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Unsuccessful Investigation Sufficient to Doom Title VII Claim

In an unpublished decision, the Sixth Circuit Court of Appeals found an employer’s response to discriminatory conduct was sufficient, even though the employer could not stop the harassment or find the culprit.

As of August 6, 2018, Ronald Burns worked as a maintenance technician for Berry Global (“Berry”). The next day during his night shift, Burns found a note on his locker with “dance monkey” written on it. He shared the note with the plant manager, who reported it to Human Resources. HR interviewed employees but could not identify who left the note. A few days later, Burns found a noose hanging on his locker. Burns reported the incident to the day shift production supervisor, to HR, and the ethics hotline. The company investigated the incidents, trying to identify the culprit but did not specifically ask employees about the note or the noose. The company did hold a “Refresher Code of Respect Training.” Later that month, Burns found another note. This note said: “die n******.” Burns reported it to the night shift supervisor, and the company reopened the investigation. Again, the company could not confirm the identity of any harassers. In January 2019, Burns found another noose, this time on his toolbox. The company investigated again. They showed a picture of the noose to employees and asked if they knew anything. The investigation was inconclusive. Burns resigned from his employment and sued for racial discrimination in violation of Title VII.

The federal district court and Sixth Circuit dismissed Burn’s claims. Because no one could identify the harasser’s position, the appellate court applied the liability standard used for co-worker harassment. Under that standard, employers are liable when indifferent or unreasonable in their response to harassment. The court found Berry’s response was “adequate” because it “took prompt action reasonably directed at determining the source of harassment.” Berry conducted a timely investigation, interviewed those employees potentially responsible, and followed up with him frequently. They also adjusted security cameras, warned employees they would not tolerate harassment, and offered Burns a different shift. The appellate court concluded Berry’s response “though perhaps imperfect, was legally adequate.”