Depot that she had spoken with Terrell between 4:30 p.m. and 5:00 p.m. that day. Watson's landlord also contested Watson's allegation that he had met Terrell when Terrell was entering Watson's apartment on April 6. The landlord showed Owens, Nichols, and Stephenson a copy of his own calender that indicated that he was not at Watson's apartment building that afternoon.
*5 With regard to the parking lot incident, the investigation team spoke with Deborah Crawford, who confirmed that she was with Watson in the parking lot on July 13 when Watson was reprimanded. They also spoke with Neubert, who told the investigators that Watson had become angry, yelled and threw the Performance Notice at Terrell when Terrell reprimanded her.
Owens also investigated Watson's allegations that Terrell had changed her schedule to punish her for not engaging in a sexual relationship with him. Ivan Justiano, an associate in the North Avenue store, told the investigation team that he was in charge of writing Watson's scheule and that he had previously scheduled her to work weekends. Owens reviewed all of Watson's time and payroll records and found no support for Watson's claim that she worked a set weekday schedule and never worked weekends.
Finally, Tippieconnic told the investigators that prior to July 21, 2000, Watson had never complained about Terrell and stated that he had been unaware of any of the events described in Watson's statement. Throughout the investigation, Watson repeatedly refused to discuss her statement with Owens or with any other members of the investigation team.
5. After the Investigation
On August 18, 2000, Home Depot concluded its investigation and determined that Watson's allegations of sexual harassment could not be substantiated. Despite its findings, Home Depot offered Watson the option of transferring to a different store in the same position and at the same pay. Home Depot also transferred Terrell to another store on July 31, 2000, so that Watson could remain at the North Avenue location if she wished. Instead of returning to Home Depot, however, Watson requested an unpaid medical leave of absence due to depression and temporary psychological distress, which Home Depot granted. Home Depot provided Watson with its medical leave policy, which explained that her employment would be terminated if she did not return to work after a one-year absence. After Watson failed to return to work upon expiration of her medical leave (not prior to the expiration as Home Depot contends), Home Depot sent Watson a letter explaining that she was terminated from active employment.
Just prior to taking medical leave, on August 15, 2000, Watson filed a charge with the Equal Employment Opportunity Commission (the “EEOC”) alleging that she had been sexually harassed, raped, and suspended by Terrell and asserting a Title VII claim based on her sex. The EEOC issued a Right to Sue Notice on December 29, 2000 and on March 2, 2001, Watson timely filed her complaint in this Court. She filed her second amended complaint on October 10, 2001.
II. DISCUSSION
A. Summary Judgment
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). A fact is “material” if it could affect the outcome of the suit under the governing law; a dispute is “genuine” where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
*6 The burden is initially upon the movant to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's claim, the court must view all the evidence and any reasonable inferences that may be drawn from that evidence in the light most favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000). Once the moving party has met its burden, the nonmoving party “may not rest upon the mere allegations” contained in its pleading, but rather “must set forth specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(e); Becker v. Tenenbaum–Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). It “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, summary judgment is mandatory “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial .” Celotex, 477 U.S. at 322. In such a situation, there can be “ ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323.
B. Counts I and II—Title VII Violation
Title VII forbids any workplace discrimination with respect to “compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). In her complaint, Watson alleges that Home Depot subjected her to tangible employment action (Count I) and hostile work environment harassment (Count II). In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), however, the Supreme Court abandoned the distinction between quid pro quo harassment and hostile environment harassment for vicarious liability purposes. Ellerth, 524 U.S. at 760–65; Faragher, 524 U.S. at 807. Instead, the Court created a distinction between “cases in which the supervisor takes a tangible employment action against the subordinate and those in which he does not.” Molnar v.. Booth, 229 F.3d 593, 600 (7th Cir.2000). The Supreme Court explained that an employer was vicariously liable “to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee” where “the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Faragher, 524 U.S. at 807–08; Ellerth, 524 U.S. at 765. In cases where the supervisor took no tangible employment action, however, the Supreme Court permitted the defending employer to raise an affirmative defense to liability or damages. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
*7 In other words, as a result of Faragher and Ellerth, if Watson is able to demonstrate that Terrell created an actionable hostile environment and took tangible employment actions against her, she establishes that Home Depot is vicariously liable for Terrell's actions and the inquiry is at an end. If, on the other hand, Watson demonstrates that she endured an actionable hostile environment but fails to establish that Terrell took any tangible employment actions against her, Home Depot may raise the affirmative defense.
Home Depot focuses its argument on whether Terrell took any tangible employment actions against Watson and not on whether he created a hostile work environment. Indeed, if the evidence is viewed, as it must be, in the light most favorable to Watson, Miller, 203 F.3d at 1003, a reasonable jury could find that Terrell's alleged actions constituted sexual harassment or created a hostile environment. As a result, the Court will turn directly to the threshold issue of whether Watson suffered any tangible employment actions.
1. Tangible Employment Action
In Ellerth, the Supreme Court explained that a tangible employment action “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. In her complaint, Watson alleges that Terrell: 1) failed to give Watson adequate support in her job; 2) assigned Watson to excessive check out duties; 3) interfered with Watson's ability to perform her job by harassing her; 4) wrongfully accused her of violating store policies; 5) suspended her; 6) changed her work schedule; and 7) terminated her.
In its Memorandum in Support of Its Motion for Summary Judgment, Home Depot argues that all of these actions, if true, are either insufficiently adverse to be considered tangible job actions or are unsupported by the record. Apart from this blanket statement, Home Depot does not specifically address Watson's allegation that Terrell wrongfully accused her of violating store policies. But standing alone, a false accusation does not rise to the level of an adverse action. Szymanski v. County of Cook, No. 01 C 9588, 2002 WL 31509780, at *8 (N.D.Ill. May 8, 2002). Home Depot does address the remaining alleged actions. The Court need not walk through each allegation, however, because in her Memorandum in Support of Its Motion for Dismissal of Summary Judgment (“Response”), Watson fails to address any of Home Depot's arguments. Indeed, she does not even mention several of the alleged employment actions and merely reiterates that her work schedule changed and that she was terminated. Moreover, due to Watson's failure to respond to Home Depot's 56.1 Statement, she has admitted facts that are fatal to her claims, including the work schedule and termination claims. She does not contest: 1) that check out duties were part of her responsibilities in the Pro Sales Department; 2) that she was not suspended for the parking lot incident and that she was paid for the remainder of her shift that day; 3) that Owens' review of her time cards indicated that she had worked weekend days throughout her time at Home Depot; and 4) that Home Depot terminated Watson for failing to return from medical leave pursuant to company policy and that Terrell had been transferred to another Home Depot at the time Watson was terminated. Watson has failed to meet her burden of establishing that there is a genuine issue for trial as to whether Terrell took tangible employment action against her.
2. Affirmative Defense
*8 Because Watson has failed to demonstrate that Terrell took a tangible employment action against her, Home Depot may raise the affirmative defense to liability or damages set forth in both Faragher and Ellerth. To defend itself successfully, Home Depot must establish: (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that Watson unreasonably failed to take advantage of any preventive or corrective opportunities provided by Home Depot or to avoid harm otherwise. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
a. Home Depot's Exercise of Reasonable Care
To avoid liability, Home Depot must first demonstrate that it exercised “reasonable care to prevent and correct promptly any sexually harassing behavior.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The existence of “an appropriate anti-harassment policy will often satisfy this first prong, because Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.” Shaw v. Autozone, Inc., 180 F.3d 806, 811 (7th Cir.1999) (internal citations and quotation marks omitted). In this case, it is undisputed that Home Depot had numerous written policies in place throughout Watson's employment prohibiting sexual harassment. These policies included a Harassment/Discrimination Policy, a Respect Policy, and an Equal Employment Opportunity Policy. While the Harassment/Discrimination Policy could have been more tailored to address sexual harassment specifically, it stated clearly that “Home Depot does not tolerate harassment or discrimination” based on sex and directed employees to complain about conduct they found offensive, harassing or disrespectful.
These policies also established multiple procedures for employees to follow in the event that they experienced any harassment, thereby permitting employees to bypass the harassing supervisor in the complaint process. These procedures included contacting various managers, human resources personnel, or using the Alert Line, a phone line that enabled employees to report harassment anonymously. Home Depot also maintained an Open Door Policy, which emphasized that supervisors' doors were “always open” and that if a Department Supervisor or Assistant Manager could not help an employee, the problem “should be taken” up the chain of command. The Open Door Policy also reminded employees that the Human Resource Manager “is always available to help you with concerns and issues.” Watson acknowledges that she received copies of these policies and underwent extensive training on the policies and procedures during her orientation.
Home Depot also acted swiftly and decisively to correct the harassment once it learned of Watson's allegations. After his initial meeting with Watson, Tippieconnic, the Store Manager, immediately gave her the weekend off with pay. He also set up a meeting the following Monday to discuss Watson's allegations. At that meeting, Owens assured Watson that Home Depot would investigate her allegations and offered Watson the choice of continuing to work at the North Avenue store, or of being transferred elsewhere with the same pay and position. Home Depot also immediately placed Watson on paid administrative leave and suspended Terrell. It then proceeded to do a thorough and extensive investigation of Watson's claims. Even though the investigation failed to substantiate Watson's allegations of sexual harassment, Home Depot transferred Terrell to another store so that Watson could remain at the North Avenue store if she wished. It also granted Watson's request for a one-year unpaid medical leave of absence.
*9 In spite of these actions, Watson still contends that Home Depot did not take reasonable care to prevent and correct the harassment “until after the fact.” The undisputed evidence establishes, however, that Home Depot had promulgated its policies and procedures regarding harassment before Watson began at Home Depot and before any alleged harassment occurred. Watson also appears to argue that Home Depot failed to correct the harassment by reneging on alleged promises to relocate her to another apartment and to assist her in dealing with the rape. Yet she places this argument in a paragraph dealing with her negligent retention claim, which the Court has dismissed. Moreover, she fails to adduce any evidence to support her contention that Home Depot made these promises. There is certainly nothing in the company policies to suggest that such actions are part of Home Depot standard procedures as Watson appears to suggest.
Regardless, the facts establish that Home Depot took reasonable steps to prevent sexual harassment and that, when faced with allegations of harassment, also took extensive steps to correct the violation. As a matter of law, Home Depot has satisfied the first prong of the Ellerth/Faragher affirmative defense.
b. Watson's Unreasonable Failure to Report Harassment
Home Depot must also establish that Watson “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. According to Watson, the harassment began when Terrell kissed her on January 27, 2000. It continued through February and March 2000 when Terrell flirted with her, failed to give her professional support, yelled at her, and was physically aggressive with her. On April 6, Terrell allegedly raped her repeatedly. Despite her escalating problems with Terrell, Watson did not complain to anyone until she spoke to Owens on July 21, 2000. Home Depot argues that given Watson's knowledge of the harassment policies and procedures, that her delay in complaining about Terrell's behavior was unreasonable.
In her Response, Watson argues that she failed to complain about the harassment because she feared Terrell. It is, of course, asking a great deal to require a victim of sexual harassment to come forward and reveal what they have endured to their employer. But as the Supreme Court explained, “a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize [ ] damages.” Faragher, 524 U.S. at 806 (internal citations and quotation marks omitted). This duty exists even if the employee fears confrontation, unpleasantness or retaliation in return for speaking out. Shaw, 180 F.3d at 813. In this case, Home Depot had established a variety of reasonable mechanisms for employees to report harassment, including the anonymous tip line and open-door policy, that permitted employees to bypass the offending supervisor in reporting the harassment. Moreover, even if the alleged rape made Watson's fears of Terrell reasonable, she endured several months of harassment prior to the rape without alerting Home Depot. During this time, Watson complained directly to Terrell about his behavior and he promised to improve. When those promises proved hollow, Watson still chose not to use Home Depot's mechanisms for reporting the harassment.
*10 “[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.” Faragher, 524 U.S. at 807–808. Watson's failure to use Home Depot's procedures to report any of the harassment she allegedly suffered, despite her knowledge of those procedures, was unreasonable. Home Depot has satisfied the second element of the affirmative defense and, as a result, the Court grants summary judgment on Counts I and II in its favor.
CONCLUSION
For the reasons set forth above, Home Depot's Motion for Summary Judgment is granted as to Counts I and II. Watson's action is dismissed in its entirety.
IT IS SO ORDERED.

 

28.3 Nichols v. Tri-National Logistics, Inc. 28.3 Nichols v. Tri-National Logistics, Inc.

Rebecca L. NICHOLS, Plaintiff-Appellant v. TRI-NATIONAL LOGISTICS, INC.; RMR Driver Services, Inc.; James Paris, in his individual capacity; Charles Kye, in his individual and official capacities; Donald Lewis, in his individual and official capacities Defendants-Appellees.

No. 15-1153.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2015.

Filed: Jan. 4, 2016.

Rehearing Denied Feb. 11, 2016.

*983David A. Hodges, Sr., argued, Little Rock, AR, for Plaintiff-Appellant.

David R. Bohm, argued, Kara D. Krawz-ik, on the brief, Saint Louis, MO, for Defendants-Appellees.

Before MURPHY, MELLOY, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

During 2011 and 2012 Rebecca Nichols drove a semi truck for Tri-National Logistics and RMR Driver Services (collectively “TNI”). During the period from May 25 until June 1, 2012 her fellow driver, James Paris, made unwelcome sexual advances. Then on a mandatory layover, he took away her truck keys and cell phone while continuing to proposition her. On May 25, 2012 Nichols reported his behavior to TNI and again up to June 1. After TNI terminated Nichols on June 25, 2012 citing her poor safety record, she brought this action charging TNI with discrimination on the basis of sex, termination in retaliation for her complaints, and violation of the Fair Credit Reporting Act (“FCRA”). She also charged Paris with intentional infliction of emotional distress. Paris has counterclaimed for breach of contract, unjust enrichment, and money lent. The district court granted summary judgment to the defendants, and Nichols appeals. We reverse and remand.

I.

Rebecca Nichols was a TNI employee in August and September of 2011. About three weeks after Nichols was hired, she was cited for nonoperational turn signals and tail lights. While she was pulling away from that stop, her truck stuck in the mud and TNI had to pay thousands of dollars for towing and repairs as well as damage at the site. Eleven days later Nichols damaged the door of the trailer *984she was driving. TNI terminated her after determining that both incidents had been preventable.

When TNI rehired Nichols in October 2011, it informed her that she could no longer drive alone and was responsible for finding her own driving partner. The first partner she drove with was Catherine Harrington who considered Nichols an unsafe driver with whom she did not want to work. Harrington told TNI that Nichols took her hands and eyes off the road to use her cell phone while driving, used unapproved routes in violation of TNI policy, had consistent problems connecting her tractor to the trailer, and at least once forgot to latch the trailer doors. Her second partner was Robert Ripke who also complained that Nichols had unsafe driving habits. Later while driving with Lance Wehrle, Nichols received a citation for driving through a stop sign, causing a three car accident and thousands of dollars in damage. Wehrle also complained to TNI about Nichols’ driving and stopped driving with her in early May 2012.

At that point Nichols began driving with James Paris. During their first trip Paris asked Nichols if she was interested in a romantic relationship. Nichols declined the offer but did not report it to TNI. She was scheduled to drive with Paris again from May 25 to 30. Their truck on that trip had a sleeping compartment in the back of the cab separated from the two driver seats by a curtain. According to her deposition testimony, Paris opened the cab’s curtain and exposed himself while Nichols was driving. Upset, she told him to, get dressed and “not to behave that way.” According to Nichols, she immediately reported this incident to Melissa Foust in TNI’s safety department.

Nichols testified that after this initial incident, Paris would often stand in the back of the cab while she was in the driver seat, lean over her in his underwear with his hands on the overhead compartment. Nichols testified that this happened on three or four occasions and that at least once his genitals were visible through a hole in his underwear. When asked at her deposition if he had ever done this' more than once on the same day, Nichols replied “Not that I remember offhand.” Nichols told Melissa Foust about similar conduct by Paris five times during their six day trip. Nichols told Foust that she nevertheless did. not want to ' change assignments before she could find another driving partner because she needed to work to pay her bills. Nichols also reported Paris’ conduct to a TNI dispatcher, Bob Oliver, several days before May 30. According to her deposition, Oliver just told Nichols to try to “endure it” until the trip was complete, at which point he would help find her another partner.

After Nichols and Paris made their delivery in Laredo, Texas on May 30, they drove approximately three hours to his home in ’Pharr, Texas for a mandatory 34 hour rest period. Nichols testified that she went along with Paris to Pharr because she had been told another driver would not be available until after the rest period. Her request to take the truck to a place where she could "stay overnight was denied because Paris had personal possessions in the cab. Nichols complained to the dispatcher, “Bob, I can’t believe your telling me that. Didn’t I just tell you maybe an hour ago that the man was trying to control me to no hilt and I couldn’t get away from him?” Oliver re-' sponded “[t]ry to get along with him until you guys get back out on the road” and offered to pay half the cost of a motel room. Nichols decided to sleep in the truck instead on the night of May 30.

When Nichols asked Paris to take her to a motel on May 31, he asked her to sleep *985with him. He proposed that in return he would forgive an eight hundred dollar debt she owed him. Nichols testified that when she refused, Paris became “excessively mad,” verbally degraded her, and twice forcibly took away her keys and cell phone. Eventually Paris did take Nichols to a motel where she spent the night, and on the next day he drove her back to Laredo where she got on the truck of another TNI driver, Chris Loya. Nichols then reported Paris’ conduct in Pharr to TNI and said that it had caused her to feel abused, scared, and degraded.

From June 1 to 22 Nichols drove with Chris Loya. He later reported to TNI that she had driven over the speed limit, kept her tractor brakes on, failed to anticipate traffic light changes, run through at least one red light, and talked on her handheld cell phone while driving. After Donald Lewis, TNI’s Field Safety Supervisor, heard Loya’s reports about Nichols’ driving he told Charles Kye, TNI’s Vice President of Operations, that she should be discharged. Kye terminated Nichols on June 25, 2012.

Nichols sued TNI, Paris, Kye, and Lewis, claiming that TNI had discriminated against her on the basis of her sex in violation of Arkansas Civil Rights Act (“ACRA”) and Title VII, that TNI, Kye, and Lewis had retaliated against her for complaining about sexual harassment, and that TNI had violated FCRA by submitting incomplete and inaccurate driving reports to HireRight, an employee background check company. Nichols also sued Paris for intentional infliction of emotional distress. Paris counterclaimed, alleging that Nichols had failed to repay over a thousand dollars she owed him. The district court granted the motion for summary judgment by TNI, Kye, and Lewis and declined to exercise supplemental jurisdiction over Nichols’ state law claims. Nichols appeals all but the dismissal of her FCRA claims.

II.

We review a grant of summary judgment de novo and consider the facts in the light most favorable to the nonmoving party. Pinson v. 45 Dev., LLC, 758 F.3d 948, 951 (8th Cir.2014). Summary judgment is only appropriate when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 951-52.

Nichols alleged claims for hostile work environment and sex discrimination under Title VII and ACRA. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); McCullough v. Univ. of Ark. for Med. Sci., 559 F.3d 855, 861 (8th Cir.2009). Under these statutes, it is illegal for an employer to discriminate against an employee because of her sex. 42 U.S.C. § 2000e-2(a)(1); Ark.Code § 16-123-107. To establish a hostile work environment claim Nichols must show that: (1) she is a member of a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of her employment; and (5) her employer knew or should have known of the harassment and failed to take appropriate remedial action. E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 683 (8th Cir.2012). Actionable harassment must have been both objectively and subjectively offensive affecting a term of employment. Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 759 (8th Cir.2004).

The district court erred when analyzing Nichols’ sexual harassment claim by not considering all that had occurred during the 34 hour rest period in Pharr. Under Title VII “offensive conduct does not *986necessarily have to transpire at the workplace in order for a juror reasonably to conclude that it created a hostile working environment.” Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 1093, 1102 (8th Cir.2001). For example, in Moring v. Arkansas Department of Correction, 243 F.3d 452 (8th Cir.2001), a Title VII sexual harassment verdict was upheld on appeal where the offensive conduct had occurred in a hotel room after business hours. Nichols’ time in Pharr was part of her work trip because she stopped there during a mandatory rest period, and Oliver told her he would only find her a driver after it was completed. The TNI truck was the only form of transport available to her at the time, and Oliver instructed Nichols she could not use it to drive to a motel.

The district court treated Nichols’ decision to remain with the truck as her own choice, but the law does not require an employee to “quit or want to quit” when faced with a Hobson’s choice. See Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.1998). Such a requirement could force an employee to choose between her employment and her right to file a legal claim. The appropriate test is whether Nichols subjectively perceived her work environment as offensive. See Bainbridge, 378 F.3d at 759.

The record contains genuine issues of material fact about all that happened on the trip and whether Nichols subjectively perceived Paris’ actions as offensive. Nichols testified at her deposition that after he exposed himself, she was upset, told him not to behave that way, and complained immediately to TNI. Nichols also testified that she complained to Melissa Foust about Paris five times throughout the trip and reported to Oliver on June 1 that she felt abused, degraded, and scared. A psychiatrist who performed an independent medical examination testified that Nichols felt sexually harassed and suffered from depression and post-traumatic stress disorder due to Paris’ aggressive conduct seeking sex. Although Nichols need not prove psychological injury, the psychiatrist’s testimony bolsters her claim that she felt abused and harassed. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

The district court erred in finding that Nichols did not report Paris’ conduct to TNI until June 1. Nichols alleges that after Paris first exposed himself, she immediately reported it to Melissa Foust, a TNI safety department employee. Nichols testified that after this first incident, Paris leaned over her in his underwear three or four times. When asked at her deposition if such subsequent actions ever took place on the same day, Nichols replied “Not that I remember offhand.” The test of whether a company is considered to have actual knowledge of harassing conduct is whether sufficient information comes “to the attention of someone who [had] the power to terminate the harassment.” Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 802 (8th Cir.2009).

When the evidence is viewed in the light most favorable to Nichols, her initial report to Foust about Paris must have been on Friday, May 25. It could not have been on Saturday, May 26 or Sunday, May 27 because Foust had not worked on the weekend. She could also not have initially reported during the last three days of the trip. When the evidence is viewed in the light most favorable to Nichols, there were four distinct days during which Paris leaned over her in his underwear. Foust’s regular work hours were 8:00 AM to 5:00 PM, and the record reflects that on Friday, May 25 Nichols called TNI six times between 2:48 PM and 5:47 PM.

*987TNI argues that even if Nichols did report Paris’ conduct prior to June 1, she has not shown that the company failed to take appropriate remedial action. The factors to consider when assessing the reasonableness of an employer’s actions “include the amount of time that elapsed between, the notice and remedial action, the options available to the employer, ... and whether or not the measures ended the harassment.” CRST, 679 F.3d at 692-93 (alteration in original, internal quotation marks omitted). In CRST, we determined that the employer took appropriate remedial action by: “(1) removing the [harassed] woman from the truck as soon as practicable [within 24 hours], arranging overnight lodging at a motel and subsequent transportation to a CRST terminal at the company’s expense; (2) requesting a written statement from the [victim]; (3) relieving the [victim] from future assignments with the alleged harasser; and (4) reprimanding the alleged harasser and barring him from team-driving with women indefinitely.” Id. at 693. We further noted that these “actions, not necessarily in combination, constitute the type of prompt and effective remedial action that our precedents prescribe.” Id.

Unlike the employer in CRST, TNI did not remove Paris from her truck within 24 hours, proceed to investigate the alleged misconduct, or reprimand Paris. Nichols notified TNI about his harassment on May 25, and seven days elapsed before TNI arranged for Chris Loya to pick her up in Laredo. TNI could have ordered Nichols to leave Paris’ truck as soon as it learned about the problem and promptly help her find another driving partner, reprimanded Paris for his behavior, or arranged lodging for her in Laredo instead of permitting her to accompany him to Pharr on May 30. Instead, TNI allegedly took no action to remove her despite her consistent complaints of sexual harassment, but allowed her to go to Paris’ apartment in Pharr, and stranded her there with no available alternate form of transportation.

The dissent suggests that TNI’s response was reasonable in comparison to several other cases it cites, but none of these eases involved a workplace at all like the confined environment of an over the road truck cab in which Nichols was isolated for a multi day trip. See Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 906 (8th Cir.2006) (both parties were bank tellers); Barrett v. Omaha Nat’l Bank, 726 F.2d 424, 426 (8th Cir.1984) (both parties worked at desks in an open public area); Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 986 (8th Cir.1999) (plaintiff was a cashier and the alleged harasser bagged groceries). In contrast — in our case there are genuine issues of material fact in this record. These include whether TNI took appropriate remedial action in response to Nichols’ personal plea to save her from further harassment. On this full record the district court erred by dismissing Nichols’ sexual harassment claim.

III.

After all claims over which the district court had original jurisdiction had been dismissed, the court declined to extend supplemental jurisdiction over Nichols’ claim against Paris for intentional infliction of emotional distress and his counterclaims relating to her alleged unpaid debt. Since the district court erred in granting summary judgment to TNI on Nichols’ sexual harassment claim, we vacate the judgment and remand for consideration of whether Nichols’ intentional infliction of emotional distress claim is “so related to the” alleged Title VII and ACRA claims that it forms “part of the same case or controversy” and consequently should be reinstated. Brown *988 v. Mortg. Elec. Registration Sys., Inc., 738 F.3d 926, 933 (8th Cir.2013).

IV.

The district court granted summary judgment to TNI, Kye, and Lewis on Nichols’ claim that she was fired in retaliation for reporting Paris’ conduct to the company. To state a prima facie case of retaliation under Title VII and ACRA, Nichols had to show that: (1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. McCullough v. Univ. of Ark. for Med. Scis., 559 F.3d 855, 864 (8th Cir.2009). Under the McDonnel Douglas burden shifting framework, TNI rebutted Nichols’ prima facie case by providing a nonretaliatory reason for her termination — her poor safety record. See Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 547 (8th Cir.2008). Nichols then failed to produce sufficient evidence of pretext.

Nichols points out that TNI fired her three weeks after her sexual harassment complaints, but “[e]videnee that the employer had been concerned about a problem before the employee engaged in the protected activity undercuts the significance of the temporal proximity.” Hervey v. Cty. of Koochiching, 527 F.3d 711, 723 (8th Cir.2008) (internal quotation marks omitted). Here, there is sufficient evidence that TNI was concerned about Nichols’ unsafe driving well before she complained about sexual harassment. Since no genuine issue of material fact has been presented to show that her termination was retaliatory, the district court properly granted the motion for summary judgment on this claim.

V.

We conclude that the district court erred in granting summary judgment on Nichols’ Title VII and ACRA sex discrimination claims because genuine issues of material fact remain as to whether Nichols subjectively felt abused by Paris, that TNI was aware of his conduct,' and that TNI failed to take appropriate action. The judgment of the district court is therefore reversed, and the case is remanded for proceedings not inconsistent with this opinion.

SMITH, Circuit Judge,

dissenting.

I respectfully dissent. After reviewing the record in the light most favorable to Nichols, I conclude that Nichols has not demonstrated that TNI acted negligently in addressing her complaints. When an employee alleges sexual harassment by a coworker, “[a]n employer must be allowed some time to gauge the credibility of the complainant.” Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 988 (8th Cir.1999). As a result, an employee often must “tolerate some delay” by an employer taking appropriate remedial action. See id.

Sexual harassment by a coworker is not a violation of Title VII unless an “employer knew or should have known of the harassment in question and failed to take proper remedial action.” Moylan v. Maries Cty., 792 F.2d 746, 750 (8th Cir.1986) (citing Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982)). Consistent with the negligence standard used to evaluate an employer’s response, we have refrained from requiring specific remedial measures. Instead, we have stated that “[fjactors in assessing the reasonableness of remedial measures may include the amount of time that elapsed between the notice and remedial action, the options available to the employer, ... and whether or not the measures ended the harassment.” Carter v. Chrysler Corp., 173 F.3d 693, 702 (8th Cir.1999) (emphasis added) (citations omitted). “Proper remedial action need be *989only ‘reasonably calculated to stop the harassment’.... ” Engel v. Rapid City Sch. Dist., 506 F.3d 1118, 1125 (8th Cir.2007) (quoting Carter, 173 F.3d at 702).

The majority concludes that the district court erred in finding that Nichols did not report Paris’s conduct to TNI until June 1. Under the majority’s factual reconstruction, Nichols’s initial report to TNI regarding Paris “must have been on Friday, May 25.”1 The record may not support the district court’s June 1 finding, but it also does not support the majority’s May 25 finding. The majority states that Nichols alleges she “immediately” called Foust to report Paris’s conduct after the first exposure. Nowhere in the record does Nichols make such a definitive statement. Rather, the record reflects only that Nichols called Foust to report Paris’s conduct sometime after Paris first exposed himself to Nichols. Moreover, when the record is read to favorably harmonize Nichols’s testimony, May 28 is the earliest Nichols could have called Foust to report Paris.

In her deposition, Nichols was asked when she “first called Melissa [Foust] after [Paris] exposed himself.” In her answer, Nichols discussed two incidents in which Paris had exposed himself. According to Nichols:

[The] [fjirst time he did it, he — I was driving days; he drove nights. And he was back in his bunk and the drapes— the curtains were pulled. First time he did it, he just threw the curtains open, standing there naked, exposing himself to me. And of course — and I was driving down the road at the time. And of course that upset me and I told him to get himself dressed and to not behave that way.
Then the next time, what he did — he did this several times — but he was come up there right beside me, reaching into the shelf above the windshield, acting like he was getting something out of there. And he didn’t have boxer shorts on. I never told anyone he had boxers on. He had the regular kind of underwear men wear.
But the legs were tremendously big on him. They completely gapped open. And when he stood right beside me, he was completely exposed to me where I could smell him. I could have reached over and bit it off. And I asked him to stop doing it.

Nichols then stated that she first called Foust “[t]hat time that he did it, he got up so close to my face, exposing himself, and I smelled him.” Later, when asked if she called Foust “after that incident where [Paris] opened up the curtain and exposed himself,” Nichols responded, ‘Tes. That’s — I think that was the first time I called her.” Construing these two answers in the light most favorable to Nichols, both are true only if the call to Foust occurred not only after Paris opened up the curtain and exposed himself but also after the time Paris got up close to Nichols’s face and exposed himself.

Given that Nichols testified that Paris did not expose himself to her more than once in a day, the time Paris “got up so close to [Nichols’s] face, exposing himself, and [she] smelled him” could not have occurred on May 25, the first day of the May 25-June 1 period with Paris. Foust did not work on May 26 or -27. Thus, May 28 is the earliest Nichols could have made her first call to Foust to report the exposures.

*990The majority’s May 25 finding is unsupported by the record. As such, TNI’s opportunity to take appropriate remedial action is significantly reduced. No specific time requirement exists for employers to respond to sexual harassment claims, but it must be reasonable under the circumstances. Carter, 173 F.8d at 702 (setting forth factors to assess the reasonableness of remedial measures, one of which is “the amount of time that elapsed between the notice and remedial action”). Applying existing circuit precedent, TNI took remedial action within a reasonable time of receiving notice from Nichols. In Barrett v. Omaha National Bank, we found an employer’s response to an employee’s sexual harassment complaint within four days to be prompt remedial action. 726 F.2d 424, 427 (8th Cir.1984). Likewise, in Green v. Franklin National Bank of Minneapolis, we rejected an employee’s claim that an employer failed to act promptly enough when it took remedial action nearly a month after learning of the harassment. 459 F.3d 903, 912 (8th Cir.2006) (rejecting the cases that the employee cited to support her claim because they “involvezd situations where the employer waited much longer than one month to [take proper remedial action]”).

Finally, in Dhyne, we considered it a “close question” whether an employer acted promptly enough when it delayed two months before taking remedial action. 184 F.3d at 987-88. The majority is correct that in CRST we determined that the employer took appropriate remedial action by removing the harassed employee from the truck within 24 hours; however, we did not set 24 hours as a minimum standard. E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 693 (8th Cir.2012) (finding that the employer removed the employees “from the truck as soon as practicable”). An employer’s response need not be ideal in every case but must be reasonable under the circumstances. See, e.g., Green, 459 F.3d at 912 (finding that although employer’s actions were less than ideal, they were sufficient); Lapka v. Chertoff, 517 F.3d 974, 987 (7th Cir.2008) (concluding that an employer’s “response may not have been perfect in all respects, but it was adequate”).

Here, Paris’s alleged harassment of Nichols ended not later than June 1. To be sure, no one should have to endure harassing conduct for any period, but employers can only be legally responsible for conduct of which they are made aware and fail to take timely, reasonable steps to correct. The time period between May 28 and June 1 is the very type of delay employees must unfortunately sometimes endure. Considering current precedent, where a two-month delay presented a “close question,” I submit that the four-day delay here was not unreasonable.

This case also presents important contextual considerations in determining whether TNI acted negligently. First, the harassment at issue occurred in a truck that was scheduled to be on the road from May 25-June 1. Unlike the typical workplace context of an office, TNI could not immediately investigate. While TNI could have possibly removed Nichols immediately from Paris’s truck, Nichols told TNI that she did not want to get off the truck until another codriver was found. Significantly, TNI’s failure to remove Nichols from the truck was the only concrete criticism Nichols’s expert had of TNI’s response. The majority is correct that TNI could have reprimanded Paris. However, TNI’s decision not to reprimand Paris immediately does not constitute actionable conduct. In choosing not to reprimand Paris before determining fault, TNI did not delay unreasonably in taking remedial action. See Dhyne, 184 F.3d at 988 (holding that an employer must be allowed *991some time to gauge the credibility of the complainant).

Contrary to the majority’s characterization, I do not think TNI knew or should have known that Nichols needed to be saved. At most, TNI knew Paris was exposing himself to Nichols but that Nichols did not consider the conduct so intolerable that she required immediate removal from the truck. As already mentioned, Nichols told'TNI she wished to remain on the truck with Paris until a different driver could be located. Additionally, prior to going to Paris’s residence for a mandatory 34-hour rest period, Paris and Nichols stopped at a TNI terminal in Laredo, Texas. Nichols did not take the opportunity to get off the truck; instead, she continued on with Paris to his residence. Certainly, an employee is not required to “quit or want to quit.” Davis v. U.S.P.S., 142 F.3d 1334, 1341 (10th Cir.1998). However, Nichols would not have been quitting her job by getting off the truck in Laredo before accompanying Paris to his residence during the rest period. TNI was not negligent in construing Nichols’s words and conduct as inconsistent with an employee requiring emergency action.

Finally, the harassment ended when TNI signed off on Nichols’s request to team drive with Chris Loya rather than Paris. Even when employers do not act in an ideal manner, remedial action that effectively ends harassment can be deemed sufficient. See Green, 459 F.3d at 912. Accordingly, I would affirm the judgment of the district court.

28.4 Duch v. Jakubek 28.4 Duch v. Jakubek

Karen DUCH, Plaintiff-Appellant, v. Lieutenant Edward JAKUBEK, in his official capacity, New York State Office of Court Administration, and The State of New York, Defendants-Appellees, Court Officer Brian Kohn, individually and in his official capacity, Defendant.*

Docket No. 07-3503-cv.

United States Court of Appeals, Second Circuit.

Argued: Dec. 9, 2008.

Decided: Dec. 4, 2009.

*758Mathew Paulóse, Jr., Koehler & Isaacs LLP, New York, NY, for Plaintiff-Appellant.

Patrick J. Walsh, Assistant Solicitor General (Andrew M. Cuomo, Attorney *759General of the State of New York, on the brief, Barbara D. Underwood, Solicitor General, Peter Karanjia, Special Counsel to the Solicitor General, of counsel), Office of the Attorney General for the State of New York, New York, NY, for Defendants-Appellees.

Anjana Samant, Outten & Golden LLP, New York, N.Y. (Stefano G. Moscato, National Employment Lawyers Association, San Francisco, CA, on the brief), for Amicus Curiae National Employment Lawyers Association in support of Plaintiff-Appellant.

Before: LEVAL, CABRANES, and HALL, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Plaintiff-appellant Karen Duch (“plaintiff” or “Duch”), a former court officer and employee of the New York State Office of Court Administration (“OCA”), appeals from the August 6, 2007 judgment of the United States District Court for the Southern District of New York (Loretta A. Preska, Judge) insofar as the District Court, in an August 2, 2007 memorandum and order, granted summary judgment in favor of defendants-appellants Lieutenant Edward Jakubek (“Jakubek”), OCA, and the State of New York (jointly, “defendants” or “employer defendants”) on plaintiffs employment discrimination claims and denied plaintiffs motion to amend the complaint. Plaintiff brought the underlying action in January 2004, claiming that she had been sexually harassed by a fellow court officer, defendant Brian Kohn (“Kohn”), over a period of several months in 2001. Plaintiff claimed that employer defendants failed properly to investigate the harassment and failed to prevent further harassment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq.

The District Court granted summary judgment for defendants upon concluding that Kohn’s harassment of plaintiff could not be imputed to defendants. Duch v. Kohn, No. 04 Civ. 109, 2007 WL 2230174 (S.D.N.Y. Aug. 3, 2007). Although we agree with the District Court that plaintiff was not deprived of all reasonable avenues of complaint, we hold that a reasonable jury could conclude that defendants (1) knew, or in the exercise of reasonable care should have known, of the harassment directed at plaintiff and (2) failed to take appropriate remedial action. Accordingly, we vacate the judgment of the District Court and remand the cause for further proceedings consistent with this opinion.

BACKGROUND1

During the time period relevant to this ease, Duch was employed as a court officer by the New York State Unified Court System (“UCS”). Duch, 2007 WL 2230174, at *1. OCA is the administrative branch of the UCS. Id. On August 12, 1999, she was assigned to Midtown Community Court (“MCC”). Id. The personnel at the MCC consisted of a judge, a lieutenant, a sergeant, approximately twelve court officers, and four court clerks. Id. One of the court officers, Rosemary Christiano, was also the Equal Employment Opportunity (“EEO”) Liaison at the MCC. Id. Other personnel of note included defendant Jakubek, who was the highest-ranking court officer at the MCC, and Chief Court Clerk Don *760Vasti (“Vasti”), who was the highest-ranking administrative official at the MCC. Id. During the relevant time period Jakubek was supervisor to both Duch and defendant Kohn.

In May 2001, Kohn began working at the MCA as a court officer — in the same position and rank as Duch. Id. On September 25, 2001, Duch and Kohn engaged in a consensual sexual encounter at Duch’s apartment (this encounter did not involve intercourse). Id. According to Duch, she informed Kohn the next day that the encounter had been a “mistake” and that she did not want to pursue further relations with him. J.A. 347. Following that encounter and continuing until January 2002, Kohn allegedly made a series of unwanted sexual advances towards Duch. Duch, 2007 WL 2230174, at *2. These allegedly included physical contact, sexually graphic language, and physical gestures. Id.

In October 2001, after learning that she was scheduled to work alone with Kohn on an upcoming Saturday, Duch approached Jakubek and asked him for the day off. She did not inform Jakubek at that time that Kohn was reason she sought to change her schedule. Later that same day, Jakubek called Duch back into his office and said that he had heard that she wanted to change her schedule to avoid working with Kohn. Jakubek explained that he had spoken to Kohn and had asked him directly why Duch would feel uncomfortable working with him and that Kohn had responded, “well, maybe I did something or said something that I should not have.” J.A. 81. According to Duch, Jakubek said that he had told Kohn to “cut it out, to grow up.” Id. Jakubek then asked Duch if she had a problem working with Kohn and, because (Kohn asserts) she was becoming emotional at this point in the conversation and was trying to maintain her composure, she responded by saying, “I can’t talk about it.” Id. at 82. Duch claims that Jakubek replied, “That’s good because I don’t want to know what happened,” and then laughed. Id. Following this exchange, Jakubek offered to change Duch’s schedule so she would not have to work alone at night with Kohn, id., and thereafter did not schedule Duch to work with Kohn alone. Duch, 2007 WL 2230174, at *2.

Later in October 2001, Duch spoke with Christiano about Kohn’s harassment — the first of several conversations on the subject. Id. Duch admits that, prior to this occasion, she was unaware that Christiano was an EEO Liaison. Id. However, during their first conversation about the alleged harassment, Christiano asked Duch if she was speaking to her “as a friend” or because Christiano was an EEO Liaison. Id. Duch responded, “I think I’m telling you as a friend.” Id. According to Christiano, she asked Duch whether Duch wanted her to report Kohn’s behavior and Duch responded “absolutely not.” Id. Duch nevertheless maintains that she told Christiano of the harassment, “hoping that Christiano would stop or report the conduct.” Id. Throughout this time, Christiano did not report the harassment to anyone. Instead, Christiano allegedly gave Duch inappropriate advice, including asking why Duch “didn’t ... just grab [Kohn] and hurt him.” J.A. 327.

Duch claims that, during the months that followed, Kohn continued to harass her and she became seriously ill and started avoiding work. Specifically, Duch claims that she became depressed, stopped eating, and experienced suicidal ideations. She also cut and dyed her hair in order to make herself less attractive.

In December 2001, court officer David Joseph replaced Christiano as EEO Liaison. Duch, 2007 WL 2230174, at *2. Within a few days of his becoming EEO Liai*761son, Duch came to Joseph to inform him that she wanted to file a formal complaint about Kohn’s conduct. Because he understood that he was “supposed to go through the chief clerk,” Joseph contacted Vasti to arrange a meeting for Duch. J.A. 418.

On January 8, 2002, Duch spoke with Vasti about Kohn’s alleged conduct. Duch, 2007 WL 2230174, at *3. On January 11, 2002, she filed a claim of discriminatory treatment with the OCA’s Office of the Special Inspector General for Bias Matters. Id. That day, the Special Inspector General began an investigation into Duch’s complaint, which came to include interviews of twenty individuals and an administrative hearing. Id. On the basis of the investigation, disciplinary charges were brought against Kohn. Id. All charges against Kohn were eventually dismissed, however, because Duch failed to submit to cross-examination. Id. Duch claims that the reason she did not submit to cross-examination is that she was medically unfit to testify at that time. Id. Although the parties do not agree on the precise date or terms of Duch’s departure, it is undisputed that she ceased to work for the UCS in December 2002. Id.

On January 7, 2004, Duch commenced this action, alleging that Kohn, Jakubek, OCA, and the State of New York had violated Title VII, as well as the NYSHRL and the NYCHRL, by creating a hostile work environment. In an August 3, 2007 Memorandum and Order, the District Court dismissed Duch’s claims under the NYSHRL and the NYCHRL as barred by the Eleventh Amendment, and denied as futile Duch’s motion to amend her complaint to assert a claim against Jakubek in his individual capacity under the NYSHRL and the NYCHRL. Duch, 2007 WL 2230174, at *4, *12. As noted above, the District Court granted summary judgment in defendants’ favor on Duch’s Title VII claims on the grounds that (1) the OCA provided a reasonable avenue of complaint to its employees, (2) no reasonable fact-finder could conclude that employer defendants had actual or constructive knowledge of the alleged harassment, and (3) even assuming that employer defendants did know or should have known of the alleged harassment, their response was reasonable. Id. at *6-11. The District Court also dismissed Duch’s Title VII claim against Kohn, declined to exercise pendent jurisdiction over the state law claims against him, and denied Duch’s cross motion for partial summary judgment. Id. at *13. Final judgment was entered on August 6, 2007. This timely appeal followed.1

DISCUSSION

We review de novo an order granting summary judgment. See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Summary judgment is appropriate only if “there is no genuine issue as to any material fact” and the moving party is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

*762I. Title VII Hostile Work Environment

In order to prevail on a hostile work environment claim, a plaintiff must make two showings: (1) that “the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” and (2) that there is a “specific basis for imputing the conduct creating the hostile work environment to the employer.” Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir.2004) (internal quotation marks omitted).

A. Abusive Working Environment

“Proving the existence of a hostile work environment involves both objective and subjective elements.” Id. at 150 (internal quotation marks omitted). Specifically, a plaintiff must show that the misconduct was “ ‘severe or pervasive enough to create an objectively hostile or abusive work environment,’ and the victim must also subjectively perceive that environment to be abusive.” Id. (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002)).

Because defendants did not seek, nor did the District Court grant, summary judgment on this ground, we do not address it further. See Duch, 2007 WL 2230174, at *5 (“The Court declines to address whether Plaintiff has established the first element of a hostile work environment claim because, for the reasons discussed below, the claim fails as a matter of law on the second element.”).

B. Imputing the Conduct to the Employer

At issue on this appeal is whether Duch can impute the conduct that created the hostile work environment to her employer. In a situation such as this, “when the harassment is attributable to a coworker, rather than a supervisor, ... the employer will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir.1998). Accordingly, Duch must demonstrate that her employer “failed to provide a reasonable avenue for complaint” or that “it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (internal quotation marks omitted).

1. Reasonable Avenue of Complaint

The District Court concluded that “no reasonable fact finder could conclude that the Employer Defendants failed to provide Plaintiff with a reasonable avenue of complaint.” Duch, 2007 WL 2230174, at *6. We agree.

Duch argues that the District Court improperly focused on the fact that OCA had a sexual harassment policy in place and that Duch had received a booklet on sexual harassment. See id. According to Duch, the District Court failed to consider whether EEO Liaison Christiano — the avenue of complaint that Duch chose to pursue — was inadequate because of her alleged lack of training. Christiano testified that “[wjhen the time came that I was supposed to go for the training[,] I couldn’t go because we were short of officers and I just couldn’t go, so I never got the training.” J.A. 404. Moreover, according to Duch, in response to her complaints, Christiano inappropriately inquired why Duch “didn’t ... just grab [Kohn] and hurt him.” J.A. 327.

Even assuming that Christiano’s response rendered her an inadequate avenue for complaint, the relevant inquiry is not whether a particular avenue of complaint was effectively blocked but, rather, whether defendants “provided no reason*763able avenue of complaint.” See Distasio, 157 F.3d at 63 (emphasis added) (quoting Murray v. N.Y. Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995)); see also Howley, 217 F.3d at 154 (explaining that employers must “provide a reasonable avenue of complaint” (emphasis added)). As Duch herself acknowledges in her brief, according to the Deputy Director of Human Resources at OCA, a victim of discriminatory conduct could seek assistance from at least five different sources in addition to the EEO Office (recently renamed the Workforce Diversity Office), including (1) the Inspector General’s Office, (2) an Anti-Discrimination Panel member, (3) a “supervisor,” (4) “someone in charge,” and (5) a representative of the Work Life Assistance Program. Appellant’s Br. 15. Accordingly, regardless of Christiano’s response, OCA provided numerous alternative avenues of complaint that Duch could, and eventually did, pursue.

We therefore conclude that the District Court did not err in holding that no reasonable jury could conclude that defendants failed to provide Duch with a reasonable avenue of complaint.

2. Knowledge and Failure to Act

Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they “knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Howley, 217 F.3d at 154 (internal quotation marks omitted). This standard requires a plaintiff to show that (1) someone had actual or constructive knowledge of the harassment, (2) the knowledge of this individual can be imputed to the employer, and (3) the employer’s response, in light of that knowledge, was unreasonable. With respect to imputing the knowledge of employees to an employer, we have explained that

[а] n official’s actual or constructive knowledge of harassment will be imputed to the employer when principles of agency law so dictate. That will be the case when a) the official is at a sufficiently high level in the company’s management hierarchy to qualify as a proxy for the company, or b) the official is charged with a duty to act on the knowledge and stop the harassment, or c) the official is charged with a duty to inform the company of the harassment.

Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir.1997) (internal citations and footnote omitted). For non-supervisory co-workers who “lack[] authority to counsel, investigate, suspend, or fire the accused harasser ... the co-worker’s inaction does not spark employer liability unless that coworker has an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” Id. (quoting Lamb v. Household Credit Servs., 956 F.Supp. 1511, 1517 (N.D.Cal.1997)).

Here, Duch seeks to impute knowledge of Kohn’s harassment to her employer based on the alleged knowledge of two individuals: Christiano and Jakubek. We review the evidence with respect to each below.

a. Christiano

It is clear from the record that Christiano had actual knowledge of Kohn’s harassment of Duch. As a co-worker without supervisory authority, however, Christiano’s knowledge can be imputed to her employer only if she had “an official or strong de facto duty to act as a conduit to management for complaints about work conditions.” See id. at 637 (emphasis omitted). However, we need not decide whether Christiano had an official or de *764 facto duty to convey Duch’s complaints to management. Even assuming that as EEO Liaison Christiano had such a duty, Duch cannot satisfy the final requirement under Torres: that Christiano’s response, in light of her knowledge, was unreasonable. See id. at 638-39 (holding that plaintiffs supervisor did not act unreasonably by honoring plaintiffs request to keep complaints of harassment confidential).

Although Duch testified that she told Christiano about Kohn’s harassment “hoping that Christiano would stop or report the conduct,” 2007 WL 2230174, at *2 (emphasis removed), Christiano’s uncontradicted testimony was as follows: “I said do you want me to tell [Jakubek] and [Duch] said absolutely not,” J.A. 165 (emphasis added).2 We must therefore determine whether Christiano acted reasonably by keeping that information confidential, notwithstanding Duch’s unspoken expectations.

In Torres v. Pisano we were presented with nearly identical circumstances and held that a supervisor did not breach his duty to remedy harassment by honoring an employee’s request to keep her complaint confidential. 116 F.3d at 638-39. We explained that

the law will not presume in every case that harassed members of Title VII’s protected classes do not know what is best for themselves and cannot make reasonable decisions to delay — at least for a time — pursuing harassment claims, perhaps for privacy or emotional reasons, until they are ready to do so.

Id. at 639. We also noted, however, that this “is not a question that we can answer categorically” and that “[t]here is certainly a point at which harassment becomes so severe that a reasonable employer simply cannot stand by, even if requested to do so by a terrified employee.” Id.

Duch argues that the conduct to which she was allegedly subjected passes that “point” at which an employer is compelled to act regardless of the expressed wishes of the harassed employee. We disagree. Although Duch testified that she told Christiano about most incidents involving Kohn, and although the harassment was allegedly causing serious harm to plaintiff — even leading her to contemplate suicide — there is no evidence that Christiano was aware of the psychological toll that Kohn’s harassment was allegedly inflicting on Duch. See, e.g., J.A. 409 (“I didn’t feel Karen [Duch] was threatened whatsoever. She was very adamant that she was able to handle this herself. I believe that she could.”); see also Torres, 116 F.3d at 639 (finding defendant employer response was reasonable where the victim’s complaints “did not come close to conveying the full extent of the abuse” to defendant). Based on the evidence in the record, no reasonable jury could conclude that Christiano breached a duty to Duch and, consequently, defendants cannot be held liable on account of Christiano’s inaction.

b. Jakubek

Unlike Christiano, the critical question with respect to Jakubek is whether he had actual or constructive knowledge that Duch was being sexually harassed. If he did, there is no doubt that his knowledge can be imputed to the remaining employer defendants because Jakubek was Kohn’s supervisor and, as such, was “charged with *765a duty to act on the knowledge and stop the harassment.” Torres, 116 F.3d at 636-37 (“[W]here the person who gained notice of the harassment was the supervisor of the harasser {e.g., had the authority to hire, fire, discipline, or transfer him), knowledge will be imputed to the employer on the ground that the employer vested in the supervisor the authority and the duty to terminate the harassment.”).3 We therefore turn our attention to the evidence from which, Duch argues, a jury could infer that Jakubek “knew, or in the exercise of reasonable care should have known, about the harassment.” See Howley, 217 F.3d at 154 (internal quotation marks omitted).

From the record evidence, viewed in the light most favorable to plaintiff and with all reasonable inferences drawn in her favor, a jury could find the following: (1) Jakubek knew that Duch sought a change in her work schedule for a time when she was scheduled to work alone with Kohn; (2) Jakubek learned from other sources that Duch sought a schedule change to avoid working with Kohn; (3) Jakubek asked Kohn about it, and Kohn admitted that he had done or said something he “should not have,” J.A. 81; (4) Jakubek knew that Kohn had engaged in sex-related misconduct toward females in the past; (5) Jakubek told Kohn, in reference to Kohn’s conduct toward Duch, that he should “cut it out [and] grow up,” id,.; (6) Jakubek knew that the subject of working with Kohn caused Duch to become emotional, “teary and red,” and to respond, trying to maintain her composure, “I can’t talk about it,” J.A. 81-82; (7) Jakubek answered, “That’s good because I don’t want to know what happened,” J.A. 82; and (8) Jakubek then agreed to change Duch’s schedule for the specific purpose of avoiding her having to work alone with Kohn at night.

Based on this aggregation of facts, a jury could reasonably find that Jakubek strongly suspected that it was sexual harassment on Kohn’s part that was responsible for Duch’s emotional reaction,4 that Jakubek understood the issue was ongoing, cf. Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir.1995) (holding that an official did not have constructive knowledge because, “though [he] must have viewed [the conduct] as having sexual overtones in light of [the harasser’s] past behavior,” there was no suggestion that he had knowledge that the “misbehavior was part of [an] ongoing course of harassment” (emphasis added)), that the indications of sexual misconduct were sufficiently strong that Jakubek had a duty to make at least a minimal effort to discover whether Kohn had engaged in sexual harassment, and that instead of encouraging Duch to discuss the problem, Jakubek discouraged her from revealing the full extent and nature of the harassment by stating in response to her reticence that he did not want to know what happened. Given the foregoing, we hold that a reason*766able jury could conclude that Duch’s employer had at least constructive knowledge of the sexual harassment directed at her.

In so holding we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees. We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem — as Jakubek is alleged to have displayed — will not shield an employer from liability under Title VII. Accordingly, notwithstanding the District Court’s observation that Jakubek “was never told of, and did not witness, the alleged harassment,” Duch, 2007 WL 2230174, at *7, we hold that a reasonable jury could conclude that Jakubek “knew, or in the exercise of reasonable care should have known, about the harassment.” See Howley, 217 F.3d at 154 (internal quotation marks omitted).

We next consider the adequacy of the employer’s response.

c. Whether the Employer Took Appropriate Remedial Action

In Distasio v. Perkin Elmer Corporation, we held that

[wjhether [a] company’s response was reasonable has to be assessed from the totality of the circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer’s response in light of the employer’s resources, and the nature of the work environment.

157 F.3d at 65. “If the evidence creates an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate.” Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir.1998) (emphasis added), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see, e.g., Kracunas v. Iona Coll., 119 F.3d 80, 88 (2d Cir.1997) (holding that a district court erred in concluding that an employer’s response, taken four to six months after the employer learned of the allegations, was appropriate as a matter of law), abrogated on other grounds by Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1989), and Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).

The District Court concluded that “[a]ssuming arguendo that the Employer Defendants knew or should have known of the alleged harassment ... their response was reasonable.” Duch, 2007 WL 2230174, at *10. The District Court based this conclusion on the following: (1) Jakubek changed Dueh’s schedule when asked and (2) when Duch filed a formal complaint with the Special Inspector General for Bias Matters, an investigation was commenced. Id.

In light of our holding that a jury could find that defendants had knowledge of the harassment in October 2001 — when Duch first requested a schedule change from Jakubek — we conclude that a jury could also find that defendants’ response was unreasonable. Although Jakubek did adjust the schedule so that Duch and Kohn would not be working together without other court officers on duty, Kohn’s harassment persisted and escalated during the months that followed. A formal investigation of Kohn was not commenced until January 2002, after Duch informed another co-worker of the harassment and three months after the date upon which a jury could find that Jakubek first learned of the harassment. Under these circumstances, we cannot say, as a matter of law, that *767defendants’ response was “effectively remedial and prompt.” Gallagher, 139 F.3d at 348.

II. Plaintiffs Motion to Amend the Complaint

Duch’s final argument on appeal is that the District Court erred in denying her motion to amend the complaint to include claims against Jakubek in his individual capacity under the NYSHRL and NYCHRL. The District Court denied Duch’s motion on the ground that amending the complaint would be futile because, inter alia, “no reasonable fact-finder could conclude that Jakubek should have known about the harassment through the exercise of reasonable care” and therefore “[plaintiff cannot plead facts, which if believed, would be sufficient to show that Jakubek failed to take appropriate investigative or remedial measures.” Duch, 2007 WL 2230174, at *12. Because we hold that a reasonable jury could conclude that Jakubek had constructive knowledge of the harassment, we vacate the District Court’s judgment insofar as it denied Duch’s motion to amend.

CONCLUSION

In accordance with the foregoing, we AFFIRM the order of the District Court insofar as it held (1) that Duch was not deprived of all reasonable avenues of complaint and (2) that defendants cannot be liable based on information conveyed to Christiano. We VACATE the order of the District Court insofar as it (1) held that no reasonable jury could find that Jakubek knew or should have known of the harassment directed at Duch, (2) held that no reasonable jury could find that defendants failed to take appropriate remedial action, and (3) denied Duch’s motion to amend as futile. We REMAND the cause for further proceedings consistent with this opinion.