Whitten v. Fred's, Inc.

Filed: April 26, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1265
(8:08-cv-00218-HMH)
CLARA WHITTEN,
Plaintiff – Appellant,
v.
FRED’S, INCORPORATED,
Defendant - Appellee.
-------------------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
O R D E R
Upon consideration of Appellee’s unopposed Motion to
Amend Opinion, the court grants the motion and amends its
opinion filed April 1, 2010, as follows:
On page 26, line 22; and page 30, line 1 –- the word
“jury” is replaced with the word “fact-finder.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLARA WHITTEN, 
Plaintiff-Appellant,
v.
FRED’S, INCORPORATED,
Defendant-Appellee.  No. 09-1265
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior District Judge.
(8:08-cv-00218-HMH)
Argued: January 27, 2010
Decided: April 1, 2010
Before TRAXLER, Chief Judge, AGEE, Circuit Judge,
and Catherine C. BLAKE, United States District Judge for
the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Agee and Judge
Blake joined.
2 WHITTEN v. FRED’S, INC.
COUNSEL
ARGUED: Mary Christine McCormac, Clemson, South Car-
olina, for Appellant. Susan L. P. Starr, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Supporting Appellant. Shahin Vafai,
GIGNILLIAT, SAVITZ & BETTIS, Columbia, South Caro-
lina, for Appellee. ON BRIEF: James L. Lee, Deputy Gen-
eral Counsel, Lorraine C. Davis, Acting Associate General
Counsel, Vincent J. Blackwood, Assistant General Counsel,
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Supporting Appellant.
Stephen T. Savitz, GIGNILLIAT, SAVITZ & BETTIS,
Columbia, South Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Clara Whitten brought an action against her former
employer, Fred’s, Incorporated, asserting state law based
claims of sexual harassment under the South Carolina Human
Affairs Law. See S.C. Code Ann. §§ 1-13-10 - 110. The dis-
trict court granted summary judgment in favor of Fred’s, and
Whitten appeals. We vacate the district court’s decision and
remand for further proceedings.
I.
The evidence presented by Whitten, viewed in the light
most favorable to her, see, e.g., EEOC v. Central Wholesal-
ers, Inc., 573 F.3d 167, 174 (4th Cir. 2009), establishes the
following. Whitten began working for Fred’s in April 2005.
In February 2006, she was transferred from her position as
assistant manager of the store in Greenville, South Carolina,
to assistant manager of the Fred’s store in Belton, South Caro-
lina. Matt Green was the store manager in Belton.
WHITTEN v. FRED’S, INC. 3
Whitten worked for Fred’s in the Belton store for only two
days. Over the course of those two days, Green made it clear
that he was unhappy that Whitten had been transferred to his
store, repeatedly calling her dumb and stupid, and telling
Whitten that he did not want her working in his store. On
Whitten’s first day of work (a Friday) in Belton, Green told
her that if she wanted long weekends off from work, she
needed to "be good to [him] and give [him] what [he] wan-
t[ed]." J.A. 123. Green told her that he would make her life
a "living hell" if she ever took work matters "over [his] head."
J.A. 227.
Later that afternoon, Whitten was in the store’s small,
semi-public office, which is on an elevated platform to give
its occupants a view of the entire sales floor. Green walked
behind her in the office and pressed his genitals against her
back as he passed by. Whitten told Green not to do that again,
but his response was simply to smile at her. Green later called
Whitten into the storeroom in the back of the store. Fearing
what might happen there, Whitten pretended not to have heard
him. Green became angry with Whitten and ordered her to
stay late to clean the store, telling her that the store should be
spotless and that he did not care if it took her all night. (Whit-
ten had been scheduled to leave before closing that night;
Green informed her that he had let the manager who had been
scheduled to close go home early.)
When Whitten arrived for work the next day, Green told
her that she had set the store alarm improperly and that her
punishment would be working on Sunday (Superbowl Sun-
day, in fact), which had been scheduled as a day off for Whit-
ten. Later that day, Whitten was standing in the elevated store
office. Green again passed behind her and again pressed his
genitals against her as he moved by.
Sometime Sunday morning, before she was scheduled to
open the store, Whitten called Paula Cox, the manager of the
Greenville store. Whitten told Cox about Green’s verbal and
4 WHITTEN v. FRED’S, INC.
physical conduct and told Cox that she was going to quit.
Whitten also called Kelly Jackson, the Belton store operations
manager. Whitten told Jackson about Green’s conduct and
again said that she was going to quit.
With her mother listening on an extension, Whitten called
Robert Eunice, the district manager and Green’s superior.
Whitten told Eunice about Green’s conduct, including the
physical contact that happened in the store office. Eunice told
Whitten that she was overreacting and that she should go on
to work that day as if nothing had happened.1 Eunice told her
that they would talk to Green about things on Monday.
Given this advice, Whitten felt that she had no real option
but to quit. Eunice apparently did not find Green’s conduct
objectionable or inappropriate, given his statement that Whit-
ten was overreacting, and Eunice offered Whitten no way to
avoid contact with Green.2 Whitten therefore told Eunice that
she was quitting her job. Eunice then called Green and sent
him to Whitten’s house to retrieve the store keys. When
Green appeared at her house, Whitten handed him the keys
and told him she would call the police if he did not leave.
1
There is, of course, contrary evidence in the record. For example,
Green denies ever touching Whitten inappropriately, and Eunice, while
agreeing that he told Whitten she was over-reacting, contends that Whitten
never told him about the physical contact and that she in fact denied it
when he asked if Green had ever touched her. At a hearing on Whitten’s
claim for unemployment benefits, Cox stated that Whitten did not mention
sexual harassment by Green, but Cox also testified that Whitten said "she
was tired of . . . Green talking to her like a dog and hitting on her." J.A.
308E (emphasis added). As noted above, however, the procedural posture
of this case requires us to recount the evidence in the light most favorable
to Whitten.
2
Although Green was not scheduled to work that day, Whitten feared
that he would show up anyway, because it was common practice for
Fred’s store managers to check on their stores even on days off. As it turns
out, Whitten was correct, and Green did appear at the store before it
opened on Superbowl Sunday.
WHITTEN v. FRED’S, INC. 5
The next day, Whitten contacted Fred’s corporate office to
formally report Green’s sexual harassment. This was Whit-
ten’s first opportunity to speak to someone in the corporate
office—the office closed before Whitten left work on Friday,
and it did not reopen until Monday morning. Fred’s began an
investigation into her complaints a few days later. Fred’s ulti-
mately closed the investigation without any findings, deter-
mining that Whitten’s claims could not be verified or rejected.
Green was not disciplined in any way and continued to be
employed by Fred’s, and Fred’s did not offer any remedy to
Whitten, such as reinstatement and transfer to another store.
Whitten commenced this action against Fred’s in South
Carolina state court, asserting only state law claims under
South Carolina’s Human Affairs Law. Fred’s removed the
action to federal district court on the basis of diversity of citi-
zenship.
Fred’s moved for summary judgment on Whitten’s claims.
Fred’s argued that Whitten’s claims were barred on various
procedural grounds and that they failed on the merits. A mag-
istrate judge recommended that Fred’s motion for summary
judgment be denied. The district court disagreed and granted
summary judgment to Fred’s. The district court addressed the
substantive arguments only; it did not consider the various
procedural bases that Fred’s contended required dismissal of
Whitten’s claims. This appeal followed.
II.
Before proceeding to the merits of Whitten’s claims, we
first consider the procedural issues not addressed by the dis-
trict court but asserted by Fred’s as alternate bases for affirm-
ing the district court’s decision. See, e.g., Jackson v. Kimel,
992 F.2d 1318, 1322 (4th Cir. 1993) ("In reviewing the grant
of summary judgment, we can affirm on any legal ground
supported by the record and are not limited to the grounds
relied on by the district court.").
6 WHITTEN v. FRED’S, INC.
A.
Like similar federal anti-discrimination laws, the South
Carolina Human Affairs Law requires a plaintiff to pursue
administrative remedies before filing an action in court. See
S.C. Code Ann. § 1-13-90(a). Whitten filed a complaint with
the federal Equal Employment Opportunity Commission less
than two months after the incidents in the Belton store, but
she did not personally file a complaint with the South Caro-
lina Human Affairs Commission. Fred’s therefore argues that
Whitten’s claims are barred because she failed to exhaust
state administrative remedies and that the district court’s order
should be affirmed on this basis.
The state statute under which Whitten is proceeding
requires plaintiffs to "complain in writing under oath or affir-
mation to the Commission within one hundred eighty days
after the alleged discriminatory practice occurred." S.C. Code
Ann. § 1-13-90(a). The charge Whitten filed with the EEOC
satisfied the technical requirements—it was in writing, under
oath, and filed well within the 180-day limit. See J.A. 148.
The South Carolina statute, however, requires that the com-
plaint be made to "the Commission," a term defined as South
Carolina’s State Human Affairs Commission ("SHAC"), not
the EEOC. See S.C. Code Ann. § 1-13-30(a). Although Whit-
ten herself did not file a charge with SHAC, the EEOC did.
That is, within a few days after receiving the charge and still
well within the 180-day period, the EEOC forwarded Whit-
ten’s sworn charge to SHAC, as Whitten requested when
completing the EEOC charge.3 The question, then, is whether
the EEOC’s transmittal of Whitten’s charge to SHAC satis-
fied the requirement that a charge of discrimination be made
"to the Commission." S.C. Code Ann. § 1-13-90(a). We
believe it did.
3
The form language above Whitten’s signature stated, "I want this
charge filed with both the EEOC and the State or local agency." J.A. 148.
WHITTEN v. FRED’S, INC. 7
The evidence in the record shows that the EEOC did not
simply notify SHAC that Whitten had filed a charge of dis-
crimination, but instead mailed Whitten’s executed charge to
SHAC. Moreover, SHAC returned the "charge transmittal"
cover form to the EEOC and explicitly acknowledged receipt
of the charge. J.A. 295. In our view, this evidence is more
than sufficient to establish that the charge was in fact filed
with SHAC, as required by § 1-13-90(a).
Fred’s presented no evidence suggesting that the complaint
was not mailed to SHAC, and Fred’s even acknowledged in
its summary-judgment memorandum to the district court that
the EEOC mailed the charge to SHAC. See J.A. 68. And
because Fred’s does not contend that Whitten’s charge failed
in any other manner to meet the requirements of South Caro-
lina law, its claim that Whitten failed to exhaust the state
administrative remedies thus clings to a fairly slender reed—
that the charge was mailed to SHAC by the EEOC rather than
Whitten herself.
The statute does not require that charges of discrimination
be made in person at a SHAC office by the person complain-
ing of discrimination, see S.C. Code Ann. § 1-13-90, and the
relevant state regulations specifically permit discrimination
charges to be mailed, see S.C. Code Ann. Regs. § 65-2(F)
("The complaint may be made in person to any member of the
Commission’s staff or mailed to the Commission’s office in
Columbia, South Carolina."). Given the language of the stat-
ute and regulations, we fail to see how the identity of the per-
son dropping the properly executed charge in a mailbox has
any legal significance.
Fred’s offers no explanation of why it matters that the
EEOC rather than Whitten mailed the charge to SHAC. Fred’s
does, however, seem to attach great importance to Whitten’s
statement in her deposition that she filed a charge only with
the EEOC, not SHAC. Fred’s contends that Whitten is bound
by this statement and thus is precluded from arguing that she
8 WHITTEN v. FRED’S, INC.
filed a charge with SHAC. We disagree. Whitten’s statement
was nothing more than an acknowledgement of the undis-
puted fact that she personally submitted a charge only to the
EEOC. There simply is no inconsistency between Whitten’s
factual statement and the argument pressed on appeal—that
the EEOC mailed the charge to SHAC, thus satisfying the
requirements of § 1-13-90(a).
Fred’s likewise finds it significant that Whitten did not sub-
mit a copy of the worksharing agreement between SHAC and
the EEOC to support what Fred’s believes to be her position
on appeal—that filing the charge with the EEOC was suffi-
cient to exhaust the state administrative remedies. Whitten,
however, does not argue that we should deem her to have
exhausted state remedies because filing with the EEOC is tan-
tamount to filing with SHAC. She argues, and we agree, that
her charge of discrimination was actually filed with SHAC
when the EEOC mailed her properly executed charge to
SHAC. The terms of the worksharing agreement likely would
have been relevant if Whitten were contending that filing with
the EEOC alone was enough to meet the requirements of § 1-
13-90(a). Cf. Petrelle v. Weirton Steel Corp., 953 F.2d 148,
151 (4th Cir. 1991) (rejecting as unsupported by the terms of
the worksharing agreement the plaintiff’s argument that "a fil-
ing with the EEOC was tantamount to a filing" with the state
agency). But Whitten does not make that argument, and, as
recounted above, the evidence in the record is sufficient to
show that Whitten’s charge was filed with SHAC. Cf. id. at
153-54 (finding sufficient plaintiff’s evidence that the EEOC
actually referred the discrimination charge to the state agency,
which satisfied the requirement under the federal law that an
age-discrimination plaintiff initiate proceedings with the state
agency before filing suit in federal court).
B.
Fred’s also argues that the district court’s judgment should
be affirmed because Whitten’s claims are barred by the statute
WHITTEN v. FRED’S, INC. 9
of limitations contained in South Carolina’s Human Affairs
Law. Section 1-13-90 requires any court action to be com-
menced "within one year from the date of the violation
alleged, or within one hundred twenty days from the date the
complainant’s charge is dismissed, whichever occurs earlier."
S.C. Code Ann. § 1-13-90(d)(6). The EEOC dismissed Whit-
ten’s complaint and issued a right-to-sue letter on September
21, 2006. Whitten’s suit was commenced on February 2,
2007, 134 days after the EEOC dismissal. Fred’s contends
that because Whitten did not file suit within 120 days after the
EEOC’s dismissal, her SHAC claim is time-barred, as would
be any federal claim that Whitten might have asserted.
Whitten agrees that any federal claim would be time-
barred, but she argues that her SHAC claim is timely, because
the South Carolina statute refers to a dismissal by SHAC, not
the EEOC. SHAC never issued a dismissal in this case, and
Whitten therefore argues that she had one year to bring the
action. Because the conduct giving rise to her complaints
occurred on February 3-5, 2006, Whitten contends her action
was timely filed.
The full text of § 1-13-90(d)(6) states that:
If a charge filed with the commission by a complain-
ant pursuant to this chapter is dismissed by the com-
mission, or if within one hundred eighty days from
the filing of the charge the commission has not filed
an action under this chapter or entered into a concili-
ation agreement to which the complainant is a party,
the complainant may bring an action in equity
against the respondent in circuit court. The action
must be brought within one year from the date of the
violation alleged, or within one hundred twenty days
from the date the complainant’s charge is dismissed,
whichever occurs earlier, except that this period may
be extended by written consent of the respondent.
10 WHITTEN v. FRED’S, INC.
S.C. Code Ann. § 1-13-90(d)(6) (emphasis added). When the
statute is read in full, it is apparent that the 120-day limita-
tions period is triggered by a dismissal by "the commission,"
which, as previously noted, is a defined term referring to
SHAC, not the EEOC.
After the EEOC transmitted Whitten’s charge to SHAC,
SHAC executed a form acknowledging the charge. SHAC
checked the section of the form acknowledging receipt of the
charge and indicating its intention "not to initially investigate
the charge" rather than the section acknowledging receipt but
indicating its "intention to dismiss/close/not docket the
charge." J.A. 295. A state’s preliminary decision to forgo
investigation has significance for federal discrimination
claims, in that such a decision permits the EEOC to begin its
own investigation of the underlying charge without waiting
sixty days, as would otherwise be required when a charge is
filed first with the state agency. See 42 U.S.C.A. § 2000e-5(c)
(West 2003); EEOC v. Commercial Office Prods. Co., 486
U.S. 107, 110-11 (1988). As we have made clear, however,
Whitten asserts only state law claims in this action, so the
question before us is purely a matter of South Carolina law,
not federal law. There is no language in the South Carolina
act that would permit us to equate SHAC’s preliminary deci-
sion to allow the EEOC to take the investigatory lead with a
dismissal of a charge, see S.C. Code Ann. § 1-13-90(d)(4)
(discussing dismissal of charge after investigation into the
facts); S.C. Code Ann. Regs. § 65-2(J) (listing grounds upon
which charge must be dismissed), nor is there any South Car-
olina case law equating the two.4 Therefore, because SHAC
never issued a dismissal, Whitten was entitled to the benefit
of the one-year limitations period under S.C. Code Ann. § 1-
13-90(d)(6).
4
From what we can determine, no case from any South Carolina court
has addressed the procedure for handling complaints asserted under the
State Human Affairs Law.
WHITTEN v. FRED’S, INC. 11
Fred’s contends that Whitten is trying to have her cake and
eat it, too—that "Whitten is asserting, for purposes of exhaus-
tion, that her filing with the EEOC was equivalent to filing
with SHAC, but simultaneously contending that the EEOC’s
dismissal does not qualify as dismissal by SHAC. Whitten
cannot have it both ways." Brief of Respondent at 26. This
argument, however, is premised on a misapprehension of the
basis for Whitten’s exhaustion argument. As we explained
above, we do not conclude that Whitten’s EEOC filing is the
equivalent of a SHAC filing; we conclude that her charge was
in fact filed with SHAC. And as to the limitations question,
we simply conclude that the statute plainly and unambigu-
ously requires a dismissal by SHAC to trigger the 120-day
limitations period. These two conclusions are not inconsistent,
nor is it somehow unfair to Fred’s to apply the statute in
accordance with its plain language. There is simply no basis
under South Carolina law to attribute a dismissal by the
EEOC to SHAC, because South Carolina requires that the dis-
missal be by its own agency. Accordingly, we reject Fred’s
claim that Whitten’s action was not timely filed.
C.
Finally, we consider the assertions that judicial estoppel
should bar Whitten’s claims. Fred’s first contends that Whit-
ten should be judicially estopped from pursuing her claims
because she failed to disclose this action in her personal bank-
ruptcy filings.
Whitten disclosed the possibility of a lawsuit in her bank-
ruptcy petition filed on October 26, 2006. See J.A. 163
("Debtor possibly could file a Sexual Harassment Lawsuit
against Fred’s and be awarded a settlement. (Case is being
evaluated for merit right now and thus has not been filed yet.
Debtor’s attorney is Mary McCormick))." The bankruptcy
trustee abandoned all scheduled assets on December 15, 2006,
and Whitten commenced this action about six weeks later, on
February 2, 2007. The bankruptcy court, however, did not
12 WHITTEN v. FRED’S, INC.
issue its order discharging Whitten and closing the case until
February 26, 2007, and Whitten did not inform the court that
the lawsuit had been filed.
"Judicial estoppel precludes a party from adopting a posi-
tion that is inconsistent with a stance taken in prior litigation.
The purpose of the doctrine is to prevent a party from playing
fast and loose with the courts, and to protect the essential
integrity of the judicial process." Lowery v. Stovall, 92 F.3d
219, 223 (4th Cir. 1996) (internal quotation marks omitted).
While "the circumstances under which judicial estoppel may
appropriately be invoked are probably not reducible to any
general formulation of principle," New Hampshire v. Maine,
532 U.S. 742, 750 (2001) (internal quotation marks and alter-
ation omitted), in this circuit we generally require the pres-
ence of the following elements:
First, the party sought to be estopped must be seek-
ing to adopt a position that is inconsistent with a
stance taken in prior litigation. The position at issue
must be one of fact as opposed to one of law or legal
theory. Second, the prior inconsistent position must
have been accepted by the court. Lastly, the party
against whom judicial estoppel is to be applied must
have intentionally misled the court to gain unfair
advantage. This bad faith requirement is the determi-
native factor.
Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007) (cita-
tions and internal quotation marks omitted).
Judicial estoppel has often been applied to bar a civil law-
suit brought by a plaintiff who concealed the existence of the
legal claim from creditors by omitting the lawsuit from his
bankruptcy petition. See, e.g., Cannon-Stokes v. Potter, 453
F.3d 446, 448 (7th Cir. 2006) ("All six appellate courts that
have considered this question hold that a debtor in bankruptcy
who denies owning an asset, including a chose in action or
WHITTEN v. FRED’S, INC. 13
other legal claim, cannot realize on that concealed asset after
the bankruptcy ends."). In this case, however, Whitten did not
conceal or deny owning an asset. To the contrary, she
informed the trustee and her creditors of her potential claims
against Fred’s. Even if Whitten should have supplemented her
bankruptcy pleadings after she actually filed this action, her
initial disclosure of the claims precludes us from finding that
she acted in bad faith. Accordingly, we reject this aspect of
the judicial estoppel claim. See Zinkand, 478 F.3d at 638 (not-
ing that bad faith is "the determinative factor" of a judicial-
estoppel analysis (internal quotation marks omitted)).
Fred’s also argues that Whitten should be estopped because
she seeks to recover damages for certain medical expenses
that were discharged in bankruptcy. This argument is without
merit. Whitten’s position in this action is that Fred’s is liable
for medical expenses she incurred that would otherwise have
been covered by the insurance she lost when she was con-
structively discharged. There is nothing inconsistent about
Whitten’s efforts to discharge her debts, including medical
debts, and her contention in this action that Fred’s is liable for
a portion of her medical expenses. While Whitten may not be
able to recover for the medical expenses that were discharged,
Whitten presumably continued to incur medical expenses
after the bankruptcy case was closed, and she is free to argue
that Fred’s is liable for those post-bankruptcy medical
expenses. We recognize, of course, that some of the medical
bills Whitten provided to Fred’s during discovery had been
discharged in bankruptcy, and that Whitten stated in her depo-
sition that the medical invoices she had provided to Fred’s
were part of her damages claim. Nothing in the record, how-
ever, suggests any bad faith on Whitten’s part, and we fail to
see how this apparent oversight is sufficient to warrant a rem-
edy as drastic as dismissing her action in its entirety. See New
Hampshire, 532 U.S. at 750 ("Because the rule is intended to
prevent improper use of judicial machinery, judicial estoppel
is an equitable doctrine invoked by a court at its discretion."
(citation and internal quotation marks omitted)). The district
14 WHITTEN v. FRED’S, INC.
court on remand will have ample opportunity to sort out the
issue at the appropriate time to ensure that any damages
sought by Whitten are proper.
III.
Having rejected each of the additional sustaining grounds
asserted by Fred’s, we now turn to the merits of Whitten’s
sexual harassment claims.
A.
As previously noted, Whitten asserts only state law claims
against Fred’s; she does not assert claims under Title VII.
While there are no published opinions from South Carolina’s
appellate courts applying the substantive protections of the
South Carolina Human Affairs Law to a claim of discrimina-
tion, the Supreme Court of South Carolina has stated that the
act "essentially follows the substantive structure of Title VII"
and that Title VII cases "are certainly persuasive if not con-
trolling in construing the Human Affairs Law." Orr v. Cly-
burn, 290 S.E.2d 804, 806 (S.C. 1982). Accordingly, we look
to federal law for guidance when considering Whitten’s
claims.
To proceed on a hostile environment claim, "a plaintiff
must show that the offending conduct (1) was unwelcome, (2)
was based on her sex, (3) was sufficiently severe or pervasive
to alter the conditions of her employment and create an abu-
sive work environment, and (4) was imputable to her
employer." Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir.
2008) (internal quotation marks omitted).
The district court rejected Whitten’s claim on the fourth
element only, without considering whether her evidence was
sufficient to meet the first three elements of her claim. On
appeal, Fred’s likewise proceeds directly to the fourth element
and makes no argument that Whitten cannot establish the first
WHITTEN v. FRED’S, INC. 15
three elements of her claim. Under these circumstances, it is
enough for us to note that Whitten’s evidence, which shows
that she was subjected to verbal abuse and, most importantly,
to physical assaults of a highly sexual and offensive nature,
is sufficient to create a question of fact as to the first three ele-
ments of her claim. While two days of verbal abuse of the
type at issue here could not, in and of itself, support a hostile
environment claim, that conduct combined with the physical
assaults every day after Whitten began working at the store is
sufficiently severe that it reasonably could be viewed as creat-
ing an abusive work environment. See, e.g., Cerros v. Steel
Techs., Inc., 398 F.3d 944, 950 (7th Cir. 2005) ("[C]onduct
that is either pervasive or severe may give rise to a hostile
work environment[;] . . . . even one act of harassment will suf-
fice if it is egregious." (internal quotation marks omitted));
Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)
("[E]ven a single incident of sexual assault sufficiently alters
the conditions of the victim’s employment and clearly creates
an abusive work environment for purposes of Title VII liabil-
ity."), abrogated on other grounds by Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742 (1998). This appeal therefore turns on
the fourth element—whether there is a basis for imputing to
Fred’s liability for the conduct of store manager Green.
B.
Whether and under what standard an employer may be held
liable for sexual harassment depends on whether the harasser
was a supervisor or merely a co-worker and on whether the
plaintiff suffered a tangible employment action. If the plain-
tiff’s claim is based on the actions of her supervisor, the
employer is subject to vicarious liability. If the plaintiff did
not suffer a tangible employment action, the employer has
available to it an affirmative defense that may protect it from
liability or damages. See Faragher v. City of Boca Raton, 524
U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 765 (1998); Matvia v. Bald Head Island Mgmt.,
Inc., 259 F.3d 261, 266 (4th Cir. 2001). If the plaintiff was
16 WHITTEN v. FRED’S, INC.
harassed by a co-worker rather than a supervisor, however,
the employer is not vicariously liable and can be held
accountable only if the plaintiff proves that the employer
itself was negligent in failing to take effective action to stop
harassment about which it knew or should have known. See
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333-34 (4th
Cir. 2003) (en banc).
The district court concluded that Green was Whitten’s co-
worker rather than supervisor, and that Fred’s was not negli-
gent because Whitten quit before Fred’s had any knowledge
of her complaints. On appeal, Whitten contends that Green
was her supervisor and that she suffered a tangible employ-
ment action, such that Fred’s is vicariously liable for the harm
caused by Green’s conduct. Whitten also argues that even if
this court were to conclude that she did not suffer a tangible
employment action, there remain genuine questions of fact
regarding the Faragher/Ellerth affirmative defense. Finally,
Whitten argues that even if Green is properly viewed as her
co-worker, there are likewise questions of fact as to whether
Fred’s itself was negligent in handling her complaints that
preclude the granting of summary judgment.
(1)
We turn first to the question of whether Green was Whit-
ten’s supervisor or co-worker. The Supreme Court in
Faragher and Ellerth held that "[a]n 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."
Faragher, 524 U.S. at 807; see Ellerth, 524 U.S. at 765. The
Court, however, gave no indication of the scope or type of
authority an employee must have to qualify as a supervisor.
The district court concluded that Green was Whitten’s co-
worker rather than supervisor because Green lacked the
authority to fire, promote or demote, or otherwise make deci-
WHITTEN v. FRED’S, INC. 17
sions that had an economic effect on Whitten. The district
court’s list of actions that Green did not have the authority to
take largely tracks what courts generally view as "tangible
employment action[s]." See Ellerth, 524 U.S. at 761 ("A tan-
gible employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits."); Matvia,
259 F.3d at 266 ("Examples of tangible employment action
include discharge, demotion, or undesirable reassignment."
(internal quotation marks omitted)). The district court thus
effectively equated supervisory status with the ability to take
tangible employment actions. Under the district court’s analy-
sis, if the harasser lacks the authority to take tangible employ-
ment actions, then the harasser cannot be the plaintiff’s
supervisor. We agree with Whitten that the district court erred
by viewing the ability to take tangible employment actions as
dispositive of supervisory status.5
We considered the supervisor question in Mikels v. City of
Durham, 183 F.3d 323 (4th Cir. 1999), a case involving a
police officer’s claim she was harassed by a higher-ranking
member of the squad. Drawing from a portion of the Supreme
Court’s discussions in Faragher and Ellerth of the policy- and
common-law-based reasons why and under what circum-
stances employers should be held vicariously liable for dis-
criminatory acts of supervisory employees, see Faragher, 524
U.S. at 801-04, Ellerth, 524 U.S. at 760-64, we held that when
considering whether a harasser was the plaintiff’s supervisor,
the critical question was "whether the particular conduct was
aided by the agency relation," Mikels, 183 F.3d at 332 (inter-
nal quotation marks omitted). "The determinant is whether as
a practical matter [the harasser’s] employment relation to the
victim was such as to constitute a continuing threat to her
employment conditions that made her vulnerable to and
5
The EEOC filed an amicus brief in support of Whitten and argues that
the district court’s definition of supervisor is too narrow.
18 WHITTEN v. FRED’S, INC.
defenseless against the particular conduct in ways that compa-
rable conduct by a mere co-worker would not." Id. at 333.
The analysis of the issue in Mikels, however, made it clear
that the absence of the ability to take tangible employment
actions does not foreclose the possibility that the harasser is
the plaintiff’s supervisor. After noting that tangible employ-
ment actions are always aided by the agency relation and that
"harassment by a fellow-employee having no authority of any
kind over the victim never can be found ‘aided by the agency
relation,’" id. at 332, we explained that:
Between these extremes, there remains otherwise
actionable harassment that, though it does not culmi-
nate in tangible employment action, is nevertheless
"aided by the agency relation," as that may be dem-
onstrated by other features of the employment rela-
tions between harasser, victim, and employer and the
particular circumstances of its occurrence. . . .
[Vicarious liability] can only arise from the conduct
of an employer having some measure of supervisory
authority over the victim; it cannot arise from the
conduct of a mere co-worker, one with no form of
authority.
Id. (emphasis added). Mikels thus recognized that harassment
by employees with only "some measure of supervisory
authority" could be aided by the agency relation, such that the
imposition of vicarious liability would be appropriate. The
Mikels court then looked to the "other features of the employ-
ment relations" to conclude that the harasser in Mikels could
not be viewed as the plaintiff’s supervisor. The harasser did
not have the ability to take tangible employment actions and
had "at best minimal" authority over the plaintiff that "at most
. . . involve[d] the occasional authority to direct her opera-
tional conduct while on duty." Id. at 334. If the authority to
take tangible employment actions were dispositive, there
would have been no reason for the Mikels court to discuss the
WHITTEN v. FRED’S, INC. 19
area "between the[ ] extremes," id. at 332, or to consider
whether the authority actually possessed by the harasser was
sufficient to support the imposition of vicarious liability.
Our decision in Howard v. Winter, 446 F.3d 559 (4th Cir.
2006), likewise makes it clear that supervisory status is not
determined solely by the ability to take tangible employment
actions. While noting that the ability to take such actions is
the "most powerful indication of supervisory status," id. at
566, we went on to consider what other authority the harasser
had over the plaintiff. Finding that the harasser had "only an
occasional authority—shared with the other fifty-four staff
members—to direct [the plaintiff’s] operational duties," we
ultimately rejected the plaintiff’s claim the harasser was her
supervisor for purposes of her Title VII claim. Id.Under Mikels and Howard, then, the existence of authority
to take tangible employment action would establish that
Green was Whitten’s supervisor, but the absence of that
authority does not establish that Green was merely her co-
worker.6 We therefore look to the "other features of the
employment relations" to determine whether Green qualifies
as Whitten’s supervisor. Mikels, 183 F.3d at 332.
6
We also note that making supervisory status dependent on the authority
to take tangible employment actions would be inconsistent with the out-
come in Faragher. The plaintiff in that case complained about the actions
of two supervisors, Bill Terry and David Silverman, only one of whom
had the authority to take tangible employment actions. See Faragher, 524
U.S. at 781 (explaining that Terry had "authority to hire new lifeguards
(subject to the approval of higher management), to supervise all aspects
of the lifeguards’ work assignments, to engage in counseling, to deliver
oral reprimands, and to make a record of any such discipline," while
Silverman was "responsible for making the lifeguards’ daily assignments,
and for supervising their work and fitness training"). The Supreme Court
nonetheless treated both Terry and Silverman as supervisors and held the
City employer vicariously liable for the actions of Terry and Silverman.
See id. at 808-10.
20 WHITTEN v. FRED’S, INC.
Preliminarily, we note that Green’s title—store manager—
seems to strongly suggest that he had significant authority
over Whitten, an assistant store manager. While the parties’
titles may not be dispositive, "the harasser’s formal rank vis-
à-vis that of the victim in the particular employment hierarchy
. . . is of critical and sometimes decisive evidentiary impor-
tance." Id. at 331-32. Except for the days when district man-
ager Eunice was present in the store,7 Green was the highest
ranking employee in the Belton store, and Green was in fact
the highest ranking employee in the store on the two days that
Whitten worked there. Moreover, the evidence establishes
that Green directed Whitten’s activities, giving her a list of
tasks he expected her to accomplish; that Green controlled
Whitten’s schedule; and that Green possessed and actually
exercised the authority to discipline Whitten by giving her
undesirable assignments and work schedules. Finally, while it
is not dispositive, it is worth noting that both Green and Whit-
ten believed that Green was Whitten’s supervisor.
In our view, these facts point clearly to the conclusion that
Green was Whitten’s supervisor. Green usually was the high-
est ranking employee in the store, which meant that there typ-
ically was no one superior to Green to provide a check on his
behavior. The level of authority Green had and exercised over
Whitten was significant—much more than the minimal and
occasional authority at issue in Mikels or the shared and occa-
sional authority present in Howard. Unlike a mere co-worker,
Green could change Whitten’s schedule and impose unpleas-
ant duties on a whim. And he in fact did so, making her stay
late to clean the store and directing her to work on a Sunday
that was supposed to be her day off. Green therefore had
power and authority that made Whitten vulnerable to his con-
duct "in ways that comparable conduct by a mere co-worker
would not." Mikels, 183 F.3d at 333. Green’s authority over
Whitten thus aided his harassment of her and enabled him to
7
The Belton store was Eunice’s "home store as district manager." J.A.
245. Eunice was in the Belton store "at least every other Monday." Id.WHITTEN v. FRED’S, INC. 21
create a hostile working environment. See Mack v. Otis Eleva-
tor Co., 326 F.3d 116, 125 (2d Cir. 2003) (concluding that
mechanic-in-charge was plaintiff’s supervisor even though he
lacked the authority to take tangible employment actions:
"Not only did he direct the particulars of each of Mack’s work
days, including her work assignments, he was the senior
employee on the work site. He therefore possessed a special
dominance over other on-site employees, including Mack,
arising out of their remoteness from others with authority to
exercise power on behalf of Otis. There was no one superior
to Connolly . . . whose continuing presence might have acted
as a check on Connolly’s coercive misbehavior toward other
Otis employees there.").
Pointing to language in Mikels, however, Fred’s contends
that Green was not Whitten’s supervisor because Whitten felt
free to tell him not to touch her again. See Mikels, 183 F.3d
at 334 ("Mikels, by her own testimony, rebuffed [the harasser]
in an obscenity and profanity-laced outburst . . . , rejected his
immediately proffered apology, and the next day filed a for-
mal grievance against him. That is not likely the conduct of
one ‘reluctant to accept the risks of blowing the whistle on a
superior,’ but more naturally the conduct of one who thinks
of her harasser as merely a fellow-employee from whose
unwelcome conduct she is free to walk away or whom she can
‘tell where to go.’" (quoting Faragher, 524 U.S. at 803)). We
disagree.
Preliminarily, we note that while Whitten did tell Green not
to touch her again, the evidence as a whole very clearly estab-
lishes that she did not feel free to tell Green where to go. The
evidence suggests that Whitten was afraid of Green—she was
so concerned about being alone with him in the stock room
that she pretended not to hear his request, and, after talking
to Eunice, she quit her job rather than risk working with
Green again. Whitten’s response to the harassment is there-
fore in no sense equivalent to the plaintiff’s response in
Mikels. Moreover, Mikels makes it clear that the victim’s
22 WHITTEN v. FRED’S, INC.
response to the harassment is important primarily in close
cases:
[W]here the level of authority had by a harasser over
a victim—hence her special vulnerability to his
harassment—is ambiguous, the tip-off may well be
in her response to it. Does she feel free to ‘walk
away and tell the offender where to go,’ or does she
suffer the insufferable longer than she otherwise
might?
Mikels, 183 F.3d at 334. We do not believe the supervisory
question in this case is a close one, and we see nothing in
Whitten’s response to Green’s conduct that raises any triable
question about Green’s status as her supervisor.
Accordingly, we conclude that Green, as matter of law, was
Whitten’s supervisor for purposes of her sexual harassment
claims under the South Carolina Human Affairs Law.
Because Green was Whitten’s supervisor, Fred’s is subject to
vicarious liability for Green’s conduct, which makes it unnec-
essary for us to consider whether Whitten’s evidence would
have been sufficient to establish negligence on the part of
Fred’s in failing to prevent Green’s actions.
(2)
That Fred’s is subject to vicarious liability, however, does
not mean that liability is automatic. If Whitten suffered no
tangible employment action, Fred’s may
raise an affirmative defense to the imputation of lia-
bility if it can demonstrate, by a preponderance of
the evidence, that (1) it exercised reasonable care to
prevent and correct promptly any harassing behav-
ior; and (2) the plaintiff unreasonably failed to take
advantage of any preventive or corrective opportuni-
WHITTEN v. FRED’S, INC. 23
ties provided by the employer or to avoid harm oth-
erwise.
White v. BFI Waste Servs., LLC, 375 F.3d 288, 299 (4th Cir.
2004) (internal quotation marks omitted); see Ellerth, 524
U.S. at 765; Faragher, 524 U.S. at 807.
"A tangible employment action constitutes a significant
change in employment status. . . ." Ellerth, 524 U.S. at 761.
While tangible employment actions often have an economic
effect—for example, "hiring, firing, [or] failing to promote,"
id.—that is not a requirement, given that actions such as "re-
assignment with significantly different responsibilities" may
also amount to tangible employment actions, id.; see also
Matvia, 259 F.3d at 266.
Whitten contends that the actions giving rise to her hostile
environment claim—the changes in her work schedule,
assignment of unpleasant tasks as punishment, the verbal and
physical abuse—amount to tangible employment actions. We
disagree. None of these actions inflicted economic harm on
Whitten, nor did they involve sufficient changes to her profes-
sional responsibilities to effect a significant change in her
employment status. While Green’s actions made Whitten’s
job difficult and more than unpleasant, his actions simply did
not create a significant change in Whitten’s status as assistant
manager. See Reinhold v. Virginia, 151 F.3d 172, 174-75 (4th
Cir. 1998) (concluding that assignments of extra work, inap-
propriate work assignments, and denial of the opportunity to
attend a professional conference did not amount to tangible
employment actions).
A closer question, however, is presented by Whitten’s
claim that she was constructively discharged and that the con-
structive discharge qualifies as a tangible employment action.
"Under the constructive discharge doctrine, an employee’s
reasonable decision to resign because of unendurable working
conditions is assimilated to a formal discharge for remedial
24 WHITTEN v. FRED’S, INC.
purposes." Pennsylvania State Police v. Suders, 542 U.S. 129,
141 (2004). That is, "a prevailing constructive discharge
plaintiff is entitled to all damages available for formal dis-
charge." Id. at 147 n.8. When the constructive discharge claim
arises in the context of a hostile-environment lawsuit, the
plaintiff "must show working conditions so intolerable that a
reasonable person would have felt compelled to resign." Id. at
147.
A constructive discharge, however, does not always qualify
as a tangible employment action. As the Court explained in
Suders,
harassment so intolerable as to cause a resignation
may be effected through co-worker conduct, unoffi-
cial supervisory conduct, or official company acts.
Unlike an actual termination, which is always
effected through an official act of the company, a
constructive discharge need not be. A constructive
discharge involves both an employee’s decision to
leave and precipitating conduct: The former involves
no official action; the latter, like a harassment claim
without any constructive discharge assertion, may or
may not involve official action.
Id. at 148. The Court held that only constructive discharges
that are precipitated by an official act qualify as tangible
employment actions; if "an official act does not underlie the
constructive discharge, the Ellerth and Faragher analysis . . .
calls for extension of the affirmative defense to the
employer." Id. Whether Fred’s may assert an affirmative
defense to Whitten’s claims thus turns on whether Whitten’s
evidence is sufficient to support her claim of constructive dis-
charge and, if so, whether the constructive discharge was pre-
cipitated by an official act within the meaning of Suders.
WHITTEN v. FRED’S, INC. 25
(i)
In this circuit, an employee is constructively discharged "if
an employer deliberately makes the working conditions of the
employee intolerable in an effort to induce the employee to
quit." Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54
(4th Cir. 1995) (internal quotation marks omitted). A
constructive-discharge plaintiff must therefore "allege and
prove two elements: (1) deliberateness of the employer’s
actions and (2) intolerability of the working conditions." Id.
at 1354 (internal quotation marks omitted). To prove deliber-
ateness, the plaintiff must prove "that the actions complained
of were intended by the employer as an effort to force the
employee to quit." Id. (internal quotation marks omitted).8
While we find it to be a close question, we believe Whitten’s
evidence is sufficient to create a question of fact as to whether
she was constructively discharged.
8
Our requirement that the plaintiff prove the employer intended to force
the plaintiff to quit is arguably in some tension with the Supreme Court’s
decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). In
Suders, the Court described constructive discharge as "a ‘worse case’
harassment scenario, harassment ratcheted up to the breaking point," id. at
147-48, and held that a constructive-discharge plaintiff must prove that her
working conditions were "so intolerable that a reasonable person would
have felt compelled to resign," id. at 147. Because there is no requirement
that a plaintiff in a routine hostile-environment case show that the
employer intended to force her to quit, it could be that, under Suders,
deliberateness on the part of the employer would not be required to show
the "‘worse case’ harassment scenario" that is constructive discharge. We
have, however, continued to apply the deliberateness requirement to
constructive-discharge claims since Suders was decided. See Heiko v.
Colombo Savings Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006) (involv-
ing constructive-discharge claim asserted under the Americans With Dis-
abilities Act). We believe that circuit precedent thus prevents us from
considering Whitten’s assertion that deliberateness is no longer an element
of a constructive discharge claim. See, e.g., Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 272 n.2 (4th. Cir. 2002) ("[A] panel of this court can-
not overrule, explicitly or implicitly, the precedent set by a prior panel of
this court. Only the Supreme Court or this court sitting en banc can do
that." (internal quotation marks omitted)).
26 WHITTEN v. FRED’S, INC.
Critical to our analysis of this question is Eunice’s response to
Whitten’s complaints about Green. According to Whitten’s
evidence, she told Eunice about all of Green’s actions, including
the physical assaults. Eunice’s response was to dismiss the
matter out-of-hand, telling Whitten that she was over-reacting
and that she should go to work that morning as scheduled. A
reasonable person could certainly find intolerable a working
situation where a corporate official is utterly unconcerned about
sexually-tinged physical assaults inflicted on a subordinate by a
supervisor. And as to the deliberateness requirement, we have
never "insisted on smoking gun evidence of employer intent."
Martin, 48 F.3d at 1354 (internal quotation marks omitted).
Instead, "an employer’s intent can be proved by inference," id.(internal quotation marks omitted), through evidence, for
example, showing that "the employer failed to act in the face
of known intolerable conditions," id. (internal quotation marks
omitted), or that the "employee’s resignation was the reasonably
foreseeable consequence of the employer’s conduct," Amirmokri
v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1132-33 (4th
Cir. 1995). Eunice’s response, and his failure to offer Whitten
any amount of protection from further assaults by Green, could
reasonably be viewed by a fact-finder as a failure to act in the
face of known intolerable conditions, and Whitten’s resignation
could be viewed as a reasonably foreseeable consequence of the
combination of Green’s conduct and Eunice’s lack of concern
for Whitten’s safety. Accordingly, we conclude that there is a
question of fact as to whether Whitten was constructively dis-
charged.
(ii)
As discussed above, Fred’s is entitled to assert the
Faragher/Ellerth affirmative defense to Whitten’s con-
structive discharge claim unless the discharge was precipitated
by an "official act." Suders, 542 U.S. at 148. The Suders Court
explained that an official act is the equivalent of a tangible
employment action, see id. at 149, defining it as "an
employer-sanctioned adverse action officially changing [the
WHITTEN v. FRED’S, INC. 27
plaintiff’s] employment status or situation, for example, a
humiliating demotion, extreme cut in pay, or transfer to a
position in which she would face unbearable working condi-
tions." Id. at 134.
To provide guidance on what constituted an official act pre-
cipitating a constructive discharge claim, the Supreme Court
discussed two Circuit Court opinions that it believed properly
applied the "untangled approach we approve in this opinion."
Id. at 149. The first case was Reed v. MBNA Marketing Sys-
tems, Inc., 333 F.3d 27 (1st Cir. 2003), in which the plaintiff
asserted she was constructively discharged because of her
supervisor’s "repeated sexual comments and an incident in
which he sexually assaulted her." Suders, 542 U.S. at 150.
The Supreme Court concluded that the First Circuit in Reed
properly allowed the employer to assert the Faragher/Ellerth
affirmative defense because "the supervisor’s behavior
involved no official actions." Id. at 150. "[T]he supervisor’s
conduct in Reed ‘was exceedingly unofficial and involved no
direct exercise of company authority’; indeed, it was ‘exactly
the kind of wholly unauthorized conduct for which the affir-
mative defense was designed.’" Id. (quoting Reed, 333 F.3d
at 33).
The second case discussed by the Supreme Court was Rob-
inson v. Sappington, 351 F.3d 317 (7th Cir. 2003). In Robin-
son, the plaintiff was sexually harassed by a judge for whom
she worked. After her complaint, the presiding judge, appar-
ently in an attempt to protect the harassing judge rather than
the plaintiff, transferred the plaintiff to another judge. The
presiding judge warned the plaintiff, however, that "her first
six months [with the new judge] probably would be hell," and
that it was in the plaintiff’s "best interest to resign." Robinson,
351 F.3d at 324 (internal quotation marks omitted). The
Supreme Court agreed with the Seventh Circuit’s determina-
tion that the employer in Robinson could not assert the
Faragher/Ellerth affirmative defense, because the "plaintiff’s
decision to resign . . . resulted, at least in part, from the pre-
28 WHITTEN v. FRED’S, INC.
siding judge’s official action in transferring her to a judge
who resisted placing her on his staff." Suders, 542 U.S. at 150(internal quotation marks and alterations omitted).
The Supreme Court explained that "[t]he courts in Reed and
Robinson properly recognized that Ellerth and Faragher,
which divided the universe of supervisor-harassment claims
according to the presence or absence of an official act, mark
the path constructive discharge claims based on harassing
conduct must follow." Id. Following the path marked by Reed
and Robinson, we conclude that no official action precipitated
Whitten’s constructive discharge claim and that Fred’s is
therefore entitled to assert the Faragher/Ellerth affirmative
defense on remand.
It is clear that, in accordance with Reed, Green’s actions
cannot be considered an official act. Like the conduct at issue
in Reed, Green’s conduct in harassing and assaulting Whitten
was unofficial and unauthorized. Because Green’s actions do
not constitute an official act, the conduct cannot preclude
Fred’s from asserting the affirmative defense. Nonetheless, as
indicated by Robinson, an employer’s response to a harass-
ment claim is relevant when determining whether an official
act precipitated a constructive discharge. Thus, the question is
whether Eunice’s response to Whitten’s complaint amounts to
an official act. We believe the answer to that question must
be "no."
As the Court explained in Suders, an official act is an
"employer-sanctioned adverse action officially changing her
employment status or situation." Suders, 542 U.S. at 134(emphasis added). Whereas the presiding judge in Robinson
transferred the plaintiff to a new position, thus changing the
plaintiff’s employment situation, Eunice took no comparable
step. Eunice’s action, properly viewed, amounts to a failure to
act—a failure to stop Green’s conduct, and a failure to take
any steps to protect Whitten from Green. Regardless of the
wisdom or adequacy of Eunice’s response, Eunice did nothing
WHITTEN v. FRED’S, INC. 29
to change Whitten’s employment status. Eunice’s actions,
therefore, cannot be viewed as an official act within the mean-
ing of Suders. Because there was no official act that precipi-
tated Whitten’s constructive discharge, Fred’s may assert the
Faragher-Ellerth affirmative defense.
(3)
While we conclude that Fred’s is entitled to assert the
Faragher-Ellerth affirmative defense on remand, we reject its
contention that the evidence establishes the existence of the
defense as a matter of law.
To establish the defense, Fred’s must prove that "it exer-
cised reasonable care to prevent and correct promptly any
harassing behavior" and that Whitten "unreasonably failed to
take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise." White,
375 F.3d at 299 (internal quotation marks omitted). Although
Fred’s had in effect a policy against discrimination and
harassment, the mere existence of a policy does not automati-
cally "satisfy the employer’s burden. The employer must act
reasonably, and thus any policy adopted by the employer must
be both reasonably designed and reasonably effectual." Brown
v. Perry, 184 F.3d 388, 396 (4th Cir. 1999). Given Eunice’s
response to Whitten, there is a question of fact as to whether
Fred’s acted reasonably.
Moreover, even though Whitten told Greenville store man-
ager Cox that she was going to quit in a conversation that took
place before Whitten reported Green’s conduct to Eunice, that
does not mean, as Fred’s insists, that Whitten quit before
Fred’s knew about her complaints. Cox was not in Whitten’s
chain of command, and Whitten’s intention to quit did not
somehow become irrevocable once she voiced the thought to
Cox. If Eunice’s response to Whitten had been different,
Whitten might well have decided that she did not need to quit.
30 WHITTEN v. FRED’S, INC.
Under these circumstances, it is up to a fact-finder to determine
the reasonableness of Whitten’s actions.
IV.
To summarize, we conclude that Whitten properly
exhausted the state administrative remedies because the
charge of discrimination that she filed with the EEOC was
actually filed with the South Carolina Human Affairs Com-
mission when it was forwarded to the state agency by the
EEOC. The state agency never issued a dismissal of Whitten’s
charge, so Whitten’s lawsuit, which was filed within one year
of the discriminatory conduct, was timely filed. And because
Whitten disclosed her potential claim against Fred’s in her
bankruptcy petition, judicial estoppel does not preclude her
from pursuing her claims against Fred’s.
On the merits of her claims, we conclude that Whitten’s
evidence is sufficient to require a trial on her sexual harass-
ment claims, including her claim that she was constructively
discharged. Although we conclude that Green was Whitten’s
supervisor as a matter of law, such that Fred’s is subject to
vicarious liability for Green’s conduct, there was no tangible
employment action and no official act precipitating the
asserted constructive discharge. On remand Fred’s will there-
fore be entitled to assert the affirmative defense to liability
and damages as set forth by the Supreme Court in Faragher
and Ellerth.
Accordingly, for the foregoing reasons, we hereby vacate
the district court’s order granting summary judgment to
Fred’s, and we remand for trial on Whitten’s claims.
VACATED AND REMANDED