Transfer Other sides argument: Well supreme court specifically mentions undesirable reassignment as an example of tangible employment action

n Response o reassignment to a comparable office is neither sufficiently adverse nor significant. Mormol v. Costco Wholesale Corp., 364 F.3d 54 (2004) (citing Savino v. C.P. Hall Co., 199 F.3d 925, 932 n. 8 (7th Cir. 1999)) o Fairbrother v. Morrison, 412 F.3d 39 (2005) (a transfer to another unit, which does not involve materially different responsibilities is not an adverse employment action) o 8th circuit (harrelson v. mcdonnel douglas corp)- plaintiff reassigned but suffered no dimunition in title salary or benefits, substance of her complaint is that it was more stressful but this did not amount to a tangible employment decision changes in working duties that do not constitute a significant material diasadvantage (a bruised ego is not enough), Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 887 (C.A.6 1996) (demotion without change in pay, benefits, duties, or prestige insufficient), and Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (C.A.8 1994) (reassignment to more inconvenient job insufficient). Burlington Industries, Inc. 524 U.S. 742 (1998) Hill v. Children's Village, 196 F. Supp. 2d 389, (S.D.N.Y. 2002) (the question of whether Plaintiff was the subject of a tangible employment action is a close one, since the Second Circuit has stated that a tangible employment action occurs when an employee is denied an economic benefit.)

The 7th Circuit in Herrnreiter v. Chicago Housing Authority neatly delineated 3 instances in which a tangible employment action will usually fall: 1. Cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished

2. Cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee's career prospects by preventing him from using the skills in which he is trained and experiencedthe harm nevertheless is financial. They are to be distinguished from cases involving a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance.... [Such a transfer] cannot rise to the level of a materially adverse employment action. 2a. A variant of category 2 is where the employee's job is changed in a way that injures his career, just as in the cases in that category, except that there is no transfer. 3. Cases in which the employee is not moved to a different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment... Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002) Evaluation if the transfer as we contend does not constitute a tangible employment action as a matter of law the negative cannot either Closing The United States District Court for the District of Connecticut has utilized the Burlington framework to equate the definition of a tangible employment action to the definition of an adverse employment action when analyzing claims of discriminatory retaliation under Title VII. See Leson v. ARI Of Connecticut, Inc., 51 F.Supp.2D 135 (1999) (Plaintiff was offered a position with identical pay, benefits, and nearly identical responsibilities. Her own subjective opinion that she suffered an adverse employment action is irrelevant and no objectively reasonable person could believe she had suffered as such within the Burlington mandate). See Hill v. Am. Gen. Fin., Inc., 218 F.3d 639 (7th Cir. 2000) (Negative reviews, a change in job title, an increased distance to travel to work, or a lateral transfer do not, by themselves, qualify as adverse actions) Since no employment actioncan bring two-pronged defense In the absence of a tangible employment action an employer will not be held liable under Title VII for a supervisors harassment of a subordinate if it can prove that: (1) the employer exercised reasonable care to prevent and promptly correct any discriminatory harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Faragher, 524 U.S. at 807; Burlington, 524 U.S. at 765; Arnold v. Yale New Haven Hosp., 213 F. Supp. 2d 142, 147-48 (D. Conn. 2002) Reasonable care Ms. Jackson has admitted she received the policy when she first began working and read it over thoroughly. Multiple times in her deposition did she indicate that she did no want to come forward because she didnt want to get Mr. McGraby in trouble or was afraid what he co-workers may think of her The Second Circuit has indicated the mere existence of a reasonable sexual harassment policy accompanied with a complaint procedure is a significant factor towards satisfying the first prong of the affirmative defense. See Arnold v. Yale New Haven Hosp., 213 F. Supp. 2d 142 (D. Conn. 2002) (a written sexual harassment policy and complaint procedure is an important consideration in determining whether the employee satisfied the first prong of the affirmative defense) and Leopold v. Baccarat, Inc, 239 F.3d 243 (2d Cir. 2001) (where there is a sufficient anti-harassment policy and an accompanying complaint procedure the first element of the affirmative defense is met) and Ferraro v. Kellwood Co, 440 F.3d 96 (2d Cir. 2006) (An employer may demonstrate the exercise of reasonable care, required by the first element, by showing the existence of an antiharassment policy during the period of the plaintiff's employment, although that fact alone is not always dispositive.) Hill v. Childrens Village must be reasonably promulgated- this is distinguishable In this case plaintiff never saw policy until after she filed the claim Ms. Jackson was well aware of policy Excel-Lents anti-harassment policy is facially reasonable according to EEOC guidelines in that: It (1) provides a clear explanation of prohibited conduct; (2) protects employees who report claims of harassment from any retaliation; (3) offers a flexible reporting process that provides multiple avenues for complaints to be made, specifically stating that complaints can be made to human resources or any member of management or ownership; (4) mandates that Excel-Lent will thoroughly investigate all reports and complaints of harassment; (5) gives assurance that the confidentiality of the individuals bringing harassment claims will be protected to the extent possible; and (6) dictates that Excel-Lent will take immediate and appropriate corrective or disciplinary action when it determines that a complaint of harassment is substantiated. See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, V.C.1, 1999 WL 33305874, at *9 (June 18, 1999) (listing elements of an effective antiharassment policy and complaint procedur Plaintiffs failure to allege Excel-Lents policy as unreasonable may be dispositive of reasonableness in itself. Nowhere in the complaint does Ms. Jackson contend Excel-Lent failed to exercise reasonable care to prevent harassment. See Barbusin v. E. Connecticut State U., 576 F. Supp. 2d 285 (D. Conn. 2008) (Plaintiff, who admits that she received ECSU's anti-harassment policy at the start of her employment, does not contend that

ECSU failed to exercise reasonable care to prevent harassment. Thus, ECSU has established the first prong of the affirmative defense as a matter of law) Distasio v. Perkin Elmor- 4 days of investigation lacking depth . The EEOC outlines a number of examples to aid employers in establishing preventative measures including oral or written warning or reprimand. Enforcement Guidance: Vicarious Employer Liab. for Unlawful Harassment by Supervisors, 1999 WL 33305874 (E.E.O.C. Guidance June 18, 1999) Both the formal warning and subsequent formal reprimand placed in Mr. McGrabys file expressly conform with the suggested methods of correcting sexual harassment. (Disc. 19,80) As to the adequacy of the investigation, there is nothing in the Faragher or Ellerth decisions requiring a company to conduct a full-blown, due process, trial-type proceeding in response to complaints of sexual harassment. All that is required of an investigation is reasonableness in a manner that will not unnecessarily disrupt the company's business, and in an effort to arrive at a reasonably fair estimate of truth. Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287, 1304 (11th Cir. 2007).As demonstrated binding and persuasive authority mandates only a reasonableness standardexcel-lent has acted reasonably and no reasonable juror could find otherwise Where the proof of harassment is weak and disputed, as it was in this case, the employer need not take formal disciplinary action simply to prove that it is serious about stopping sexual harassment in the workplace. Swenson v. Potter, 271 F.3d 1184, 1197 (9th Cir. 2001) The purpose of Title VII is remedial-avoiding and preventing discrimination (Id.). A remedial measure will be found adequate when it is reasonably likely to prevent the misconduct from recurring. Baldwin, 480 F.3d at 1305. unreasonable See Arnold v. Yale New Haven Hosp., 213 F. Supp. 2d 142 (D. Conn. 2002) (employee unreasonably failed to take advantage of employer's sexual harassment complaint procedures for purposes of affirmative defense employer had adopted and disseminated anti-harassment policy and employee admitted he knew of procedures for complaints and did not use them) The harassment alleged by Ms. Jackson went on for an even longer period of time, and she had a much longer period of delay in reporting the incidents than what was found in the Arnold case. This court found the plaintiff in Arnold to

have acted unreasonably in not taking advantage of the employers sexual harassment policies, and must find that Ms. Jacksons actions were similarly unreasonable. The second district has previously decided what reasoning it will consider credible, and what it will not. We do not doubt that there are many reasons why a victimized employee may be reluctant to report acts of workplace harassment, but for that reluctance to preclude the employer's affirmative defense, it must be based on apprehension of what the employer might do, not merely on concern about the reaction of co-workers. Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999). Ms. Jacksons fear of her fellow male employees reactions cannot be found as a credible excuse to preclude the second prong of the affirmative defense since nowhere does she mention it was based on a fear of her employers action. We do not doubt that there are many reasons why a victimized employee may be reluctant to report acts of workplace harassment, but for that reluctance to preclude the employer's affirmative defense, it must be based on apprehension of what the employer might do, not merely on concern about the reaction of co-workers. Caridad v. Metro-N. Commuter R.R., 191 F.3d 283, 295 (2d Cir. 1999). This district court has also found that Ms. Jacksons broad fear that her complaint not being taken seriously cannot preclude Excel-Lents affirmative defense. In Leopold v. Baccarat, Inc the court held that an employee claimed generally that a coworker's vague and ambiguous complaint was not taken seriously. Such conclusory assertions fail as a matter of law to constitute sufficient evidence to establish that her fear was credible-that her complaint would not be taken seriously. Leopold v. Baccarat, Inc, 239 F.3d 243, 246 (2d Cir. 2001) See Barbusin v. E. Connecticut State U., 576 F. Supp. 2d 285, 292 (D. Conn. 2008) (failure to report harassment for a period of four months, with no justification for failure to report earlier as a matter of law establishes second prong of affirmative defense) Idusuyi v. State of Tennessee Dept. of Children's Services, 30 Fed. Appx. 398, 404 (6th Cir. 2002)(unpublished) (it is unreasonable for employees to pass their own judgmentsabsent any supporting facts-about how effectively an employer's sexual harassment policies operate. The plaintiff knew of the existence of a sexual harassment policy, and her failure to pursue a remedy under that policy was unreasonable.) Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir. 2007) (Employee's failure to report alleged sexual harassment constituted failure to take

advantage of preventive or corrective measuresnotwithstanding that employee feared being fired and felt that silence would best serve her career interests, where employer's policy imposed duty to report harassing conduct immediately, but employee's complaint came over three months after alleged incidents of harassment) The law against sexual harassment is not self-enforcing and an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists Parkins v. Civ. Constructors of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir. 1998) Conclusion Excel-Lent should be granted summary judgment because as a matter of law they cannot be held liable for the actions of one of their supervisors Ms. Jackson had a history of decreasing work performance and was transferred accordingly. Employees are transferred everyday this amounts to nothing more than a simply inconvenience; an effort by excel-lent to place Ms. Jackson in an office where they believed she would better thrive. Having established as a matter of law that her transfer and negative evaluation are not tangible employment actions excel-lent should also be granted summary judgment as to the 2 prongs of the affirmative defense. No reasonable juror could conclude that excel-lent has not exercised reasonable care to prevent and promptly correct sexually harassing behaviorthey have a sxual harassment policy in place, fully conforming with eeoc guidelines including appropriate reporting and remedial procedures