Pfau v. Reed , 167 F.3d 228 ( 1998 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 96-50916.
Marie PFAU, Plaintiff-Appellant,
v.
William REED, In His Official Capacity as Director of the Defense
Contract Audit Agency, Defendant-Appellee.
Oct. 27, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before KING, DUHÉ and WIENER, Circuit Judges.
KING, Circuit Judge:
Plaintiff-appellant Marie Pfau appeals the district court's
dismissal of her claims of intentional infliction of emotional
distress and grant of summary judgment in favor of
defendant-appellee William Reed in his official capacity as
Director of the Defense Contract Audit Agency on her claims of
sexual harassment. We affirm.
I. BACKGROUND
This case arises out of the alleged sexual harassment of
plaintiff-appellant Marie Pfau while an employee of the Defense
Contract Audit Agency ("DCAA") by Pete Gonzales, Pfau's first-line
supervisor during a portion of her tenure with the DCAA. We are
called upon to evaluate the propriety of the district court's
dismissal of Pfau's claims of intentional infliction of emotional
distress and grant of summary judgment in favor of
1
defendant-appellee William Reed in his official capacity as
director of the DCAA as to her claims of sexual harassment under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17.
A. Facts1
Pfau worked for the DCAA for ten years prior to her
involuntary termination on November 9, 1993. In October of 1992,
she transferred into the DCAA audit team supervised by Gonzales.
Pfau alleges that Gonzales immediately began making "lewd and
suggestive comments" to her and "request[ing] sexually provocative
behavior from" her. Pfau alleges that Gonzales requested that she
take him on a trip with her and made sexual advances that she
rejected. Pfau contends that, upon discovering her vacation plans
for December 1992, Gonzales began asking Pfau to allow him to
accompany her on her trip and to pay his way. Pfau also alleges
that Gonzales asked her for money on several other occasions.
Pfau claims that, during her first month in Gonzales's audit
group, Gonzales called and insisted on visiting Pfau at her
apartment. According to Pfau, he came to her apartment and
insisted that they become involved. Pfau avers that she refused to
1
The recitation of facts in this subpart is limited to the
factual allegations of Pfau's complaint. Applicable summary
judgment evidence is discussed in Part II.B, infra.
Different versions of Pfau's complaint were pending
before the district court at the time that it dismissed her
claim of intentional infliction of emotional distress and at
the time that it entered summary judgment against her on her
sexual harassment claims. However, the factual allegations in
each version are similar in all material respects.
2
comply with Gonzales's demands.
Pfau filed charges of sexual harassment and discrimination
against Gonzales, along with retaliation and reprisal charges.
Pfau contends that Gonzales engaged in acts of retaliation for her
filing sexual harassment charges against him, including "sabotaged
work assignments to prevent completion, hindering performance,
withdrawing assignments, invalidating [Pfau's] audit findings,
inappropriately discussing audit findings with contractor
personnel, and subjecting her to harsh, inordinate, and unwarranted
criticism of work assignments." Pfau alleges that Gonzales denied
her the training necessary to successfully advance to higher level
assignments. She also contends that Gonzales began to assign her
to auditing projects that did not comport with her level of
experience, placed her on a performance improvement plan, and
ultimately terminated her for filing sexual harassment charges
against him. Pfau further claims that Gonzales denied her request
for sick leave on April 15, 1993.
Pfau avers that, during the investigation of her sexual
harassment charges against Gonzales, DCAA counselors pressured her
to withdraw the charges that she filed against Gonzales "in return
for a transfer or promises that her impending termination would be
halted." Pfau declined to withdraw her complaint. Pfau also
alleges that DCAA counselors failed to document her complaints and
only acknowledged them after she complained to DCAA management on
numerous occasions. Pfau contends that she was ultimately
compelled to contact the DCAA's central office equal employment
3
opportunity personnel in order to procure proper documentation of
her claims. She claims that the DCAA never conducted an impartial
evaluation of her job performance and charges of sexual harassment
prior to her termination.
B. Procedure
On March 7, 1995, Pfau filed her original complaint, naming as
defendants Reed in his official capacity as Director of the DCAA,
the United States Department of Defense, William J. Perry in his
official capacity as Secretary of the Defense, and Pete Gonzales,
both in his individual and official capacities (collectively
"defendants"). The complaint alleged causes of action for sexual
harassment under Title VII and the Civil Rights Act of 1991 and a
claim of intentional infliction of emotional distress. On June 19,
1995, Pfau filed her first amended complaint.
On July 24, 1995, the defendants filed a motion seeking
dismissal of all claims against all defendants except the Secretary
of Defense and dismissal of Pfau's claim of intentional infliction
of emotional distress. The court initially denied the motion, but
upon a motion for reconsideration, reversed its earlier ruling in
an October 24, 1995 order. It dismissed Pfau's claim of
intentional infliction of emotional distress with prejudice and
held that the Director of the DCAA was the only proper party
defendant with respect to Pfau's Title VII claims.
On October 27, 1995, Pfau filed her second amended complaint,
which added the United States as a party defendant and asserted a
claim of intentional infliction of emotional distress against it
4
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),
2671-2680. Pfau's second amended complaint also retained her cause
of action for intentional infliction of emotional distress against
Gonzales in his individual and official capacities.
The DCAA filed a motion to correct the caption of the case and
to dismiss Pfau's second amended complaint. The court granted the
motion and ordered Pfau to correct her complaint so that it
complied with the court's October 24, 1994 order. Accordingly, on
January 18, 1996, Pfau filed her third amended complaint, which
named only the Director of the DCAA in his official capacity as a
defendant and dropped her claim of intentional infliction of
emotional distress.
On April 19, 1996, the DCAA filed a motion for dismissal of
Pfau's sexual harassment claims or, in the alternative, partial
summary judgment. On August 16, 1996, the district court rendered
summary judgment in favor of the DCAA on Pfau's sexual harassment
claims. Pfau filed a timely notice of appeal.
II. DISCUSSION
Pfau argues that the district court erred in (1) dismissing
her claims of intentional infliction of emotional distress against
the DCAA and Gonzales in his individual capacity and (2) granting
summary judgment in favor of the DCAA on Pfau's sexual harassment
claims. We analyze the propriety of the court's order of dismissal
and grant of summary judgment in turn.
A. Dismissal
1. Standard of Review
5
We review a dismissal on the pleadings de novo, applying the
same standard as the district court. See Truman v. United States,
26 F.3d 592, 593 (5th Cir.1994). "Accordingly, we accept the
well-pleaded allegations in the complaint as true, and we construe
those allegations in the light most favorable to the plaintiff."
Id. at 594. We will therefore uphold the dismissal of Pfau's
intentional infliction of emotional distress claims "only if it
appears that no relief could be granted under any set of facts that
could be proven consistent with the allegations." Rubinstein v.
Collins, 20 F.3d 160, 166 (5th Cir.1994) (internal quotation marks
omitted).
2. Analysis
The district court dismissed Pfau's intentional infliction of
emotional distress claims on the ground that they are preempted by
the Civil Service Reform Act ("CSRA"), Pub.L. No. 95-454, 92 Stat.
1111 (1978) (codified as amended in scattered sections of 5
U.S.C.), and Title VII. We do not address the preemptory effect of
the CSRA because we conclude that Pfau's claims are preempted by
Title VII.
Pfau acknowledges that Title VII provides the "exclusive,
pre-emptive administrative and judicial scheme for the redress of
federal employment discrimination." Brown v. General Servs.
Admin., 425 U.S. 820, 829, 96 S. Ct. 1961, 1966, 48 L. Ed. 2d 402
(1976). We have interpreted the Supreme Court's mandate in Brown
to mean that, when a complainant against a federal employer relies
on the same facts to establish a Title VII claim and a non-Title
6
VII claim, the non-Title VII claim is "not sufficiently distinct to
avoid" preemption. Rowe v. Sullivan, 967 F.2d 186, 189 (5th
Cir.1992); see also Jackson v. Widnall, 99 F.3d 710, 716 (5th
Cir.1996).
Pfau advances four arguments as to why her claims of
intentional infliction of emotional distress are nonetheless not
preempted by Title VII. First, Pfau argues that the elements that
a plaintiff must prove in order to establish a claim of quid pro
quo or hostile environment sexual harassment under Title VII are
different from the elements necessary to establish a claim of
intentional infliction of emotional distress. Second, Pfau urges
that the purposes served by Title VII and the cause of action for
intentional infliction of emotional distress are distinct; the
former serves to "strike at the entire spectrum of disparate
treatment of men and women in employment," Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 64, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986)
(internal quotation marks omitted), whereas the latter serves to
protect individuals from injuries to their psyches. See Twyman v.
Twyman, 855 S.W.2d 619, 621-22 (Tex.1993). Third, Pfau contends
that she has advanced types and instances of conduct in support of
her intentional infliction of emotional distress claims different
from those she has advanced in support of her Title VII claims.
Fourth, Pfau contends that her claim against the DCAA is cognizable
under the FTCA, and therefore cannot be preempted by Title VII.
None of these arguments warrants the conclusion advanced by Pfau
regarding the scope of Title VII preemption.
7
First, the fact that the legal elements a plaintiff must
establish in order to state a claim of sexual harassment are
different from those necessary to state a claim for intentional
infliction of emotional distress does not preclude preemption
because the same facts may establish different legal elements. For
example, a claimant seeking to establish a claim of hostile
environment discrimination must prove, among other things, that the
claimant suffered unwelcome, harassing sexual conduct. See Jones
v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.1986). A claimant
seeking to establish a claim for intentional infliction of
emotional distress must prove, among other things, that the
claimant was subject to extreme and outrageous conduct. See
Twyman, 855 S.W.2d at 621. While these are distinct legal
elements, the same facts may nonetheless establish both of them in
many circumstances. By establishing the occurrence of sexually
harassing conduct, a plaintiff may at the same time establish the
existence of extreme and outrageous conduct.
Second, the fact that private actions under Title VII and the
common law tort of intentional infliction of emotional distress
serve different purposes cannot dictate our decision as to
preemption. As demonstrated above, sexually harassing conduct may
also be extreme and outrageous conduct, and vice versa. When the
same set of facts supports a Title VII claim and a non-Title VII
claim against a federal employer, Title VII preempts the non-Title
VII claim. See Jackson, 99 F.3d at 716; Rowe, 967 F.2d at 189.
Under the controlling case law in this circuit, the existence of
8
multiple reasons for preventing a particular type of conduct is
therefore irrelevant to the determination of preemption.
Third, Pfau's contention that the factual allegations of her
first amended complaint "cannot reasonably be read as conduct
constituting only employment-related sexual harassment" likewise
does not establish the absence of Title VII preemption. The mere
fact that some of the alleged harassment occurred away from the
office and after business hours does not support Pfau's contention
that the district court "misconstrued which factual allegations
supported which claims." All of the factual allegations in Pfau's
complaint support her claim under Title VII.
In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct.
2399, 91 L. Ed. 2d 49 (1986), the Supreme Court concluded that a
plaintiff who suffered sexual harassment both during and after
office hours had stated a claim under Title VII. Id. at 66-67, 106
S.Ct. at 2405-06. The fact that the Court discussed at length the
plaintiff's allegations of sexual harassment outside the office
setting indicates that those allegations formed part of the basis
for the plaintiff's Title VII claim. See id. at 60-61, 106 S.Ct.
at 2402-03. The Court stated that
"[s]exual harassment which creates a hostile or offensive
environment for members of one sex is every bit the arbitrary
barrier to sexual equality at the workplace that racial
harassment is to racial equality. Surely, a requirement that
a man or woman run a gauntlet of sexual abuse in return for
the privilege of being allowed to work and make a living can
be as demeaning and disconcerting as the harshest of racial
epithets."
Id. at 67, 106 S.Ct. at 2405 (quoting Henson v. Dundee, 682 F.2d
897, 902 (11th Cir.1982)). Clearly, the "gauntlet of sexual abuse"
9
that an employee is required to run need not be confined to working
hours in order to affect a " "term, condition, or privilege' of
employment within the meaning of Title VII." Id. Thus, we reject
Pfau's contention that her allegations that Gonzales called her at
home and demanded that she take him on vacation with her are not
allegations that support her Title VII claims. Pfau cannot avoid
Title VII preemption by picking and choosing which of her factual
allegations she wishes to allocate to her Title VII claims and to
her independent torts claims.2
Fourth, Pfau's contention that her intentional infliction of
emotional distress claim against the DCAA is not preempted by Title
VII because it is otherwise cognizable under the FTCA lacks merit.
Assuming that the claim is not barred by the FTCA, this fact
plainly does not preclude Title VII preemption. In Brown, the
Supreme Court observed that "a precisely drawn, detailed statute
2
Pfau urges us to adopt the position on Title VII preemption
taken by the Ninth Circuit in Brock v. United States, 64 F.3d 1421
(9th Cir.1995). In that case, the plaintiff, a former employee of
the Forest Service, brought suit under the FTCA against the United
States for negligent supervision based on her being raped and
otherwise sexually harassed by her supervisor. See id. at 1422.
The court concluded that, while the plaintiff's rape clearly
constituted a form of sexual discrimination, it was also "more than
sexual discrimination," and therefore justified the plaintiff's
assertion of non-Title VII claims against the government. Id. at
1423.
We decline to adopt the position taken by the Ninth
Circuit in Brock because it is inconsistent with the
jurisprudence of this circuit. So long as the factual
predicate of a claimant's non-Title VII claims is the same as
the factual predicate for the claimant's Title VII claims
against a federal agency, we are bound to conclude that Title
VII preempts the non-Title VII claims. See Jackson, 99 F.3d
at 716; Rowe, 967 F.2d at 189.
10
pre-empts more general remedies." Brown, 425 U.S. at 834, 96 S.Ct.
at 1968. Because Congress has manifested a clear intent that Title
VII serve as the "exclusive, pre-emptive administrative and
judicial scheme for the redress of federal employment
discrimination," id. at 829, 96 S.Ct. at 1966, Pfau cannot seek
relief for such discrimination through the more general remedy
afforded by the FTCA.
Pfau also challenges the district court's dismissal of her
intentional infliction of emotional distress claim against Gonzales
in his individual capacity. However, the district court's
dismissal of Pfau's claim against Gonzales in his individual
capacity was proper for the same reasons that the court's dismissal
of Pfau's claim against the DCAA was proper. Title VII's
preemptive effect as to claims against individual supervisors is
coextensive with its preemptive effect as to claims against federal
agencies. See Newbold v. United States Postal Serv., 614 F.2d 46,
47 (5th Cir.1980); Cazalas v. United States Dep't of Justice, 569
F. Supp. 213, 225-27 (E.D.La.1983), aff'd, 731 F.2d 280 (5th
Cir.1984).
B. Summary Judgment
1. Standard of Review
"We review a grant of summary judgment de novo, applying the
same criteria used by the district court in the first instance."
Texas Manufactured Housing Ass'n v. City of Nederland, 101 F.3d
1095, 1099 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S. Ct.
2497, 138 L. Ed. 2d 1003 (1997). Summary judgment is proper "if the
11
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct.
2548, 2554-55, 91 L. Ed. 2d 265 (1986).
2. Analysis
The district court entered summary judgment in favor of the
DCAA on Pfau's claims of quid pro quo and hostile environment
sexual harassment. The court observed that Pfau's claim of quid
pro quo sexual harassment required proof of the following elements:
(1) "that she is a member of a protected group;"
(2) "that she was subject to unwelcome sexual harassment;"
(3) "that the complained-of harassment was based upon sex;"
(4) "that her reaction to the harassment affected tangible
aspects of the terms and conditions of her employment, with
her acceptance or rejection of the harassment being either an
express or implied condition to receipt of a benefit to or the
cause of a tangible adverse effect on the terms or conditions
of her employment;" and
(5) "respondeat superior."
Ellert v. University of Texas, 52 F.3d 543, 545 (5th Cir.1995).
The court further observed that Pfau's claim of hostile environment
sexual harassment required proof of the following elements:
"(1) [t]he employee belongs to a protected group ...;
(2) [t]he employee was subject to unwelcome sexual harassment,
i.e. sexual advances, requests for sexual favors, and other
verbal and physical conduct of a sexual nature that is
unwelcome in the sense that it is unsolicited or unincited and
is undesirable or offensive to the employee;
(3) [t]he harassment complained of was based upon sex ...;
12
(4) [t]he harassment complained of affected a "term, condition
or privilege of employment,' i.e., the sexual harassment must
be sufficiently severe as to alter the conditions of
employment and create an abusive working environment;
(5) [r]espondeat superior, i.e., that the employer knew or
should have known of the harassment in question and failed to
take prompt remedial action."
Waltman v. International Paper Co., 875 F.2d 468, 477 (5th
Cir.1989) (brackets and ellipses in original) (quoting Jones v.
Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir.1986)).
The district court concluded that no genuine issue of
material fact existed as to the respondeat superior element of
either Pfau's quid pro quo or hostile environment sexual harassment
claims.3
Pfau challenges the district court's entry of summary
judgment against her on her sexual harassment claims on the ground
that a genuine issue of material fact exists as to the respondeat
superior elements of both her quid pro quo and hostile environment
sexual harassment claims. Pfau advances two theories in support of
this proposition. First, she argues that a genuine issue of
material fact exists as to whether Gonzales was her "employer"
within the meaning of Title VII's definition of that term. She
contends that, if Gonzales was her employer, then the DCAA is
strictly liable under Title VII for Gonzales's harassment. Second,
3
Use of the term "respondeat superior " as an element in
claims of quid pro quo and hostile environment sexual harassment
may be a bit misleading to the extent that the term traditionally
implies strict employer liability. See BARBARA LINDEMANN & PAUL
GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 760-61 n. 85 (3d ed.1996). In the
context of quid pro quo and hostile environment sexual harassment
prima facie claims, the term means more generally a legal basis for
employer responsibility. See id.
13
she argues that, even if Gonzales is not her employer or an agent
thereof, a genuine issue of material fact exists as to whether the
DCAA knew or should have known of his harassment of Pfau and other
DCAA employees and failed to take prompt remedial action. We find
each of these arguments to be without merit.4
a. Gonzales as "Employer"
Title VII prohibits employers from, among other things,
"discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
4
In contending that genuine issues of material fact precluded
the district court's entry of summary judgment against her, Pfau
relies to a large extent on excerpts from her second amended
affidavit, which she submitted to the district court along with her
motion for reconsideration of the court's order granting summary
judgment. The DCAA contends that, because this affidavit was not
before the district court when it rendered summary judgment for the
DCAA, we cannot consider it on appeal.
The DCAA correctly observes that "materials not presented
to the district court for consideration of a motion for
summary judgment are never properly before the reviewing court
on appeal from the judgment granting the motion." Munoz v.
International Alliance of Theatrical Stage Employees, 563 F.2d
205, 209 (5th Cir.1977). However, "[i]f [a] party seeking
reconsideration submits additional materials, the trial court
may consider those materials in its discretion. If the lower
court does consider the materials and still grants summary
judgment to the moving party, the appellate court may review
all of the materials de novo." Fields v. City of S. Houston,
922 F.2d 1183, 1188 (5th Cir.1991) (citations omitted).
The district court's order denying Pfau's motion for
reconsideration states that "[t]he Court has carefully
reviewed the foregoing [motion and affidavits] and finds that
these additional affidavits do not in any way merit a reversal
of the Court's grant of Defendant's Motion for Partial Summary
Judgment." Because the district court obviously considered
the additional affidavits submitted by Pfau and still
concluded that summary judgment was properly granted, we may
review these affidavits as well.
14
national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII defines
"employer" as "a person engaged in an industry affecting commerce
who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding calendar
year, and any agent of such a person ...." 42 U.S.C. § 2000e(b)
(emphasis added). While the plain language of the above provisions
facially appears to provide a basis for rendering agents of an
employer personally liable for their discriminatory acts, this
circuit has interpreted Title VII's definition of employer as
merely importing common law agency principles of respondeat
superior liability. See Grant v. Lone Star Co., 21 F.3d 649, 652
(5th Cir.1994) ("[T]he purpose of the "agent' provision in §
2000e(b) was to incorporate respondeat superior liability into
title VII."). Thus, the actions of one who constitutes an agent of
an employer may be considered the actions of the employer for
purposes of imposing Title VII liability on the employer.
Pfau contends that Gonzales was the DCAA's agent within the
meaning of Title VII, and that his knowledge of his own sexually
harassing conduct is imputed to the DCAA, rendering it strictly
liable under Title VII. We reject this contention.
In Meritor, the Supreme Court rejected the notion that
supervisory personnel are agents per se within the meaning of Title
VII's definition of employer, and thus rejected the notion that
employers are strictly liable for the sexually harassing conduct of
their supervisors in all circumstances. See Meritor, 477 U.S. at
72, 106 S.Ct. at 2407-08. The Court "decline[d] ... to issue a
15
definitive rule on employer liability" for the actions of
supervisory personnel, but indicated that common law agency
principles may be useful in determining the situations in which a
supervisor constitutes an employer's agent for Title VII purposes.
See id. at 72, 106 S. Ct. at 2407-08.
Pfau contends that Meritor, along with cases in this circuit
and others interpreting it, establishes that Gonzales was the
DCAA's agent within the meaning of Title VII's definition of
employer, and thus that his sexually harassing conduct is directly
attributable to the DCAA.5 We disagree. The summary judgment
5
To date, cases in this circuit that have broached the issue
of whether a supervisor is an agent of an employer for purposes of
Title VII have not expressly differentiated between the existence
of an agency relationship for purposes of a quid pro quo sexual
harassment claim and the existence of such a relationship for
purposes of a hostile environment sexual harassment claim. To the
extent that a determination that a supervisory employee is the
employer's agent provides a basis for holding the employer strictly
liable for the supervisor's harassing conduct, it is possible that
a supervisor may be the employer's agent for purposes of
supervisory conduct that constitutes quid pro quo sexual
harassment, but not for purposes of supervisory conduct that
constitutes hostile environment sexual harassment. See LINDEMANN &
GROSSMAN, supra, at 775, 812 (observing that "[m]ost courts have
found employers automatically liable for the actions of their
supervisory personnel in quid pro quo cases," but that "[h]ostile
environment sexual harassment normally does not trigger respondeat
superior liability because sexual harassment rarely, if ever, is
among the official duties of a supervisor"). In Henson v. City of
Dundee, 682 F.2d 897 (11th Cir.1982), the case that set forth the
frameworks for prima facie claims of quid pro quo and hostile
environment sexual harassment adopted in this circuit, see Jones,
793 F.2d at 719-20, 721-22, the Eleventh Circuit explained the
distinction regarding the propriety of strict employer liability
for supervisory conduct constituting quid pro quo and hostile
environment sexual harassment:
In the classic quid pro quo case an employer is strictly
liable for the conduct of its supervisors, while in the
work environment case the plaintiff must prove that
higher management knew or should have known of the sexual
16
evidence indicates that, as a first-line supervisor, Gonzales
lacked the authority to hire and fire agency employees and could
only recommend that employees receive awards or be subject to
harassment before the employer may be held liable. The rationale
underlying this difference in the treatment of the two cases is
easily stated. The environment in which an employee works can be
rendered offensive in an equal degree by the acts of supervisors,
or even strangers to the workplace. The capacity of any person to
create a hostile or offensive environment is not necessarily
enhanced or diminished by any degree of authority which the
employer confers upon that individual. When a supervisor
gratuitously insults an employee, he generally does so for his
reasons and by his own means. He thus acts outside the actual or
apparent scope of the authority he possesses as a supervisor. His
conduct cannot automatically be imputed to the employer any more so
than can the conduct of an ordinary employee.
The typical case of quid pro quo sexual harassment
is fundamentally different. In such a case, the
supervisor relies upon his apparent or actual authority
to extort sexual consideration from an employee. Therein
lies the quid pro quo. In that case the supervisor uses
the means furnished to him by the employer to accomplish
the prohibited purpose. He acts within the scope of his
actual or apparent authority to hire, fire, discipline or
promote. Because the supervisor is acting within at
least the apparent scope of the authority entrusted to
him by the employer when he makes employment decisions,
his conduct can fairly be imputed to the source of his
authority.
Id. at 910 (citations, internal quotation marks, and footnotes
omitted). However, Pfau has relied both on appeal and at the
district court level almost exclusively on cases addressing
the issue of agency, and thus the applicability of strict
employer liability, in the context of hostile environment
claims and does not contend that Gonzales may be an agent of
the DCAA for purposes of her quid pro quo claim but not for
purposes of her hostile environment claim. We decline to
raise this issue on our own motion, and decide the case based
on the arguments advanced by the parties. See In re Quenzer,
19 F.3d 163, 165 (5th Cir.1993) ("Typically, we will not
consider on appeal matters not presented to the trial
court."). Because we conclude that Gonzales was not the
DCAA's agent with respect to Pfau's hostile environment claim,
we also conclude that he was not an agent for purposes of her
quid pro quo claim.
17
disciplinary action. Gonzales could also issue assignments to
auditors and determine the number of hours allocated to each
assignment. The case law in this circuit indicates that this
degree of authority is, as a matter of law, insufficient to
establish that a supervisor is an agent within the meaning of Title
VII.
In Garcia v. Elf Atochem N.A., 28 F.3d 446 (5th Cir.1994),
this court concluded that immediate supervisors may be agents of
employers within the meaning of Title VII's definition of employer
when they are " "delegated the employer's traditional rights, such
as hiring and firing.' " Id. at 451 (quoting Quijano v. University
Fed. Credit Union, 617 F.2d 129, 131 (5th Cir.1980)). While the
court acknowledged that the phrase "any agent" in Title VII's
definition of employer was entitled to a liberal construction, it
declined to extend the definition "to include all supervisory
personnel, not just those with the ability to hire and fire."
Garcia, 28 F.3d at 451.
We recognize that some authority exists for the proposition
that a supervisor need not have the authority to hire and fire in
order to be considered an agent of the employer for Title VII
purposes. See Canutillo Indep. Sch. Dist. v. Leija, 101 F.3d 393,
397 (5th Cir.1996) ("[T]he Fourth Circuit has explained, "[The
agent] need not have ultimate authority to hire and fire to qualify
as an employer, as long as he or she has significant input into
such personnel decisions.' " (quoting Paroline v. Unisys Corp., 879
F.2d 100, 104 (4th Cir.1989), vacated in part on other grounds, 900
18
F.2d 27 (4th Cir.1990) (en banc))), cert. denied, --- U.S. ----,
117 S. Ct. 2434, 138 L. Ed. 2d 195 (1997). However, even courts that
take this more liberal approach acknowledge that the supervisor
must exercise "significant control over the plaintiff's hiring,
firing or conditions of employment." Paroline, 879 F.2d at 104.
The summary judgment evidence in this case indicates that the
minimal authority wielded by Gonzales falls short of such
significant control.6 We therefore conclude that the district
court did not err in ruling as a matter of law that Gonzales was
not Pfau's employer for purposes of determining the DCAA's
liability under Title VII.7
6
Pfau makes much of the fact that Gonzales stated in a
memorandum to the DCAA regional director that he "was instrumental
and mainly responsible for the proper procedural handling of the
termination of Ms. Pfau." However, the fact that Gonzales managed
the procedural aspects of Pfau's termination in no way indicates
that he had significant input in the decision to fire her.
7
In Hamilton v. Rodgers, 791 F.2d 439 (5th Cir.1986), a case
not relied upon by Pfau, a panel of this court took an expansive
view of the "any agent" provision of Title VII's definition of
employer. In that case, the court concluded that fire department
supervisors whose authority was limited to tasks such as assigning
cars and staffing shifts were employers within the meaning of 42
U.S.C. § 2000e(b). See id. at 442. The court reasoned that " "[a]
person is an agent under § 2000e(b) if he participated in the
decision-making process that forms the basis of the
discrimination.' " Id. at 443 (quoting Jones v. Metropolitan
Denver Sewage Disposal Dist., 537 F. Supp. 966, 970 (D.Colo.1982)).
The court premised its expansive reading of § 2000e(b) on
the notion that a narrower reading "would encourage
supervisory personnel to believe that they may violate Title
VII with impunity." Id. This rationale for the court's
interpretation of § 2000e(b) presupposes that individual
employees such as the supervisors at issue could be held
liable in their individual capacities under Title VII. See
Harvey v. Blake, 913 F.2d 226, 228 n. 2 (5th Cir.1990). Prior
to Hamilton, a panel of this circuit held that public officials
could not be held liable in their individual capacities under Title
19
b. The DCAA's Knowledge and Remedial Action
Pfau argues in the alternative that a genuine issue of
material fact exists as to whether the DCAA knew or should have
known of Gonzales's harassment of Pfau and other DCAA employees and
failed to take prompt remedial action. She advances two theories
in support of this proposition: (1) the DCAA had actual knowledge
of Gonzales's harassment of her and failed to take prompt remedial
action, and (2) sexual harassment by Gonzales and other officials
was so pervasive, open, and obvious that the DCAA had constructive
notice of Gonzales's harassment of her and failed to take prompt
remedial action. The summary judgment evidence that Pfau has
submitted fails to create a genuine issue of material fact as to
either of these theories.
Pfau contends that the DCAA had actual notice that Gonzales
had harassed her and other DCAA employees prior to December 9,
1992, the date on which she first complained to upper management
that Gonzales had sexually harassed her. She contends that, on
April 16, 1992, she wrote a letter to Martin Munoz, the former
Central Region EEO officer for the DCAA's office in Irving, Texas,
complaining of sexual harassment. However, the letter contains no
reference to sexual harassment by Gonzales, and only complains of
VII. See Clanton v. Orleans Parish Sch. Bd., 649 F.2d 1084, 1099-
100 (5th Cir. Unit A July 1981). Thus, to the extent that Hamilton
's broad reading of § 2000e(b) is premised upon a legal conclusion
that would effectively overrule a prior panel opinion, we do not
feel constrained to apply it in this case. See Ryals v. Estelle,
661 F.2d 904, 906 (5th Cir. Nov.1981) ("It has long been a rule of
this court that no panel of this circuit can overrule a decision
previously made by another.").
20
conduct of female co-workers.
Pfau also claims that a September 12, 1992 memorandum that she
sent to Dale Collins, the DCAA's Director of Personnel, establishes
that the DCAA had knowledge of her harassment by Gonzales prior to
December of 1992. The memorandum states generally that "[t]he
responsibility of management to prevent sexual harassment is not
being performed." However, it contains no allegations of sexual
harassment on the part of Gonzales, and actually urges that
Gonzales "should be given fair treatment." The memorandum
therefore provided the DCAA with no notice that Gonzales had
sexually harassed Pfau.
Finally, Pfau contends that Gonzales harassed two other DCAA
employees—Tonya Scherchyl Martinez and Carolyn Pease—in 1990 and
1991 and that she reported these instances of supposed harassment
to management. However, Pfau has offered no deposition testimony
or affidavits from these other employees establishing that they
experienced sexual harassment. Rather, she simply states in her
own affidavit that these other employees told her that Gonzales had
harassed them. This portion of Pfau's affidavit is incompetent
summary judgment evidence because it consists of inadmissible
hearsay. See Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th
Cir.1997).
The competent summary judgment evidence that speaks directly
to the DCAA's knowledge of Gonzales's alleged sexual harassment is
limited to the affidavits of Michael Gonzales, the DCAA's Central
Region EEO officer in Irving, Texas; James C. Bourne, Regional
21
Audit Manager of the DCAA's Central Division; Harold J. Lamb, the
former Branch Manager of the DCAA's Austin, Texas office; and
Dennis Low, a supervisory auditor at the DCAA's Austin office. In
each affidavit, the affiant states that he had no knowledge of any
allegations of sexual harassment by Gonzales prior to Pfau's
complaint in December 1992. Thus, no genuine issue of material
fact exists as to whether the DCAA had actual knowledge of sexually
harassing conduct on the part of Gonzales prior to December 9,
1992.
Likewise, no genuine issue of material fact exists as to
whether DCAA management should have known of such conduct prior to
December 1992 based on the pervasiveness of sexual harassment
within the agency. Pfau has not produced summary judgment evidence
indicating that Gonzales's alleged sexual harassment was so
pervasive that the DCAA should have known about it as it was
happening. Pfau's affidavit indicates that much of Gonzales's
alleged sexually harassing behavior took place outside the office
(e.g., telephone calls at home and visits to her apartment). Pfau
alleges that, on "many" occasions during working hours, Gonzales
would stand very near her and that he "continuously pressured" her
during working hours to take him on vacation. Pfau also states in
her affidavit that on one occasion Gonzales called her into his
office and requested that they have lunch at her apartment, a
comment that she interpreted to be a request for sexual relations.
Pfau also mentions a few other specific instances of sexually
harassing conduct in Gonzales's office. She alleges that, on one
22
occasion, he told her that her blouse was unbuttoned when it was
not and that, on another, he told her to turn around so that he
could see her backside. She also states that, on another occasion,
Gonzales requested that Pfau stand very near him in his office and
became angry when she would not move closer.
Pfau has also offered the affidavit of Mary Lou Kirschbaum, a
former supervisory auditor in the DCAA's Austin office. In her
affidavit, Kirschbaum states that on one occasion Gonzales sent a
message to her during a business meeting requesting that she call
him at his hotel and that on another occasion he requested that she
call him at the home of the DCAA's Central Regional Director. She
also claims that she accompanied Gonzales to dinner at an expensive
restaurant and that he expected her to pay the bill. She indicates
that Gonzales "brought up this incident in front of Dennis Low, who
was then the special assistant to the Branch Manager of the DCAA
Austin office," and that she was embarrassed by this.8
Kirschbaum also states that she heard Gonzales make "sexual
jokes, comments, and innuendos during work hours" and that he would
make "unwelcome sexual contact" with her and other female
employees. Kirschbaum provides no description of the "sexual
contact" to which she refers, nor any basis for her conclusion that
8
We question whether the above events described by Kirschbaum
in any sense constitute hostile environment sexual harassment.
Gonzales's requests for telephone calls and expectation that
Kirschbaum pick up an expensive dinner tab, while perhaps
inconsiderate, are not the sort of "severe or pervasive" conduct
that would " "alter the conditions of [Kirschbaum's] employment and
create an abusive working environment.' " Meritor, 477 U.S. at 67,
106 S. Ct. at 2405 (internal quotation marks omitted).
23
the purported contact with other employees was unwelcome or sexual.
The above allegations of specific instances of Gonzales's
sexually harassing conduct, while perhaps establishing a fact issue
as to whether he created a hostile work environment for Pfau, do
not create a genuine issue of material fact as to whether
Gonzales's harassment was so open and obvious that the DCAA should
be charged with constructive notice of it.9 This conclusion is
bolstered by the fact that much of the alleged conduct took place
outside the working environment and the affidavits offered by Pfau
contain little indication that any substantial portion of the
alleged sexual harassment took place in the presence of other
employees.10
9
In many cases the affidavits of Pfau and Kirschbaum simply
state that the specific events that they describe occurred "before
December 9, 1992" or "before Marie Pfau filed her formal sexual
harassment complaint against Pete Gonzales" and provide no
indication of how far in advance of Pfau's formal complaint the
alleged conduct occurred. Thus, even if we were to conclude that
a reasonable jury could find that the pervasiveness of Gonzales's
alleged harassment provided the DCAA with constructive notice of
it, Pfau has failed to create a fact issue as to the timeliness of
the DCAA's response because she has provided no indication of how
much time elapsed between the point of constructive notice and the
DCAA's response.
10
Pfau also argues that numerous other male supervisors at the
DCAA also engaged in sexual harassment. She contends that the
pervasiveness of sexual harassment by these other employees
provided the DCAA with constructive notice that sexual harassment
was occurring within the organization. However, Pfau's complaint
is limited to allegations that Gonzales sexually harassed her.
Accordingly, Pfau's complaint seeks recovery only for Gonzales's
hostile environment and quid pro quo sexual harassment. We fail to
see how harassment by other supervisors, regardless of how
pervasive, could have provided the DCAA with constructive notice
that Gonzales had been engaged in harassment.
Authority exists for the proposition that, when
harassment is sufficiently pervasive, an employer may be
24
We find further support for our conclusion that no genuine
issue of material fact exists as to whether the DCAA had
constructive notice of Gonzales's harassment of Pfau in the fact
that the summary judgment evidence indicates that the DCAA had a
structured, accessible grievance procedure that Pfau could (and
ultimately did) use to provide the DCAA with actual notice of her
harassment. In Meritor, the Supreme Court rejected the defendant
employer's argument "that the mere existence of a grievance
procedure and a policy against discrimination, coupled with the
[plaintiff's] failure to invoke the procedure, must insulate [the
defendant] from liability." Meritor, 477 U.S. at 72, 106 S.Ct. at
2408. However, the court went on to point out that the defendant's
nondiscrimination policy and grievance procedure suffered from two
distinct infirmities: (1) the nondiscrimination policy "did not
address sexual harassment in particular, and thus did not alert
employees of their employer's interest in correcting that form of
discrimination;" and (2) the grievance procedure would have
liable on the basis of constructive knowledge. See, e.g., Waltman
v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989).
However, in the cases that have held employers liable on the basis
that the pervasiveness of sexual harassment implies constructive
knowledge, the pervasive conduct is the conduct of which the
plaintiff complains. See id. (concluding that sexually explicit
graffiti and multiple instances of unwanted physical contact that
formed the basis of plaintiff's claim of hostile environment sexual
harassment were also sufficiently pervasive to create a fact issue
as to whether employer had constructive notice of harassment). In
this case, Pfau has sought recovery only for the hostile
environment created by Gonzales and Gonzales's quid pro quo sexual
harassment. She does not seek recovery for hostile environment or
quid pro quo sexual harassment by other supervisors. Accordingly,
the pervasiveness of harassment by other supervisors cannot
logically form a basis for holding the DCAA liable.
25
required the plaintiff to report her harassment to her
supervisor—the very person who had been sexually harassing her.
See id. at 72-73, 106 S.Ct. at 2408-09. The court observed that,
in the absence of these infirmities, the defendant's argument that
the presence of these policies should insulate it from a finding of
constructive notice "might be substantially stronger." See id. at
73, 106 S.Ct. at 2408.
The summary judgment evidence in this case indicates that (1)
the DCAA had a specific policy against sexual harassment and
provided sexual harassment training to employees and (2) the DCAA's
grievance procedure did not require Pfau to report her harassment
to Gonzales. As such, the DCAA's "procedures were better
calculated to encourage victims of harassment to come forward" than
the procedures at issue in Meritor. Id. We express no opinion as
to whether the DCAA's grievance procedure and sexual harassment
policy may of themselves bar a finding of constructive notice.
However, the presence of these procedures, coupled with the sparse
summary judgment evidence indicating that Gonzales's harassment of
DCAA employees was open and pervasive, warrant our conclusion that
no genuine issue of material fact exists as to whether the DCAA had
constructive notice that Gonzales was harassing Pfau prior to her
complaint in December 1992.
Pfau likewise has failed to raise a genuine issue of material
fact as to the adequacy of the DCAA's remedial response once it had
notice of Gonzales's alleged sexual harassment. In her affidavit,
Pfau conclusorily states that the EEO counselors who investigated
26
her formal complaint attempted to "whitewash" her complaint and
that she "believed that the investigators and counselors ... had
little interest in getting at the truth." Such conclusory and
speculative assertions are not competent summary judgment evidence.
See Lechuga v. Southern Pac. Transp. Co., 949 F.2d 790, 798 (5th
Cir.1992) ("Conclusory statements in an affidavit do not provide
facts that will counter summary judgment evidence, and testimony
based on conjecture alone is insufficient to raise an issue to
defeat summary judgment." (footnote omitted)).
The summary judgment evidence indicates that upon receiving
Pfau's formal complaint, the DCAA's EEO department began a prompt
investigation. Paula A. McFarland, an EEO counselor for the DCAA,
met with Gonzales. Her report on Pfau's complaint states that she
spoke with Gonzales about sexual harassment training and complaint
procedure and instructed him not to call Pfau at home. Harold
Lamb, the DCAA Austin Branch Manager, states in his affidavit that
he met with Gonzales and instructed him not to call DCAA employees
after hours. He also states that he "reminded [Gonzales] about the
DCAA policy prohibiting sexual harassment and admonished him to not
engage in any activity which might in any way be considered
unwelcome sexual harassment." This remedial response passes muster
under Title VII. See Waymire v. Harris County, 86 F.3d 424, 429
(5th Cir.1996) (holding reprimand of employee who had engaged in
sexual harassment sufficient as a matter of law where employee had
no prior documented offenses); Landgraf v. USI Film Products, 968
F.2d 427, 430 (5th Cir.1992) ("Title VII does not require that an
27
employer use the most serious sanction available to punish an
offender, particularly where, as here, this was the first
documented offense by an individual employee."), aff'd, 511 U.S.
244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
Moreover, Pfau essentially admitted in deposition that
Gonzales engaged in no more sexually harassing conduct after she
made her formal complaint.11 McFarland's investigative report
states that "Ms. Pfau stated that the comments and telephone calls
had stopped and that I should just write in the EEO's counselor's
report that the problem was resolved." The summary judgment
evidence thus indicates that no genuine issue of material fact
exists as to whether the DCAA's remedial efforts were sufficient to
avoid liability under Title VII.
Because no genuine issue of material fact exists with respect
to either of the theories advanced by Pfau in support of imposing
liability on the DCAA for Gonzales's alleged quid pro quo and
hostile environment sexual harassment, the district court properly
entered summary judgment in favor of the DCAA on Pfau's sexual
harassment claims.
11
Pfau contends that Gonzales made one more harassing statement
to her in July of 1993 when she took a business trip to Corpus
Christi. In deposition, she made the following statement:
He told me that if I ever needed him I could call him and
where was the location of my hotel room. And I thought
that a pretty dangerous bunch of words for this guy to
use.
However, Pfau admitted in deposition that she believed that
this statement merely "bordered on harassment." It certainly
does not create a fact issue as to the effectiveness of the
DCAA's remedial response.
28
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
29