IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________ No. 02-3732 _____________________ PAMELA WEYERS, Plaintiff-Appellee, v. LEAR OPERATIONS CORPORATION, d/b/a Lear Corporation, Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Western District of Missouri _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE FOR AFFIRMANCE ______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 ISSUE PRESENTED 2 STATEMENT OF THE CASE 3 A. Nature of the Case and Course of Proceedings 3 B. Statement of Facts 4 C. District Court Decision 8 SUMMARY OF ARGUMENT 10 STANDARD OF REVIEW 11 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-TODAY WORK ACTIVITIES EVEN IF HE DOES NOT HAVE THE AUTHORITY TO UNDERTAKE TANGIBLE EMPLOYMENT JOB DECISIONS 12 CONCLUSION 25 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________ No. 02-3732 _____________________ PAMELA WEYERS, Plaintiff-Appellee, v. LEAR OPERATIONS CORPORATION, d/b/a Lear Corporation, Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Western District of Missouri _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE ______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the federal agency charged with the interpretation, administration, and enforcement of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and other federal fair employment statutes. This appeal raises the question of whether an employee who had the authority to direct an employee's daily work activities and who exercised control over her training and completed her performance evaluations, but did not have the authority to undertake tangible employment decisions such as hiring, firing, and demoting, was that employee's “supervisor” for purposes of subjecting the employer to vicarious liability under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The defendant urges this Court to adopt a narrow rule that only the actions of employees who have the authority to make tangible employment actions can subject the employer to vicarious liability. This rule, if adopted, would frustrate the Supreme Court's stated purpose in prescribing vicarious liability for conduct of employees who have the authority to materially affect the working life of other employees. It is also inconsistent with the Commission's interpretation of Faragher and Ellerth. Accordingly, we offer our views to the Court. STATEMENT OF THE ISSUE<1> Whether an employee with authority to direct another employee's daily work activities and to evaluate her performance but without authority to hire, fire, or demote was the other employee's supervisor for purposes of subjecting the employer to vicarious liability. STATEMENT OF THE CASE A. Nature of the Case This is an appeal from a final judgment based on a jury verdict finding that the defendant violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Missouri Human Rights Act (“MHRA”), § 213.055 et seq., by, inter alia, subjecting her to a hostile work environment based on age. The plaintiff initiated this action by filing a complaint in August 2000 alleging that the defendant subjected her to a hostile work environment and terminated her due to her sex and age in violation of Title VII, 42 U.S.C. § 2000e et seq., the ADEA and the MHRA. Appendix (“A”) at 2, Docket Entry ("DE") 1. On September 18, 2001, the district court granted defendant's motion for summary judgment as to the sex discrimination and sexual harassment claims under Title VII and the MHRA but allowed plaintiff to proceed to trial on her claims of age discrimination and age harassment under the ADEA and the MHRA. A.at 7, DE 47. After a 3-day trial in October 2001, a jury found that defendant violated the ADEA and the MHRA and awarded for the age harassment claim $125,000 in actual damages under the ADEA and the MHRA, $125,000 in liquidated damages under the ADEA and $500,000 in punitive damages under the MHRA and awarded for the age discrimination claim based on plaintiff's termination $68,962 actual damages under the ADEA, $68,962 liquidated damages under the ADEA and $125,000 punitive damages under the MHRA. On August 14, 2002, the district court denied the defendant's motion for judgment as a matter of law and entered judgment on the verdict subject to a remittitur, reducing the total amount of damages to $718,962, which the plaintiff accepted.<2> A. at 12, DE 96. B. Statement of Facts<3> On November 29, 1999, Lear Operations Corporation hired Pamela Weyers, who was then 43 years old, as a probationary employee. Tr. at 75. Weyers was assigned to work as an assembler in the “Rear Seat Department”of Lear's automotive seat assembly plant in Liberty, Missouri. Tr. at 75. Ben Brosius was Weyers's “team leader.” Tr. at 26. As such, he was responsible for making Weyers's daily assignments, and for monitoring, assisting and evaluating her work. Tr. at 76. Brosius did not have the authority to hire or fire, although some employees had the impression that he could recommend termination. Tr. at 76, 93-94, 105. Normally, there would be a shift supervisor present who would oversee the assemblers and the team leader in the Rear Seat Department. Tr. at 105, 229-30. However, during the time Brosius was Weyers's team leader, there was no shift supervisor in the Rear Seat Department. Tr. at 416-17. Accordingly, except for the occasions when Bill Courteville, the supervisor of the Front Seat Department, or Tony Mendez, the shift superintendent, would visit the Rear Seat Department, Brosius was the only supervisory employee present. Tr. at 416-17, 437. Mendez and other production line employees testified that employees on Weyers's shift viewed Brosius as a supervisor. Tr. at 49, 71, 76, 170-71. Ordinarily, probationary employees in the Rear Seat Department were rotated through the various “stations” on the production line, where they were assigned to trainers. Tr. at 409-11. However, Brosius, who made out the rotation sheets, assigned Weyers to a position that did not rotate and assigned her to work with an employee who was not capable of performing many of the jobs in the rotation, thus denying Weyers the opportunity to obtain the same training as younger employees. Tr. at 33, 40-41, 76. Despite Weyers's complaints about not being rotated like the other probationary employees, Brosius refused to add her to the “cycle.” Tr. at 288-90. On her own initiative, Weyers stepped into different jobs, and employees, many of whom were also probationary employees, trained her the best they could. Tr. at 66-68, 269-70. When Brosius saw her working at different jobs on the production line, he took her off the line. Tr. at 47, 134, 197-98, 269-71, 307. Throughout Brosius's tenure as Weyers's team leader,<4> he made derogatory, age-related comments to and about Weyers and other older employees. Weyers heard Brosius repeatedly refer to her as a “dumb old bitch,” “old hag,” or “stupid, old fucker.” Tr. at 278-80, 308-09. Weyers heard Brosius tell other employees, “if you are over 25, you're female, you're out of here,” that he “hated” Weyers and that he wasn't going to have any “old bitches working on his line.” Tr. at 163, 293, 308. Further, a co-worker heard Brosius state, referring to Weyers, “that old bitch ain't going to make her ninety days.” Tr. at 200. Other older probationary employees under Brosius's supervision were similarly denied training, not put on rotation and not given any assistance when on the line. Tr. at 46-47, 68-69, 135-37, 152, 164-65, 179-80, 282-85. In addition to the ageist comments and denial of training and rotation, Brosius threw screws at Weyers (tr. at 36), made an obscene gesture directed at her (tr. at 310), pushed her aside while she was working, causing her to stumble (tr. at 343-44), and failed to give her help when needed, whereas younger probationary employees were given assistance (tr. at 152, 374-76). There was conflicting testimony about the speed with which Weyers completed different tasks and the effort she put into her work. Tr. at 33, 41, 67-70, 197-98, 509-510. Lear's policy is to give probationary employees frequent evaluations to inform them of their progress and the company's expectations. Tr. at 235. According to Lear's written policies, these evaluations are to be signed by the employee and her “supervisor” at the time of the performance review. Id. Although team leaders were not supposed to fill out or sign performance evaluations, Brosius signed Weyers's first three evaluations,<5> as well as the evaluations of other employees. Tr. at 71, 85, 236-37. Brosius also initialed portions of Weyers's fourth evaluation and Courteville, who signed the evaluation, testified that he gave Brosius's ratings “a lot of weight.” Tr. at 436-37. Prior to her termination, Weyers complained to Courteville, Tony Mendez, the shift superintendent, and to the human resources manager about not being provided training, not being placed on rotation, and Brosius's participation in her fourth evaluation. Tr. at 291-92. Weyers also testified that she complained to management about Brosius's ageist comments and harassment, but management denied being aware of Weyers's age discrimination complaints. Tr. at 293-95. Mendez fired Weyers for poor performance on February 25, 2000, the last day of her probationary period.<6> Tr. at 300-02, 315. C. District Court Decision Weyers filed this suit against Lear alleging, inter alia, that she was subjected to a hostile work environment based on age and that she was fired because of her age in violation of the ADEA and Missouri's Human Rights Act .<7> A. at 14. The district court, over Lear's objection, instructed the jury that Brosius was Weyers's supervisor and, therefore, Lear would be vicariously liable for any unlawful harassment of Weyers by Brosius under Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), unless the company established the affirmative defense set out in those decisions. Tr. at 533-35. The jury found for Weyers on her harassment and termination claims, and found that Lear's violation of the ADEA was willful. Weyers v. Lear Corp., 232 F. Supp. 977, 985 (W.D. Mo. 2002). The jury also awarded Weyers punitive damages under the MHRA on both the age harassment and termination claims. Id. On August 14, 2002, the district court denied Lear's motion for judgment as a matter of law or a new trial. Id. at 982. The court rejected Lear's contention that it erred when it instructed the jury that Brosius was Weyers's supervisor. Id. at 991-92. The court stated that “it is clear” that Brosius was Weyers's supervisor given the abundant testimony that he evaluated, directed and supervised Weyers and other employees, was paid more than those working under him, and was viewed by employees as their supervisor. Id. at 993. According to the court, although Brosius did not have authority to hire and fire, that authority is not determinative since the “real life working environment rather than artificial demarcations of authority” should control the analysis. Id. at 994. The court concluded that because “Brosius had the ability to make consequential employment decisions and to affect the terms and conditions of Weyers's employment[] as a result of the special authority conferred on him by Lear,” Brosius is properly viewed as Weyers's supervisor.<8> Ibid. SUMMARY OF ARGUMENT In Faragher and Ellerth, the Supreme Court defined a “supervisor” simply as someone “with immediate (or successively higher) authority over the employee.” 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. On appeal, Lear argues that, merely because Brosius did not have the authority to hire, fire or promote, he cannot be considered a supervisor under this standard. The Court should reject this overly rigid construction of the vicarious liability standard. As the Commission has stated in guidance issued after Faragher and Ellerth, an individual may be a supervisor even if he is not authorized to undertake tangible employment actions with respect to the victim of harassment, if he has the authority to control or strongly influence the employee's working conditions by assigning work, monitoring the employee's activities, and evaluating her performance. Because the evidence demonstrates that Brosius had significant authority over Weyers's working environment, the district court's determination that Brosius was Weyers's supervisor within the meaning of Faragher and Ellerth is correct. STANDARD OF REVIEW The district court's decision to deny a motion for judgment as a matter of law is reversed “only when the evidence is susceptible to no reasonable interpretation supporting the verdict.” Jaros v. Lodgenet Entm't Corp., 294 F.3d 960, 965 (8th Cir. 2002). Under this standard, this Court has stated that it must: 1) consider the evidence in the light most favorable to [the party] who prevailed with the jury; 2) assume all conflicts in the evidence were resolved by the jury in [prevailing party's] favor; 3) assume as proved all facts which [prevailing party's] evidence tends to prove; 4) give [prevailing party] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. Glover v. McDonnell Douglas Corp., 981 F.2d 388. 391 (8th Cir. 1993) (internal citation omitted). 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 v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), 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. <9> 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. Diaz v. Swift-Eckrich, Inc., ___ F. 3d. ___, 2003 WL 252581 at *21 (8th Cir. Feb. 6, 2003). 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 address with any specificity what sort of “authority” an individual must have to be a supervisor. In guidance issued after Faragher and Ellerth, the Commission stated 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.” EEOC Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (“EEOC Guidance”), 8 FEP Man. (BNA) 405:7651, 7654 (1999) (A. at 24-57). In the latter situation, the EEOC 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. EEOC Guidance, 8 FEP Man. at 405:7654. 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. The ADEA makes it unlawful to subject an employee to a work environment that discriminatorily alters her terms and conditions of employment. Because an individual, like Brosius, 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. at 405:7654-55), 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 Sav. 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., 229 F. Supp. 2d 121, 156 (E.D.N.Y. 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”); 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 support of its restricted construction of “supervisor,” Lear cites the Seventh Circuit's decision in Parkins v. Civil Constructors, 163 F.3d 1027 (7th Cir. 1998). As Lear notes in its brief, 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 of imputing liability to the employer.” 163 F.3d at 1033. Lear reads Parkins to mean that someone who lacks the powers enumerated by the court of appeals in that case cannot qualify as a supervisor. Lear Br. at 31-32. The district court correctly rejected Lear's reliance on Parkins. Weyers, 232 F. Supp. 2d at 991-92. 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 (Parkins, 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 as we do and has 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's holding that the essence of supervisory status is the authority to affect the terms and conditions of the victim's employment).<10> 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).<11> 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. 2d at 1266 (MD Ala 2001).<12> In this case, assessing the record in the light most favorable to Weyers, there was a plethora of evidence to support the court's finding that Brosius was a supervisor under the proper standard. Except for the occasional visit to the Rear Seat Department by Courteville or Mendez, Brosius was the highest ranking Lear employee in that department during Weyers's shift. Brosius was responsible for assigning the employees to particular tasks and, consequently, ensuring that probationary employees received proper training on the different machines. Despite her requests, Brosius refused to put Weyers on the “cycle” so that she could receive training necessary to perform the tasks with proficiency. And, when Weyers took the initiative to join the “cycle” to learn the different jobs, Brosius pulled her off. Her lack of proficiency, which was substantially contributed to by Brosius's actions, was the alleged reason for her termination. Moreover, Brosius provided at least three formal evaluations of Weyers's performance and contributed to a fourth evaluation. Mendez, who decided to fire Weyers, acknowledged that he relied on Brosius's evaluations. Finally, there was evidence that Brosius could recommend termination and that he stated after Weyers had worked at Lear for only two to three weeks, that “that old bitch ain't going to make her ninety days.” Tr. at 200. All this evidence, when taken together, demonstrates that Brosius affected the terms and conditions of Weyers's employment. 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, Brosius had the authority to give Weyers the least desirable production tasks or withhold training opportunities because of her age. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reject defendant's argument and hold that individuals who control or strongly influence an employee's working condition by assigning and evaluating work should be considered a supervisor for purposes of imposing vicarious liability in hostile work environment cases even if such individuals lack the authority to take tangible employment actions. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ________________________ SUSAN L.P. STARR Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 February 25, 2003 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 5,472 words. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes, both in Times New Roman. See Fed. R. App. P. 32(a)(5). _________________________ Susan L.P. Starr, Esq. February 25, 2003 CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR DEFENDANT-APPELLANT LEAR OPERATIONS Paul N. Venker Terry Lueckenhoff Jeffrey M. Linihan One South Broadway, Suite 1600 Saint Louis, MO 63102 COUNSEL FOR PLAINTIFF-APPELLEE PAMELA WEYERS Stephen Thornberry THE MEYERS LAW FIRM, LLC 222 West Gregory, Suite 340 Kansas City, MO 64114 ________________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 February 25, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ____________________ No. 02-3732 _____________________ PAMELA WEYERS, Plaintiff-Appellee, v. LEAR OPERATIONS CORPORATION, d/b/a Lear Corporation, Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Western District of Missouri _____________________________________________________ APPENDIX OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE FOR AFFIRMANCE ______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 202/663-4727 TABLE OF CONTENTS Page 1. District court docket sheet 01 2. Complaint 14 3. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors 24 CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing appendix has been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR DEFENDANT-APPELLANT LEAR OPERATIONS Paul N. Venker Terry Lueckenhoff Jeffrey M. Linihan One South Broadway, Suite 1600 Saint Louis, MO 63102 COUNSEL FOR PLAINTIFF-APPELLEE PAMELA WEYERS Stephen Thornberry THE MEYERS LAW FIRM, LLC 222 West Gregory, Suite 340 Kansas City, MO 64114 ________________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 1 The Commission takes no position on the other issues raised in this appeal. 2 The monetary award after remittitur is as follows: $68,962 actual damages under the ADEA and $125,000 punitive damages under the MHRA for the termination claim and $125,000 actual damages and $400,000 punitive damages under the MHRA for the harassment claim. 3 The facts are viewed in a light most favorable to the plaintiff prevailing on the jury verdict. 4 Brosius was removed from the team leader position in January 2000 when the plant became unionized. 5 Weyers did not sign any of these evaluations and did not see them until after she was fired. Tr. at 85-86. 6 Mendez offered conflicting testimony regarding his perception of Weyers's training. Initially he testified that he believed that Weyers was adequately trained, but later he stated that he knew Weyers had not been adequately trained. Tr. at 80-82, 97. 7 Weyers also alleged sex discrimination and sexual harassment under Title VII and the Missouri state law. The district court granted summary judgment for Lear on those claims and Weyers does not challenge that ruling on appeal. 8 The district court initially ruled that the determination of whether a worker is a supervisor is a question of law for the judge rather than a question of fact for the jury. Lear does not challenge this ruling on appeal. 9 The same analysis applies for claims under Title VII, the ADEA and the MHRA. Finley v. Empiregas, Inc., 975 F.2d 467, 473 (8th Cir.1992) (Title VII and ADEA law applicable to MHRA claims)(citation omitted); Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 n.5 (8th Cir.1996) (explaining that the same analytical framework applies in both Title VII and ADEA cases). 10 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. 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). 11 District courts adopting the constricted reading of Parkins include: 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). As this list suggests, nearly all of the decisions adopting this inflexible approach are by lower courts in the Seventh Circuit. 12 Lear's reliance on pre-Faragher Title VII cases and the definition of supervisor under the National Labor Relations Act is unavailing. First, Faragher significantly changed the analytical landscape, rejecting the distinction previously embraced by some courts between high-level and low-level supervisors. See, e.g., Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 536 n. 19 (7th Cir. 1993). After Faragher, the issue is whether the individual has the authority to significantly affect an employee's working conditions. Accordingly the cases cited by Lear (Lear br. at 33) have no weight after Faragher. Second, contrary to Lear's assertion, an individual can be deemed a supervisor under the NLRA if he directs an employee's work even if he does not have authority to make tangible job decisions. The NLRA defines a supervisor to include an individual who is vested with the “responsibility to direct” other employees. 29 U.S.C.A. § 152(11) . See Multimedia KSDK, Inc. v. Nat'l. Labor Relations Bd., 303 F.3d 896, 899(8th Cir. 2002) (NLRA's definition of supervisor is in the disjunctive, so individual vested with any one of the functions listed in the definition is a supervisor if the individual exercises independent judgment and furthers the interest of the employer). See also Nat'l Labor Relations Bd. v. Hearth Care & Ret. Corp. of Am., 511 U.S. 571, 574 (1994). Indeed, the NLRA test for determining who is a supervisor is similar to the test articulated in the Commission's Guidance. The Guidance also requires independent judgment since it states that an individual who “merely relays other officials' instructions regarding work assignment” would not qualify as a supervisor. EEOC Guidance, 8 FEP Man. at 405:7654.