In Clark v. CDR Maguire Inc., No. 2:24-CV-978-KCD-KRH, 2026 WL 1596217 (M.D. Fla. June 4, 2026), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
This decision is instructive on how courts apply the “Faragher Ellerth” affirmative defense to such claims.
The court summarized the facts as follows;
Clark worked for CDR as a debris monitor. Her job stationed her at demolition sites and required her to document the types and amounts of debris Hauling Away removed. While at one of these job sites, Clark claims a Hauling Away employee known to her as “Donkey” pressed his erect penis against her backside while whispering a Spanish word in her. Though Clark doesn’t speak Spanish, she believed the whispering was sexually-natured. Hauling Away removed Donkey from the job site, and Clark immediately reported the incident to her CDR supervisor. But Clark says things only got worse.
Over the next three months, Donkey was assigned to her worksite on multiple occasions. She claims Donkey once smirked and laughed when he came near her. Meanwhile, Hauling Away’s other employees laughed and sexually gestured towards her almost daily. Clark says she complained to her supervisor about continuing to see Donkey, yet admits she never reported the other behavior to anyone. Ultimately, Clark claims the workplace became so unbearable she was forced to quit.
(Internal quotation marks & citations omitted.)
It then summarized, and applied, the law as follows:
To prevail on her hostile work environment claim, Clark must prove five elements: (1) that she belong to a protected group, (2) she was subject to unwelcome harassment, (3) the harassment was based on a protected characteristic, (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment, and (5) her employer was responsible for the hostile work environment. But even when all these boxes are checked, an employer can dodge liability by mounting a Faragher-Ellerth defense. This defense requires an employer show two things: (1) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities it provided.
CDR has proven this defense as a matter of law. First, it plainly sought to prevent such behavior. An employer meets this initial burden by showing it published and circulated an anti-harassment policy to its employees. CDR had a clear anti-sexual-harassment policy in place when it hired Clark. It advised her of the policy when it gave her an employee handbook. It referenced the policy during Clark’s orientation and training. And it even furnished Clark with a standalone acknowledgment form expressly detailing the policy— which Clark apparently read, understood, and signed.
Clark claims she does not recall receiving the sexual harassment policy. But she’s got to do better than that. A witness’s inability to remember an event, standing alone, generally does not create a genuine issue of fact for summary judgment purposes. Clark doesn’t deny that she received CDR’s policy. She instead hedges, claiming she cannot remember but it’s possible she did. Nothing about her testimony negates CDR’s evidence. It is thus undisputed that CDR provided Clark with its anti-harassment policy. CDR therefore satisfies the preventative-portion of the test.
The same goes for the corrective-action component. The question of whether an employer timely acted to correct harassment turns on when it had proper notice of an employee’s harassment complaint. Once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then it is incumbent upon the employees to follow that policy. If an employee reports sexual harassment to the policy’s designated point-person, the employer is deemed on-notice of that conduct. Employers do not have proper notice, however, where an employee sidesteps its policy by complaining to some non-designated person.
CDR’s policy requires employees to immediately report sexual harassment to its HR department. Clark never did this. She instead reported Donkey’s conduct to her supervisor right after it happened. She did not alert HR of the incident until months later, after she had already quit. And she told no one about the harassment the other men were subjecting her to. CDR thus never had proper notice of the sexual harassment she experienced, and therefore was not obligated to take any corrective action. Given this, the first element of CDR’s Faragher-Ellerth defense is satisfied.
Ditto for prong two. Again, this element demands evidence that the plaintiff “unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. An employee’s failure to use her job’s complaint procedure will normally suffice. Clark lodged her concerns outside CDR’s complaint-procedure and offers no reasonable explanation justifying that choice. She thus unreasonably failed to take advantage of CDR’s corrective opportunities.
(Cleaned up; internal quotation marks & citations omitted.)
The court concluded that there was no real dispute over defendant’s Faragher-Ellerth defense, finding that plaintiff failed to refute that she received CDR’s anti-harassment policy, concedes that she raised no concerns to HR until well after the incident date, and admits that she was silent about any subsequent harassment. Based on this, the court concluded that defendant avoid liability, regardless of whether plaintiff’s hostile work environment claim meets all of the elements.