Indest v. Freeman Decorating ( 1999 )

Revised March 30, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-30212
_______________________
CONSTANCE CHAIX INDEST,
Plaintiff-Appellant,
versus
FREEMAN DECORATING, INC. and
LARRY ARNAUDET
Defendants-Appellees.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
__________________________________________________________________
January 19, 1999
Before JONES, and WIENER, Circuit Judges, and FURGESON*, District
Judge.
EDITH H. JONES, Circuit Judge:
Constance Chaix Indest sued Freeman Decorating, Inc. and
its Vice President of Sales and Administration Larry Arnaudet
alleging that she had been sexually harassed in violation of Title
VII. The district court granted Arnaudet’s motion to dismiss for
*
District Judge of the Western District of Texas, sitting by
designation.
failure to state a claim against him under Fed. R. Civ. P.
12(b)(6). Later, the district court granted Freeman’s motion for
judgment as a matter of law. See Fed. R. Civ. P. 56(c). Indest
appeals both of these decisions.
As to Arnaudet, the law affords Indest no Title VII claim
against a company employee. The more challenging question is
whether Freeman is entitled to judgment as a matter of law
following this year’s Supreme Court decisions concerning employer
liability for sexual harassment by a supervisor. See Faragher v.
City of Boca Raton, 118 S.Ct. 2275 (1998); Burlington Indus., Inc.
v. Ellerth, 118 S.Ct. 2257 (1998). We hold that, because Freeman
promptly and effectively responded to Indest’s equally prompt
complaint, vicarious liability is inappropriate. The judgment is
affirmed.*
I. BACKGROUND
Freeman, a subsidiary of The Freeman Companies (“TFC”),
provides services to convention sponsors and exhibitors. Arnaudet
is a Freeman vice-president responsible for the company’s overall
sales strategy and related policies, procedures, and systems.
Additionally, he serves as the account executive for several major
annual trade shows and is in charge of all Freeman employees who
work at the trade shows. Appellant Indest was employed by Freeman
*
Judges Wiener and Furgeson concur in the judgment only.
Judge Wiener reserves the right to file a separate opinion at a
later date.
2
as an exhibitor services representative at one of its branch
offices in New Orleans. As of the time this appeal was argued,
Indest continued to work for Freeman.
Indest worked at a convention lasting from September 8
through 14, 1993, where Arnaudet was the Freeman executive in
charge. Four times, Arnaudet made crude sexual comments and sexual
gestures to Indest while she was alone and in the presence of her
immediate supervisor, Angie Richard, and her director, Dawn
DiMaggio.1 On Friday evening, September 10, Indest was speaking
with the director of sales and the national sales manager of the
New Orleans office at a cocktail event when Arnaudet joined them
and made another sexual comment to her. Indest objected and warned
him this was sexual harassment. Arnaudet, incensed, ordered her
not to threaten a vice-president, profanely disparaged her
abilities as an employee, and said she must prove herself to him by
working with him at a convention in Philadelphia. Indest became
agitated and started crying. She took off from work the next day
with her supervisor’s approval. No further incidents of sexual
harassment occurred after this episode.
On September 13, Indest reported all of the incidents to
Dawn DiMaggio, as well as to the branch office manager, Steve
Hagstette. Hagstette informed Dan Camp, TFC’s human resources
1
Indest’s EEOC complaint lists four separate
remarks/gestures in addition to the confrontation at the cocktail
event.
3
director in its Dallas corporate office. Indest was urged to
contact Camp, and she spoke with him by telephone on September 20.
Pursuant to Freeman’s sexual harassment policy, Camp investigated
the complaint, interviewing witnesses to the incidents, Indest’s
supervisors, and Arnaudet. Camp advised TFC’s president and
chairman, Don Freeman, of the complaints of Indest and of another
incident that had occurred approximately six months earlier
involving Arnaudet and another female employee (identified as “Jane
Doe”).
Freeman issued a verbal and written reprimand to
Arnaudet, and Camp informed Indest of this reprimand in a
conversation that took place on or about October 11. In that
conversation, Camp also informed Indest that Arnaudet would
apologize to her (an idea which Indest rejected), and asked Indest
for suggestions for how to discipline Arnaudet. Indest said she
wished to leave the disciplining of Arnaudet up to the company.
On October 14, Camp received a letter from Indest,
revealing her intention to file an EEOC charge because she feared
retaliation. Indest also expressed concern for retaliation when
Camp called her to ask about the letter. On November 2, TFC sent
Suzanne Bragg, a human resources employee, to reassure Indest that
there would be no retaliation. Camp flew to New Orleans to visit
Indest a week later. He informed her that Arnaudet would be
suspended without pay for seven days and would be prohibited from
attending the annual management and sales meeting that he had
4
historically organized and conducted. Camp promised that Indest
would never again have to work at any trade shows where Arnaudet
was present; he expressly guaranteed that her complaint would
neither jeopardize her job nor inhibit her ability to advance
within the company; and he told her the company would pay for any
counseling she might need.
To demonstrate the company’s concern about the incident
at the highest level, Freeman personally confirmed Arnaudet’s
disciplinary action in writing on November 15, in a letter that
stated in part: “[The company is] particularly concerned that there
never be any discriminatory action taken against Connie Indest in
retaliation [for] her complaint. It is vitally important that
there be no future instances of sexual harassment of our employees
by you.” Freeman also advised an executive committee, composed of
Arnaudet’s contemporaries and superiors, of Arnaudet’s conduct and
resulting punishment.
Indest has received periodic pay raises since the
incident, and she concedes that Arnaudet has not further harassed
her. She does not allege that Arnaudet has subsequently harassed
any other employee.
As a result of the episode, Indest states she has
suffered the recurrence of an obsessive-compulsive disorder called
trichotillomania (hair-pulling), anxiety, and sleeplessness, and
has sought and received counseling. Indest filed an EEOC charge of
sex discrimination and harassment. After receiving a right-to-sue
5
letter, she sued Freeman and Arnaudet. The district court
dismissed her claims against Arnaudet because he cannot be sued
individually or in his official capacity under Title VII. The
court granted judgment as a matter of law to Freeman, holding that
whether or not Arnaudet was a supervisor and regardless whether his
actions could be termed quid pro quo2 or hostile environment3 sexual
harassment, the company took prompt remedial action that absolved
it of liability. Indest appealed, and the EEOC has filed an amicus
brief.
II. STANDARD OF REVIEW
A district court’s ruling on a Fed. R. Civ. P. 12(b)(6)
motion to dismiss is reviewed de novo. Barrientos v. Reliance
Standard Life Ins. Co., 911 F.2d. 1115, 1116 (5th Cir. 1990).
Additionally, “[w]e must accept all well-pleaded facts as true, and
we view them in the light most favorable to the plaintiff. We may
not look beyond the pleadings. A dismissal will not be affirmed
if the allegations support relief on any possible theory.” Cinel
v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
The grant of summary judgment is reviewed de novo,
applying the same standards as the district court. Duffy v.
Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995).
2
See, e.g., Webb v. Cardiothoratic Assocs. of North Tx., 139
F.3d 532, 539-40 (5th Cir. 1998).
3
See, e.g., Jones v. Flagship Int’l, 793 F.2d 714, 719-21
(5th Cir. 1986).
6
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c). The movant must
“demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553
(1986). If the movant does so, “the nonmovant must go beyond the
pleadings and designate specific facts showing that there is a
genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). Evidence is viewed in the light most
favorable to the nonmoving party. See Duffy, 44 F.3d at 312.
III. ANALYSIS
A. Individual Liability Under Title VII.
Arnaudet sought dismissal for failure to state a claim
against him pursuant to Fed. R. Civ. P. 12(b)(6). The district
court applied settled Fifth Circuit law in holding that employees
may not be sued for damages in their individual capacities. The
court also reasoned that it would be redundant for Indest to sue
both Arnaudet in his official capacity and Freeman, because Freeman
would bear responsibility for the liability of either party through
Title VII’s incorporation of the principle of vicarious liability.
Title VII of the Civil Rights Act of 1964 makes it “an
unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
7
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). While Title
VII defines the term employer to include “any agent” of an
employer, id. § 2000e(b), this circuit does not interpret the
statute as imposing individual liability for such a claim. See
Pfau v. Reed, 125 F.3d 927, 935-36 (5th Cir. 1997).4 Congress’s
purpose in extending the definition of an employer to encompass an
agent in Section 2000e(b) was simply to incorporate respondeat
superior liability into Title VII. Grant v. Lone Star Co., 21 F.3d
649, 652 (5th Cir. 1994); see also Miller v. Maxwell's Int'l Inc.,
991 F.2d 583, 587 (9th Cir. 1993). Thus, a Title VII suit against
an employee is actually a suit against the corporation.
This court has also concluded that “outside of an action
against an officer personally, a plaintiff does not have an action
against both the corporation and its officer in an official
capacity.” Sims v. Jefferson Downs Racing Assoc., Inc., 778 F.2d
1068, 1081 (5th Cir. 1985) (suit brought under 42 U.S.C. § 1983).
4
See also Wathen v. General Elect. Co., 115 F.3d 400, 404
(6th Cir. 1997) (noting that a majority of the circuits considering
suits against the agent of an employer “have held that an
employee/supervisor, who does not otherwise qualify as an
‘employer,’ cannot be held individually liable under Title VII and
similar statutory schemes”); Grant v. Lone Star Co., 21 F.3d 649,
651 (5th Cir. 1994). (“We have refused to impose liability for
backpay on individual public employees. [The plaintiff] offers no
persuasive argument why Congress would not have intended to protect
private employees, as well, from individual title VII liability.”);
Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990) (holding that
the doctrine of qualified immunity does not protect a government
official who is sued in an official capacity under Title VII
because Title VII does not impose personal liability).
8
Here, the district court dismissed Arnaudet as a defendant based on
the logic of Sims and an Eastern District of Louisiana case, Allen
v. Tulane Univ., No. CIV.A.92-4070, 1993 WL 459949 (E.D. La. Nov.
2, 1993), which specifically found that the “Plaintiff is not
entitled to maintain an action against both a corporation and its
agent in an official capacity [in a Title VII action] because
effectively the corporation could be held liable twice for the same
act.” Allen, 1993 WL 4569949, at *4.5 We agree that in accordance
with Sims, a party may not maintain a suit against both an employer
and its agent under Title VII.
B. Employer Liability for the Acts of Employees Under
Title VII.
The district court held that Indest had the burden of
proving that Freeman knew or should have known of the alleged
5
Aside from the instant case and Allen, several other cases
in the Eastern District of Louisiana have dismissed claims against
supervisors in their official capacities when the plaintiff also
sued the corporation under Title VII. See Davillier v. State
through Dep’t. of Health and Hosps., No.CIV.A.96-4169, 1997 WL
276091, at *1 (E.D. La., May 22, 1997); Oubre v. Entergy
Operations, Inc., No.CIV.A.95-3168, 1996 WL 28508, at *2 (E.D. La.
Jan. 22, 1996), aff’d, 102 F.3d 551 (5th Cir. 1996) (per curiam),
rev’d on other grounds, 118 S.Ct. 838 (1998); Minshew v. Brown, No.
95-2507, 1996 WL 3916, at *2 (E.D. La. Jan. 4, 1996). But see
Douglas v. DynMcDermott Petroleum Operations Co., No.CIV.A.
95-1967, 1996 WL 365671, at *4 (E.D. La. July 2, 1996) (permitting
suit against both supervisor and company in a Title VII suit
despite objections raised by the defendants), rev’d on other
grounds, 144 F.3d 364 (5th Cir. 1998).
9
harassment and failed to take prompt remedial action.6 Based on
Freeman’s prompt, humiliating punishment of Arnaudet, including
verbal and written reprimands, suspension without pay for a week,
and banishment from his own sales meeting, and based upon the
complete cessation of harassment following this incident, the
district court concluded that Freeman’s actions were sufficiently
swift and effective to preclude corporate vicarious liability for
Arnaudet’s conduct.
Before this year’s trilogy of Supreme Court Title VII
cases appeared, Indest and the EEOC advocated imposing strict
liability on Freeman by arguing that the “defense” of prompt
remedial action does not apply in two situations: 1) when a
plaintiff alleges a quid pro quo claim arising from the actions of
a supervisor or other manager who relies on delegated authority,
and 2) when the alleged harasser in a hostile work environment case
is a supervisor or manager who used actual or apparent authority,
or was merely aided by the existence of an agency relationship, in
committing the harassment.
6
The district court relied upon Sims v. Brown & Root Indus.
Servs., Inc., 889 F. Supp. 920 (W.D. La. 1995), aff’d, 78 F.3d 581(5th Cir. 1996), which held that a plaintiff must prove the lack of
prompt and remedial action to maintain either a hostile work
environment or quid pro quo sexual harassment claim. See id. at
925. The Sims decision also stated that this element must be
proved even when the alleged harasser is the employee’s supervisor.
See id. at 927. This court affirmed Sims in an unpublished
opinion, which, according to our court’s policy, is not a
precedential decision.
10
The recent Supreme Court decisions guide our analysis.
They shed light on what constitutes an actionable claim for a
sexually hostile working environment. See Oncale v. Sundowner
Offshore Servs., Inc., ___ U.S. ___, 118 S.Ct. 998 (1998). They
resolve the circuit split over the standard of employer liability
for sexual harassment perpetrated by a supervisor. See Faragher,
118 S.Ct. 2275; Ellerth, 118 S.Ct. 2257. And they reaffirm that
Meritor’s rejection of automatic liability for employers, although
modified, remains a fundamental limit on Title VII liability.
Faragher, 118 S.Ct. at 2285-86; Ellerth, 118 S.Ct. at 2268-70.
In Oncale, the Court principally decided that Title VII
applies to claims of same-sex harassment. But the Court also
emphasized that Title VII is not a general civility code for the
American workplace:
We have always regarded that requirement [of
objectively offensive, severe and pervasive
conduct] as crucial, and as sufficient to
ensure that courts and juries do not mistake
ordinary socializing in the workplace -- such
as male-on-male horseplay or intersexual
flirtation -- for discriminatory “conditions
of employment.”
Common sense, and an appropriate sensitivity
to social context, will enable courts and
juries to distinguish between simple teasing
or roughhousing among members of the same sex,
and conduct which a reasonable person in the
plaintiff’s position would find severely
hostile or abusive.
11
Oncale, 118 S.Ct. at 1003. In Faragher, the Court concluded a
discussion of the demanding standards for a sexual hostile
environment claim by stating:
We have made it clear that conduct must be
extreme to amount to a change in the terms and
conditions of employment, and the courts of
appeals have heeded this view.
118 S.Ct. at 2284. Faragher cited approvingly a Fifth Circuit case
in which the utterance of an offensive ethnic or racial slur did
not sufficiently alter the terms and conditions of employment to
violate Title VII. Id. at 2283 (citing Rogers v. EEOC, 454 F.2d
234, 238 (5th Cir. 1971)). Faragher repeated the holding in
Harris7 that:
in order to be actionable under the statute, a
sexually objectional environment must be both
objectively and subjectively offensive, one
that a reasonable person would find hostile or
abusive, and one that the victim did in fact
perceive to be so. We directed courts to
determine whether an environment is
sufficiently abusive by “looking at all the
circumstances,” including the “frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offense utterance; and
whether it unreasonably interferes with an
employee’s work performance.”
Faragher, 118 S.Ct. at 2283 (citations omitted) Finally, Ellerth
underscored that:
For any sexual harassment [apart from a
tangible adverse] employment decision to be
7
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114
S.Ct. 367, 370-71 (1993).
12
actionable, however, the conduct must be
severe or pervasive.
Ellerth, 118 U.S. 2265.
Taken together, these cases hold that sexual harassment
which does not culminate in an adverse employment decision must, to
create a hostile work environment, be severe or pervasive.
Incidental, occasional or merely playful sexual utterances will
rarely poison the employee’s working conditions to the extent
demanded for liability. Discourtesy or rudeness, “offhand comments
and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in “‘terms and conditions of
employment.’” Faragher, 118 S.Ct. at 2283. All of the sexual
hostile environment cases decided by the Supreme Court have
involved patterns or allegations of extensive, longlasting,
unredressed, and uninhibited sexual threats or conduct that
permeated the plaintiffs’ work environment. See, e.g., Faragher,
118 S.Ct 2275; Ellerth, 118 S.Ct. 2257; Oncale, 118 S.Ct. 998;
Harris 510 U.S. 17, 114 S.Ct. 367 (1993); Meritor Sav. Bank, FSB v.
Vinson 477 U.S. 57, 106 S.Ct. 2399 (1986). The extreme facts
recited in those cases highlight the intensity of the objectionable
conduct that must be present in order to constitute an actionable
hostile environment claim.8
8
What constitutes an actionable claim for a sexual hostile
working environment is a fact-sensitive determination, but the
Supreme Court’s decisions strongly suggest that such allegations
are not invariably to be resolved by the jury. According to the
13
In light of this demanding standard, it is difficult to
conclude that the conduct to which Indest was briefly subjected
created a sexually abusive overall working environment. This is
not to say that Arnaudet behaved like a gentleman or a responsible
company officer. On the contrary, his crude remarks and implied
threat deserved censure. As far as the entire context of Indest’s
employment with Freeman is concerned, however, Arnaudet’s
misbehavior was neither severe nor pervasive. She only complained
about working with him on one occasion. His vulgar remarks and
innuendos (about his own anatomy) were no more offensive than
sexual jokes regularly told on major network television programs.
Significantly, Arnaudet never touched Indest. His “threat” to
Indest to “prove herself to him” was far more ambiguous than those
uttered in Ellerth.9 Not only was it hollow, because Indest knew
and invoked the company policy against sexual harassment, but it
invited the company’s immediate reprisal upon Arnaudet himself.
Court, this claim is undergirded by requirements of severity and
pervasiveness, viewed in the plaintiff’s entire employment context
from an objective standpoint. Cases will vary widely, as there is
a continuum of sexually-categorized behavior ranging from the use
of diminutives like “sweetie-pie” on one extreme to physical
assault on the other, and the commingling of particular conduct,
words and working environments may form a complex stew. But claims
of non-severe, non-pervasive harassment are excluded from Title
VII. Motions for judgment as a matter of law can police the
baseline for hostile environment claims.
9
Ellerth, 118 S.Ct. at 2262 (noting that supervisor told
employee that he could make her life at the company “very hard or
very easy”).
14
Whether Indest was subjected to a sexually hostile
working environment might be a close question on this summary
judgment record, but it is a question that we do not need to
address, because there is another basis on which Indest’s claim
falls short. Indest cannot establish a basis for Freeman’s
liability as her employer. The Supreme Court’s decisions in
Ellerth and Faragher articulate and recapitulate some, but not all,
standards for employer liability. First, the cases distinguish
between supervisory conduct that “culminates in a tangible
employment action, such as discharge, demotion, or undesirable
reassignment,” and hostile environment conduct which does not have
this effect. Ellerth, 118 S.Ct. 2270. When the harassment
resulted in a tangible adverse employment decision, it is
actionable under Title VII because it has ipso facto changed the
terms and conditions of the plaintiff’s work. See id. This case
involved only alleged hostile environment conduct under the Court’s
new distinction.
Second, the Court articulated a test of liability:
An employer is subject to vicarious liability
to a victimized employee for an actionable
hostile environment created by a supervisor .
. . When no tangible employment action is
taken, a defending employer may raise an
affirmative defense to liability or damages,
subject to proof by a preponderance of the
evidence. The defense comprises two necessary
elements: (a) that the employer exercised
reasonable care to prevent and correct
promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably
15
failed to take advantage of any preventative
or corrective opportunities provided by the
employer or to avoid harm otherwise. . . . No
affirmative defense is available, however,
when the supervisor’s harassment culminates in
a tangible employment action, such as
discharge, demotion, or undesirable
reassignment.
Id. (citation omitted).
Further, in Faragher, the Court approved the “myriad
cases” in which lower courts have held employers liable where the
employer, or its high-level officials, had actual knowledge of
harassing action by subordinates or co-workers and did nothing to
stop it. 118 S.Ct. at 2284. The Court also reaffirmed the cases
that impose liability on the employer for negligence, where it knew
of should have known of sexual harassment by an employee’s co-
workers and failed to stop it. See id. at 2285. The Court
explained that liability may be fastened on an employer for the
acts of its official who is “indisputably within that class . . .
who may be treated as the organization’s proxy,” like the corporate
president in Harris. Faragher, 118 S.Ct. at 2284. While Ellerth
and Faragher do not delineate the difference between a supervisor
and co-worker of the plaintiff employee, they state that vicarious
liability will result from the conduct of “a supervisor with
immediate (or successively higher) authority over the employee.”
Faragher, 118 S.Ct. at 2293; Ellerth, 118 S.Ct. at 2270.10
10
Freeman states that Arnaudet was not, as a matter of law,
Indest’s supervisor, because Indest reported to and received
16
Ellerth and Faragher do not, however, directly speak to
the circumstances before us, a case in which the plaintiff quickly
resorted to Freeman’s policy and grievance procedure against sexual
harassment, and the employer took prompt remedial action. The
Supreme Court cases both involve complaints of longstanding
supervisor misbehavior, and the plaintiffs either never utilized or
claimed not to be aware of the company policies. But for purposes
of imposing vicarious liability, a case presenting only an
incipient hostile environment corrected by prompt remedial action
should be distinct from a case in which a company was never called
upon to react to a supervisor’s protracted or extremely severe acts
that created a hostile environment. Although the Ellerth/Faragher
standard, which imposes vicarious liability subject to an
employer’s two-prong affirmative defense, does not control, it
informs the principles determinative of this case.
First, when a plaintiff promptly complains about a
supervisor’s inappropriate sexual actions, she can thwart the
creation of a hostile work environment. To the extent redress is
sought, is justified, and is adequately provided by the company,
the complained-of incidents will not likely have become severe or
pervasive enough to create an actionable Title VII claim. This
result effectuates the purpose of Title VII, which cannot guarantee
employee evaluations directly from other company personnel.
Because this point was not briefed, we do not consider it.
17
civility in the American workplace but, at its best, inspires
prophylactic measures to deter unwanted sexual harassment. By
promptly invoking a company’s grievance procedure, a plaintiff has
received the benefit Title VII was meant to confer. In such cases,
an actionable hostile environment claim will rarely if ever have
matured.
Second, the company’s swift response to the plaintiff’s
complaint should have consequences for its vicarious liability
exposure precisely because the company forestalled the creation of
a hostile environment. In cases like Ellerth, by contrast, the
plaintiff’s failure or delay in invoking anti-harassment procedures
may suggest that a company lacked vigilance or determination to
enforce them or that it appeared to turn a blind eye toward sexual
harassment. The Ellerth/Faragher test more cautiously exempts an
employer from liability in the latter situation than is appropriate
when a company has promptly reacted to a harassment claim and
averted further distress.
A third, more fundamental reason also justifies
distinguishing the Ellerth/Faragher test from the case before us.
The Supreme Court felt obliged to square its new limited vicarious
liability standard “with Meritor’s holding that an employer is not
‘automatically’ liable for harassment by a supervisor who creates”
a sexually hostile working environment. Faragher, 118 S.Ct. at
2278. Meritor rejected imposing strict Title VII liability on
18
employers for such claims. 477 U.S. at 72, 106 S.Ct. at 2408.
Meritor was left in place in the Court’s recent cases because of
stare decisis and because, as the Court noted, Congress
conspicuously left Meritor intact even as it modified other aspects
of Title VII law in 1991. Most important, the Court acknowledged
that Meritor furthers the twin deterrent and compensatory aims of
Title VII. As Faragher put it:
It would therefore implement clear statutory
policy and complement the Government’s Title
VII enforcement efforts to recognize the
employer’s affirmative obligation to prevent
violations and give credit here to employers
who make reasonable efforts to discharge their
duty. Indeed, a theory of vicarious liability
for misuse of supervisory power would be at
odds with the statutory policy if it failed to
provide employers with some such incentive.
118 S.Ct. at 2292.
Imposing vicarious liability on an employer for a
supervisor’s “hostile environment” actions despite its swift and
appropriate remedial response to the victim’s complaint would thus
undermine not only Meritor but Title VII’s deterrent policy.
Vicarious liability would amount to strict liability even though
the plaintiff had suffered neither a severe and pervasive change in
her working conditions nor any adverse employment action. A
holding of vicarious liability would conflict with cases,
specifically approved by the Court, in which an employer’s
liability for co-worker sexual harassment is governed by a
negligence standard, and the employer is liable only if it knew or
19
should have known and failed to take proper remedial steps. See
Faragher, 118 S.Ct. at 2285-86. A standard imposing vicarious
liability notwithstanding the employer’s having nipped a hostile
environment in the bud would also conflict with the premise of
Ellerth/Faragher, founded in agency law, that a supervisor who
creates a hostile environment is aided by his agency status with
the employer in doing so. See Faragher, 118 S.Ct. 2285, 2290.
Where the company, on hearing a plaintiff’s complaint about
inappropriate sexual behavior, moves promptly to investigate and
stop the harassment, it eradicates any semblance of authority the
harasser might otherwise have possessed.11
Finally, Faragher’s discussion of the avoidable
consequences doctrine and an employee’s duty to mitigate damages
supports relieving the employer from liability in circumstances
like those before us. Faragher explains the relevance of these
concepts while discussing the prong of the affirmative defense that
requires an employer to prove the employee’s “unreasonable” failure
to take advantage of company policies to avoid sexual harassment:
If the victim could have avoided harm, no
liability should be found against the employer
who had taken reasonable care, and if damages
could reasonably have been mitigated no award
11
Faragher emphasized that agency law principles furnish no
more than a starting point in analysis of Title VII employer
liability. 118 S.Ct. at 2290 & n.3. While the Court goes on to
balance vicarious liability with the employer’s affirmative defense
on the facts before it, we do not believe agency law implies
vicarious liability in the present case.
20
against a liable employer should reward a
plaintiff for what her own efforts could have
avoided.
Id. at 2292. Faragher implies that a plaintiff should not wait as
long as it usually takes for a sexually hostile working environment
to develop when the company has an effective grievance mechanism.
If the plaintiff complains promptly, the then-incidental
misbehavior can be stymied before it erupts into a hostile
environment, and no actionable Title VII violation will have
occurred.
Applying the foregoing analysis to Indest’s case, we hold
that because she promptly complained of Arnaudet’s harassing
conduct, and because the company promptly responded, disciplined
Arnaudet appropriately and stopped the harassment, the district
court properly granted judgment as a matter of law to Freeman.
Even if a hostile work environment claim had been stated, which is
dubious, Freeman’s prompt remedial response relieves it of Title
VII vicarious liability.
C. Employer Liability for Failing to Prevent Sexual
Harassment
In a final effort to find a genuine issue of material
fact, Indest and EEOC assert that Title VII liability may be
imposed on Freeman because of its inadequate discipline of Arnaudet
after a previous complaint involving another Freeman employee,
“Jane Doe.” There is insufficient evidence in the record, however,
21
from which the details of the Jane Doe incident can be ascertained
or compared with this case. We find no merit in these contentions.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
WIENER, Circuit Judge, Specially Concurring:
Like my able colleague, Judge Jones, I would affirm the
district court’s dismissal of Indest’s claim against her
supervisor, Arnaudet, pursuant to Rule 12(b)(6). And like Judge
Jones, I would also affirm the court’s dismissal of Indest’s claims
against Freeman by granting its motion for a judgment as a matter
of law (j.m.l.), albeit I would do so —— as would Judge Jones ——
for reasons other than those given by the district court. But, as
I would affirm the district court’s j.m.l. for significantly
22
different reasons than those advanced by Judge Jones, I write
separately.12
In short, I cannot agree with Judge Jones’s conclusion that
the Supreme Court’s remarkably straightforward and perfectly
consistent twin opinions in Burlington Industries, Inc. v. Ellerth13
and Faragher v. City of Boca Raton14 do not control the present case
—— and, indeed, all cases in which the plaintiff seeks to hold his
employer vicariously liable for a supervisor’s sexual harassment.
As I read them, the Court’s two opinions together set forth a
comprehensive framework for determining when an employer can be
held vicariously liable for sexual harassment by a supervisor —— a
framework into which the instant case fits comfortably.
Under the Ellerth/Faragher rubric, an employer is vicariously
liable for a supervisor’s actionable hostile environment15 sexual
12
Because Judge Ferguson concurs only in the judgment of this
case without concurring in Judge Jones’s opinion or mine, neither
enjoys a quorum and thus neither writing constitutes precedent in
this Circuit.
13
118 S. Ct. 2257 (1998).
14
118 S. Ct. 2275 (1998).
15
Although the Court in Ellerth notes that the terms “hostile
environment” and “quid pro quo” had taken on a significance beyond
their utility in the wake of its opinion in Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986), the Court instructs that henceforth
those terms’ only utility will be to mark a useful boundary between
supervisor sexual harassment cases involving “tangible employment
actions” against the victim (quid pro quo), see infra note 19, and
those in which the actionable conduct fails to produce a tangible
employment action (hostile work environment). Ellerth, 118 S. Ct.
at 2264-65.
23
harassment of an employee unless the employer can prove both
elements of the one and only affirmative defense now permitted by
the Court. Those essential elements are defined by the Court as:
(a) the employer exercised reasonable care to
prevent and correct promptly any sexually
harassing behavior, and (b) the employee []
unreasonably failed to take advantage of any
preventive or corrective opportunities
provided by the employer or to avoid harm
otherwise.16
As it is undisputed that Freeman cannot satisfy the second element
of this defense —— that Indest unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise —— Freeman is vicariously
liable to Indest; unless, of course, Indest cannot prove that the
conduct of the supervisor, Arnaudet, was “sufficiently severe or
pervasive”17 to constitute “actionable” sexual harassment of the
hostile work environment kind. For, if Arnaudet’s conduct does not
rise to the level of actionable sexual harassment, Indest cannot
recover from Freeman in agency.
As I conclude that Arnaudet’s conduct was neither severe nor
pervasive, I would affirm the district court for Indest’s failure
to demonstrate that Arnaudet’s behavior constituted actionable
sexual harassment in the first place. Such a result is compelled
16
Faragher, 118 S. Ct. at 2292; Ellerth, 118 S. Ct. at 2270.
17
Ellerth, 118 S. Ct. at 2264.
24
in this hostile work environment case (no tangible employment
action), because, in such a case, proving the supervisor’s conduct
was “severe or pervasive”, i.e., “actionable” harassment, is the
threshold for recovery from an employer on a theory of vicarious
liability. I am convinced, however, that in light of Ellerth and
Faragher, we cannot affirm the district court’s rejection of
Indest’s claim solely on the basis of Freeman’s prompt and adequate
response to Indest’s report of Arnaudet’s inappropriate behavior
(as would Judge Jones, without any mention whatsoever of the second
element of the sole affirmative defense now available). Given that
(1) Judge Jones has conceded arguendo that the harassment produced
a “severe or pervasive” work place, and (2) the undisputed facts of
the case demonstrate that Indest quickly reported Arnuadet’s
behavior, thereby defeating the only affirmative defense
potentially available to Freeman, Judge Jones’s exoneration of
Freeman’s vicarious liability on but one element of the Court’s new
and exclusive two-element, conjunctive defense cannot survive
scrutiny under Ellerth/Faragher.
I.
Facts, Proceedings, and Standard of Review
As I take no issue with Judge Jones’s rendition of the facts,
procedural history, standard of proof, or standard of review, I
touch on those matters only briefly, for focus and emphasis.
First, nothing in the record or in the appellate briefs of the
parties reflects any business or personal interaction between
25
Arnaudet and Indest prior to the New Orleans convention of
September 8-14, 1993, at which the putative harassment is alleged
to have transpired. Second, the harassment that Indest alleged
consisted solely of five sexual comments or gestures, and did not
culminate in a tangible employment action. Third, Arnaudet’s
behavior was reported to Freeman by Indest almost instantly, even
before she left the convention to return home. Fourth, there is no
disagreement with the characterization of Arnaudet as a mid-level
supervisor: As Vice President of Sales and Administration and, in
particular, as the Freeman executive in charge of the New Orleans
convention, Arnaudet was in a position to affect significantly the
conditions of Indest’s employment.18 Finally, the scant evidence
in the record of the only prior incident of purported sexual
harassment by Arnaudet of a “Jane Doe” employee of Freeman is
insufficient to support an allegation that Freeman (1) knew or
should have known that Arnaudet had previously harassed another
employee, and (2) failed to prevent a recurrence.
II.
Employer’s Vicarious Liability for
Actionable Sexual Harassment by a Supervisor
Last term, the Supreme Court decided four cases that together
reshape, or at a minimum substantially clarify, the landscape of
18
See Faragher, 118 S. Ct. at 2293 (“An employer is subject to
vicarious liability for an actionable hostile environment created
by a supervisor with immediate (or successively higher) authority
over the employee.”) (emphasis added); Ellerth, 118 S. Ct. at 2270(same).
26
sexual harassment law.19 Most significantly for our purposes, two
of those cases —— Ellerth and Faragher —— address the burgeoning
issue of the employer’s vicarious liability under Title VII for the
sexual harassment of an employee by a supervisor. Because I
respectfully but strenuously differ with Judge Jones as to the
meaning, scope, and import of these tandem opinions, I discuss them
in some detail. First, however, because I failed to file my
separate opinion contemporaneously with hers, I briefly recount
Judge Jones’s position.
A. Judge Jones’s Analysis
Judge Jones’s opinion (1) assumes arguendo that the alleged
harassment at issue in this case was “sufficiently severe or
pervasive”20 to constitute actionable sexual harassment21 —— an
assumption to which I shall return; and (2) concludes that the
Ellerth/Faragher teachings do not dictate the result of the present
19
See id. at 2293-94 (holding city vicariously liable as
employer for harassment of lifeguard by her supervisor because city
failed to exercise reasonable care to prevent harassing behavior);
Ellerth, 118 S. Ct. at 2270 (holding employee could state claim
against employer although she had suffered no adverse job
consequences as a result of alleged sexual harassment by
supervisor); Gebser v. Lago Vista Ind. Sch. Dist., 118 S. Ct. 1989,
1999-2000 (1998) (holding school was not vicariously liable under
Title IX for teacher’s sexual harassment of student when school had
no notice of harassment); Oncale v. Sundowner Offshore Servs.,
Inc., 118 S. Ct. 998, 1003 (1998) (holding same-sex harassment is
actionable).
20
Ellerth, 118 S. Ct. at 2264.
21
Indest v. Freeman Decorating, Inc., 164 F.3d 258, 263-64 (5th
Cir. 1998) (Jones, J.) [hereafter, Jones Op.].
27
appeal.22 Judge Jones bases this conclusion on her belief that
Ellerth and Faragher are factually distinguishable from the instant
case because “both involve complaints of longstanding supervisor
misbehavior, and the plaintiffs either never utilized or claimed
not to be aware of company policies,” whereas Ms. Indest quickly
resorted to Freeman’s sexual harassment grievance procedure and
Freeman promptly took remedial action that prevented Arnaudet’s
short-lived harassment of Indest from continuing long term.23 To
distinguish and cordon off Indest’s brief but presumed “severe or
pervasive” harassment experience so as to remove her case from the
purview of Ellerth/Faragher, Judge Jones has coined the phrase
“incipient hostile environment.”24 As shall be seen, she advances
that this new coin is not among those rightfully in the purses of
Ms. Ellerth or Ms. Faragher, and proceeds to remove cases like Ms.
Indest’s from the aegis of Ellerth and Faragher —— as neat an
illusion as any sleight-of-hand artist ever created with a real
coin.
Judge Jones then proceeds to replace, with one of her own, the
Supreme Court’s balancing of what it identifies as relevant agency
22
Id. at 265.
23
Id. (emphasis added).
24
Id. Judge Jones does not define her newly-minted term.
Apparently, however, the phrase does not simply refer to conditions
that are not yet sufficiently severe or pervasive to constitute an
actionable hostile environment, as Judge Jones, by her assumption,
preempts our resolution (though not discussion) of that issue.
28
principles on the one hand and Title VII policy concerns on the
other. After performing her own balancing test in lieu of the
Court’s, Judge Jones concludes that alone Freeman’s quick and
adequate response to Indest’s equally prompt and adequate reporting
of Arnaudet’s behavior is sufficient to insulate Freeman from
vicarious liability for Arnaudet’s harassment of Indest.25 By thus
choosing to disregard totally the Supreme Court’s express and
carefully explained linking of (1) the employer’s prompt and
appropriate response with (2) the employee’s unreasonable failure
to invoke the employer’s complaint mechanism or otherwise take
prompt mitigating action, Judge Jones somehow implicitly concludes
that this harassment’s “incipient” nature —— whatever that is ——
alleviates Freeman’s need to satisfy the second element of Ellerth
and Faragher’s sole surviving affirmative defense, i.e., the
requirement to prove that Indest unreasonably failed to take
advantage of Freeman’s sexual harassment grievance policy. Judge
Jones never adequately explains away the obvious inconsistency of
granting “severe and pervasive” status to the work environment
produced by Arnaudet’s conduct while labeling the effects of that
very same conduct “incipient.” Post-Ellerth and Faragher, this is
a logical impossibility which, I submit, cannot be squared with the
pellucid teachings of those opinions.
B. Ellerth and Faragher
25
Id. at 267.
29
Simply stated, then, I part company with Judge Jones because
I can find no support in Ellerth or Faragher for her conclusion
that those cases do not control this one. In neither opinion does
the Court even remotely hint that it is limiting its analysis to
situations in which (1) the plaintiff employee has failed to inform
an employer of harassing behavior, and (2) the employer has failed
to take prompt remedial action (i.e., to Judge Jones’s view of the
facts of Ellerth and Faragher). More importantly, nowhere does the
Court imply, much less express, that short-lived harassment such as
the conduct alleged by Indest —— in which, soon after the onset of
the harassment, the plaintiff reports the inappropriate behavior
and the employer rapidly and appropriately responds to that report
—— somehow falls outside the ambit of the Court’s mandate. To the
contrary, in both the Ellerth and Faragher opinions, the Court
unmistakably addresses itself to the entire spectrum of an
employer’s vicarious liability under Title VII for supervisory
harassment writ large, not just to some lesser fragment of that
statutory problem, to which Judge Jones would curtail it.
1. Ellerth
From the inaugural lines of the Ellerth opinion, the Court
makes clear that its focus is not narrowly confined to the discrete
facts of Ellerth’s allegations (whether as parsed by Judge Jones or
otherwise). The Court opens:
We decide whether . . . an employee who
refuses unwelcome and threatening sexual
advances of a supervisor, yet suffers no
30
adverse, tangible job consequences, can
recover against the employer without showing
the employer is negligent or otherwise at
fault for the supervisor’s actions.26
Ellerth involves allegations by a plaintiff-employee (Ms.
Ellerth) who, during the approximately year-long period that she
worked as a salesperson for the defendant-employer (Burlington
Industries), had been subjected to a number of boorish and
offensive remarks and gestures by her supervisor (Ted Slowik).27
Ellerth based her claim against Burlington in large part on three
alleged incidents in which Slowick made comments that could be
construed as threats to retaliate against her if she did not give
in to his sexual advances.28 Despite these threats, though, Ellerth
never experienced any adverse employment consequences; in fact, she
received a promotion.29
In determining whether Burlington could be held vicariously
liable for Slowik’s conduct even though his threats never resulted
26
Ellerth, 118 S. Ct. at 2262. Again, painting with a broad
brush that belies Judge Jones’s effort to cabin the opinion, the
Court later frames its inquiry as “whether an employer has
vicarious liability when a supervisor creates a hostile work
environment by making explicit threats to alter a subordinate’s
terms or conditions of employment, based on sex, but does not
fulfill the threat.” Id. at 2265. The Court makes no mention of
the extent or duration of the inappropriate conduct.
27
Id. at 2262.
28
Id.29
Id.31
in a tangible employment action against his subordinate,30 the
Ellerth Court confronts the previously unresolved question of what
standards govern an employer’s respondeat superior liability for
sex-based discrimination by one of its supervisory employees.31 The
Court had touched on this critical issue in its pathbreaking
decision in Meritor Savings Bank v. Vinson,32 but indicated only
that, based on the text of Title VII, agency principles are
relevant to the inquiry.33
Taking Meritor’s admonition as its starting point, the Court
in Ellerth engages in a wide-ranging analysis of the relevant
agency principles set forth in § 219 of the Restatement (Second) of
Agency.34 The Court determines that, when an employee seeks to hold
30
Id. Tangible employment actions “require[] an official act
of the enterprise, a company act,” id. at 2269, such as “hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant
change in benefits.” Id. at 2268.
31
Id. at 2264. From a plaintiff-employee’s perspective, there
are, of course, two categories of potential employee harassers ——
supervisors and co-workers. Neither the instant case nor Ellerth
or Faragher involved harassment by co-workers.
32
477 U.S. 57 (1986) (holding hostile environment sexual
harassment is actionable form of sexual discrimination under Title
VII).
33
Id. at 72. The Meritor Court rejected arguments of both
plaintiff —— that employer is strictly liable for harassment by its
supervisor —— and of defendant —— that mere existence of
discrimination grievance procedure, coupled with plaintiff’s
failure to invoke that procedure, insulates employer from
liability. Id. at 72-73.
34
Restatement (Second) of Agency § 219 (1957).
32
an employer vicariously liable for a supervisor’s conduct rather
than directly liable for its own conduct,35 Restatement §
219(2)(d)’s “aided in the agency relation” standard is the most
relevant;36 and concludes that, “beyond question,” an employee
satisfies this standard by proving that the supervisor took a
tangible employment action against the subordinate, as such an
action would not be possible but for the authority granted to the
supervisor over the employee by the employer.37 Thus, when a
tangible employment action results (by definition post-Ellerth/
Faragher, a quid pro quo case), the Court follows strict agency
principles and permits no affirmative defense to the employer’s
vicarious liability.
35
To hold an employer liable for its own negligent conduct, an
employee must show that the employer knew of the harassment and
failed to stop it. Ellerth, 118 S. Ct. at 2267; see also Faragher,
118 S. Ct. at 2284 (noting employer can be held liable (1) for own
negligence and (2) for the acts of an official who may be treated
as the organization’s proxy). The Court additionally determined
that sexual harassment by a supervisor is not generally conduct
falling within the scope of the supervisor’s employment under §
219(1), thus subjecting an employer to automatic liability, though
it noted that such a scenario is not out of the realm of
possibility. Ellerth, 118 S. Ct. at 2266-67 (citing Sims v.
Montgomery County Comm’n, 766 F. Supp. 1052, 1075 (M.D. Ala. 1990)
(finding supervisor acted in scope of employment when employer had
policy of discouraging women from seeking advancement and “sexual
harassment was simply a way of furthering that policy.”)).
36
Section 219(2)(d) provides that an employer is liable for
torts committed by its employee for acts committed outside the
scope of the employee’s employment if the employee “was aided in
accomplishing the tort by the existence of the agency relation.”
37
Ellerth, 118 S. Ct. at 2268.
33
To resolve the more difficult issue —— whether the agency
relation aids in the commission of a supervisor’s harassment that
does not culminate in a tangible employment action against the
subordinate employee —— the Court takes additional, mitigating
guidance from Title VII’s twin deterrent goals of (1) encouraging
employers to institute antiharassment policies and effective
grievance procedures, and (2) encouraging employees to make timely
and appropriate use of such procedures and report harassing
behavior.38 Markedly absent from this entire discussion is any
reference —— much less any restriction —— to the particular facts
of Ellerth’s case. The Court’s focus is squarely on the big
picture.
Finally, after balancing the relevant concerns,39 the Court
unconditionally and unequivocally concludes:
An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority
over the employee. When no tangible employment action is
taken, a defending employer may raise an affirmative defense
to liability or damages, subject to proof by a preponderance
of the evidence. The defense comprises two necessary
elements: (a) that the employer exercised reasonable care to
prevent and correct promptly any sexually harassing behavior,
38
Id. at 2270.
39
In the sentence preceding the announcement of its new test,
the Court states: “In order to accommodate the agency principles of
vicarious liability for harm caused by misuse of supervisory
authority, as well as Title VII’s equally basic policies of
encouraging forethought by employers and saving action by objecting
employees, we adopt the following holding in this case and in
Faragher v. Boca Raton, 118 S. Ct. 2275 (1998), also decided
today.” Id.34
and (b) that the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise.40
Again, nothing in the Ellerth opinion intimates that the Court
is narrowly limiting its analysis or its test to the facts before
it.41 To the contrary, the Court (1) frames the issue presented
without reference to the factual nuances on which Judge Jones
relies in her effort to distinguish the instant case from Ellerth;
(2) analyzes both the Restatement’s relevant agency principles and
Title VII policy goals in terms of the general question of an
employer’s vicarious liability for a supervisor’s harassment; (3)
formulates straight-forward and unqualified bright-line rules
covering an employer’s “vicarious liability to a victimized
employee for an actionable hostile environment created by a
supervisor”;42 and (4) specifically dictates the role of the factor
Judge Jones finds controlling in the present case —— the
reasonableness of the employer’s efforts to prevent and address
40
Id. (emphasis added).
41
The Court, of course, applies its newly-created standard to
the facts before it, holding that Ellerth had stated a claim
against Burlington, but that Burlington should be afforded the
opportunity to prove the affirmative defense to liability. Id. at
2271.
42
Id. at 2270. That the Faragher Court took occasion to
identify avenues for holding an employer liable for harassment by
one of its employees other than vicarious liability, see supra note
24 (employer can be held liable for own negligence or for employee
harassment falling within scope of employee’s duty), lends further
support to the conclusion that the Court fixed its sight on the
entirety of the global issue before it —— vicarious liability ——
rather than some unidentified shard of the sexual harassment issue.
35
harassment —— by placing it within the confines of the Court’s
unique, double-element, affirmative defense to vicarious liability
for cases in which no tangible employment action has been taken
against the plaintiff. Importantly, the Court also makes the
failure of the employee to act promptly and effectively an equal
and indispensable element of this defense; yet Judge Jones would
permit the employer’s extant grievance system and quick action to
save the day even when the employee too timely takes appropriate
steps. This cherry-picking of but one of two conjoint elements of
the defense flies directly in the face of identical statements to
the contrary in each of the two Supreme Court opinions.43
2. Faragher
The Faragher opinion follows a path virtually identical to
Ellerth’s. It too frames the question presented as one involving
the broad issue of an employer’s vicarious liability for harassment
by a supervisor: “This case calls for the identification of the
circumstances under which an employer may be held liable under
Title VII . . . for the acts of a supervisory employee whose sexual
harassment of subordinates has created a hostile work environment
amounting to employment discrimination.”44 Like Ellerth, Faragher
analyzes the issue without reference to the limitations Judge Jones
43
See Faragher, 118 S. Ct. at 2292-93; Ellerth, 118 S. Ct. at
2270.
44
Faragher, 118 S. Ct. at 2279.
36
would impose.45 Finally, of course, Faragher espouses verbatim the
Ellerth test and sole affirmative defense for vicarious liability
in supervisor sex discrimination cases.46
Indeed, as it explicitly adopts and precisely repeats
Ellerth’s two-element, affirmative defense as an “alternative to
[an employer’s] automatic liability, the Court indicates in
Faragher even more clearly than it does in Ellerth that its newly-
articulated test applies to all cases in which an employee who has
not suffered an adverse employment action seeks to hold the
employer vicariously liable for purported harassment by a
supervisor (rather than excluding some subset of such cases
delimited by the absence of the employee’s prompt report of the
inappropriate conduct or the presence of the employer’s quick
response to such behavior by the supervisor —— or both).47 In other
words, the Court designed its “composite defense”48 as the only
hatch through which an employer might escape vicarious liability
45
Id. at 2286-93 (examining arguments in favor and against
holding employer strictly liable for supervisor’s conduct); see
also id. at 2282 (“Since our decision in Meritor, Courts of Appeals
have struggled to derive manageable standards to govern employer
liability for hostile environment harassment perpetrated by
supervisory employees.”) (emphasis added).
46
Id. at 2292-93.
47
Id. at 2292.
48
Id.37
when “harassment by a supervisor [] creates the requisite degree of
discrimination.”49
3. Teachings of Ellerth and Faragher
In sum, I respectfully submit that neither the structure nor
the plain language and holding of either Ellerth or Faragher
supports Judge Jones’s conclusion that cases such as this one, in
which an employee promptly reports, and an employer rapidly
responds to, harassing behavior by a supervisor, fall into some
unarticulated lacuna in the Ellerth/Faragher framework. I am
convinced that this framework, and only this framework, controls
our analysis.
C. Merits
Here, of course, the district court did not —— indeed, could
not —— assay Indest’s claim against Freeman under the Supreme
Court’s as yet unannounced Ellerth/Faragher framework.
Nevertheless, when there are no genuine issues of material fact, we
may affirm the district court’s grant of a j.m.l. on different
grounds.50
As already noted, there is no question that (1) Arnaudet was
a supervisor with immediate (or successively higher) authority over
Indest, and (2) no tangible employment action was taken against
Indest. Significantly, it is equally indisputable that Indest did
49
Id. at 2291.
50
Cf. Rizzo v. Children’s World Learning Ctr., Inc., 84 F.3d
758, 763 (5th Cir. 1996).
38
not unreasonably delay or fail to take advantage of any preventive
or corrective opportunities provided by Freeman or fail to take
appropriate action to avoid harm otherwise: As Judge Jones
confirms, Indest reported Arnaudet’s conduct almost immediately.
Under the Ellerth/Faragher framework, this fact alone interdicts
any attempt by Freeman to assert the one surviving affirmative
defense and exposes the invalidity of excusing Freeman solely on
the basis of its grievance system and prompt response, as proposed
by Judge Jones.
Even so, our inquiry is not at an end. Inasmuch as Indest did
not suffer a tangible employment action, she can hold Freeman
vicariously liable only if she can prove that Arnaudet’s conduct
created an “actionable hostile environment.”51 As the Supreme Court
held in Harris v. Forklift Systems, Inc.,52 to satisfy this test,
the conduct in question must have been so “severe or pervasive”
that it altered the terms and conditions of Indest’s employment.53
The Court explicitly reconfirmed this requirement in both Ellerth54
51
Faragher, 118 S. Ct. at 2292-93; Ellerth, 118 S. Ct. at 2270(emphasis added).
52
510 U.S. 17 (1993).
53
Id. at 21.
54
Ellerth, 118 S. Ct. at 2265 (“For any sexual harassment
preceding the employment decision to be actionable, however, the
conduct must be severe or pervasive.”)
39
and Faragher.55 As a key diversion in her legal legerdemain, Judge
Jones pretermits consideration of this point by assuming arguendo
that the supervisor’s conduct was actionable, i.e., severe or
pervasive. This ploy enables her to label the incident as
“incipient” essentially because it was so short-lived. Yet we and
other courts have recognized that, alone, the duration of sexually
offensive misconduct is not determinative; it is merely one factor
to consider.56 Any doubt about the inability of the duration of the
harassment alone to be determinative is dispelled by the Court’s
continued use of the disjunctive “severe or pervasive”; indeed,
sexually harassing conduct that is “severe” but not “pervasive” is
by definition short-lived, Judge Jones’s implication to the
contrary notwithstanding. With due respect to my worthy colleague,
I can only read Ellerth and Faragher to specify that, in cases that
do not involve a tangible employment action, the threshold question
is whether the supervisor’s misconduct is actionable, i.e., either
55
Faragher, 118 S. Ct. at 2283-84 (summarizing Harris standards
for proving hostile environment claim and citing compilation of
cases “granting summary judgment for employers because harassment
was not actionably severe or pervasive”) (citation omitted).
56
See, e.g., Butler v. Ysleta Ind. Sch. Dist., 161 F.3d 263,
269 (5th Cir. 1998)(listing “frequency of discriminatory conduct”
as but one factor to consider and stating it should not be given
“undue weight”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072
(10th Cir. 1998)(“We therefore disagree with defendants’ assertions
that a single incident of physically threatening conduct can never
be sufficient to create an abusive environment.”); Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998)(“[E]ven a
single incident of sexual assault sufficiently alters the
conditions of the victim’s employment . . . .”)(citation and
quotation omitted) (alteration in original).
40
severe or pervasive. If that question is answered in the negative,
the court can never reach the questions (1) whether the employer is
vicariously liable, and (2) if so, whether the employer is able to
avoid such liability by satisfying the affirmative defense crafted
by the Court in Ellerth and Faragher.
To determine whether conduct is sufficiently severe or
pervasive to create an objectively hostile or abusive work
environment, we must examine the totality of the circumstances.
These include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.”57
Indest alleges that, over a period that admittedly spanned
less than one week, Arnaudet made five separate crude sexual
comments or gestures to her and made statements that could be
understood as ultimatums to “come across” with sexual favors or
suffer adverse employment consequences. None dispute that
Arnaudet’s behavior was clearly embarrassing and contemptible,
boorish and offensive. Under our jurisprudential standards,
though, it was just as clearly not pervasive; neither did it even
approximate the level required to be classified as severe. As
such, Arnaudet’s conduct does not constitute actionable sexual
57
Harris, 510 U.S. at 23.
41
harassment.58 True, sexual comments alone can rise to the level of
actionable harassment.59 Still, the mixed question of fact and law
that we review de novo today —— whether the relatively few remarks
and gestures made during the relatively short duration of the New
Orleans convention at which Indest was subjected to them, were so
severe or pervasive as to alter the terms and conditions of
Indest’s employment within the meaning of Title VII —— is, to me,
susceptible of but one answer: No.60 It is on this basis that,
post-Ellerth and Faragher, I would affirm the district court’s
grant of summary judgment in favor of Freeman.61 More to the point,
I perceive no other legitimate basis for affirming that court.
58
See Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 555
(5th Cir. 1997) (holding official, who stared at female plaintiff,
made suggestive comments to her, and slammed her door, was entitled
to qualified immunity because his conduct was not severe or
pervasive enough to constitute sexual harassment).
59
See Harris, 510 U.S. at 19, 21-23; Farpella-Crosby v. Horizon
Health Care, 97 F.3d 803, 805-06 (5th Cir. 1996).
60
See DeAngelis v. El Paso Mun. Police Officers Assoc., 51 F.3d
591, 595-96 (5th Cir. 1995) (holding ten columns in association
newsletter containing derogatory statements about women, only four
of which referred to plaintiff, could not alone amount to
actionable sexual harassment); Long v. Eastfield College, 88 F.3d
300, 309 (5th Cir. 1996) (single offensive joke did not support
claim for hostile work environment).
61
Although Judge Jones purports to assume arguendo and
therefore not decide whether Indest was subjected to a sexually
hostile work environment, she concludes (as do I): “As far as the
entire context of Indest’s employment with Freeman is concerned,
[], Arnaudet’s misbehavior was neither severe nor pervasive.”
Jones Op. at 264.
42
I offer one final observation which likely explains the
overarching premise of Judge Jones’s struggle with this case —— her
candidly expressed concern that, if the Ellerth/Faragher test
applies to cases such as this one, “[v]icarious liability would
amount to strict liability even though the plaintiff had neither a
severe or pervasive change in her working conditions nor any
adverse employment action.”62 I find Judge Jones’s fear as
unwarranted as it is inaccurate, for at least two reasons. First,
to (re)state the obvious, absent “any adverse employment action,”
i.e., any tangible employment action, an employer is never
vicariously liable for a supervisor’s conduct unless such conduct
is either severe or pervasive, for employers are strictly liable
only for actionable sexual harassment on the part of their
supervisory employees. Thus, Judge Jones forecasts a legally
impossible result. The Supreme Court has decreed —— as is its
prerogative —— that when such supervisor harassment produces a
tangible employment action, agency principles dictate precisely the
result that Judge Jones abhors, i.e., strict liability and no
affirmative defenses. But, absent a tangible employment action,
the supervisor’s sexually opprobrious conduct must be either severe
or pervasive to be actionable in vicarious liability. Ergo, the
employer can never be vicariously liable in the hypothetical
situation that so disturbs Judge Jones: (1) No severe or pervasive
62
Id. at 266.
43
sexual misconduct and (2) no tangible employment action. Her
chimera evanesces in the cold light of day, logic, and pure legal
analysis.
Second, this case demonstrates why, as a practical matter,
inappropriate sexual conduct will virtually never rise to the level
of actionability when an employer takes the kind of prompt remedial
action that Judge Jones applauds (as do we all). Here, Freeman’s
timely and effective response to Indest’s complaints cut Arnaudet’s
sexual misconduct off at the pass, preventing him from either
subjecting Indest to additional sexual comments and gestures or
escalating his inappropriate behavior to more egregious forms or
levels of misconduct. In other words, Freeman’s sexual harassment
grievance procedure worked exactly as designed by Freeman and as
envisioned by the Equal Employment Opportunity Commission —— and as
now envisioned by the Supreme Court in tempering strict agency
principles —— the “stick” —— with an overlay of deterrent policy ——
the “carrot.” Indest’s case well illustrates that, when an
employer satisfies the first element of the Supreme Court’s
affirmative defense, it will likely forestall its own vicarious
liability for a supervisor’s discriminatory conduct by nipping such
behavior in the bud. When that happens, neither the employer nor
the court need ever reach the question posed by the (b) element of
the Court’s affirmative defense, i.e., whether the plaintiff
unreasonably failed to take advantage of any corrective
opportunities, because the employer will have prevented the
44
supervisor’s behavior from rising to the severe or pervasive level
required to be actionable under Title VII.63
III.
Conclusion
Since June 26, 1998, when Justice Kennedy filed his majority
opinion in Ellerth,64 and Justice Souter filed his majority opinion
in Faragher,65 the methodology mandated for all inferior federal
courts to follow in disposing of vicarious liability claims against
employers, grounded in sexual harassment perpetrated by supervisory
employees, has been unmistakable and easily fathomable. For
openers, the Court obviously selected and paired Ellerth and
Faragher. One (Ellerth) presents a stereotypical example of one
supervisor “hitting on” one subordinate employee for sexual favors
while actually or impliedly threatening employment retaliation
unless (or promising employment benefits if) the subordinate “comes
across.” The other (Faragher) presents an equally stereotypical
example of several supervisors’ making crude, offensive,
63
It is, of course, theoretically possible for a supervisor to
engage in sufficiently severe conduct (e.g., raping, “flashing,” or
forcibly groping or disrobing the subordinate employee) in such a
short period of time that, even though (1) the employee reports the
conduct immediately, (2) the employer takes swift and decisive
remedial action, and (3) no tangible employment action ensues, the
employer could still be held vicariously liable under the
Ellerth/Faragher “severe or pervasive” test. Whether or not Judge
Jones or I would agree with such a result, we remain bound by the
Supreme Court’s judgment in the matter.
64
Justice Ginsberg concurred in the judgment, and Justices
Scalia and Thomas dissented.
65
Justices Scalia and Thomas dissented.
45
insensitive, and boorish comments, and taking discriminatory
actions, of a sexual nature, which in combination produce a working
environment that cannot or should not be tolerated by subordinate
employees.66
With these complementary fact patterns as its backdrop, the
Court begins its didactic exercise by defining —— in some
instances, redefining —— terms of art for use when addressing such
vicarious liability claims: “Supervisor” continues to mean the same
thing that it meant under pre-Ellerth/Faragher jurisprudence;
“tangible employment action” is now the universal term of art for
any change in the terms or conditions of the subordinate’s
employment, initiated or imposed by or on behalf of the employer
and requiring an official act of the employer, such as hiring,
firing, demoting, and so forth;67 “quid pro quo” is redefined,
henceforth to identify that type of vicarious liability supervisor
sexual harassment claim in which a tangible employment action is
taken and there is a nexus between the supervisor’s sexual
misconduct and the tangible employment action experienced by the
employee;68 “hostile work environment” is redefined, henceforth to
identify that type of vicarious liability supervisor sexual
66
Since the Court’s majority opinion in Oncale, 118 S. Ct. 998,
any question that the supervisor and the subordinate employee had
to be of opposite sexes to be actionable has been eliminated.
67
See supra note 19.
68
See supra note 4.
46
harassment claim in which the sexually harassed employee has not
experienced a tangible employment action —— whether or not one had
been threatened;69 “actionable” sexual harassment by a supervisor
is conduct that alters the terms or conditions of the subordinate’s
employment, and clearly violates Title VII, by either (1) resulting
in a tangible employment action (thus explicitly altering the terms
and conditions of employment) or, (2) in the absence of a tangible
employment action is so severe or pervasive as to alter implicitly
the terms and conditions of the subordinate’s employment; “severe
or pervasive” continues to describe a supervisor’s course of sexual
misconduct or the kind of work place such conduct produces, that,
as under pre-Ellerth/Faragher jurisprudence, rises above the merely
offensive and boorish and enters the realm of sexual misconduct,
and the work environment created by such conduct, that no employee
should be expected to tolerate;70 and “vicarious liability”
continues to have its traditional meaning in the context of master-
servant or principal-agent law (“traditional agency principles”)
which imposes liability on the master or principal for various acts
or omissions of its servant or agent, without any requirement of
fault on the part of the master or principal, i.e., strict
liability, liability without fault, or respondeat superior.
69
See id.
70
Harris, 510 U.S. at 21 (“Conduct that is not severe or
pervasive enough to create an objectively hostile or abusive
environment —— an environment that a reasonable person would find
hostile or abusive —— is beyond Title VII’s purview.”).
47
With that glossary firmly established, the Court proceeds to
confect the road map to be followed by district and appellate
courts when addressing any vicarious liability claim against
employers for a supervisor’s sexual harassment of a subordinate
employee. Once the court in question determines that the
litigation before it is of that ilk, the road depicted on the
Supreme Court’s map forks: One branch is to be followed by inferior
courts when considering a case that includes allegations of a
tangible employment action, now dubbed a “quid pro quo” case; the
other branch is to be followed by such courts when considering a
case that does not contain allegations of a tangible employment
action, now dubbed a “hostile work environment” case.
When the judicial journey proceeds along the “quid pro quo”
branch of the forked road and leads to a plaintiff-employee who
meets his burden of proving that (1) the defendant is his employer,
(2) the harasser is a supervisor, (3) the plaintiff was sexually
harassed by the supervisor, and (4) a tangible employment action
resulted, the employer is vicariously liable per se, according to
agency principles as reflected by § 219 of the Restatement, and
cannot assert any affirmative defenses.
Similarly, when, because the plaintiff has not alleged a
tangible employment action, the court’s journey proceeds along the
“hostile work environment” branch of the road, and leads to a
plaintiff-employee who meets his burden of proving that (1) the
defendant is his employer; (2) the harasser is a supervisor, (3) he
48
was sexually harassed by the supervisor, and (4) the supervisor’s
conduct is actionable, i.e., produces a work environment that is
either severe or pervasive, the employer is subject to vicarious
liability. But, unlike the employer in cases that follow the quid
pro quo branch of the road, the vicariously liable employer in the
non-tangible employment action (hostile work environment) case is
allowed by the Court, for Title VII policy reasons, to depart from
strict agency principles and advance one —— but only one ——
affirmative defense: The two-element, conjunctive defense comprising
exercise by the employer of reasonable care to prevent and correct
the sexually harassing behavior and the unreasonable failure of the
plaintiff-employee to take advantage of the employer’s preventive
or corrective opportunities or to avoid harm otherwise. Only if
such an employer is successful in proving both elements of this
unique affirmative defense can responsibility for a supervisor’s
actionable sexual harassment be avoided.
The pellucid teachings of the Court are easy to apply in the
instant case: We look first and foremost for a “tangible employment
action” against Ms. Indest. Finding none, we know we are to follow
the branch in the analytical road reserved for the newly-labeled
“hostile work environment” category of supervisor sexual harassment.
When we take that path, though, we must remain mindful that (1)
Arnaudet’s conduct and its results are “actionable” only if they are
severe or pervasive; and (2) if we conclude that they are, Freeman
49
is vicariously liable unless it can prove both elements of the
Ellerth/Faragher two-pronged, affirmative defense.
The undisputed facts that bear on the second element of that
affirmative defense prove conclusively that, by immediately
objecting to, reporting, and pursuing —— as far up the chain of
command as was necessary —— the offending conduct of Arnaudet, Ms.
Indest did not “unreasonably fail[] to take advantage of any
preventative or corrective opportunities provided by the employer
or to avoid harm otherwise.”71 As such, Freeman cannot advance this
(or any other) affirmative defense to escape liability, regardless
of the single fact employed by Judge Jones as the sole ratio
decidendi for her disposition of the case —— that Freeman exercised
reasonable care to prevent and correct promptly Arnaudet’s offensive
behavior.
I end, therefore, where I believe that this panel should have
ended, with what ought to be the second and deciding question of
this case: Having answered in the negative the initial question
whether a tangible employment action was taken against Indest, we
should here inquire next whether the situation created by Arnaudet’s
sexual misconduct was sufficiently severe or pervasive to be
actionable. The record of this appeal leaves no doubt that this
question must be answered in the negative: Arnaudet’s remarks and
gestures were clearly crude, offensive, and boorish, and his overt
71
Ellerth, 118 S. Ct. at 2270; Faragher, 118 S. Ct. at 2293.
50
and implied (but unfulfilled) threats of an adverse employment
action were inappropriate to say the least. But when they are
viewed in light of all traditional factors for testing the severity
or pervasiveness of such conduct, neither the conduct nor the work
environment it produced was actionable.
As the district court decided this case without benefit of the
Supreme Court’s subsequent tutelage in Ellerth and Faragher, it
could not have considered the case within that framework; it did not
have the benefit of the Court’s new road map. But we do and we must
follow it. Thus, I would affirm the court’s j.m.l. that dismissed
Indest’s vicarious liability claims against Freeman, but would not
do so because Freeman had appropriate policies in place and acted
promptly and effectively after learning of Arnaudet’s behavior.
Indeed, Indest’s equally prompt and appropriate responses stymies
Freeman’s entitlement to assert the only affirmative defense
potentially available. Rather, I would affirm because the
inappropriate conduct of the supervisor, Arnaudet, does not rise to
the level of “severe or pervasive,” and thus is not actionable for
purposes of vicarious liability.
51