No. 10-2316 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ CARLA L. DULANEY, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, and BOBBY MILLS, Defendants-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Western District of Virginia, Roanoke Division No. 09-63 _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT __________________________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT OPPORTUNITY General Counsel COMMISSION 131 M Street, N.E., Fifth Floor LORRAINE C. DAVIS Washington, D.C. 20507 Acting Associate General Counsel ANNE NOEL OCCHIALINO Attorney 202/663-4724 (office) 202/663-7090 (fax) TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court's Decision. . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON DULANEY'S CLAIM OF SEXUAL HARASSMENT BECAUSE THE RECORD SUPPORTS A FINDING THAT MILLS WAS HER SUPERVISOR AND TOOK TANGIBLE EMPLOYMENT ACTIONS AGAINST HER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A.Mills was Dulaney's supervisor because he had the authority to control her day-to-day work activities and to undertake and recommend tangible employment actions. . . . . . . . . . . . . . . . . . 16 1. Mills controlled Dulaney's day-to-day activities. . . . . . 21 2.Mills had the authority to undertake or recommend tangible employment actions. . . . . . . . . . . . . . . . . . . . . . . . 23 B.Mills took tangible employment actions when he sent Dulaney home without pay, assigned her "points," and conditioned her continued employment on her submission to sex, making PCA vicariously liable for the harassment. . . . . . . . . . . . . . . . . . . . . . . . . . . 27 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 CERTIFICATES OF COMPLIANCE AND SERVICE TABLE OF AUTHORITIES FEDERAL CASES Burlington Industrial, Inc. v. Ellerth, 524 U.S. 742. . . . . . . . . passim Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227 (11th Cir. 2006). . . . . . . . . . . . . . . . . . 24 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . passim Howard v. Winter, 446 F.2d 559 (4th Cir. 2006). . . . . . . . . . . . . . .19 Jin v. Metro. Life Ins. Co., 310 F.3d 84 (2d Cir. 2002). . . . . . . . 29,30 Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003). . . . . . . . . 20,23 Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). . . . . . . . . . . . 28 Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999). . . . . . 18,22,23 Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994). . . . . . . . . . . . . . . 29 Whitten v. Fred's Inc., 601 F.3d 231 (4th Cir. 2010). . . . . . . . . passim FEDERAL STATUTES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . 1 OTHER AUTHORITY EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Man (BNA) 405 (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html. . . . . . 17,25 STATEMENT OF IDENTITY, INTEREST IN THE CASE, AND SOURCE OF AUTHORITY TO FILE Congress established the Equal Employment Opportunity Commission to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal laws prohibiting employment discrimination. This case raises the question of whether a court must determine if a harasser was a co-worker or a supervisor in order to determine an employer's liability. This case also raises questions as to the amount of authority an individual must possess over an employee to be a supervisor. Finally, this case raises the question of whether sending an hourly worker home without pay, assigning an employee "points" as part of a company's progressive discipline system leading to termination, and requiring an employee to engage in weekly sex to keep her job constitute tangible employment actions, making an employer vicariously liable for supervisory harassment and unable to avail itself of the Ellerth/Faragher affirmative defense. Because resolution of this appeal will affect the Commission's future enforcement efforts, as well as those of private litigants seeking to vindicate their Title VII rights, the Commission offers its views to the Court. See Fed. R. App. P. 29(a). STATEMENT OF THE ISSUES<1> 1. Whether the plaintiff's harasser was a supervisor for purposes of imputing liability to the company where the undisputed record evidence shows that he controlled the plaintiff's daily work activities and had the authority to take some tangible employment actions against the plaintiff, and where a jury could also find that he had the power to recommend tangible employment actions (including hiring and firing). 2. Whether the district court erred in ruling that the harasser did not take any tangible employment action against the plaintiff where she offered evidence that when she refused his sexual demands he sent her home early without pay and imposed "points" as part of the company's progressive discipline system leading to termination, and where she subsequently submitted to his sexual demands under threat of termination. STATEMENT OF THE CASE A. Proceedings Below Plaintiff Carla Dulaney filed suit under Title VII against Defendant Packaging Corporation of American (PCA) alleging sex discrimination, sexual harassment, and retaliation; she also brought state law claims against Defendant Bobby Mills for assault and battery and intentional infliction of emotional distress. JA12-13. PCA filed a motion for summary judgment on the Title VII claims. JA15. The district court granted summary judgment on those claims, dismissed the state law claims without prejudice, and entered judgment for the defendants. JA558-570. Dulaney timely filed a notice of appeal. JA571-72. B. Facts In June 2006, a temp agency placed Dulaney at PCA, which makes cardboard boxes. JA22. Dulaney was one of three women at the plant. JA283. She worked on the second shift, which ran from 2:30 PM to 11:00 PM. JA115-16. On her first day of work, Bobby Mills introduced himself as a "supervisor"- although his official title was "Lead Person"-and showed her what to do. JA22- 22; JA120. Two of Dulaney's co-workers testified that they also took orders from Mills, and they and Dulaney testified that they referred to Mills as a supervisor. JA425; JA463; JA439; JA201. PCA's General Manager, Donald Woodward, nevertheless testified that "Lead Persons" are not supervisors because they lack hiring and firing authority. JA363; JA121. Woodward admitted, however, that "Lead Persons" are responsible for work flow through the plant (getting things done and getting orders out in a timely manner) and giving "guidance and direction" to employees. JA121. Because Woodward and the Plant Manager, Mike Bourne, left the office by at least 6:30 PM or 7:30 PM each night, Mills was the highest-ranking employee for much of the second shift. JA429; JA337. As Mills said, he was "the only authority figure there" at times, and employees "report[ed] to [him]." JA333. Woodward also testified that Mills was responsible for documenting employee issues and reporting them the next day. JA121. Woodward and Bourne also told employees that if they had a problem with someone, they should complain to the Lead Person on the shift rather than take care of the problem themselves. JA457. After a few months of working as a temp, Dulaney repeatedly asked Mills when she would be hired permanently, as most temps were offered permanent positions after working a certain number of hours. JA222. Although Dulaney had worked the requisite hours, Mills kept telling her she needed more. JA223. Finally, "he said that . . . [she] was going to get hired on."<2> JA223. Although Mills claims he has never seen the document, JA345, an internal PCA memo dated November 20, 2006, with "Offer" at the top states "To: Carla Dulany [sic]" "From: Bobby Mills" and extends to Dulaney a formal offer of employment as a "glue helper" on the second shift for $10/hr. JA176. Dulaney accepted the offer. She performed her job well, earning her bonus every month. JA356. Just about every day Mills talked about problems he was having with his wife. JA24. At some point in December, Mills told Dulaney that "his wife wasn't taking care of him" and essentially asked Dulaney to "take care of him." JA26-28. Mills occasionally gave rides to Dulaney because she lived alone without a car, and he would pressure Dulaney for "favors" by saying things like, "You know, you need a ride to work." JA25; JA28. He also told her, "you need this job, don't you?" and said that he "could make [her] move on . . . get up higher and make more money." JA28; JA26. Dulaney ignored Mills' demands, but he was undeterred. JA28, JA30-31. Every week, Mills would ask for sex, and every week Dulaney made up an excuse, like she "was sick" or "had [her] period." JA30. Dulaney's refusals angered Mills, who would then make her day "hell" by belittling her in front of others, staring at her, and treating her with such hostility that she became frightened. JA25; JA30. He told her she "was replaceable" and repeatedly threatened to give her "points"-which were part of PCA's progressive discipline system that led to automatic termination with 12 points-for things she had not done. JA170; JA321. Mills also took out his frustration on other employees, who told Dulaney to just give in and provide oral sex to Mills so he "would be in a better mood and not make it so hard on everyone." JA170. According to Dulaney, two or three times Mills followed through with his threats and sent Dulaney home early with "points," which resulted in a loss of pay because she was an hourly worker and had to clock out. JA321; JA324-25. Mills testified that he sent Dulaney home without pay only once and that he assigned her points "only when she called in." JA356. Dulaney accumulated a total of eight points, although not all were from Mills and she never accumulated sufficient points to warrant formal discipline. JA323. After a few weeks, Dulaney could not take Mills' mistreatment any longer. JA170. When Mills called her into his office and led her to the maintenance shop, she finally gave in and performed oral sex. JA78. She repeatedly testified that she did so because Mills threatened her with termination and she feared being unable to pay her bills and becoming homeless. JA68; JA170; JA203; JA322. Evidently unsatisfied with a single sexual encounter, Mills continued to demand sexual favors. He would come up to her while she was working and "grab himself or rub himself" on her, saying "'You know you need to take care of this.'" JA324. If Dulaney ignored him, Mills would become angry, hostile, and violent and would call her "whore," glare at her, and tell her she was replaceable. JA324. He explicitly threatened to get her fired if she refused. JA170; JA203; JA324. Every week, Dulaney would try to ignore Mills or give him an excuse-again saying she was sick or had her period-but Mills would become abusive and she would eventually give in. JA68-69. Once she had satisfied Mills, he left her alone and she could do her job. JA25. She explained, "I did what I had to do to keep that man happy and to leave me alone at work and leave everybody else alone." JA68. Mills told her if she complained about the sex, "no one would believe her and [she] would be fired." JA203. He explicitly told her he had the authority to fire her. JA74-75. For the next nine months, Mills coerced Dulaney into having sex about once a week. JA28-29; JA235. The sex always occurred "on the office side" of the plant, either in the maintenance room or the men's bathroom. JA235; JA238-39. Mills knew they would not be interrupted because he had a key to the office and because during the second shift there were no other employees in the office. JA239. While the two usually had oral sex, they had vaginal intercourse once or twice. See JA240 ("one time it was -I put my hands up against the wall because I didn't want to see it, and he was behind me"). Dulaney told Mills "every time" that she did not want to have sex. JA273. But Mills would just say, "'Put a smile on your face. You are not even smiling.'" JA273 (Dulaney Depo.) (adding, "[W]hy would I want to smile? Because I have to give him head?"). Dulaney told only her co-worker, Tim Diver, about the sex. JA32-33. Sometimes when Mills came around, Diver would try to hide Dulaney behind some boxes or tell her to ignore Mills' page, but that just angered Mills. JA243-44. Some employees witnessed the harassment. Floyd Joyce, who no longer works for PCA, stated that Mills harassed Dulaney "24/7," "stalked her a lot to the point she would start crying," would stare at Dulaney, and if she did not respond, would "get all mean and look evil" and then call Dulaney repeatedly over the intercom to come see him.<3> JA201. Another employee named Cedric Preston testified that Dulaney said the relationship was consensual, but Preston also said he saw Dulaney crying on some days. JA440. Dulaney would complain to him that Mills had called her "nasty names," such as "whore." JA442. Preston also heard Mills say Dulaney "had a nasty disease" and "was nasty and a whore." JA443. According to Preston, Mills called Dulaney "every name in the book" and bragged that he and Dulaney had sex in the supervisor's office and in the maintenance office. JA443-45. According to Preston, whenever he and Dulaney were talking, Mills would "come and get her and make her do some crazy job," evidently because Mills "didn't want [Preston] talking to her." JA494. When Dulaney learned that Mills was spreading a rumor that she had a sexually-transmitted disease, she became upset and complained to Bourne. He "didn't care," saying "we're all going to have good days and bad days," and told Dulaney that she was "replaceable" and should "go back to work." JA48. She did not complain to Bourne about the coerced sex because Mills had told her no one would believe her, she was replaceable, it would be her word against his, and she could not "jeopardize [her] job" since she lived alone and paid all the bills. JA49. Dulaney also did not complain because in January or February 2007 she and employee Jane Vars got into a dispute and complained to Bourne about each other. JA247-48. Although Dulaney complained that Vars called her "a nigger lover" and said Dulaney "worked in the ghetto" (because Dulaney is white and her immediate co-workers were African-American), Bourne "laughed it off" and made it clear that the two women "would be automatically terminated" if they went over his head to Woodward. Id. On September 26, 2007, Mills came up to Dulaney and started screaming, saying things like, "Are you fucking these niggers here? You are doing everybody here?" and "You are nothing but a whore." JA249-50. Dulaney was upset and crying. JA250. Divers, who witnessed the incident, said he was going to report Mills. JA250; see also JA474 (Divers Depo.) (stating that "just about every day" he saw Mills upsetting Dulaney, and he finally complained to Woodward because he was unable to perform his work when Mills would upset Dulaney). JA474. Feeling that Divers had "opened the door" for her, Dulaney finally went and told Woodward's secretary about the forced sex. JA259. A few days later, Woodward and Bourne met with Dulaney, who again stated that Mills had forced her to have sex and made her work environment hostile. JA112; JA266. Woodward then interviewed Mills and told him that Dulaney claimed he had been forcing her to have sex. JA113-14; JA337. Mills did not deny it. JA337. Instead, he left the room and returned to work. JA337-38. After the weekend, Mills came in "very upset, remorseful and apologetic" and told Woodward and Bourne he had "made a mistake" and wanted to resign. JA116. Woodward then called PCA's Human Resources Manager, Greg Bright. JA146, ¶ 3. Two days later Bright traveled to the plant and met with Woodward and Dulaney. JA146, ¶ 4. According to Bright, Dulaney said she and Mills had had a consensual relationship but that when she tried to break it off, he resisted and inappropriately attempted to exercise influence over her at work. Id. Dulaney also submitted a written complaint stating that Mills had been asking her out "or to meet with him for sex" and when she "d[id]n't want to meet with him," she was "treated very bad" and was called names in front of her co-workers like "whore" and "liar," and Mills would say she had a venereal disease. JA82. Woodward and Bright again interviewed Mills, who now denied Dulaney's allegations, saying that he and Dulaney had had consensual sex outside of work four or five times. JA132- 33; JA194. A few days later, Mills stopped work at PCA; Mills says PCA fired him, but PCA says he resigned. JA342-43. After she complained, Dulaney's co-workers harassed and isolated her. See, e.g., JA279-80; JA309-10. By November, she found the harassment and ostracizing intolerable, and she told Bright she wanted to leave PCA. JA148, ¶ 9. On November 5, 2007, Bright presented her with a severance agreement, which she refused to sign because of its conditions. JA295-96. Bourne then "escorted [her] out to the plant floor to get all [her] personal belongings," took her key and badge, escorted her out to the parking lot, and asked her when she could return her uniform. JA 292, JA296-96. This left Dulaney with the impression she had been fired. JA292. An internal PCA memo dated November 5, 2007, also gives Dulaney's employment status as "terminated." JA187. Two days later, however, PCA sent Dulaney a letter saying she had not been fired and asking her to call about returning to work, but she never did. JA561. After filing a charge of discrimination, Mills filed suit alleging, inter alia, a Title VII claim of sex discrimination and retaliation. JA169-70; JA10. During discovery, Mills admitted that he had lied to Woodward and Bright when he said that he and Dulaney had sex only four or five times and never at work; he admitted they had sex more often and that one encounter occurred at work in the men's bathroom. JA351. Several of Dulaney's co-workers, most of whom are still working for PCA, testified that Dulaney bragged or boasted about having an affair with Mills. See, e.g., JA156-67. Some of them also stated that Dulaney had bragged about being a former stripper and escort and asked where she could buy cocaine. See id. Dulaney, however, repeatedly denied under oath that she had a consensual relationship with Mills or said that she had, and she adamantly denied that she had ever worked as a stripper or escort or claimed that she had. See, e.g, JA273; JA276; JA203; JA213-14; JA281. PCA moved for summary judgment. JA15. PCA did not request summary judgment on whether there was an actionable hostile work environment, implicitly conceding that Dulaney's testimony would support a jury's finding there was. Instead, PCA argued that it was not liable for any hostile work environment that existed because Mills was only a co-worker and PCA acted promptly to correct the harassment once it learned of it. R.65, pp.15-19. Even if Mills was a supervisor, PCA contended, the company was entitled to summary judgment because Mills did not take any tangible employment actions against Dulaney and because it had established the Ellerth/Faragher affirmative defense. Id. at pp. 19-24. PCA also moved for summary judgment on the retaliation and state law claims. Id. at 25-28. Dulaney's response to PCA's motion for summary judgment focused on her sexual harassment and state law claims.<4> She argued that Mills was a supervisor and that she suffered a tangible employment action when Mills sent her home with points for refusing sex (which caused her to lose money), when Bourne escorted her off the premises after she refused to sign the severance agreement, and when PCA wrote the memo labeling her status "terminated." R.82, pp. 13-15. Dulaney also offered evidence that the harassment caused her lasting emotional problems. JA75. She does not want to work with male authorities and instead has sought to work only with women, elderly people and children. JA75. She was unable to engage in a sexual relationship with one boyfriend and has been unable to enjoy sex with her current boyfriend. JA326-27. She would like to see a counselor, JA327, but she cannot afford it. JA71-72. C. District Court Decision The district court noted in a footnote that the parties disputed whether Mills was a co-worker or a supervisor but said it was unnecessary to resolve the issue. JA559, n.1. Later in its opinion, however, the court stated that Mills was a co- worker. JA562. In an evident misunderstanding of the standard for determining PCA's liability for sexual harassment, the court went on to say, "in such a case, PCA can only be vicariously liable for the co-worker's harassment of Dulaney under the doctrine of respondeat superior." JA562. Citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the court said employers are vicariously liable for supervisory harassment where the harassment culminates in a tangible employment action but may assert a two-pronged affirmative defense when it does not. JA562-63. According to the court, being sent home by Mills with "points" for refusing his advances did not constitute a tangible employment action because Dulaney did not acquire sufficient points to warrant a verbal warning and she never lost any pay. JA564. The court also rejected Dulaney's argument that she suffered a tangible employment action on November 5, 2007, when she was escorted off the premises after she refused to sign the severance agreement, or when PCA drafted a memorandum labeling her status as "terminated." JA564. Finally, the court concluded that PCA had established the two-prong Ellerth/Faragher affirmative defense. JA565-68. Accordingly, the court granted summary judgment for PCA on the Title VII claims and dismissed the state claims without prejudice. JA568-69. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON DULANEY'S CLAIM OF SEXUAL HARASSMENT BECAUSE THE RECORD SUPPORTS A FINDING THAT MILLS WAS HER SUPERVISOR AND TOOK TANGIBLE EMPLOYMENT ACTIONS AGAINST HER. The district court erred in applying the standard for determining PCA's liability for Mills' creation of a sex-based hostile work environment. Contrary to the district court's conclusion, JA559 n.2, it is necessary to determine whether Mills was a co-worker or supervisor because this determination dictates the appropriate standard for determining PCA's liability for the harassment. In Ellerth and Faragher, the Supreme Court applied the aided-by-agency principle expressed in Restatement Agency § 219(2)(d), as adapted to Title VII, to hold that an employer is subject to vicarious liability "for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Ellerth, 524 U.S. at 765; see Faragher, 524 U.S. at 807-08. Where harassing conduct "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment," it is necessarily aided by the agency relationship, and vicarious liability is absolute. Faragher, 524 U.S. at 808; see Ellerth, 524 U.S. at 760-62. If a supervisor's harassment does not culminate in a tangible employment action, the employer is still subject to vicarious liability but is entitled to assert a two-prong affirmative defense: "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; see also Ellerth, 524 U.S. at 765. Because harassment by co-workers is not aided by the agency relationship, an employer is liable for a hostile work environment created by a co-worker only if the employer was negligent in failing to take effective action to stop harassment that it knew or should have known about. See Whitten v. Fred's, Inc., 601 F.3d 231, 243 (4th Cir. 2010). Thus, as this Court has recognized, "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." Whitten, 601 F.3d at 243. Here, record evidence establishes as a matter of law that Mills was Dulaney's supervisor. A jury could also find that Mills assigned Dulaney points and sent her home early without pay for refusing to provide sexual favors and then coerced her into submitting to weekly sexual encounters to keep her job, which all qualify as tangible employment actions, making PCA vicariously liable for the harassment. Therefore, this Court should reverse the entry of summary judgment and remand this case for trial. A. Mills was Dulaney's supervisor because he had the authority to control her day-to-day activities and to undertake and recommend tangible employment actions. To the extent the district court determined that Mills was a co-worker rather than a supervisor, it erred. JA562 (calling Mills a "co-worker"). While PCA argued below that the sine qua non of being a supervisor is the authority to take tangible employment actions, R.67, p. 17, this is clearly not the law. As discussed below, the Supreme Court and this Court have made clear that while the authority to take tangible employment actions renders an individual a supervisor, other levels of authority over an employee can also render an individual a supervisor for Title VII purposes. Besides stating that a "supervisor" is someone "with immediate (or successively higher) authority over the employee," neither Faragher nor Ellerth define explicitly who is a "supervisor." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The Court's holdings in these cases, however, sheds light on what level of authority an individual must possess in order to be a supervisor. Both cases make clear that an individual with the authority to take tangible employment actions is a supervisor. See Ellerth, 524 U.S. at 760; Faragher, 524 U.S. at 807- 08. Faragher additionally suggests that individuals with the authority to control employees' daily activities are supervisors, as the Supreme Court treated two lifeguards who harassed the plaintiff as her supervisors, although one lifeguard had only the authority to make daily assignments and supervise the lifeguards' work and fitness training. See Faragher, 524 U.S. at 781, 808 ("It is undisputed that these supervisors 'were granted virtually unchecked authority' over their subordinates, 'directly controll[ing] and supervis[ing] all aspects of [Faragher's] day-to-day activities.'") (citation omitted). Similarly, Ellerth suggests that an individual with the authority to recommend tangible employment actions qualifies as a supervisor, as there the Court held that the harasser was the plaintiff's supervisor although he had only the authority to make hiring and promotion recommendations. Ellerth, 524 U.S. at 747, 766. Following these decisions, the Commission issued its Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Man. (BNA) 405 (June 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html. In accord with Ellerth and Faragher, the guidance defines explicitly what level of authority renders an individual a supervisor. It states that a supervisor is an individual with (1) the authority to direct the employee's daily work activities; or (2) the authority to undertake or recommend tangible employment decisions affecting the employee. Guidance at p. 5.<5> This Court has also considered the question of who is a "supervisor" in a trilogy of cases that are fully consistent with Ellerth and Faragher, as well as with the Commission's guidance. In the first case, Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999), this Court stated that the critical question in determining whether an individual is a supervisor under Title VII 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 defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not." Id. at 333. Where a harasser's level of authority over his victim is unclear, this Court explained, "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?" Id. at 334. Applying these standards, this Court held in Mikels that the harasser was not a supervisor because he had, at most, "minimal" authority over the plaintiff. Id. He had no authority to take tangible employment actions against her and only occasional authority over her operational conduct. Id. Significantly, this Court said, the plaintiff was not isolated from higher management. Id. Finally, this Court added, the "clincher" was that the plaintiff was not particularly vulnerable to her harasser, as she rebuffed his advances with a profanity-laced outburst, rejected his apology, and reported him the next day to management. Id. This Court again addressed the question of what level of authority renders an individual a "supervisor" in Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). In that case, this Court repeated that the critical question in determining whether an individual is a supervisor is "whether [the harasser's] conduct was 'aided by the agency relation.'" Id. at 565 (quoting Mikels, 183 F.3d at 332) (internal quotation marks and citation omitted). Under that standard, the plaintiff's harasser was not her supervisor because his harassment was not aided by the agency relation. Id. at 566. In reaching this conclusion, this Court pointed to evidence that the harasser lacked the authority to take any direct action against the plaintiff and only occasionally shared-with fifty-four other staff members-the authority to direct the plaintiff's operational duties as an administrative assistant. Id. at 566. Additionally, this Court said, there was no evidence suggesting that the harasser's "authority to request administrative assistance from [the plaintiff] enabled his harassment." Id. Finally, in Whitten v. Fred's, Inc., 601 F.3d 231 (4th Cir. 2010), this Court made crystal clear that an individual who lacks the authority to take tangible employment actions still qualifies as a supervisor when other features of the employment relationship show that the harassment was aided by the agency relation.<6> This Court stated that under Mikels and Howard an individual's ability to take tangible employment actions establishes that he is a supervisor, "but the absence of that authority does not establish that [the harasser] was merely [a] coworker." Whitten, 601 F.3d at 245 (emphasis added). See also Mack v. Otis Elevator Co., 326 F.3d 116, 126 (2d Cir. 2003) (rejecting notion that only individuals with the authority to take tangible employment actions are supervisors). Rather, Mikels and Howard require that courts look to other features of the employment relationship to determine whether an individual's harassment was aided by the agency relationship such that it would be appropriate to impose vicarious liability. Id. Applying these principles, this Court held that the plaintiff's harasser was a supervisor-despite his lack of authority to take tangible employment actions-because: (1) the harasser's title was "manager," which strongly suggested he had significant authority over the plaintiff; (2) the harasser was typically the highest-ranking employee in the store; (3) the harasser directed the plaintiff's daily activities and work schedule; (4) the harasser possessed and exercised the authority to discipline the plaintiff by giving her undesirable work assignments and schedules; and (5) the harasser and the plaintiff believed he was a supervisor. Id. at 246. Noting that, unlike a mere co-worker, the plaintiff's harasser could change the plaintiff's schedule and "impose unpleasant duties on a whim," this Court concluded that the harasser's "authority over [the plaintiff] thus aided his harassment of her and enabled him to create a hostile work environment." Id. Although this Court said that finding the harasser was a supervisor was not even a "close call," this Court additionally pointed out that the plaintiff's reaction to the harassment (pretending not to hear the harasser and quitting rather than risk working again with him) "very clearly establishes that she did not feel free to tell [him] where to go." Id. at 246-47. Accordingly, "as a matter of law" the plaintiff's harasser was her supervisor. Id. at 247. Application of Whitten, as well as Supreme Court and this Court's other precedent, establishes that Mills was Dulaney's supervisor. 1. Mills controlled Dulaney's day-to-day activities. Regardless of any authority Mills did or did not have to take tangible employment actions against Dulaney, he qualifies as a supervisor because his control over Dulaney's day-to-day activities enabled his harassment of her. Undisputed record evidence shows that "'as a practical matter [Mills'] employment relation to [Dulaney] was such as to constitute a continuing threat to her employment conditions that made her vulnerable to and defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not.'" Whitten, 601 F.3d at 244 (quoting Mikels, 183 F.3d at 333). As in Whitten, Mills' title as "Lead Person" suggests a level of authority over Dulaney. Id. at 245. Additionally, like the harasser in Whitten, Mills was often the highest-ranking employee because the second shift ran for several hours after Woodward and Bourne had left for the day. Id. at 246. Also similar to the harasser in Whitten- who had directed the plaintiff's activities and gave her lists of tasks to be accomplished-Mills possessed the authority to direct Dulaney's daily work activities, as he showed her what to do and had the authority to require Dulaney to leave her workstation and go to his office or perform other jobs. Id. Again similar to the harasser in Whitten-who possessed and exercised the authority to discipline the plaintiff by giving her undesirable assignments and work schedules-Mills possessed and exercised the authority to discipline Dulaney by giving her "points" and sending her home early without pay, and even Woodward testified that Mills was responsible for receiving employee complaints and reporting misconduct. Id. While not dispositive, as in Whitten, it is also undisputed that Dulaney and her co- workers viewed Mills as a "supervisor," as they all referred to him this way in their depositions and Mills even introduced himself to Dulaney as a supervisor. Id. Finally, even if Mills' "level of authority over Dulaney could somehow be called "ambiguous," Dulaney's reaction to the harassment establishes conclusively that Mills was aided in his harassment by the agency relationship. Mikels, 183 F.3d at 334 (stating that where level of harasser's authority is unclear, the "tip-off may well be in her response to it"). Rather than feeling "free to 'walk away and tell the offender where to go,'" as she could have done if Mills were a mere co- worker, Dulaney "suffer[ed] the insufferable longer than she otherwise might" out of fear that she would lose her job, be unable to pay her bills, and become homeless. Mikels, 183 F.3d at 334. Therefore, this Court should hold as a matter of law that Mills was Dulaney's supervisor. See Whitten, 601 F.3d at 247 (concluding "as a matter of law" that harasser was a supervisor); see also Mack, 326 F.3d at 127 (concluding "as a matter of law" that mechanic-in-charge who lacked the authority to take tangible employment actions was nevertheless the plaintiff's supervisor because he directed the plaintiff's work and was the senior employee on site). 2. Mills had the authority to undertake and/or recommend tangible employment actions. Mills also qualifies as a supervisor because he had the authority to undertake tangible employment actions. Because the district court never analyzed whether Mills was a supervisor, it never directly addressed whether Mills had any authority to undertake tangible employment actions that would render him a supervisor. The court did, however, address the closely-connected question of whether Mills took any tangible employment actions against Dulaney such as to preclude PCA from asserting the affirmative defense. JA564. To that end, the court concluded that "sending Dulaney home 'with points'" did not constitute a tangible employment action because her "pay was never diminished . . . and she never accumulated enough points for so much as a verbal warning." Id. The court erred as both a factual and legal matter. As a factual matter, the record contains undisputed evidence that Mills retained-and exercised-the authority to send Dulany home early without pay, as they both testified that he did so. JA321; JA356. Because sending an employee home without pay-regardless of any disciplinary "points" that might be also be assigned-inflicts direct economic harm, it constitutes a tangible employment action.<7> Compare Ellerth, 524 U.S. at 762 (stating that a tangible employment action usually "inflicts direct economic harm" and is the "means by which the supervisor brings the official power of the enterprise to bear on subordinates"), and Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006) ("A reduction in an employee's hours, which reduces the employee's take- home pay, qualifies as a tangible employment action."), with Whitten, 601 F.3d at 247 (change in plaintiff's work schedule, assignment of unpleasant tasks, and verbal and physical abuse were not tangible employment actions because they did not "inflict[] economic harm" or effect a significant change in employment status). Accordingly, Mills' authority to send Dulaney home without pay qualifies him, as a matter of law, as a supervisor. It is also undisputed that Mills retained the authority to assign Dulaney "points" as part of PCA's progressive discipline system, as Dulaney testified that Mills gave her points "for leaving early and for leaving her workstation," JA325, and Mills testified that he gave Dulaney points "when she called in," presumably referring to when she called in to say she would not be coming to work. JA356. The district court seemed to believe that imposing points did not constitute a tangible employment action because Dulaney never accumulated sufficient points to warrant a diminishment in her pay or a warning. JA564. But that reasoning is erroneous. The Commission's longstanding position is that "any disciplinary action undertaken as part of a program of progressive discipline is 'tangible' because it brings the employee one step closer to discharge." Guidance at 8, n.31 (emphasis added). Because Mills retained the authority to assign "points," which brought Dulaney one step closer to termination, he had the authority to cause "a significant change in her employment status." Whitten, 601 F.3d at 247. Moreover, in the context of determining who is a supervisor, the question is not whether an individual did take a tangible employment action, but whether he had the authority to do so. And on that point, the record suggests that Mills had the authority to impose sufficient points to lead to Dulaney's formal discipline or even termination, since Dulaney testified that twelve points led inexorably to termination. Although the record evidence is less clear, a jury could also find that Mills had the authority to recommend the tangible employment actions of firing and hiring, rendering him a supervisor. See Ellerth, 524 U.S. at 747 (treating harasser as a supervisor although he had the authority only to make hiring and promotion decisions "subject to the approval of his supervisor") (emphasis added). As discussed, the undisputed evidence shows that Mills had the authority to impose "points" and was responsible for reporting misconduct to Woodward and Bourne, and Dulaney testified that the accumulation of twelve points led inexorably to termination. JA321-25; JA356; JA1121. Additionally, Dulaney testified that Mills repeatedly told her he could get her fired.<8> Based on this evidence, a jury could find that Mills had the authority to recommend Dulaney's termination to Woodward, either by reporting Dulaney's misconduct and/or by assigning her sufficient points to cause her dismissal. Accordingly, even if he never got her fired, Mills' authority to recommend Dulaney's termination would support a finding that he was her supervisor. Finally, a jury could find that Mills had the authority to make hiring recommendations. Dulaney testified that she repeatedly asked Mills when she would be hired and that he repeatedly told her she needed more hours but finally told her she was being hired. JA222-23; see also JA463 (Walker Depo.) (testifying that he was hired after Mills said he would talk to Bourne and Woodward). PCA's own internal memo offering Dulaney a job also says "From: Bobby Mills." JA176. This evidence would support a jury's finding that Mills made hiring recommendations to Woodward and Bourne, which would also render him a supervisor. JA222-23; JA176. B. Mills took tangible employment actions when he sent Dulaney home without pay, assigned her "points," and conditioned her continued employment on her submission to sex, making PCA vicariously liable for the harassment. When a supervisor's harassment culminates in a tangible employment action, the employer is vicariously liable and cannot avail itself of the Ellerth/Faragher affirmative defense. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08. For the reasons discussed above, sending an employee home without pay and assigning her "points" as part of a company's progressive discipline system constitute tangible employment actions. Therefore, if a jury finds that Mills took these actions against Dulaney because she refused his sexual advances, PCA would be vicariously liable for the harassment. A jury could additionally find that Mills conditioned Dulaney's continued employment on her submission to his sexual demands, which also constitutes a tangible employment action. While this Court has evidently never addressed the issue of whether submission to sexual demands constitutes a tangible employment action, the Commission has addressed the issue in its guidance on vicarious liability. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (the Commission's guidance "constitute[s] a body of experience and informed judgment to which courts and litigants may properly resort for guidance"). The guidance states that a tangible employment action occurs when an employee "submits to [a supervisor's sexual] demands and consequently obtains a tangible job benefit." Guidance at 10. As the Commission explained, "it would be a perverse result if the employer is foreclosed from raising the [Ellerth/Faragher] affirmative defense if its supervisor denies a tangible job benefit based on an employee's rejection of unwelcome sexual demands, but can raise the defense if its supervisor grants a tangible job benefit based on submission to such demands." Id. (emphasis added). This analysis is consistent with Ellerth and Faragher because the Supreme Court stated in those decisions only that "there must be a significant change in employment status; it did not require that the change be adverse in order to qualify as tangible." Id. Although so-called "submission" cases like this one are rare, the Second Circuit has had occasion to apply the Commission's guidance in a case that is factually very similar to this one. See Jin v. Metro. Life Ins. Co., 310 F.3d 84 (2d Cir. 2002). In Jin, the plaintiff's supervisor required her to attend weekly meetings in his locked private office where he threatened her with a baseball bat and with termination unless she submitted to demeaning sexual acts. Id. at 88-89. Relying on the Commission's guidance, the Second Circuit held that this conduct "fits squarely within the definition of 'tangible employment action'" as set out in Ellerth and Faragher. Id. at 94. The court explained that such a holding is in keeping with Ellerth's analysis of agency principles because it was the employer's empowerment of the harasser as an agent with the authority to make economic decisions that enabled him to force the plaintiff to submit to weekly sexual abuse as a condition of keeping her job. Id. at 94; see also Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994) (employer vicariously liable where supervisor conditioned the plaintiff's continued employment and granting of her leave requests upon her submission to oral sex). Thus, if a jury finds that Mills conditioned the tangible job benefit of continued employment on Dulaney's submission to weekly sex, PCA would be vicariously liable for the harassment and could not benefit from the Ellerth/Faragher affirmative defense. Such a holding would be consistent with the agency principles set out in Ellerth and Faragher, as it was PCA's empowerment of Mills as an agent with authority over Dulaney that enabled him to sexually abuse her. As Dulaney testified repeatedly during her deposition, she submitted to the sex out of fear of receiving "points" and being terminated. The fact that PCA's empowerment of Mills as a supervisor made the abuse possible is further underscored by Mills' authority to order Dulaney to the office and his use of the company key to access the office, where he could assault her privately in the men's bathroom or the maintenance shop. See Jin, 310 F.3d at 94 ("[T]hat Morabito as a supervisor could require Jin to report to his private office where he could make his threats and carry on his abuses further supports the claim that his empowerment was as the company's agent"). CONCLUSION For the foregoing reasons, this Court should reverse the entry of summary judgment and remand this case for trial. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________ s/Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, D.C. 20507 annenoel.occhialino@eeoc.gov CERTIFICATE OF SERVICE I certify that I filed this brief with the Court on January 28, 2011 via CM/ECF and sent by overnight mail eight identical copies of the brief and that the Court will service notice via CM/ECF on the following counsel of record: Counsel for Plaintiff-Appellant: Terry N. Grimes Grimes & Williams, PC 320 Elm Ave. Roanoke, VA 24016 (540) 982-3711 Counsel for Defendant-Appellee PCA Lawrence P. Postol Seyfarth Shaw, LLP 975 F St., NW Washington, DC 20004 (202) 828-5385 Counsel for Defendant-Appellee Bobby Mills Kevin Holder Jackson Lewis, LLP 321 Franklin St. Richmond, VA 23220 (804) 212-2888 s/ Anne Noel Occhialino Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, DC 20507 (202) 663-4724 (phone) annenoel.occhialino@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rule 28.1(e)(2)(B) because it contains 6,997 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 with 14 point Times New Roman. s/Anne Noel Occhialino Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE Washington, DC 20507 (202) 663-4724 annenoel.occhialino@eeoc.gov January 28, 2011 ********************************************************************************** <> <1> We take no position on any other issues presented in this appeal. <2> Dulaney's co-worker, Oscar Walker, also testified that he was hired after Mills said he would talk to Bourne and Woodward. JA463. <3> After Dulaney complained in September 2007, PCA officials asked Floyd if Mills had harassed Dulaney. JA201. When Floyd confirmed that Mills had, the officials tried to get him to change his story. Id. <4> Dulaney did not respond to PCA's motion for summary judgment on her retaliation claim, and she has not raised that claim on appeal. <5> Citations to the guidance are to the copy available on the EEOC's web page. <6> Although Whitten involved claims under state law, this Court applied Title VII law in deciding her claim. Whitten, 601 F.3d at 242. <7> Mills' testimony suggests that he could, and did, send Dulaney home without pay without assigning her any points. JA356. <8> Mills may also qualify as a "supervisor" under the "apparent authority analysis." Citing the Restatement (Second) of Agency § 8, Comment c, the Supreme Court stated in Ellerth that if "in the unusual case[] it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one." Ellerth, 524 U.S. 759. Thus, even if a jury believed-as PCA claims-that Mills lacked the authority to get Dulaney fired, a jury could find based on this record that Dulaney had a reasonable belief that he could.