By Lorene D. Park, J.D. A BNSF employee, who admitted she had consensual sex with a coworker in the hopes that he would help her avoid termination for repeated attendance violations, failed to provide evidence that sexual conduct by the coworker was “unwelcome” as required to support a quid pro quo sexual harassment claim under Montana law. Granting summary judgment for BNSF, a federal district court in Montana found that the employee encouraged the sexual advances, including by texting that she “had fun” and wanted to “do it again,” and by sending naked pictures of herself. Even assuming an issue of fact on whether the conduct was unwelcome, BNSF established its affirmative defense by promptly and reasonably responding to her report of harassment, which she made weeks after her termination (Dye v. BNSF Railway Co., February 8, 2016, Ostby, C.). The employee was a conductor trainee and conductor for BNSF. During the year before she was fired, she was disciplined eight times for violating attendance guidelines. A month before she was fired, she had a brief, consensual, sexual relationship with a coworker who occasionally had supervisory responsibility over her. He invited her to a retirement party for another worker, but hadn’t indicated any romantic interest. He offered to approve a vacation day and she took him up on the offer, though she planned to visit a friend rather than actually attend the party. Meanwhile, she and the coworker exchanged text messages in which she expressed reluctance to go because she wouldn’t know people at the party, had no one to go with, and hated to walk into bars alone. He responded by telling her it would be “fun,” that he would buy her drinks, that she would know him at the party, and that he would walk her into the bar so she would not be alone. Barhopping and sex. Ultimately, the employee went to the party and thereafter went barhopping with the coworker. She later offered to drive him home. During the drive, he said he would help her out if she helped him out. She believed he meant that he would save her job in exchange for sex. They went to her hotel, where they had sex. The next day, he said he would write a letter to help her stay employed at BNSF. Thereafter, the two exchanged text messages. She texted she “definitely had fun” and it was “more than okay to do it again.” The also exchanged sexually explicit messages and she sent him two naked pictures of herself. She also texted that she was afraid she was going to be fired, and that she would either move back to Washington or go back to school. She claimed she sent these texts to get the coworker to “try harder” to help her keep her job and that she was willing to do whatever it took, including having sex with him again. Employee and coworker fired. The employee was fired on March 18, 2013, and she stipulated that the termination resulted solely from her rule violations. Three days later, she and the male coworker had sex for the second and final time. The employee admitted that the coworker didn’t promise her anything and she believed they were using each other. She did not report to any BNSF supervisor or to human resources that she had the relationship with the coworker until April 8, when she reported it to HR. The coworker was fired on June 6 for carrying on the relationship with the employee in violation of BNSF’s code of conduct. The employee filed suit against BNSF alleging quid pro quo sexual harassment under the Montana Human Rights Act (MHRA), as well as several tort claims. BNSF moved for summary judgment and the employee conceded the tort claims. The issue before the court was whether the coworker’s conduct was “unwelcome,” as required to be actionable under the MHRA. Relationship was not “unwelcome.” Even construing the facts in the employee’s favor, the court concluded that she failed to present evidence from which a reasonable juror could conclude that the coworker’s sexual advances were unwelcome. The court explained that “[t]he correct inquiry is whether [plaintiff] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” Here, the employee’s initial hesitation to go to the retirement party was simply not enough to raise a triable issue of fact, particularly where her hesitancy was not because of sexual advances but was because she didn’t know anyone at the party, couldn’t find someone to go with her, and didn’t like to walk into bars alone, among other reasons that had nothing to do with sex. Moreover, the employee conceded that she encouraged the coworker’s sexual advances, even texting that she “definitely had fun” and was “more than okay to do it again.” She also exchanged, without objection, sexually-charged messages for weeks after their first rendezvous. She also sent him naked pictures of herself. Then, after she was terminated, she repeatedly told the coworker that she wanted to meet to have sex, followed-through, and texted the next day to say she had fun. She never asked him to stop texting or having a relationship and she never reported the relationship to the employer until after she was fired. Based on this evidence, she was not subjected to unwelcome sexual advances and her quid pro quo claim failed. Ellerth-Faragher defense. The court further concluded that BNSF established an affirmative defense by showing it took reasonable care to prevent and correct sexually harassing behavior and the employee unreasonably failed to take advantage of preventative or corrective measures. BNSF had an anti-harassment policy and both the employee and coworker were trained on it. When she reported, three weeks after her discharge, that she was harassed, BNSF scheduled an interview with her and with the coworker, who admitted to the consensual relationship. BNSF then quickly fired the coworker for violating its code of conduct. Thus, it satisfied the first prong of the defense. As to the second prong, the evidence showed that, in spite of her anti-harassment training, the employee did not report the relationship until three weeks after she was fired.
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