California Legal Team

Equal Employment Opportunity Commssion v. Indiana Bell Telephone Co.

99-1155





IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT





No. 99-1155





EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,



Plaintiff-Appellee,



v.



INDIANA BELL TELEPHONE CO., INC.,

d/b/a AMERITECH INDIANA, and

AMERITECH CORPORATION,



Defendants-Appellants.







On Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division

Honorable Larry J. McKinney, Judge





PETITION OF APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

FOR REHEARING OR REHEARING EN BANC







C. GREGORY STEWART

General Counsel



PHILIP B. SKLOVER

Associate General Counsel



CAROLYN L. WHEELER

Assistant General Counsel



GEOFFREY L.J. CARTER

Attorney



EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

1801 L Street, NW.

Washington, D.C.  20507

(202) 663-4728



TABLE OF CONTENTS



TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii



RULE 35(B) STATEMENT REGARDING REHEARING OR REHEARING

EN BANC 1



INTRODUCTION  1



THE PANEL DECISION  3



ARGUMENT  9



THIS COURT SHOULD GRANT THE COMMISSION'S PETITION FOR REHEARING

OR REHEARING EN BANC



A.  The panel majority's opinion improperly alters the

standard for determining, in a co-worker sexual harassment case, whether

an employer took reasonable steps to prevent and rectify harassment of

its employees  . . . . . . . . . 9



B.  The panel majority's opinion incorrectly holds that the district

court erred in excluding Ameritech's arbitration evidence for purposes of

punitive damages, and improperly indicates that an employer may justify

its delay in responding to complaints of harassment by pointing to the

terms of a collective bargaining agreement  . . . . . . . 12



CONCLUSION  15



CERTIFICATE OF SERVICE







TABLE OF AUTHORITIES



CASES PAGE(S)



Baskerville v. Culligan International Co., 50 F.3d 428

(7th Cir. 1995)  . . . . . . . . . . . . . . . . . . . . 1, 9

10



Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir. 1989) . . .  9, 10



Eckles v. Consolidated Rail Corp., 94 F.3d 1041

(7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 14



EEOC v. Indiana Bell Tel. Co., ___ F.3d ___, 2000 WL 681007

(7th Cir. May 26, 2000) . . . . . . . . . . . . . . . . passim



McKenzie v. Illinois Department of Transportation, 92 F.3d 473

(7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 9



Trans World Airlines v. Hardison, 432 U.S. 63 (1977)  . . . .  14





OTHER AUTHORITIES



W. Page Keeton et al., Prosser and Keeton on the Law of Torts

(5th ed. 1984) . . . . . . . . . . . . . . . . . . . . . . 11



Restatement (Second) of Torts (1958) . . . . . . . . . . . . 11, 12

RULE 35(B) STATEMENT REGARDING REHEARING OR REHEARING EN BANC



The Commission requests rehearing for the following reasons:



1. The panel majority's decision conflicts with this Court's decision

in Baskerville v. Culligan International Co., 50 F.3d 428, 432-33 (7th

Cir. 1995) and the fundamental principles that define negligence because

the panel majority's decision improperly holds that an employer's state of

mind must be considered when assessing the reasonableness of an employer's

response to a complaint of sexual harassment.  Consideration by the full

court is necessary to secure and maintain the uniformity of this Court's

decisions.

2. The panel majority's decision raises a question of exceptional

importance because it incorrectly holds that the district court erred

in excluding Ameritech's arbitration evidence for purposes of punitive

damages, and improperly indicates that an employer may justify its

delay in responding to complaints of sexual harassment by pointing to

the terms of a collective bargaining agreement.



INTRODUCTION



In this case, a jury returned a verdict for the Commission and awarded

compensatory and punitive damages against Indiana Bell Telephone Co.,

et al. ("Ameritech") for the sexual harassment of Debbie Wentland,

Lori Everts, and Wendy Pollard.  EEOC v. Indiana Bell Tel. Co., ___

F.3d ___, 2000 WL 681007 at *5 (7th Cir. May 26, 2000).  The claims

against Ameritech "stem from a course of sexually offensive conduct

that former Ameritech employee Gary Amos ["Amos"] directed at several

of his female co-workers."  Id. at *1.  From 1975 to November 21, 1991,

Amos harassed at least thirteen female co-workers at Ameritech, exposing

his penis to and/or rubbing his erect penis against at least nine of

these individuals.  See id. at *1-2.  Each of these women complained

to Ameritech, and almost all of their complaints were placed in Amos'

personnel file.  See id.  Despite this history, Ameritech only issued

warnings or did nothing to discipline Amos for his misconduct, except

in 1990, when it suspended Amos for two weeks and revoked his sales

award after six women complained about Amos' misconduct.  See id.

Amos continued sexually harassing his female co-workers after November

21, 1991.  In 1992, Jennifer Rice complained that "Amos rubbed himself

against her, rubbed her neck, and made inappropriate comments about her

body."  Id. at *2.  Again, Ameritech simply warned Amos and allowed him

to remain in the office.  See id.  Amos thus was able to sexually harass

Wentland in 1992 (on one occasion rubbing his erect penis through his

pants while he spoke with her),  causing her to complain to Ameritech

on November 25, 1992.  See id.  Ameritech decided to fire Amos for his

misconduct, but did not do so because its employees went on vacation

and missed the thirty-day limitation for taking such action.  See id. at

*2-3.

After botching the effort to fire Amos after Wentland's complaint,

Ameritech's officials "agreed that the next complaint against Amos would

result in an immediate suspension pending investigation in order to

avoid missing any deadlines."  Id. at *3.  When that opportunity came

in April 1993, when Everts filed a charge of discrimination stating

(among other things) that Amos "brush[ed] up against her with his penis

erect," Ameritech did not investigate.  Id.  Instead, Ameritech concluded

that Everts' complaint was without merit, and did not discipline Amos.

See id.

Ameritech did suspend Amos for thirty days in June 1993, when he

wrote a note to supervisor Patricia Wolter that read: "Patti, you

look so sexy today."  Id. at *4.  Again, however, Ameritech allowed

Amos to return to the office, where in late 1993, he began harassing

Pollard by touching and grabbing her hair and shoulders, staring at

her, and showing her pictures of topless women and women in lingerie.

See id.  Ameritech finally fired Amos in March 1994 after Pollard saw

Amos masturbating his fully exposed penis while sitting at his desk.

See id.; Tr. 975.



THE PANEL DECISION



On February 21, 1995, the Commission filed this Title VII action

against Ameritech.  Id. at *4.  After a jury returned a verdict for the

Commission, the district court awarded compensatory and punitive damages

based on Wentland's, Everts' and Pollard's sexual harassment claims.

Id. at *5.  The district court denied Ameritech's motions for judgment

as a matter of law, new trial, and remittitur beyond the reduction

in damages specified in its order.  Id.  Ameritech appealed.  Id.

By a 2 to 1 vote, a panel of this Court reversed the decision below.

See id. at *11 (panel majority); id. at *23 (Rovner, J., dissenting).

The panel majority began its opinion by holding that the district court

properly denied Ameritech's motion for judgment as a matter of law on

punitive damages and liability.  The panel majority explained that,

in light of Amos' history of harassment, "a reasonable jury could have

concluded that Ameritech acted with 'malice or reckless indifference,'"

and noted that this holding regarding punitive damages precluded any

challenge to whether a reasonable jury could find that Ameritech acted

negligently and was therefore liable for the sexual harassment.  Id. at

*6-7.

The panel majority next addressed "the district court's decision to

exclude evidence regarding Ameritech's obligations under its collective

bargaining agreement and the effect those obligations had on the timing

of Amos' dismissal."  Id. at *8.  Ameritech argued that the district

court should have admitted this evidence as relevant to whether Ameritech

(1) responded reasonably to the sexual harassment and (2) acted with

the state of mind required for punitive damages.  Id.  In the panel

majority's view, the district court excluded Ameritech's evidence about

arbitration and the collective bargaining agreement as a matter of

law because it believed this evidence "could not be introduced in the

face of conflicting duties under Title VII."  Id.  The panel majority

rejected that proposition, holding that Title VII does not always trump

the provisions of a collective bargaining agreement.  See id. at *8-9.

Because the panel majority believed that the district court based its

decision to exclude Ameritech's evidence about arbitration on an error

of law, the panel majority concluded that the district court abused

its discretion.  See id. at *9.

The panel majority rejected the Commission's argument that, assuming

the district court erred in excluding Ameritech's arbitration evidence,

the error was harmless.  In the panel majority's view, although the jury

heard evidence about the collective bargaining agreement's thirty-day

limit on disciplinary action, Ameritech was prevented from presenting

"potentially significant evidence as to [its] state of mind and to the

reasonableness of its actions," including evidence of its fear that,

if it discharged Amos in a manner inconsistent with the collective

bargaining agreement, Amos might be reinstated.  Id.  Believing that

Ameritech could have used this evidence to "counter the jury's impression

that it acted negligently or with 'malice or reckless indifference,'"

the panel majority held that it could not say that "the outcome of the

trial would have been the same had the jury been permitted to hear this

evidence."  Id. at *10.  Accordingly, the panel majority concluded that

the district court's erroneous evidentiary ruling was not harmless,

and reversed the judgment of the district court. See id. at *11.

Judge Rovner dissented from the panel majority's holding that the

district court committed reversible error when it excluded "evidence

of Ameritech's professed concern for the outcome of arbitration that

might have ensued had the company fired Amos sooner than it did."

Id. at *11.  In Judge Rovner's view, the panel majority erred in holding

that Ameritech was entitled to present this evidence because Title VII

places an "unequivocal duty on employers to take reasonable measures

to stop harassment" that cannot be modified by a collective bargaining

agreement or concerns about how an arbitrator might interpret such

an agreement.  Id.

Initially, Judge Rovner identified several flaws in Ameritech's argument

that it faced a conflict between its obligations under Title VII and

the collective bargaining agreement.  First, Judge Rovner noted that

Ameritech caused one of the purported clashes between its Title VII

and labor agreement responsibilities.  Id. at *13.  Indeed, despite its

awareness of Amos' history of harassment and the fact that (as Ameritech

claims) an arbitrator would not have permitted the company to discharge

Amos after the deadline, Ameritech missed the 30-day deadline for

imposing discipline after Wentland's complaint.  Id.  Because of these

circumstances, Judge Rovner explained that the only pertinent question

regarding "the reasonableness of Ameritech's actions and state of mind

is what Ameritech did during those thirty days."  Id. at *14.  It also

was within the district court's discretion "to prevent Ameritech from

attempting to pin the failure to discharge Amos on the likelihood that

an arbitrator would order him reinstated," because such an explanation

"would make Ameritech no less culpable for missing the deadline."  Id.

Second, Judge Rovner observed that, despite its arguments to the

contrary, "Ameritech was able to explain that it did not discharge

Amos in response to Debbie Wentland's complaint because it did not

effectuate that decision within the thirty-day time frame specified

by the collective bargaining agreement."  Id.  The thirty-day limit

was discussed on several occasions during the trial, and because the

attorneys and witnesses "uniformly presumed that the time limit was

inviolable," the jury was aware that "there was no way around the

thirty-day deadline."  Id.  "The notion that there was a compelling

need for the arbitration evidence is therefore a fallacy."  Id.

Third, Judge Rovner questioned Ameritech's argument that the "just

cause" standard for discharges under the collective bargaining agreement

prevented it from firing Amos after his June 1993 "you look so sexy"

note to Patti Wolter.  Id. at *15.  Judge Rovner agreed that the note,

if viewed in isolation, probably would not provide just cause for

discharging Amos, but explained that there was no evidence that an

arbitrator applying the just cause standard would not consider Amos'

history of harassment and "the proven ineffectiveness of all disciplinary

measures short of discharge in stopping Amos' harassment" in determining

whether discharge was appropriate.  Id. at *16.  Consequently, the

"just cause" standard did not warrant discussion at trial because no

evidence suggested it posed an obstacle to discharging Amos.  Id.<1>

Judge Rovner next explained that, even assuming that Ameritech did face

an irreconcilable conflict between the collective bargaining agreement

and Title VII, she was "not convinced that Ameritech's obligation

to protect its employees from harassment necessarily had to yield to

the constraints imposed by its contract with the union."  Id. at *18.

Judge Rovner acknowledged the precedent holding that Title VII and the

ADA do not require an employer to interfere with the seniority rights

of other employees (see id. at *18-19), but explained that the panel

majority's opinion represents a significant leap from that precedent

insofar as the cases discussing seniority rights do not speak to the

issue of whether the provisions of a collective bargaining agreement may

trump an employer's duty under Title VII to deal with sexual harassment.

See id. at *20.  Judge Rovner also expressed concern that the panel

majority "articulate[d] no limits on what types of collective bargaining

agreement provisions trump an employer's obligation to remediate

discrimination," thereby allowing Ameritech and any other unionized

employer to "hold up the collective bargaining agreement as a fig leaf

for its own inaction," irrespective of the importance of the provision

in question to the collective bargaining process.  Id. at *21.

Last, Judge Rovner stated that, "even if the district court did err

in excluding evidence as to the collective bargaining agreement and

Ameritech's fears of unfavorable arbitration, that error does not require

us to overturn the jury's verdict."  Id. at *22.  First, "[o]verwhelming

evidence supports the jury's finding that Ameritech's response to the

harassment was negligent," as Ameritech, despite its knowledge that it

had a dangerous employee on its hands, was "half-hearted, bumbling, and

wholly ineffective" in its response.  Id.  Second, the jury's punitive

damages award should stand because Ameritech displayed "a reckless

indifference to the plight of the company's female workers" with its

failure to check Amos' employment history, increase the discipline from

what had been imposed before, and impose discipline after Wentland's

complaint before the deadline passed.  Id. at *22.



ARGUMENT



THIS COURT SHOULD GRANT THE COMMISSION'S PETITION FOR REHEARING OR

REHEARING EN BANC



A.  The panel majority's opinion improperly alters the standard for

determining, in a co-worker sexual harassment case, whether an employer

took reasonable steps to prevent and rectify harassment of its employees

It is well established that "[w]hen an employee is harassed by a

co-worker, the employer may be held responsible only if 'the employer

knew or should have known about an employee's acts of harassment and

fails to take appropriate remedial action.'" McKenzie v. Illinois Dep't

of Transp., 92 F.3d 473, 480 (7th Cir. 1996) (quoting Brooms v. Regal

Tube Co., 881 F.2d 412, 421 (7th Cir. 1989)).  Under this standard, an

employer in a co-worker sexual harassment case may fulfill its legal duty

under Title VII if it "takes reasonable steps to discover and rectify

the harassment of its employees."  McKenzie, 92 F.3d at 480 (citing

Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995)).

Specifically, "[a]n employer's response to alleged instances of employee

harassment must be reasonably calculated to prevent further harassment

under the particular facts and circumstances of the case at the time the

allegations are made."  Brooms, 881 F.2d at 421.  See also Baskerville,

50 F.3d at 432 (explaining that "what is reasonable depends on the

gravity of the harassment," as all other things being equal, "an employer

is required to take more care . . . to protect its employees from serious

sexual harassment than to protect them from trivial harassment").

The panel majority's opinion in this case must be corrected because it

improperly alters this framework for assessing the reasonableness of

an employer's response to a complaint of harassment.  In reversing the

judgment of the district court, the panel majority held that Ameritech's

state of mind is relevant to the question of whether it acted negligently

in failing to respond adequately to the complaints it received about

Amos' sexual misconduct.  See Indiana Bell, 2000 WL 681007 at *8 n.5, 10

(holding that the district court erred when it prevented Ameritech from

presenting evidence about its fears concerning arbitration to "counter

the jury's impression that it acted negligently").  This Court now

should correct the panel majority's reasoning on this issue because it

cannot be reconciled with this Court's pre-existing case law and the

definition of negligence.<2>

The panel majority's holding that Ameritech's state of mind is relevant

to the question of whether it acted reasonably in response to the

various complaints of harassment conflicts with this Court's decision in

Baskerville, 50 F.3d at 432-33.  In Baskerville, this Court confronted

an issue similar to the one in this case when it addressed the question

of whether it could be "reasonable" in a sexual harassment case for an

employer simply to ignore charges of sexual harassment if the charges

were made against one of the employer's "highly valued" employees.

Id. at 433.  Although it is conceivable that an employer might act

with such a state of mind, this Court rejected the proposition that the

employer's subjective motivations for its inaction warrant consideration

in assessing the reasonableness of its response to harassment.  See id.

Instead, this Court compared the employer's proffered subjective

explanation to "saying it might be reasonable for an automobile driver

to drive without regard to the hazards of pedestrians because he was in

a hurry," and then explained that the reasonableness of the employer's

conduct in the sexual harassment context must be assessed in relation to

the legal duty of care it owes to employees victimized by a co-worker's

sexual harassment.  Id.  The panel majority's holding that Ameritech's

state of mind is relevant to negligence conflicts with this analysis

in Baskerville.

The panel majority's reasoning also conflicts with the definition

of negligence.  As defined in the Restatement (Second) of Torts � 282

(1958), "negligence is conduct which falls below the standard established

by law for the protection of others against unreasonable risk of harm."

As is evident from this definition, "[n]egligence is conduct, and not

a state of mind," and thus may result from either inadvertence (e.g.,

lack of awareness of the  possible consequences of one's actions)

or a considered, but ill advised, decision.  W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts � 31, at 169 (5th ed. 1984).

The essence of negligence, therefore, "is not necessarily the absence of

solicitude for those who may be adversely affected by one's actions but

instead behavior which should be recognized as involving unreasonable

danger to others."  Id.  See also Restatement (Second) of Torts � 283

(explaining that an actor must conform to the standard of conduct "of

a reasonable man under like circumstances" to avoid being negligent).

The panel majority's analysis undermines these fundamental principles,

because it improperly characterizes negligence as a state of mind, rather

than (as the treatises indicate) a type of objectively unreasonable

conduct.

Because the panel majority's ruling on the relevance of Ameritech's

state of mind to the question of whether it responded reasonably to the

various complaints it received about Amos' misconduct conflicts with

this Court's decision in Baskerville and the definition of negligence,

it must be corrected.

B.  The panel majority's opinion incorrectly holds that the district

court erred in excluding Ameritech's arbitration evidence for purposes of

punitive damages, and improperly indicates that an employer may justify

its delay in responding to complaints of sexual harassment by pointing

to the terms of a collective bargaining agreement

As Judge Rovner observed (see supra pp. 5-7), the panel majority's

conclusion that Ameritech should have been allowed to present evidence of

its fears about arbitration to a jury for purposes of punitive damages

is marred by several flaws.  First, Ameritech's arbitration evidence

is not relevant to whether a jury could find that Ameritech acted with

malice or reckless indifference when it missed the thirty-day deadline

for discharging Amos after Wentland's complaint despite being aware of

Amos' history of harassment.  Indeed, Ameritech's supposed fears about

arbitration did not develop until after it missed the deadline.

Second, to the extent that the panel majority believed that Ameritech

was not able to explain why it did not discharge Amos after Wentland's

complaint (see id.), it is grossly mistaken.  Through testimony at trial,

the jury was well aware that Amos could not have been discharged after

the thirty-day deadline.  Ameritech's case, therefore, was not harmed by

the omission of evidence that at most would have reiterated that fact.

Third, to the extent that Ameritech's arbitration evidence might have

been relevant to why it did not discharge Amos after he wrote the "you

look so sexy today" note to Wolter, the evidence has no bearing on

Ameritech's state of mind in failing to discharge Amos because: (1) the

Wolter incident occurred after Ameritech missed the earlier opportunities

to address Amos' misconduct after Wentland's and Everts' complaints;

and (2) the evidence would not have altered the jury's finding that

Ameritech acted with malice or reckless indifference to Pollard's Title

VII rights in allowing Amos to stay in the office despite at least two

opportunities (both before the Wolter incident) to discharge him.

In addition, rehearing or rehearing en banc is necessary because the

panel majority improperly indicates that an employer may justify its

delay in failing to respond to known sexual harassment in the workplace

by pointing to the terms of a collective bargaining agreement.

In reversing the district court's decision, the panel majority

asserted that "it is incorrect to hold, as the district court did,

that obligations under Title VII always trump obligations under valid

labor agreements."  Indiana Bell, 2000 WL 681007 at *9.  While that

general statement is true, it does not follow that the line of cases

establishing that principle should apply in a sexual harassment case

such as this one.  As Judge Rovner recognized, the Supreme Court's

decision in Trans World Airlines v. Hardison, 432 U.S. 63 (1977)

"holds simply that Title VII does not require an employer to interfere

with the seniority rights of some employees in order to accommodate

the religious needs of others."  Indiana Bell, 2000 WL 681007 at *19.

See also id. (explaining that the decision in Eckles v. Consolidated

Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996) "sounds the same theme"

in the context of reasonable accommodation under the ADA).  Unlike the

TWA and Eckles decisions, however, the federally protected statutory

rights of Amos' female co-workers to work in an environment free

of sexual harassment did not conflict with any countervailing right

(certainly none comparable to the seniority rights at issue in TWA

and Eckles) that the collective bargaining agreement bestowed on Amos.

At most, the only terms at issue were the thirty-day limit for imposing

discipline, which was entirely within Ameritech's capacity to avoid,

and the just cause provision, which, as Judge Rovner noted, may be

voided if an arbitrator invokes it in a manner that conflicts with the

public policy against workplace harassment.  See Indiana Bell, 2000 WL

681007 at *20 (collecting cases).  Notwithstanding these differences

from the seniority rights cases, the panel majority held that Ameritech

should be allowed to introduce evidence of its purported concern about

the collective bargaining agreement and arbitration as a justification

for its delay in discharging Amos, a known serial harasser.

The panel or the full court should correct the panel majority's decision

because, if accepted, it would allow employers to put to the trier of

fact the improper question of whether, due to the terms of a contract,

an employer was justified in knowingly violating federal law by allowing

sexual harassment to continue.  The Commission is not aware of any case

that countenances such a defense, for purposes of punitive damages or

otherwise.  In addition, the panel majority's decision is devoid of any

standards that identify when this defense should be available, and thus

opens the door for similar arguments based on any contractual provision,

no matter how trivial.  Again, such a result would be unprecedented

and damaging to the Title VII rights of countless employees.



CONCLUSION



For the foregoing reasons, the Commission respectfully requests that

this Court grant this petition.

Respectfully submitted,



C. GREGORY STEWART

General Counsel   GEOFFREY L.J. CARTER

Attorney

PHILIP B. SKLOVER

Associate General Counsel     EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

CAROLYN L. WHEELER   Office of General Counsel

Assistant General Counsel 1801 L Street, NW

Washington, D.C.  20507

June 29, 2000    (202) 663-4728



CERTIFICATE OF SERVICE



I, Geoffrey L.J. Carter, hereby certify that on this 29th day of

June, 2000, two copies of the attached petition, and one copy of the

attached petition on digital media, were sent by first class mail,

postage prepaid, to the following counsel of record:



Kenneth J. Yerkes, Esq.

Michael A. Moffatt, Esq.

Stanley C. Fickle, Esq.

Blake J. Burgan, Esq.

Barnes & Thornburg

11 South Meridian St.

Indianapolis, IN.  46204







GEOFFREY L.J. CARTER

Attorney



EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

1801 L Street, NW

Washington, D.C.  20507

June 29, 2000     (202) 663-4728









1  Judge Rovner also noted that, even if an arbitrator ordered Amos'

reinstatement, Ameritech could have: (1) challenged such a ruling in court

based on the public interest in eliminating sex discrimination; and/or

(2) terminated him in the future if and when he resumed his harassment.

See id. at *17 (collecting cases).



2  The panel majority may have been relying on the language in Brooms,

881 F.2d at 421, that states that the reasonableness of an employer's

response should be determined according to whether it was "reasonably

calculated to prevent further harassment under the particular facts and

circumstances of the case at the time the allegations are made."  See

also Indiana Bell, 2000 WL 681007 at *8 (quoting this passage).  It is

clear enough that the reasonableness of the employer's response depends

on facts such as the nature of the harassment (see Baskerville, 50 F.3d

at 432), but the Commission is not aware of any case holding that the

employer's state of mind should be considered when assessing whether the

employer acted reasonably.  Consequently, the panel majority's decision

represents a substantial departure from the law as stated and applied

in other sexual harassment cases.