Llampallas v. Mini-Circuits, Lab, Inc. , 163 F.3d 1236 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
Nos. 95-5258, 95-5278.
Elba LLAMPALLAS, Plaintiff-Appellee,
v.
MINI-CIRCUITS, LAB, INC., Mini-Circuits, Inc., Palmetto Extra Condominium Association,
Inc., Defendants-Appellants.
Silvia CABRERA, Plaintiff-Appellant,
v.
MINI-CIRCUITS, LAB, INC., Palmetto Extra Condominium Association, Inc., Defendants-
Appellees.
Dec. 28, 1998.
Appeals from the United States District Court for the Southern District of Florida. (No. 93-CV-
2053-CIV-ATKINS), C. Clyde Atkins, Judge.
Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge.
TJOFLAT, Circuit Judge:
In this case, two lesbian women who had a long-term sexual relationship, Marta Blanch and
Elba Llampallas, worked together at the defendant company, Mini-Circuits, Inc. After their sexual
relationship ended, Blanch sexually harassed Llampallas, telling Llampallas that if she did not
resume the sexual relationship, Blanch would have Llampallas fired. Llampallas did not resume the
relationship. Blanch then called the president of Mini-Circuits, Harvey Kaylie, and told Kaylie that
she was quitting because she could not work with Llampallas anymore. In response to Blanch's call,
Kaylie held a private meeting with Llampallas. Kaylie then suspended and eventually fired
*
Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Llampallas. Llampallas brought suit against Mini-Circuits under 42 U.S.C. § 2000e et seq. (1994)
("Title VII" or the "Act"), claiming that she was unlawfully terminated "because of" her sex. After
a bench trial, the district court held that Mini-Circuits was liable under a theory of strict liability for
unlawful quid pro quo sexual harassment.1
Mini-Circuits now appeals, arguing that it cannot be held liable to Llampallas under Title
VII because Kaylie, not Blanch, fired Llampallas. We hold that Llampallas failed to prove a causal
link between the harassment and her discharge sufficient to establish that Mini-Circuits violated
Title VII by discriminating against her "because of" her sex. We therefore reverse the judgment of
the district court.
I.
In approximately 1977, Elba Llampallas met Marta Blanch in New Jersey and the two
women began a consensual sexual relationship. They moved to Florida, bought a house together,
and opened a joint bank account out of which they paid all their household expenses. They also
gained employment at the same company; Mini-Circuits, Inc., hired Blanch as General Manager
1
Llampallas brought claims both against Mini-Circuits and against another entity, a non-profit
condominium management association, for the loss of her position at Mini-Circuits. She also
brought claims against both Mini-Circuits and the condominium association for the loss of her
officer-director position at the condominium association. We discuss these claims below, but
concentrate in this introduction on what we consider the main issue of the case: whether an
employer can be held liable under Title VII for the sexual harassment of its employee by another
worker if the harassing worker did not take the "tangible employment action", see Burlington
Indus., Inc. v. Ellerth, --- U.S. ----, ----, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (defining
a "tangible employment action" as "a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits"), against the employee on which the employee bases her
suit.
2
of its Hialeah, Florida facility and then hired Llampallas as an assembler at the same plant.2
Llampallas was eventually promoted to Production Supervisor at Mini-Circuits, a position she held
at all times relevant to this litigation. As the Production Supervisor, Llampallas reported to Blanch.
Blanch in turn reported to Harvey Kaylie, President of Mini-Circuits, who resided in New York.3
Kaylie's relationship with Blanch and Llampallas was both professional and social. He visited their
home on several occasions and dined with them. Kaylie also transferred title of a company car to
Llampallas, hired Llampallas' two sons to work at the Mini-Circuits Hialeah facility, and extended
both women "company" loans on very favorable terms.
Mini-Circuits consistently awarded both Blanch and Llampallas substantial raises and
bonuses for their work at Hialeah. The record reveals no criticism of either woman's performance.
In the fall of 1990, Blanch and Llampallas ended their sexual relationship and Blanch moved
out of the house.4 Blanch then began to threaten Llampallas, telling Llampallas that if Llampallas
did not resume their sexual relationship Blanch would have Llampallas fired.5 These threats
occurred on several occasions and were witnessed by several other Mini-Circuits employees.6
2
The record does not establish what Llampallas' duties were as an assembler. It appears that
assemblers were the lowest-ranking employees at the Hialeah facility.
3
Kaylie, along with his wife and two daughters, owns more than ninety percent of the stock of
Scientific Components Corporation. Mini-Circuits is a wholly-owned subsidiary of Scientific.
Scientific is not a party to this suit.
4
In April 1991, Kaylie extended a company loan to Llampallas to enable her to buy Blanch's
half of the residence.
5
The district court found that Blanch had made similar threats before the break-up regarding
the consequences for Llampallas if Llampallas ended her relationship with Blanch.
6
Silvia Cabrera was one of these witnesses. Mini-Circuits later dismissed Cabrera, and she
filed suit as Llampallas' co-plaintiff in this action, arguing that Mini-Circuits had unlawfully
retaliated against her for being a potential witness to a Title VII violation. Following the bench
3
On May 23, 1991, after a particularly bitter altercation with Llampallas, Blanch called Kaylie
in New York. Blanch told Kaylie that she was resigning because she could no longer work with
Llampallas. Kaylie told Blanch not to resign. Kaylie then contacted Llampallas and instructed
Llampallas to come to New York to meet with him.
Llampallas flew to New York on May 24, 1991, and met with Kaylie for about two hours.
The district court made no factual findings regarding the content of that meeting. Both Kaylie and
Llampallas testified at trial that they discussed Llampallas' work performance, and that Kaylie
suggested that Llampallas manage a different facility for Mini-Circuits. Both also testified that at
some point during their conversation, Llampallas told Kaylie that she and Blanch were having a
"personal problem."7
After her meeting with Kaylie in New York, Llampallas returned to Hialeah. Kaylie then
told Llampallas that he was placing her on suspension with full pay. He informed her that he was
contemplating opening another, smaller Mini-Circuits office and told Llampallas that he might
transfer her there. During Llampallas' suspension, Mini-Circuits flew her to New York on several
occasions to train her for her new position. Llampallas also looked for property that Mini-Circuits
could buy or lease for the new facility. On November 8, 1991, however, Kaylie informed
trial in this case, the district court found that Cabrera had failed to establish a prima facie case of
discrimination under Title VII and therefore entered final judgment for Mini-Circuits. Cabrera
now appeals. We affirm the district court's judgment under local Eleventh Circuit Rule 36-1.
See 11th Cir.R. 36-1.
7
Llampallas testified that she believed Kaylie knew she and Blanch were lovers because
Kaylie had visited their home on several occasions and must have seen that she and Blanch
shared a bedroom. Kaylie denied knowing that Blanch and Llampallas were homosexual, let
alone that they were involved in a sexual relationship with each other, until Llampallas filed
sexual discrimination charges with the Equal Employment Opportunity Commission based on
Blanch's harassment.
4
Llampallas by letter that there would be no additional Mini-Circuits facility, and that her
employment with Mini-Circuits had been terminated.
On January 22, 1992, Llampallas received another letter, signed by Blanch and on Mini-
Circuits' stationery, removing Llampallas from her position as Vice President and member of the
Board of Palmetto Extra Condominium Association, Inc., a co-defendant in this action. Palmetto
is a non-profit corporation formed to operate, manage, and administer a commercial condominium
with seven units in Hialeah, Florida. Membership in Palmetto is predicated on ownership of a
condominium unit; each unit owner is a member and receives one vote in all membership decisions.
Six of the seven units in the condominium that Palmetto manages are owned by Scientific
Components Corporation, Mini-Circuits' parent company. See supra note 3. Scientific leases these
six units to Mini-Circuits for its operations. The seventh unit is owned by Irest Corporation, an
entity not named as a defendant in this suit.8
In accordance with Palmetto's Articles of Incorporation and by-laws, Palmetto is run by a
board of three Directors elected by the corporation's members. The Board oversees the corporation
and appoints officers (President, Vice President, Secretary, and Treasurer) to conduct the
corporation's day-to-day business. When Palmetto was first incorporated, the Board of Directors
consisted of three of the condominium's developers; the developers also filled all officer positions.
When the developers released the condominium to the unit owners, the owners nominated and
elected Llampallas, Blanch, and Kaylie as the new Board. Llampallas, Blanch, and Kaylie then
appointed themselves to fill all officer positions for Palmetto—Llampallas served as Vice President.
On December 12, 1991, Kaylie and Blanch met as a quorum of the Palmetto Board (Llampallas was
8
Irest has no connection to Scientific or to Mini-Circuits.
5
absent) and voted to remove Llampallas both from the Board and from her position as Vice President
of the association.
After Llampallas received the letters from Palmetto and Mini-Circuits terminating her
positions with those companies, she attempted to find other work. Llampallas was unable to obtain
comparable or even permanent employment anywhere else.
On October 19, 1993, Llampallas brought suit against both Mini-Circuits and Palmetto in
the Southern District of Florida under Title VII. She alleged that Blanch had conducted a campaign
of "quid pro quo sexual harassment" against her and that Mini-Circuits and Palmetto were strictly
liable for that harassment. Llampallas claimed that the harassment resulted in the loss of both her
position as Production Supervisor at Mini-Circuits and her position as officer-director at Palmetto.
She sought relief in the form of back pay, reinstatement, compensatory and punitive damages,
attorneys' fees, and costs.
Following a bench trial, the district court found that Blanch had engaged in "quid pro quo
harassment" of Llampallas. It also found that Mini-Circuits' proffered reason for Llampallas'
discharge was wholly non-credible.9 The court concluded that Mini-Circuits was "strictly liable for
Blanch's harassment" because Blanch had forced Mini-Circuits to discharge Llampallas by
threatening to quit herself. The court also found that "Palmetto's discharge of Llampallas from her
Board position and officer duties was a direct result of Llampallas' discharge from Mini-Circuits";
thus, the court decided, Llampallas was also entitled to recovery under Title VII for the loss of her
officer-director position at Palmetto. The court then held that both Palmetto and Mini-Circuits were
9
Mini-Circuits claimed that Llampallas was fired because she failed to implement the
company's new management philosophy.
6
jointly liable for Llampallas' loss of both her position at Mini-Circuits and her positions at Palmetto
because the two entities were a "single employer" under Title VII.
Because it determined that the parties had inadequately briefed the issue of damages, the
court requested supplemental memoranda of law on the issue. After considering the memoranda,
the court awarded Llampallas back pay and front pay totaling $1,736,256.48.
Mini-Circuits and Palmetto now appeal. Their arguments and our holdings are as follows.
(1) Both Mini-Circuits and Palmetto claim that they cannot be held liable to Llampallas for
the loss of her position as officer-director of Palmetto because she was not an "employee" in that
position. We agree. We therefore vacate the portion of the district court's judgment based on the
loss of her director-officer position.
(2) Palmetto claims that it is not subject to suit under Title VII because it is not an
"employer" under the statute. We agree. We therefore vacate the portion of the district court's
judgment assessing liability against Palmetto and remand with directions to dismiss Palmetto from
this suit.
(3) Both Mini-Circuits and Palmetto claim that the district court erred in holding them
strictly liable based on Blanch's harassment of Llampallas because Blanch did not use her actual or
apparent authority to take an adverse employment action against Llampallas. We hold that
Llampallas failed to prove that she was discriminated against "because of" her sex in violation of
Title VII because she did not establish a causal link between Blanch's harassment and Kaylie's
employment decisions. We therefore reverse the portion of the district court's judgment that is based
7
on Llampallas' loss of her position as Production Supervisor, and direct the court to enter judgment
for Mini-Circuits on remand.10
II.
In part II.C, we conclude that Llampallas cannot succeed on the merits of any Title VII
claim because she failed to prove that she suffered discrimination "because of" her sex. Thus, if the
first two claims presented—that Palmetto was not an "employer" and that Llampallas was not an
"employee"—bear on the merits of the case as well, we need not spend time assessing those claims.
In McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 931-32 (11th Cir.1987), however,
we implied that the issue of who is an "employer" (and, concomitantly, the issue of who is an
"employee") under Title VII bears on subject matter jurisdiction. See also Lyes v. City of Riviera
Beach, 126 F.3d 1380, 1384 (11th Cir.1997), reh'g granted & op. vacated, 136 F.3d 1295 (1998)
("The existence of a Title VII "employer' is a jurisdictional prerequisite to suit under the statute."
(citing Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir.1994) (citing McKenzie
))); Rogero v. Noone, 704 F.2d 518, 520 (11th Cir.1983) (referring to the "jurisdictional requirement
of numerosity" included as part of the definition of "employer" under the statute). Although we
question whether this implication is correct under Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.
10Both Mini-Circuits and Palmetto also argued in their brief on appeal and at oral argument
that same-sex quid pro quo harassment is not cognizable under Title VII. We delayed our
decision in this case to await the Supreme Court's decision in Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), addressing the same issue.
The Oncale Court held that same-sex harassment is cognizable under Title VII; thus, we dispose
of this initial argument by reference to that opinion and to our own opinion in Fredette v. BVP
Management Associates, 112 F.3d 1503 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct.
1184, 140 L.Ed.2d 315 (1998). See also infra part II.C. (explaining that same-sex sexual
harassment can give rise to the same inference of impermissible discriminatory animus as does
different-sex sexual harassment, depending on the sexual preference of the harasser).
8
939 (1946) (explaining the difference between a challenge brought on jurisdictional grounds and a
challenge brought on the merits for failure to state a claim); see also Garcia v. Copenhaver, Bell
& Assocs., 104 F.3d 1256, 1261-66 (11th Cir.1997) (discussing the definition of "employer" and
"employee" under the Age Discrimination in Employment Act ("ADEA") as both a jurisdictional
issue and an issue bearing on the merits of the case), we believe McKenzie is binding precedent. We
therefore treat both definitional claims as jurisdictional ones and address them before reaching the
merits of the case. In part II.A, we assess the appellants' claim that Llampallas was not an
"employee" in her position as officer-director at Palmetto. In part II.B, we assess the appellants'
claim that Palmetto was not an "employer" under Title VII.
A.
Title VII prohibits discrimination against "any individual" with regard to that individual's
terms and conditions of employment or application for employment. See 42 U.S.C. § 2000e-2(a)
(1994). The statute does not define "any individual," and although we could read the term literally,
we have held that only those plaintiffs who are "employees" may bring a Title VII suit. See
McClure v. Salvation Army, 460 F.2d 553, 556 (5th Cir.1972) (stating that "[i]f the provisions of
Title VII are to apply to the relationship between [the defendant] and [the plaintiff,] it is necessary
that [the defendant] be an "employer' engaged in an "industry affecting commerce' and that [the
plaintiff] be an "employee' as those terms are defined" in the Act);11 Serapion v. Martinez, 119 F.3d
982, 985 (1st Cir.1997) ("Although the language [of Title VII] speaks of "any individual,' courts
long ago concluded that Title VII is directed at, and only protects, employees and potential
11
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
9
employees."); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 491 (7th Cir.1996), cert. denied,
--- U.S. ----, 118 S.Ct. 54, 139 L.Ed.2d 19 (1997) (overruling previous case refusing to "restrict[ ]
the Act's protection to only former, present, and potential employees"); Hyland v. New Haven
Radiology Assocs., 794 F.2d 793, 796 (2d Cir.1986) (interpreting identical "any individual" language
in the ADEA to provide coverage "solely in favor of a person who is an employee"); but see Sibley
Mem. Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C.Cir.1973) ("any individual" not limited to
"employees"); but cf. Gomez v. Alexian Bros. Hosp. of San Jose, 698 F.2d 1019, 1021 (9th
Cir.1983) (recognizing suit for discriminatory failure to hire when the defendant employer failed to
hire another corporation as an independent contractor and a potential employee of the rejected
corporation brought suit directly against the defendant employer).
This limitation is necessary to further Congress' intent in enacting Title VII. "Title VII does
not presume to obliterate all manner of inequity." Keyes v. Secretary of the Navy, 853 F.2d 1016,
1026 (1st Cir.1988). Instead, Congress intended to limit the scope of the Act to specific employment
relationships; thus, the statute provides relief only against "employers" as defined under the statute.
We can assume that Congress also meant to limit the pool of potential plaintiffs under Title VII;
otherwise, any person could sue an "employer" under the statute regardless of whether she actually
had an employment relationship with that employer. Hence, courts have almost universally held that
the scope of the term "any individual" is limited to employees.
Title VII's remedial scheme also supports this interpretation; the statute authorizes remedies
such as reinstatement, hiring, and back pay that could not make a non-employee plaintiff whole.
Moreover, in 1972, Congress extended the reach of Title VII to the federal workplace, amending the
Act to cover "all personnel actions affecting employees or applicants for employment...." Pub.L. No.
10
92-261, § 717, 86 Stat. 103, 111 (1972) (codified at 42 U.S.C. § 2000e-16(a) (1994)) (emphasis
added). Because Congress intended, by this amendment, to make Title VII applicable in the federal
workplace to the same extent that it was already applicable in the non-federal workplace, see
H.R.Rep. No. 92-238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2159-60, the amendment
supports the interpretation of "any individual" in the original Act as limited to those individuals who
are employees.
Title VII includes a definition of the term "employee": "an individual employed by an
employer." See 42 U.S.C. § 2000e(f) (1994).12 This definition does not get us very far. We believe,
however, that only individuals who receive compensation from an employer can be deemed
"employees" under the statute. See O'Connor v. Davis, 126 F.3d 112, 115-16 (2nd Cir.1997), cert.
denied, --- U.S. ----, 118 S.Ct. 1048, 140 L.Ed.2d 112 (1998) ("Where no financial benefit is
obtained by the purported employee from the employer, no plausible employment relationship of
any sort can be said to exist because ... compensation ... is an essential condition to the existence of
an employer-employee relationship." (internal quotations and citations omitted)); see also
Haavistola v. Community Fire Co., 6 F.3d 211, 221-22 (4th Cir.1993) (reversing a grant of summary
judgment for employer because question of whether benefits provided to plaintiff were sufficient
"compensation" to render plaintiff an employee was one of disputed fact); cf. McClure, 460 F.2d
at 557 (holding that an individual who was "selected, employed, controlled, trained, and paid " by
12
This definition is included to define the term "employer" under the statute. Title VII limits
those who can be sued under the statute to "employers." See infra part II.B. An "employer" is
defined as "a person ... who has fifteen or more employees." 42 U.S.C. § 2000e(b) (1994).
Thus, section 2000e(f) might not bear upon the definition of employee for purposes of
determining who is an "individual" who can sue under the statute. Because the statutory
definition of "employee" really provides no guidance to interpreting the term, however, this
concern does not affect our analysis.
11
the employer was an employee (emphasis added)). Congress did not intend Title VII to protect mere
titles or labels; an individual who sues only to maintain a purely gratuitous working relationship
does so without the protection of that statute. Thus, because the record establishes that Llampallas
received no compensation as an officer-director of Palmetto,13 she cannot be considered an
"employee" of Palmetto for Title VII jurisdictional purposes.14
In sum, the district court had no jurisdiction to assess the merits of Llampallas' Title VII
claim to the extent it was based on the loss of her position as officer-director of Palmetto. We
therefore vacate the portion of the district court's judgment addressing that loss.
B.
Although Title VII does not on its face define who can sue under the statute, it does clearly
define who can be sued. A plaintiff may bring a Title VII action against any "employer," defined
as "a person engaged in an industry affecting commerce who has fifteen or more employees...." 42
U.S.C. § 2000e(b). It is undisputed that Palmetto does not employ fifteen employees. Llampallas,
however, argued at trial that Mini-Circuits and Palmetto should be considered as a "single employer"
13
Because the designation of a plaintiff as an employee "must turn on the facts of a particular
case," Fountain v. Metcalf, Zima & Co., P.A., 925 F.2d 1398, 1400 (11th Cir.1991)
(distinguishing a partner in an accounting firm from an employee under the ADEA) (citation
omitted), and because the district court made no findings pertaining to Llampallas' status as an
employee, we must peruse the record ourselves.
14
Llampallas received no salary or wages for her position. She did introduce into evidence a
check for $1,000.00, issued by Palmetto, that reads "directory's [sic] fee," which she claims
establishes she was paid for her services at Palmetto. We note that the phrase "directory's fee" is
written in a different hand than the rest of the check. We also note that under Palmetto's
by-laws, "[n]o compensation shall be paid to Directors or Officers for their services as Directors
or Officers," and that Llampallas reported the $1,000.00 as "nonemployee compensation" for
income tax purposes. In light of this information, we find that the $1,000.00 was not
compensation sufficient to establish employee status.
12
under Title VII such that the employees of both companies count toward the fifteen-employee
jurisdictional requirement. The district court agreed, applying the four-part test developed in Radio
and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380
U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (holding that two entities were a single employer and
therefore that their gross receipts could be totaled together to establish jurisdiction under the
National Labor Relations Act), to hold that Mini-Circuits and Palmetto were a "single integrated
enterprise" so that the two entities could be considered one employer for jurisdictional purposes.
Because Palmetto and Mini-Circuits together employ more than fifteen employees, the court then
held Palmetto jointly liable with Mini-Circuits for the loss of both Llampallas' position at Mini-
Circuits and her position at Palmetto. We review the district court's decision to hold Palmetto liable
under Title VII de novo. Because we have already determined that neither entity can be held liable
for the loss of Llampallas' position as officer-director of Palmetto, see supra part II.A., we confine
our discussion to Palmetto's responsibility for Llampallas' loss of her position at Mini-Circuits.
Regardless of whether we address Palmetto's status under the "single employer" theory of
jurisdiction, see McKenzie, 834 F.2d at 933 n. 3 (adopting the Radio and Television test for Title VII
purposes), or a "joint employer" theory of liability, see Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d
1350, 1359-61 (11th Cir.1994), Palmetto cannot be held liable under Title VII for firing Llampallas
from her position as Production Supervisor at Mini-Circuits. Both theories concentrate on the
degree of control an entity has over the adverse employment decision on which the Title VII suit is
based. See, e.g., Fike v. Gold Kist, Inc., 514 F.Supp. 722, 725-26 (N.D.Ala.1981), aff'd 664 F.2d
295 (11th Cir.1981) (single employer); Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d
990, 993 n. 4 (6th Cir.1997) (explaining the differences between the joint employer theory and the
13
single employer theory); Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 763-64 (5th
Cir.1997) (single employer); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.1995)
(single employer). In this case, that adverse employment decision was Llampallas' termination from
her position as Production Supervisor at Mini-Circuits, and Palmetto had absolutely nothing to do
with that decision. Palmetto had no interaction with Mini-Circuits employees. It made no decisions
that affected the terms and conditions of employment at Mini-Circuits. In fact, it was completely
uninvolved in the operation of Mini-Circuits.15 We therefore vacate the portion of the district court's
judgment holding Palmetto responsible for the loss of Llampallas' position at Mini-Circuits and
remand with directions that the district court dismiss Palmetto from this suit for lack of jurisdiction.
15
The district court did make a finding that Palmetto and Mini-Circuits were operated "for a
common business purpose, i.e., the manufacture and sale of electrical assemblies." This finding
goes to the "interrelationship of operations" prong of the McKenzie test for "single employers."
After examining the record, however, we hold that this finding is clearly
erroneous. It is undisputed that Mini-Circuits, a member of Palmetto, manufactured and
sold electrical assemblies; there is no support, however, for a finding that Palmetto
manufactured or sold electrical assemblies. Palmetto's by-laws state that the corporation
was "organized for the purpose of being a condominium association ... and in turn for the
purpose of operating, governing, administering and managing the property and affairs of
PALMETTO EXTRA, a commercial condominium...." There is nothing in the record to
suggest that Palmetto was operated in violation of its by-laws, or that Palmetto was
operated as anything but a non-profit association of condominium owners.
The district court apparently reasoned that because Mini-Circuits was a member
of Palmetto and rented space in the Palmetto-managed condominium, Palmetto itself
furthered the business of Mini-Circuits, whatever that business may have been. An
association, however, does not engage in the business of its member corporations simply
because those member corporations belong to the association. (Even if the law were
otherwise, the district court would have had to find that Palmetto was operated for the
business purposes of all of its members, including Irest Corporation. The district court
made no findings concerning Irest.) To conclude otherwise would render every
association, whether a management, trade, or professional association, liable for the
conduct of every one of its members simply by virtue of their association.
14
C.
The only claim over which the district court had jurisdiction, therefore, was Llampallas'
claim against Mini-Circuits for the loss of her position as Production Supervisor. We now address
the merits of this claim.
The district court concluded that Mini-Circuits was liable to Llampallas under 42 U.S.C. §
2000e-2(a)(1) (1994), which states:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin....
To succeed in proving intentional discrimination under this section, therefore, a plaintiff must
establish, by a preponderance of the evidence: (1) a discriminatory animus towards him (i.e., an
attitude towards the plaintiff held because of one of the listed characteristics), see International Bhd.
of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396(1977) (stating that in disparate treatment cases, "[p]roof of discriminatory motive is critical,
although it can in some situations be inferred from the mere fact of differences in treatment"),16 (2)
an alteration in the terms and conditions of his employment by the employer, and (3) a causal link
between the two. Cf. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998) (establishing
the elements for a prima facie case under § 2000e-3(a) (1994), which prohibits adverse employment
action because of the plaintiff's conduct instead of adverse employment action because of the
plaintiff's characteristics). We interpret the claim of error before us as an assertion that the district
court erred in holding Mini-Circuits liable for violating this section because Llampallas failed to
16
In this opinion we address only "disparate treatment" claims, as opposed to "disparate
impact" claims.
15
prove the third element of her claim.17 In other words, assuming that the district court was correct
in finding that Blanch harbored a discriminatory animus towards Llampallas, and that Mini-Circuits
terminated Llampallas' employment, Mini-Circuits argues that Llampallas failed to establish a causal
link between the two events. We agree.
It is an extraordinary case in which a defendant employer admits it has taken an adverse
employment action against a plaintiff employee "because of" the employee's sex.18 Thus, courts
must rely on inferences drawn from the observable facts to determine whether a Title VII violation
has occurred. If an employee of the defendant has "sexually harassed" the plaintiff, and the
harassing employee then takes a "tangible employment action" against the plaintiff, the plaintiff may
take advantage of a chain of inferences to establish, based on those facts alone, all three elements
of her Title VII claim.
First, in such a situation, the act of sexual harassment itself creates an inference that the
harasser harbors a sexually discriminatory animus towards the plaintiff. When a person "sexually
17
Mini-Circuits argues that the district court "should either have concluded that no quid pro
quo harassment was proven here, or that the rule of strict liability, applied in more typical quid
pro quo cases did not apply." The Supreme Court, however, recently made clear that "the labels
quid pro quo and hostile work environment are not controlling for purposes of establishing
employer liability." Burlington Indus., --- U.S. at ----, 118 S.Ct. at 2271. In this case, Mini-
Circuits' use of the term "quid pro quo" only causes confusion, because Mini-Circuits attempts to
use the term to invoke rules developed in earlier cases that do not apply to the unique set of facts
surrounding Llampallas' situation. We therefore disregard the parties' labels and proceed from
the statute itself.
18
We do not address Title VII claims based on an alleged alteration in the terms and
conditions of the plaintiff's employment that does not rise to the level of a "tangible employment
action" because Llampallas brought her complaint based solely upon Mini-Circuits termination
of her employment, the classic and ultimate "tangible employment action." Even if Llampallas
had alleged the existence of an "abusive working environment" as the necessary alteration, see
infra note 19, we believe that the actions of Mini-Circuits and of Llampallas would be sufficient
to afford Mini-Circuits an affirmative defense to liability under Title VII. See infra note 23.
16
harasses" another, i.e., makes comments or advances of an erotic or sexual nature, we infer that "the
harasser [is making] advances towards the victim because the victim is a member of the gender the
harasser prefers." Fredette v. BVP Management Assocs., 112 F.3d 1503, 1505 (11th Cir.1997), cert.
denied, --- U.S. ----, 118 S.Ct. 1184, 140 L.Ed.2d 315 (1998). Unless there is evidence to the
contrary, therefore, we also infer that the harasser treats members of the "non-preferred" gender
differently—and thus that the harasser harbors an impermissible discriminatory animus towards
persons of the preferred gender. See Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)
("In the typical case in which a male supervisor makes sexual overtures to a female worker, it is
obvious that the supervisor did not treat male employees in a similar fashion."). This inference can
be drawn regardless of the sexual orientation of the harasser, so long as the harassed victim is of the
harasser's "preferred" gender. As the Supreme Court explained in Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, ----, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998),
Courts and juries have found the inference of discrimination easy to draw in most
male-female sexual harassment situations, because the challenged conduct typically involves
explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals
would not have been made to someone of the same sex. The same chain of inference would
be available to a plaintiff alleging same-sex harassment, if there were credible evidence that
the harasser was homosexual.
Second, a tangible employment action—e.g., demotion or discharge, see Burlington Indus.,
Inc. v. Ellerth, --- U.S. ----, ----, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998)—is clearly an
alteration in the terms and conditions of the plaintiff's employment.19 Moreover, that action will be
19
Occasionally, a court implies that sexually harassing conduct itself violates Title VII.
Sexually demeaning behavior, however, is merely evidence of a discriminatory animus, and Title
VII does not punish the existence of a discriminatory animus. It is only when that animus causes
an alteration in the terms and conditions of the plaintiff's employment that the employer will be
held liable to the plaintiff under the statute. A Title VII plaintiff may establish such an alteration
by showing either 1) a tangible employment action, which "itself constitutes a change in the
17
imputed to the employer. Because an employee who is able to take such an action necessarily "has
been empowered by the company as a distinct class of agent" to make that decision, and because the
decision is "the means by which [the agent employee]20 brings the official power of the [employer]
to bear" on the plaintiff, "a tangible employment action taken by the [employee] becomes for Title
VII purposes the act of the employer." Burlington Indus., --- U.S. at ----, 118 S.Ct. at 2269. Thus,
the plaintiff has satisfied the second element of her case: an alteration in the terms and conditions
of her employment by the employer.
Third, the fact that the harasser was the decisionmaker for the tangible employment action
gives rise to an inference that the harasser's discriminatory animus motivated that action. We
assume that the harasser, because she harbors a discriminatory animus towards the plaintiff, could
not act as an objective, non-discriminatory decisionmaker with respect to the plaintiff. Thus, any
terms and conditions of employment," see Burlington Indus., --- U.S. at ----, 118 S.Ct. at 2265,
or 2) the existence of an "abusive working environment," which courts recognize as synonymous
with a "constructive" alteration in the terms and conditions of the plaintiff's employment. See
Burlington Indus., --- U.S. at ----, 118 S.Ct. at 2264; Faragher v. City of Boca Raton, --- U.S. ---
-, ----, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998).
20
We have replaced the Supreme Court's term "supervisor" with the broader term "employee."
The label placed on the employee who takes a tangible employment action against the plaintiff is
irrelevant because it is the employee's ability to take the action that identifies the employee as
the employer's "agent" and imputes liability to the employer under Title VII. To take an adverse
employment action of the type that triggers Title VII, an employee must be the employer's agent.
Although the employer may argue that the employee had no actual authority to take the
employment action against the plaintiff, apparent authority serves just as well to impute liability
to the employer for the employee's action. See Gay v. Board of Trustees of San Jacinto College,
608 F.2d 127, 128 (5th Cir.1979) (rejecting a defense of no authority because the employer "held
out the supervisor as a person having authority over those under his supervision, and the plaintiff
perceived him to have authority to discharge her"). The term "supervisor," therefore, is rather
superfluous when the plaintiff brings suit based on a tangible employment action. If an
employee takes a tangible employment action against the plaintiff, the employer will held liable
under Title VII for that action (if the action otherwise violates the statute), regardless of whether
the employee taking the action is labeled the plaintiff's "supervisor."
18
time the harasser makes a tangible employment decision that adversely affects the plaintiff, an
inference arises that there is a causal link between the harasser's discriminatory animus and the
employment decision. A Title VII plaintiff, therefore, may establish her entire case simply by
showing that she was sexually harassed by a fellow employee, and that the harasser took a tangible
employment action against her.
In this case, the district court found that Blanch and Llampallas were both lesbians, and that
Blanch sexually harassed Llampallas. Because nothing in the record suggests that Blanch sexually
harassed anyone other than Llampallas, therefore, we infer a discriminatory animus by Blanch
towards Llampallas based on Llampallas' sex. We also know that a tangible employment action was
taken against Llampallas—termination of her employment by Mini-Circuits. Thus, we assume that
if that action was taken "because of" Llampallas' sex, Mini-Circuits will be held liable. Blanch,
however, did not herself make the decision to terminate Llampallas' employment; Kaylie did.21
Although this fact is not fatal to Llampallas' claim, see e.g., Sparks v. Pilot Freight Carriers, Inc.,
830 F.2d 1554, 1565 (11th Cir.1987) (reversing district court's grant of summary judgment for the
employer because an issue of material fact remained as to whether the alleged harasser "influenced"
the decisionmaker to fire the plaintiff), she cannot benefit from the inference of causation arising
from the common identity of a harasser and a decisionmaker. Instead, Llampallas had the burden
to prove at trial that Blanch's discriminatory animus caused Kaylie to terminate her employment
with Mini-Circuits. We believe that she failed to do so.
21
Indeed, the district court made no findings regarding Blanch's authority to fire Llampallas.
The record, however, reflects that Kaylie first asked Blanch to fire Llampallas, which she
refused to do. We assume, therefore, that Blanch had the authority to fire Llampallas herself.
This assumption does not affect the outcome of this case.
19
The district court found that Llampallas had established causation, stating that Mini-Circuits
could be held liable for Blanch's harassment because "Blanch made good on her threat [to fire
Llampallas] and got Llampallas fired." The court's own findings, however, belie a determination
that the causal link lay between Blanch's sexually discriminatory animus towards Llampallas and
Llampallas' discharge.
The court made the following factual findings concerning Blanch's role in Llampallas'
discharge:
On May 23, 1991, Blanch called Kaylie in New York and informed him that she was
resigning because she could no longer work with Llampallas. Kaylie told her not to do that.
He immediately told Llampallas to come to New York to see him.
Llampallas went to New York around May 24, 1991, to meet with Kaylie. After the
meeting, Kaylie placed Llampallas on suspension, effective May 27, 1991, for six to eight
weeks at her full pay....
. . . . .
On November 8, 1991, Kaylie informed Llampallas that he was not going to open the
new facility [which she was to manage] and that he was terminating her from her
employment with Mini-Circuits.
Record, vol. 4, n. 124, at paras. 24-25 & 27 (ord.). The court then explained its reasoning behind
its finding that Blanch "got Llampallas fired":
Due to the fact that Blanch could not work with Llampallas once they were no longer lovers,
Blanch telephoned Kaylie in May of 1991 telling him she was quitting because of
Llampallas. This, in effect, forced Kaylie to choose between the two women. He put
Llampallas on suspension while he tried to find another facility for Llampallas (although her
work performance was allegedly declining) and once that fell through, he had no choice but
to terminate Llampallas.
Record, vol. 4, n. 124, at para. 48.
The district court found, therefore, that when Kaylie terminated Llampallas' employment,
he did so because he wished to retain Blanch. Title VII does not prohibit an employer from
20
discharging an employee because it wishes to retain another, presumably more valuable,
employee—unless, of course, the desired employee is of a different sex from the plaintiff, and the
decision can be linked to a discriminatory animus towards persons of the non-desired employee's
sex. Here, Llampallas and Blanch are both women; thus, the fact that Kaylie chose Blanch over
Llampallas cannot give rise to an ultimate inference that Kaylie choose Blanch "because of"
Llampallas' sex. The district court's findings, therefore, do not support its conclusion that because
Blanch "got Llampallas fired," Mini-Circuits can be held liable for Llampallas' discharge under Title
VII.22 We look to the record to determine whether there is any evidence to support an inference of
a causal link between Blanch's discriminatory animus and the decision to terminate Llampallas'
employment. If not, we must disregard the court's ultimate finding of intentional discrimination
based on that inference as clearly erroneous.
Several courts have held that even when the harasser in a Title VII case is not the
decisionmaker, if the plaintiff shows that the harasser employed the decisionmaker as her "cat's
paw"—i.e., the decisionmaker acted in accordance with the harasser's decision without herself
evaluating the employee's situation, see Shager v. Upjohn Co., 913 F.2d 398, 405 (7th
Cir.1990)—causation is established. See, e.g., Long v. Eastfield College, 88 F.3d 300, 307 (5th
22
We recognize that Mini-Circuits also claimed at trial that it had discharged Llampallas for
legitimate nondiscriminatory reasons unrelated to its desire to retain Blanch as an employee.
The district court specifically found that these other reasons were wholly non-credible. That
finding, however, does not translate into a finding that Mini-Circuits fired Llampallas "because
of" her sex.
As mentioned supra, the district court apparently found that Mini-Circuits' "true
reason" for firing Llampallas was its desire to retain Blanch. This is a legitimate,
nondiscriminatory reason. Moreover, we conclude that Mini-Circuits' reasonable attempt
to investigate the circumstances surrounding Blanch's threat, see discussion infra, negates
any inference of discrimination that could be drawn from Mini-Circuits' false proffer.
21
Cir.1996) ("If ... [the decisionmaker] did not conduct his own independent investigation, and instead
merely "rubber stamped' the recommendations of [those who held a discriminatory animus], the
causal link between [the plaintiffs'] protected activities and their subsequent termination, would
remain intact."). In a cat's paw situation, the harasser clearly causes the tangible employment action,
regardless of which individual actually signs the employee's walking papers. See Shager, 913 F.2d
at 405 (stating that in such a situation "[t]he [decisionmaker] would no more be a nonconductor [for
discriminatory animus] ... than would be the secretary who typed [the plaintiff's] discharge papers
knowing nothing of the [ ] discrimination that lay behind the discharge"); Burlington Indus., --- U.S.
at ----, 118 S.Ct. at 2269. In effect, the harasser is the decisionmaker, and the titular
"decisionmaker" is a mere conduit for the harasser's discriminatory animus.
This, however, is not a cat's paw case. Kaylie's decision to suspend and discharge
Llampallas was not simply a tacit approval of Blanch's own decision to do the same. Blanch
communicated no adverse employment decision regarding Llampallas to Kaylie for his review; nor
did she recommend that Kaylie take action against Llampallas. The only "decision" Blanch made
was to quit Mini-Circuits because she "couldn't work with [Llampallas] anymore." We recognize
that Blanch's threat to quit was probably part of a scheme to manipulate the company into firing
Llampallas because of her sex—Blanch made a "fake" threat knowing that Kaylie would choose her
over Llampallas. We do not, however, need to decide whether Mini-Circuits could be held liable
based on Kaylie's unwitting compliance in Blanch's manipulative plan, because such is not the case
before us.
When Kaylie received Blanch's phone call, he did not take action against Llampallas based
on that threat. Instead, he summoned Llampallas to New York to investigate the situation. Kaylie
22
afforded Llampallas a private audience of several hours, and gave her the opportunity to explain the
situation at Hialeah. During that conversation, Llampallas informed Kaylie neither of her sexual
relationship with Blanch, nor of the developments upon the demise of that relationship. According
to both Llampallas' and Kaylie's testimony, the conversation revolved around Llampallas' work
habits and whether Llampallas would be able to run a new Mini-Circuits office away from Blanch.
This meeting suffices to except this case from the cat's paw line of cases. See Willis v. Marion
County Auditor's Office, 118 F.3d 542, 547 (7th Cir.1997) (excepting from the "cat's paw" line a
case in which the decisionmaker investigated a subordinate's motives by meeting with the plaintiff
before acting on the subordinate's adverse recommendations).
Moreover, we believe that the behavior of both Kaylie and Llampallas during their meeting
negates any remaining inference of causation between Blanch's discriminatory animus and Kaylie's
termination of Llampallas' employment. The Supreme Court recently declared that an employer's
Title VII liability for its employees' actions is circumscribed not only by agency principles, but by
the employer's own efforts to prevent Title VII violations in its workplace and swiftly to remedy
such violations if they do take place. See Burlington Indus., --- U.S. at ----, 118 S.Ct. at 2270. If
those efforts are reasonable—i.e., if the employer behaved reasonably in attempting to ferret out and
eliminate sexual harassment among its employees that could lead to adverse employment
consequences for the harasser's victims—the Court declared, a reviewing court should take those
efforts into consideration when assessing the employer's liability stemming from any undiscovered
harassment. See id. at ---- - ----, 118 S.Ct. at 2270-71. Further, the Court stated that the avoidable
23
consequences doctrine applied in tort law to limit a defendant's liability is applicable to Title VII.
See id. at ----, 118 S.Ct. at 2270.23
Applying these principles to Llampallas' case, we believe that Mini-Circuits, through Kaylie,
"broke the chain" of causation between Blanch's harassment and its decision to terminate Llampallas'
employment both because it behaved reasonably in response to Blanch's threat to quit, and because
Llampallas herself failed to avoid the consequences of that threat. When Kaylie called Llampallas
to New York he did not know, nor could any reasonable person know, that Blanch's threat was
motivated by a discriminatory animus towards Llampallas. Thus, Kaylie was not "on notice" that
Blanch could be scheming against Llampallas based on Llampallas' sex. Llampallas, although she
had the opportunity to do so, failed to inform Kaylie of her relationship with Blanch and of the
information she possessed that would have put Kaylie on notice that Blanch's threat may have been
motivated by a discriminatory animus.
23
We note that the Court in Burlington Industries applied these principles to formulate an
"affirmative defense" available to an employer who is sued under Title VII in certain
circumstances. The Court specifically stated that "[n]o affirmative defense is available,
however, when [a] supervisor's harassment culminates in a tangible employment action, such as
discharge, demotion or undesirable reassignment." See Burlington Indus., --- U.S. at ----, 118
S.Ct. at 2270. We conclude that this dicta does not prevent us from considering Mini-Circuits'
and Llampallas' actions following Blanch's threat for two reasons. First, although the Court's use
of the term "culminates" may appear to draw within the ambit of the exception all those
situations in which the harasser's sexually discriminatory animus is a "but for" cause of the
tangible employment action, we believe that the Court meant to limit the exception to those cases
in which the harasser acts as the decisionmaker with respect to the action, either in actuality or
by using another as a "cat's paw." See id. at ---- - ----, 118 S.Ct. at 2269-71. Thus, the exception
does not apply to cases such as Llampallas' in which the harasser is not the decisionmaker.
Second, in this case, we are not considering the actions of Mini-Circuits and Llampallas as part
of a possible "affirmative defense" applied after we have determined that Llampallas proved a
Title VII violation. Instead, we are applying the Burlington Industries Court's articulated
policies to determine whether Llampallas even established an element of her case.
24
We hesitate to require an employer to investigate—as Mini-Circuits did—every action of
its employees that could be motivated by a discriminatory animus. When the employer makes an
effort to determine the employee's side of the story before making a tangible employment decision
affecting that employee, however, it should not be held liable under Title VII for that decision based
only on its employee's hidden discriminatory motives.24 In this case, Mini-Circuits should not be
held liable for discharging Llampallas simply because Blanch harbored a discriminatory animus
towards Llampallas. We hold, therefore, that Llampallas failed to provide evidence sufficient to
create an inference of causation between Blanch's sexually discriminatory animus towards
24
Upon examination of the record, we note that Llampallas testified at trial that during her
meeting with Kaylie that she told Kaylie the problem between herself and Blanch was
"personal," and that Kaylie did not respond to this statement. Further, in a letter that Llampallas
wrote to Kaylie following their meeting, and during her suspension, Llampallas again stated that
she had a "personal" problem with Blanch. Kaylie also testified that Llampallas may have said
something about a "personal" problem during their meeting, but that he "did not want to pry."
We find that these statements, standing alone, are not nearly enough to put Kaylie
on notice that Blanch was sexually harassing Llampallas, especially in light of the fact
that Kaylie claimed he never knew either Blanch or Llampallas was a lesbian. Even in
this day and age, an employer is not expected to assume that two of his female employees
have engaged in a sexual relationship. Llampallas' comment that she and Blanch had a
"personal" problem, therefore, would not have put a reasonable employer on notice that
Blanch and Llampallas were having a sexual relationship, let alone that Blanch was
harassing Llampallas. The "personal" problem Llampallas referred to could have been
any number of personal problems that did not involve discrimination against Llampallas
based on her sex.
We also recognize that the district court found that several employees in the
Hialeah facility had witnessed Blanch's harassment of Llampallas. Thus, an issue arises
as to whether the harassment was so "severe and pervasive" that we could charge Mini-
Circuits with constructive knowledge of Blanch's conduct. We believe, however, that
Kaylie's meeting with Llampallas, at which he gave Llampallas an opportunity to provide
him with actual knowledge concerning Blanch's motivations, negates any inference that
Kaylie had mere constructive knowledge that Blanch was harassing Llampallas based on
Llampallas' sex.
25
Llampallas and Kaylie's decision to discharge her on behalf of Mini-Circuits. Any contrary finding
by the district court is clearly erroneous.
Llampallas still could have succeeded on her Title VII claim, of course, if she had presented
evidence to support a claim that Kaylie himself harbored a discriminatory animus. She could then
take advantage of the inference of causation arising from the fact that Kaylie also fired her.
Kaylie, however, did not sexually harass Llampallas, and Llampallas presented no evidence
from which a trier of fact could infer that Kaylie himself harbored a discriminatory animus towards
her or towards women in general. Thus, there existed no motivating animus to which Kaylie's
termination of Llampallas' employment could be linked, and Llampallas' Title VII claim must fail
because she failed to prove she was discriminated against "because of" her sex.
III.
With respect to Llampallas, we VACATE the judgment of the district court in part and
REVERSE in part, REMANDING this case for further proceedings consistent herewith. With
respect to Cabrera, the District Court's judgment is AFFIRMED.
SO ORDERED.
EDMONDSON, Circuit Judge, concurs in the result.
26