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