02-7056 ______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _____________________________________________________ YASHARAY MACK, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY AND LOCAL 1 INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, Defendants-Appellees. _________________________________________________________ On Appeal from the United States District Court for the Southern District of New York _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 BACKGROUND 2 ARGUMENT AN INDIVIDUAL IS AN EMPLOYEE'S SUPERVISOR WITHIN THE MEANING OF FARAGHER AND ELLERTH IF HE HAS THE AUTHORITY TO DIRECT THE EMPLOYEE'S DAY-TO-DAY WORK ACTIVITIES EVEN IF HE DOES NOT HAVE THE AUTHORITY TO UNDERTAKE OR RECOMMEND TANGIBLE JOB DECISIONS. 9 ADDENDUM EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7651 (1999) TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 2 Bray v. City of Chicago, No. 01-C-7770, 2002 WL 31427026 (N.D. Ill. Oct. 30, 2002) 19 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) 1, 9, 10 Dinkins v. Charoen Pokpahand USA, Inc., 133 F. Supp. 2d 1254 (M.D. Ala. 2001) 14, 20 Faragher v. Boca Raton, 524 U.S. 775 (1998) 1, 9, 10, 12, 20, 21 Gawley v. Ind. Univ., 276 F.3d 301 (7th Cir. 2001) 17 Glickstein v. Neshaminy Sch. Dist., No. CIV. A. 96-6236, 1999 WL 58578 (E.D. Pa. Jan. 26, 1999) 14 Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953 (D. Minn. 1998) 13, 14 Hall v. Bodine Elec. Co., 276 F.3d 345 (7th Cir. 2002) 19 Harbison v. Prestige Group, Inc., No. IP 99-0882-C, 2001 WL 395786 (S.D. Ind. Mar. 16, 2001) 17 Kent v. Henderson, 77 F. Supp. 2d 628, 634 (E.D. Pa. Nov. 24, 1999) 18 Lumhoo v. Home Depot USA, Inc., No. 00-5267, 2002 WL 31409430 (E.D.N.Y. Sept. 26, 2002) 13 Mack v. Otis Elevator Co., No. 00-CIV-7778, 2001 WL 1636886 (S.D.N.Y. Dec. 18, 2001) 7, 8, 15, 17 Meritor Savs. Bank v. Vinson, 477 U.S. 57 (1986) 13, 20 Parkins v. Civil Constructors, 163 F.3d 1027 (7th Cir. 1998) 15, 16 Perry v. Ethan Allen, Inc., 115 F.3d 143 (2d Cir. 1997) 10 Quiroz v. Ganna Construction, No. 97-C-0480, 1999 WL 59836 (N.D. Ill. Jan. 29, 1999) 18 Richardson v. N.Y. Dep't of Corr. Serv., 180 F.3d 426 (2d Cir. 1999) 10 Riley v. Orthogenic Sch., No. 99-C-6057, 2001 WL 1345950 (N.D. Ill. Oct. 30, 2001) 19 Robinson v. Rony Oatman, Inc., No. 97C8964, 1999 WL 1102694 (N.D. Ill. Nov. 23, 1999) 19 Simon v. City of Naperville, 88 F. Supp. 2d 872 (N.D. Ill. 2000) 18 Trigg v. N.Y. City Transit Authority, No. 99-CV-4730, 2001 WL 868336 (E.D.N.Y. July 26, 2001) 19 Weyers v. Lear Operations Corp., No. 00-0877-CV-W-5, 2002 WL 31455751 (W.D. Mo. Aug. 14, 2002) 14 AGENCY GUIDANCE EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7651 (1999) 2, 10, 11, 12 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _________________________ No. 02-7056 _________________________ YASHARAY MACK, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY AND LOCAL 1 INTERNATIONAL UNION OF ELEVATOR CONTRACTORS, Defendants-Appellees. ___________________________________________________________ On Appeal from the United States District Court for the Southern District of New York ____________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ___________________________________________________________ INTRODUCTION This brief is submitted in response to the Court's letter of November 5, 2002, inviting the Equal Employment Opportunity Commission to submit an amicus brief setting forth the agency's views on the following question: Whether an employee who has the authority to direct an allegedly sexually harassed employee's daily work activities but who does not have the authority himself to undertake tangible employment decisions affecting the employee, such as hiring or firing, qualifies as a “supervisor” for purposes of subjecting the employer to vicarious liability under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. Boca Raton, 524 U.S. 775 (1998). It is the Commission's position that, under Faragher and Ellerth, “[a]n individual who is authorized to direct another employee's day-to-day work activities qualifies as his or her supervisor even if that individual does not have the authority to undertake or recommend tangible job decisions.” EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Manual (BNA) 405:7651, 7654 (1999) (copy attached). There is sufficient evidence in the record to support a finding that the principal harasser in this case was a supervisor under this standard. BACKGROUND<1> Yasharay Mack, an African American woman, worked for Otis Elevator Company as a mechanic's helper from July 19, 1999, to May 16, 2000. A-12, 14 (Amended Complaint ¶¶ 13, 27). Mechanic's helpers work directly under the mechanics and are the lowest ranking employees on a job site. A-654 (Morrison Dep. at 15); A-78, 81 (Mack Dep. at 42, 45). In September 1999, Mack was assigned to work in the Metropolitan Life building, an office building with sixty elevators located at 200 Park Avenue in Manhattan. A-84 (Mack Dep. at 53). At the Met Life building, there were four mechanics and one or two helpers at any given time. A-85-86 (Mack Dep. at 54-55). Otis employees could be assigned to maintenance or modernization; Mack worked in maintenance. A-97 (Mack Dep. at 79). Phil Gallina was a supervisor for both the company's maintenance and modernization efforts. A-266 (Scheppke Dep. at 13). Gallina had an office at the Met Life building, but was rarely at the site and did not assign maintenance tasks on a regular basis. A-98 (Mack Dep. at 80); A-708 (Connolly Dep. at 71) (Gallina was on site “[v]ery rarely. I mean very, very rarely”). James Connolly was the designated “mechanic in charge” at the Met Life building. The contract between Otis Elevator and Local 1 International Union of Elevator Constructors provides that one mechanic will be designated as “mechanic in charge” whenever there are five or more Otis employees on one job. A-249 (Barrett Dep. at 81); A-387 (2000 Union Contract). Under the contract, the mechanic in charge “shall have the right to assign and schedule work, direct the work force, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures on the job to which he is assigned by the Employer.” A-390 (2000 Union Contract). At the Met Life building, Connolly assigned work to the mechanics and helpers, assigned overtime, and maintained the time cards for employees. A-292-93 (Connolly Dep. at 19-20); A-707 (Caban Dep. at 13); A-568 (Green Dep. at 23). Connolly explained: “I interact with building management to make sure their needs are being addressed promptly and courteously, make sure the maintenance and repairs are done in a timely fashion. . . . I make out the time tickets for just the maintenance department.” A-539-40 (Connolly Dep. at 6-7). If a mechanic refused an assignment, Connolly testified that he “would either talk to the shop steward or someone in-house to address the problem.” A-293 (Connolly Dep. at 20). Connolly also testified he was “left alone” for the most part at the Met Life building. A-708-09 (Connolly Dep. at 71, 72). On Mack's first day at the Met Life building, Connolly told her that she was very attractive and that he liked her smell. A-101 (Mack Dep. at 83). Connolly frequently commented on her appearance. For example, he told her that she had a “fantastic ass,” “luscious lips,” “a nice body,” “beautiful eyes,” and that she looked “sexy in her uniform.” A-127-31, 133-34, 137 (Mack Dep. at 122-26, 128-29, 132). Mack maintained that Connolly “just always made references to my body. He did that all the time.” A-129 (Mack Dep. at 124). Connolly also touched Mack a number of times. During her first month at the Met Life building, he grabbed her by the waist and pulled her onto his lap. On other occasions, he stood close to her and removed pens from her front pocket, rubbed up against her, and grabbed her and tried to kiss her. A-155, 513, 528-30 (Mack Dep. at 159, 206, 427-29). Mack testified that more than thirty times, Connolly undressed in front of her while changing out of his uniform in the motor room where employees stored their things. A-87, 147 (Mack Dep. at 56, 151); see also A-291 (Connolly Dep. at 16). On at least one occasion, Connolly bragged of his sexual exploits to Mack. A-154 (Mack Dep. at 158). Connolly also directed comments at Mack that demeaned women and people of color. For example, Connolly told Mack to “stand there and look pretty,” and said that he did “not know why women were on this job anyway.” A-139 (Mack Dep. at 138). Connolly also told Mack that “spics and niggers” don't belong in the business, and once referred to her as “colored.” A-121-22, 157 (Mack Dep. at 103-04, 161). Mack objected to Connolly's behavior to Connolly and to several of the mechanics during the course of her employment. A-112, 513, 522 (Mack Dep. at 94, 206, 235). In November 1999, the month after Connolly's harassment began, Mack complained to Gallina, on one of the occasions he was at the Met Life building. According to Mack, she “made reference to the abuse I was dealing with while under Jim Connolly's care.” A-104 (Mack Dep. at 86). Mack testified that she told Gallina that she was “plagued with a lot of sexist issues” and was upset by “the way he talked to me in a sexist manner, he pretty much stared at me . . . this guy is always making rude and sexist comments to me.” A-104 (Mack Dep. at 86). Mack asked to be moved away from Connolly's direct supervision. A-175 (Mack Dep. at 205). At a later date, Mack also complained to Local 1's shop steward, Craig Reiff. A-106-08 (Mack Dep. at 88-90). Mack testified that she did not complain more for fear of being labeled a “rat” and retaliated against with fewer overtime assignments. A-170 (Mack Dep. at 198). This fear was realized when Connolly later refused to assign plaintiff overtime. A-469 (Mack Dep. at 109) (“Towards the end when things got bad with Connolly, he gave me very little. That's what he did when he was angry with people.”). On Mack's last day, May 16, 2000, Connolly cursed at her while in his underwear as he was changing out of his uniform. Connolly told Mack that she could go complain about him but he would get away with it and “you're nobody.” A-184 (Mack Dep. at 303); A-624 (Caban Dep. at 73). On May 17, Mack's father called Otis to complain about Connolly's treatment of his daughter. A-164 (Mack Dep. at 186). Mack testified that in a later meeting she told human resources director Paul Barrett “about the way [Connolly] made sexual comments to me, the way he makes attempts to kiss me, the way he – in front of all the mechanics, grabbed me by my waist, pulled me onto his lap[,] . . . . [t]he way he touched my rear end when I tried to get away from him, everything.” A-117 (Mack Dep. at 99). The company offered to transfer Mack to another building site, but she refused based on her understanding that no overtime was assigned at that site. A-126 (Mack Dep. at 108). She also testified that she no longer felt safe working for the company. Id. Mack never returned to work at Otis. A-163 (Mack Dep. at 176). Mack filed suit alleging that she was subjected to a racially and sexually hostile work environment and asserting claims against Otis Elevator and Local 1 for retaliation and constructive discharge in violation of Title VII, 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights law. On December 18, 2001, the district court granted summary judgment for the defendants. The district court concluded that, “even if a hostile work environment existed at Otis, there is no basis for imputing the conduct that created the hostile work environment to Otis.” Mack v. Otis Elevator Co., No. 00-CIV-7778, 2001 WL 1636886, at *6 (S.D.N.Y. Dec. 18, 2001). The court found that “there is no evidence from which a jury could determine that Connolly had the requisite power to be construed as a ‘supervisor'” because he could not hire, fire, promote, demote or discipline Mack. Id. at *7.<2> Based on its ruling that Connolly was not Mack's supervisor, but merely a co-employee, the court held that Otis was not liable for his conduct unless Mack established that the company “‘either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it.'” 2001 WL 1636886, at *8 (quoting Quinn v. Green Tree Credit Corp., 159 F. 3d 759, 766 (2d Cir. 1998)). Because Otis had a written policy against sex discrimination and harassment and “Mack has admitted that she was aware of such policy and has made no argument that this policy is inherently unreasonable,” the court determined that “liability for the alleged harassment cannot be imputed to Otis on this ground.” Id. According to the court, Mack's complaints about Connolly to three mechanics could not support a finding that Otis knew of the harassment because the mechanics were not supervisors and had no duty to pass Mack's complaints on to management. Id. at *9. The court also ruled that Mack's conversation with Gallina was insufficient to provide notice to the company because Mack's complaints did not give him enough information to put him on notice that she was being sexually harassed. Id. at *10-*11.<3> On appeal, Mack argues that the district court erred in finding that Connolly was not her supervisor because Connolly had the authority to affect the terms and conditions of her employment. Pl. Br. at 16-17 (“Connolly controls all the work of the mechanics and helpers below him, including Ms. Mack. His job included assigning overtime to employees, assigning employees to make repairs, assigning which work assignment each employee would be responsible for, training Otis employees and maintaining the time records for employees.”). Otis and Local 1 argue that Connolly was not Mack's supervisor because he lacked “the power to hire, fire, or alter any of the economic terms and conditions of her employment.” Def. Br. at 12; Union Br. at 16. ARGUMENT AN INDIVIDUAL IS AN EMPLOYEE'S SUPERVISOR WITHIN THE MEANING OF FARAGHER AND ELLERTH IF HE HAS THE AUTHORITY TO DIRECT THE EMPLOYEE'S DAY-TO-DAY WORK ACTIVITIES EVEN IF HE DOES NOT HAVE THE AUTHORITY TO UNDERTAKE OR RECOMMEND TANGIBLE JOB DECISIONS. The Supreme Court held in Faragher and Ellerth that an employer is vicariously liable for a hostile work environment created by a supervisor with immediate authority over the victims unless it can prove that (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. See Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. Where the harasser is merely a coworker, employer liability is determined under a negligence standard. Faragher, 524 U.S. at 799. Under that standard, an employer is liable only if the plaintiff can prove the employer knew or should have known about the harassment and failed to take appropriate remedial action. See, e.g., Richardson v. New York Dep't of Corr. Serv., 180 F.3d 426, 441 (2d Cir. 1999); Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). The Supreme Court justified the higher standard of liability for supervisors on the ground that the “acts of supervisors have greater power to alter the environment than acts of coemployees generally.” Faragher, 524 U.S. at 805-06; Ellerth, 524 U.S. at 763 (“a supervisor's power and authority invest his or her harassing conduct with a particular threatening character”). In Faragher and Ellerth, the Court defined a “supervisor” simply as someone “with immediate (or successively higher) authority over the employee.” Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. The opinions do not state with specificity what sort of “authority” an individual must have to be a supervisor. In guidance issued after Faragher and Ellerth, the Commission states that a supervisor is an individual with “(1) the authority to undertake or recommend tangible employment decisions affecting the employee; or (2) the authority to direct the employee's daily work activities.” Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Man. 405:7651 at 7654. In the latter situation, the Commission's Guidance explains: An individual who is authorized to direct another employee's day-to-day work activities qualifies as his or her supervisor even if that individual does not have the authority to undertake or recommend tangible job decisions. Such an individual's ability to commit harassment is enhanced by his or her authority to increase the employee's workload or assign undesirable tasks, and hence it is appropriate to consider such a person a “supervisor” when determining whether the employer is vicariously liable. Id. at 7654. Thus, the Commission's view is that an individual may be a supervisor even if he is not authorized to undertake tangible employment actions with respect to the victim of harassment. The Commission's Guidance also provides that an individual who is temporarily authorized to direct another employee's daily work activities is that employee's “supervisor” during that time period. Thus the Guidance states, “[T]he employer would be subject to vicarious liability if that individual commits unlawful harassment of a subordinate while serving as his or her supervisor.” Id. at 7655. However, “someone who merely relays other officials' instructions regarding work assignments and reports back to those officials does not have true supervisory authority.” Id. The Commission's position regarding the scope of the term “supervisor” is fully consistent with the holding and the logic of the Faragher and Ellerth decisions. Title VII makes it unlawful to subject an employee to a work environment that discriminatorily alters her terms and conditions of employment. Because an individual, like Connolly, who lacks authority to take tangible employment actions with respect to other employees may still control or strongly influence the employee's working conditions by assigning work, the vicarious liability rule announced by the Supreme Court should not be limited to individuals who are empowered to make tangible job decisions such as hiring or firing. The Faragher case itself provides the best support for the Commission's position. As the Commission noted in its Guidance (see 8 FEP Man. 405:7651, 7654-55), David Silverman, one of the harassers classified as a supervisor in Faragher, was responsible only for making the lifeguards' daily assignments and overseeing their work and fitness training. See 524 U.S. at 781. The court did not distinguish Silverman from the other harasser, Bill Terry, who had authority to hire new lifeguards subject to approval of higher management, supervise lifeguards' work assignments, engage in counseling, deliver oral reprimands, and record discipline. The City was held vicariously liable for the actions of Silverman, who did not have the authority to hire or fire Faragher, as well as those of Terry. See id. at 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.'”) (internal citations omitted). If the term “supervisor” were limited to persons who have the authority to actually take tangible employment actions, an employer could “effectively insulate itself from the application of Faragher and Ellerth simply by directing all critical personnel decisions to be effected by a personnel department, which may have no direct, and only infrequent, contact with the employee subject to the harassment.” Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953, 973 (D. Minn. 1998); see also Meritor Savs. Bank v. Vinson, 477 U.S. 57, 76-77 (1986) (Marshall, J., concurring) (“A supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases it is the authority vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates.”). A number of courts have endorsed a definition of the term “supervisor” consistent with the Commission's. See, e.g., Lumhoo v. Home Depot USA, Inc., No. 00-5267, 2002 WL 31409430, at *29 (E.D.N.Y. Sept. 26, 2002) (assistant manager could be found to be a supervisor where he was plaintiff's first-line supervisor, had authority to control plaintiff's daily activities, had authority to fix working conditions such as employee hours, and had authority to approve overtime compensation for an employee, stating, “it is clear that the Supreme Court views the term ‘supervisor' as more expansive than simply those employees who have the power to hire, fire, demote or promote”); Dinkins v. Charoen Pokpahand USA, Inc., 133 F. Supp. 2d 1254, 1265 (M.D. Ala. 2001) (“supervisor” includes one who has the authority to “direct another employee's day-to-day work activities in a manner that may increase the employee's workload or triggers the assignment of additional or undesirable tasks”); Weyers v. Lear Operations Corp., No. 00-0877-CV-W-5, 2002 WL 31455751, at *12-13 (W.D. Mo. Aug. 14, 2002) (individual who told plaintiff where to work in assembly line, was paid more, exercised control over her training, supervised her work, and completed performance evaluations was a supervisor, although he lacked power to hire or fire); Grozdanich, 25 F. Supp. 2d at 972 (“[u]pon a close reading of the Faragher decision, it is evident that the Supreme Court views the term ‘supervisor' as more expansive than as merely including those employees whose opinions are dispositive on hiring, firing, and promotion;” thus “charge nurse” who had authority to control plaintiff's daily activities and recommend discipline qualified as “supervisor”); Glickstein v. Neshaminy Sch. Dist., No. CIV. A. 96-6236, 1999 WL 58578, at *13 (E.D. Pa. Jan. 26, 1999) (chairperson of high school's science department could be found to be chemistry teacher's supervisor where chairperson had the authority to change the amount, nature, and character of her work; assigned plaintiff to teach the least desirable lower level classes; and assigned her to lower level administrative tasks including monitoring study hall and cafeteria duty; other teachers avoided being seen with her for fear it would result in a schedule “like hers”). In granting summary judgment for the defendant, the district court relied on the Seventh Circuit's decision in Parkins v. Civil Constructors, 163 F.3d 1027 (7th Cir. 1998). As the district court noted, the Parkins court stated: “[T]he essence of supervisory status is the authority to affect the terms and conditions of the victim's employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes imputing liability to the employer.” 163 F.3d at 1033. The district court read Parkins to mean that someone who lacks the powers enumerated by the court of appeals in that case cannot qualify as a supervisor. See Mack, 2001 WL 1636886, at *7 (“there is no evidence from which a jury could determine that Connolly had the requisite power to be construed as a ‘supervisor' because he could not hire, fire, promote, demote or discipline Mack”). The district court's reliance on Parkins is misplaced. A careful reading of the decision indicates that the Parkins court did not intend to adopt such a rigid test for determining supervisory status. The court's general holding – that “the authority to affect the terms and conditions of the victim's employment” is the essence of supervisory status (163 F.3d at 1033) – is fully consistent with the Commission's Guidance because an individual “authorized to direct another employee's day-to-day work activities” could surely be said to have the authority to affect the terms and conditions of that employee's employment. Furthermore, the Parkins court reached the conclusion that the harassers in that case were not supervisors only after a detailed examination of the evidence concerning their authority over the victim and a finding that their authority to direct the victim's work was limited and sporadic. See 163 F.3d at 1034 (“any authority [the harassers] had over Parkins was tenuous at best, because she did not work exclusively at the same sites . . . was not a laborer on site; she drove a truck, delivering and transferring loads of dirt and other materials. At most, [the foremen] would tell her where to dump or pick up a load.”). Accordingly, the Parkins decision cannot be read to hold that an individual may never be found to be a victim's supervisor based solely on his authority to direct her day-to-day work. At least one panel in the Seventh Circuit has read Parkins more broadly than the district court in this case, and concluded that the definition of “supervisor” for purposes of Faragher and Ellerth is not limited to those with the authority to hire, fire, promote, or demote. See Gawley v. Ind. Univ., 276 F.3d 301, 310-11 (7th Cir. 2001) (harasser, who was head of equipment and safety, was police officer's supervisor because he could delay plaintiff's ability to get requested equipment and “was entrusted with powers that rendered subordinates less likely to blow the whistle on him” thus he was aided by the agency relationship in harassing subordinate employees) (citing Parkins' holding that the essence of supervisory status is the authority to affect the terms and conditions of the victim's employment). A number of district courts within the Seventh Circuit have also read Parkins to take a less rigid approach consistent with the Commission's Guidance. See, e.g., Harbison v. Prestige Group, Inc., No. IP 99-0882-C, 2001 WL 395786, at *23 (S.D. Ind. Mar. 16, 2001) (ultimate power to hire, fire, or discipline is “not the standard” under Faragher, Ellerth, or Parkins; alleged harasser who was “deeply involved” in plaintiff's field of sales, had influence over sales quotas, could reject new accounts, and had the ability to affect how accounts in plaintiff's department were assigned or credited had the power to affect the terms and conditions of plaintiff's employment and, therefore, was her supervisor); Simon v. City of Naperville, 88 F. Supp. 2d 872 (N.D. Ill. 2000) (training officer was plaintiff's supervisor because the officer “was in a position of authority, [plaintiff] was with him constantly during training, in which he directed her day to day activities and evaluated her performance,” noting that training captain who lacked the power to hire and fire was deemed a supervisor in Faragher); Quiroz v. Ganna Constr., No. 97-C-0480, 1999 WL 59836, at *20 (N.D. Ill. Jan. 29, 1999) (foreman who had no authority to hire, fire, promote, or discipline could be found to be laborer's supervisor based on “plentiful evidence that [the foreman] had the ability to determine the work conditions under which she . . . worked”). See also Kent v. Henderson, 77 F. Supp. 2d 628, 634 (E.D. Pa. Nov. 24, 1999) (plaintiff failed to show individual in question “had authority to hire, fire, re-assign, or demote her or set her work schedule or pay rate, or that [he] had the power to take tangible employment action against her or affect her daily work activities” citing as background “teachings” both EEOC's Guidance and Parkins). We recognize that other courts, including another panel of the Seventh Circuit, have read Parkins to adopt a rigid rule that the power to hire, fire, demote, promote, transfer, or discipline is a sine qua non of supervisor status. See, e.g., Hall v. Bodine Elec. Co., 276 F.3d 345, 355 (7th Cir. 2002) (individual who had authority to direct which machines plaintiff ran, provided input into performance evaluations, and was charged with training her was not a supervisor because nothing in the record indicated that he had the authority to hire, fire, demote, promote, transfer, or discipline plaintiff); Bray v. City of Chicago, No. 01-C-7770, 2002 WL 31427026, at *7 (N.D. Ill. Oct. 30, 2002) (“[t]he mere authority to instruct and oversee another employee's job performance is not enough to establish a supervisory relationship for purposes of Title VII”) (citing Hall and Parkins); Riley v. Orthogenic Sch., No. 99-C-6057, 2001 WL 1345950, at *8 (N.D. Ill. Oct. 30, 2001) (“[w]ithout the ability to hire and fire, [alleged harasser] is simply another co-employee under the law of this Circuit”); Robinson v. Rony Oatman, Inc., No. 97C8964, 1999 WL 1102694, at *7 (N.D. Ill. Nov. 23, 1999) (because harasser's duties did not include the power to hire or fire employees, he was merely plaintiff's co-worker). Nearly all of the decisions adopting this inflexible approach are by lower courts in the Seventh Circuit. However, in addition to the district court in this case, at least one other district court in this circuit has taken this approach. See Trigg v. N.Y. City Transit Auth., No. 99-CV-4730, 2001 WL 868336, at *7 (E.D.N.Y. July 26, 2001) (individual who oversaw daily work assignments of cashiers and dealt with operational issues was a coworker, not a supervisor because he did not have the authority to change or alter the terms or conditions of plaintiff's employment) (citing Parkins). However, such a rigid interpretation of Parkins applies an overly mechanical application of agency law that is inconsistent with Faragher and Ellerth. The Supreme Court instructed that “[t]he proper analysis here . . . calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement [of Agency], but rather an inquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor's employment, and the reasons for the opposite view.” Faragher, 524 U.S. at 797. See also Meritor, 477 U.S. at 72 (“common-law principles may not be transferable in all their particulars to Title VII”). As one district court has observed, “Although Parkins is appealing because it establishes simple rules for complex cases, the court believes that it improperly truncates the Supreme Court's holdings in Faragher and Ellerth. These companion cases clearly indicate that an analysis of employment relationships involves multifactorial analysis rather than simplistic taxonomy.” Dinkins, 133 F. Supp. at 1266. In this case, there is sufficient evidence to support a finding that Connolly is a supervisor under the proper standard. The collective bargaining agreement between Otis and Local 1 specifically provides that the mechanic in charge “shall have the right to assign and schedule work, direct the work force, assure the quality and efficiency of the assignment, and to enforce the safety practices and procedures on the job to which he is assigned by the Employer.” A-390 (2000 Union Contract). On most days Connolly was the highest ranking Otis employee at the Met Life building. Because Connolly controlled the daily work assignments of the mechanics and mechanic's helpers, he affected the terms and conditions of Mack's employment by deciding who would perform which task. Like Silverman, who threatened that Faragher would have to clean toilets for a year if she did not sleep with him, 524 U.S. at 780, Connolly had the authority to give Mack the least desirable maintenance tasks or withhold training opportunities if she rejected or complained about his advances. In addition, the record assessed in the light most favorable to Mack indicates that in addition to the mechanic in charge duties outlined by the union contract, Connolly had additional responsibilities. Although defendant argues that nothing about the mechanic in charge designation gave Connolly “any authority to make economic decisions affecting Mack's employment,” Def. Br. at 13, a jury could conclude otherwise. There is evidence that Connolly's role in assigning overtime hours affected the economic terms of Mack's employment because the pay she received was significantly affected by overtime hours worked. In addition, Connolly maintained the time records for the mechanics and helpers under him, thus wielded a significant amount of control over the hours for which Mack would be paid. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel __________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 December 19, 2002 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via overnight mail to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLANT YASHARAY MACK: Saul D. Zabell Michael G. McAlvin SOMMA, ZABELL & ASSOCIATES 500 Bi-County Boulevard Farmingdale, NY 11735 COUNSEL FOR DEFENDANT-APPELLEE OTIS ELEVATOR CO.: Kenneth W. Gage Jamal M. Dawkins DAY, BERRY & HOWARD LLP One Canterbury Green Stamford, CT 06901 COUNSEL FOR DEFENDANT-APPELLEE LOCAL 1 INTERNATIONAL UNION ELEVATOR CONSTRUCTORS: Richard H. Markowitz MARKOWITZ & RICHMOND 1100 North American Building, Suite 1100 121 South Broad Street Philadelphia, PA 19107 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 December 19, 2002 ADDENDUM 1 Because this is an appeal of the district court's grant of summary judgment, we relate the facts in the light most favorable to the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2 Applying the same standard, the court also rejected Mack's argument that Lombardo, a mechanic who allegedly made racial remarks to Mack, was a supervisor. Id. at *8. 3 The court also dismissed plaintiff's constructive discharge claim because “a reasonable jury could not conclude that Mack's working conditions were so intolerable that a reasonable person in her shoes would have felt compelled to resign.” Id. at *11. The court dismissed plaintiff's retaliation claim on the ground that plaintiff was not subject to any adverse employment actions. Id. at *12.