## Facts

- Angela Jones worked as a correctional officer for the District of Columbia Department of Corrections; Sergeant Darryl Ellison was her direct supervisor.
- Jones alleged Ellison subjected her to repeated sexual advances and offensive conduct, including attempted kissing (one incident involving physical grabbing), sexual comments about her body, slurs, and threats of adverse evaluations or discipline.
- Jones first reported Ellison’s conduct informally to a supervisor, then filed a formal written harassment complaint.
- The warden issued cease-and-desist orders directing Jones and Ellison to avoid unnecessary contact.
- The Department conducted an internal investigation, took recorded statements from fourteen witnesses, and issued a 31-page report finding insufficient evidence for probable cause.
- Jones alleged retaliation after complaining, including an immediate transfer to the night shift, subsequent changes to post assignments and days off, and assignment to an isolated tower post with restricted access to the main institution.
- The Department produced evidence that the night-shift roster was completed and approved seventeen days before Jones filed her complaint.

## Issues

1. Whether the Department waived the Faragher–Ellerth affirmative defense by failing to plead it in its answer under Federal Rule of Civil Procedure 8(c).
2. Whether Jones produced sufficient evidence of a materially adverse action and causation to survive summary judgment on her Title VII retaliation claim.

## Decision

- The D.C. Circuit affirmed summary judgment for the Department on all claims.
- The court held the Department did not waive the Faragher–Ellerth affirmative defense by raising it first at summary judgment because Jones was not unfairly surprised or prejudiced and had a fair opportunity to respond.
- The court held the Department satisfied the Faragher–Ellerth elements on the summary-judgment record, defeating vicarious liability for supervisor harassment where no tangible employment action was shown.
- The court held Jones failed to raise a triable issue on retaliation because the record did not support materially adverse action and causation, particularly given evidence the shift change predated her complaint.

## Legal Principles

- An employer may avoid vicarious liability for a supervisor’s hostile-environment harassment not resulting in a tangible employment action by proving (1) reasonable care to prevent and promptly correct harassment and (2) the employee unreasonably failed to use preventive or corrective opportunities or otherwise avoid harm.
- Failure to plead an affirmative defense in an answer does not automatically bar the defense; the central question is whether the opposing party had notice and a fair chance to respond without unfair surprise or prejudice.
- A Title VII retaliation claim requires proof of protected activity, a materially adverse action, and a causal connection; evidence that an employment decision predated the protected activity undermines causation.

## Conclusion

The court affirmed summary judgment for the employer, holding that an unpleaded Faragher–Ellerth defense may be raised at summary judgment absent prejudice to the plaintiff, that the employer’s policy and investigative response satisfied the defense on the record presented, and that the plaintiff’s retaliation evidence did not establish materially adverse action and causation.


Jones v. Dep’t of Corr., 429 F.3d 276 (D.C. Cir. 2005)