No. 09-1265 _____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ____________________________________________ CLARA WHITTEN, Plaintiff-Appellant, v. FRED'S, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the District of South Carolina _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT __________________________________________________________ JAMES L. LEE EQUAL EMPLOYMENT OPPORTUNITY Deputy General Counsel COMMISSION 131 M Street, N.E., Fifth Floor LORRAINE C. DAVIS Washington, D.C. 20507 Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR Attorney 202/663-4727 (office) 202/663-7090 (fax) TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Magistrate's Report and Recommendation. . . . . . . . . . . . . . . . . 9 D. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 I. 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-T0- DAY WORK ACTIVITIES EVEN IF HE DOES NOT HAVE THE AUTHORITY TO UNDERTAKE OR RECOMMEND TANGIBLE EMPLOYMENT ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT FRED'S KNEW OR SHOULD HAVE KNOWN ABOUT THE ALLEGED HARASSMENT AND FAILED TO TAKE EFFECTIVE ACTION TO STOP IT. . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . . . . . . . . 1 Burlington Industrial, Inc. v. Ellerth, 524 U.S. 742. . . . . . . . . . . . passim Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . passim Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F. Supp. 2d 953 (D. Minn. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Hall v. Bodine Electric Co., 276 F.3d 345 (7th Cir. 2002). . . . . . . . . . . . 19 Howard v. Winter, 446 F.2d 559 (4th Cir. 2006). . . . . . . . . . . . 11-12, 16-17 Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir. 2004). . . . . . . . . . . . 16 Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003). . . . . . . . . . . .16, 18 Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999). . . . . . . . . 15-17, 19 Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005). . . . . . . . . . . . 16 Ochetree v. Scollon Productions, 335 F.3d 325 (4th Cir. 2003). . . . . . . . . . 14 Parkins v. Civil Constructors of Ill., 163 F.3d 1027 (7th Cir. 1998). . . . . . .16 FEDERAL STATUTES Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . passim IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________________ No. 09-1265 ________________________________ CLARA WHITTEN, Plaintiff-Appellant, v. FRED'S, INC., Defendant-Appellee. ______________________________________________________ On Appeal from the United States District Court for the District of South Carolina _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT __________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress 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. Private actions filed under Title VII provide the Commission with essential assistance in combating employment discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). Although this case is brought under the South Carolina Human Affairs Law, the district court relied entirely on Title VII law in granting the defendants' motion for summary judgment. The district court ruled that the defendant was entitled to summary judgment. According to the court, the alleged harasser was a coworker rather than a supervisor because, despite his involvement in her daily work activities, he did not have the authority to take tangible employment actions against her. As explained infra, the Commission believes that the district court applied the wrong standard for determining whether a harasser should be treated as a supervisor and that, under the correct standard, the evidence in the record would support a finding that the harasser in this case was a supervisor. If the district court's decision were affirmed by this Court, it would, in our view, unfairly limit the availability of relief for victims of workplace harassment under Title VII as well as state law. Accordingly, we offer our views to this Court pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUES<1> 1. Whether the district court erred by ruling that an employee cannot be found to be a supervisor for purposes of imputing liability to the company for his harassment of a subordinate unless he has the authority to take tangible employment actions, such as hiring, firing, promoting or reassigning. 2. Whether the district court erred in ruling that there is not sufficient evidence to support a finding that the defendant was liable for the harassment regardless of whether the harasser is considered a supervisor under Title VII. STATEMENT OF THE CASE A. Proceedings Below The plaintiff filed suit in state court on February 2, 2007. The complaint alleges that the defendant violated the South Carolina Human Affairs Law by subjecting her to a hostile work environment based on her sex and constructively discharging her. JA<2> 16-17. On January 23, 2008, the case was removed to federal court and referred to a magistrate judge. JA 5. On January 13, 2009, the magistrate recommended that summary judgment be denied. JA 347-48. On February 11, 2009, the district court declined to adopt the magistrate's report and recommendation, and granted defendant's motion for summary judgment. JA 564. Judgment was entered on February 12, 2009. JA 579. On March 10, 2009, plaintiff filed a notice of appeal. JA 580. B. Statement of Facts Clara Whitten worked for Fred's, a retailer, in three of its South Carolina stores from April 2005 until February 2006. JA 395-97. On February 3, 2006, Whitten was transferred to a Fred's store in Belton, South Carolina, as assistant store manager. JA 227, 396. The only other management officials working at that store were the store manager, Matthew Green, and the operations manager, Kelli Jackson. JA 110. Green was Whitten's immediate supervisor. JA 104-05, 110; JA 299-302 ("[Whitten] worked for me;" Whitten was "my assistant"). Whitten testified that she understood that she was required to follow Green's directives because he was her supervisor. JA 119 ("He was my supervisor. . . . I would do what he told me to do."). Green's immediate supervisor, district manager Robert Eunice, visited the store between once a week and once every other week. JA 245. As district manager, Eunice was responsible for managing approximately 20 stores. JA 247. Neither Green nor Eunice had the authority to hire, fire, promote or reassign personnel, although Eunice made recommendations regarding personnel actions to upper-level managers. Id. On Whitten's first day at the Belton store, Green told her that he required his managers to arrive an hour early. JA 397. He told Whitten his "rules," including a rule that, if "you go over my head I will make your life a living hell." JA 227. Green gave Whitten a notebook in which she was to write, daily, the list of tasks he assigned her. JA 227-28; JA 299-300. He told her that, if she failed to complete all the work, she would have to work on her day off. JA 228, 231. Green oversaw her work throughout the day, critiquing her and directing her to leave one task to start another. JA 112, 119; JA 227-37. Later the same day, Whitten went up to an elevated, glass enclosed office to oversee the employees and customers on the floor. JA 112-15. Looking up from the floor, the cashiers could see persons in that office at waist-level and higher. Id. According to Whitten, Green approached her from behind and slowly rubbed up against her so that she "could feel all his private parts touching my back as he went by me." JA 113-18. After Whitten warned Green not to touch her again, he looked at her and smiled, but said nothing. JA 116, 119; JA 228-29. Whitten testified that she was scared, but did not know how to proceed because there were no upper level management personnel in the store and she could not report Green's conduct to management because the corporate offices had already closed for the day. JA 119. The next day, a Saturday, Green reprimanded Whitten for improperly setting the store alarm the previous evening, and told her that she would have to work the next day, Sunday, her scheduled day off, as punishment,. JA 231. Green stated that he was not going to be in on Sunday, but he gave her a list of tasks to be accomplished. Id. Later on Saturday, Whitten returned to the office to oversee the cashiers and customers. According to Whitten, Green entered the office and walked up behind her and rubbed his body against her just as he had done the previous day. JA 120-21; JA 23. Whitten again warned him, saying, "I said don't ever touch me again," and, soon thereafter, she called her mother to tell her what occurred. JA 120-21. Whitten testified that she wanted to call "corporate" but could not do so because it was closed for the weekend. JA 120. Later, Whitten testified, after telling her that she had to stay until closing time, Green instructed Whitten to go into the stock room with him. JA 232. Whitten pretended she did not hear him, testifying that she did not want "to be forced into that stock room with" him "where he could put his hands on [her] again." JA 111. When Whitten failed to go into the stock room, Green told her that, if she wanted to have long weekends off, she needed to be good to him and give him what he wanted, which she interpreted to be a sexual proposition. JA 136, 411. In addition to the physical contact, Green repeatedly called Whitten stupid and told her he did not want her working at his store. JA 119; JA 229-30. On Sunday, February 6, Whitten was scheduled to report to work at noon. JA 127. Whitten called the manager of the Greenville store, Paula Cox, that morning, told her that Green was "talking to her like a dog and hitting on her," and stated that she "was going to quit." JA 235, 308E, 545. She then spoke with the district manager, Eunice, and told him "everything" including "[t]hat Matthew Green had rubbed himself up against me on Friday and Saturday, Matt called me into the stock room, that I would not go, he said this is how you get your long weekends off, be good to me and give me what I want, and that I was being called dumb, stupid, that he never wanted me, I was forced on him." JA 126, 235. According to Whitten, Eunice "told me that I was overreacting and I needed to go to work like nothing happened." JA at 123. In response to Eunice's statement that they would talk about it on Monday, Whitten "said no," and, "at that point I told Robert I quit, that somebody needed to come and get the store keys."<3> JA 123, 126. Whitten testified that she "quit because I was told to go on back to work like nothing happened. I was scared. I didn't know what else would take place in the store." JA 125. She also said that she was "scared of Matt Green what [sic] he could do," (JA 125) because, as a manager, Green could "come in the store at any time." JA 128, 130 ("I was not going back into that store taking the chance of Matt Green being in there putting his hands on me ever again."). She further testified that she was never offered a transfer and that she did not consider requesting one because she had done nothing wrong. JA 130-31 ("Why should I be subject to being transferred when I done [sic] nothing wrong? And that's the way I felt. That was my store, and . . . [w]hy should I have to transfer somewhere else when I was innocent."). After speaking with Eunice, Whitten called Belton's operations manager, Kelli Jackson, and told her she was going to quit. When Kelli asked said why, she "told her all of it." JA 236. Although Green was not scheduled to work that day, he went to the store before opening time. JA 539-40. Later he went to Whitten's house to get her keys. Id. Whitten "opened the screen just enough to give him the keys[,] . . . said here's the keys, I quit," and then threatened to call the police when he did not leave immediately. JA 124. On Monday, February 7, Whitten contacted the Human Resources division at the corporate headquarters and recounted what occurred with Green. JA 133-34. A few days later, Lance Ford, a "Loss Prevention" specialist for Fred's, called Whitten and Whitten recounted to him what occurred. He said they would investigate. JA 134. Ford interviewed Green, who denied the allegations, and asked Green to submit a written statement, which he did. JA 298-99; JA 539-40; JA 547-48. Ford also interviewed six employees who stated they did not see anything, and one of the two individuals identified by Whitten, who stated she did not have any problems with Green. JA 547. Ford did not reach the other person Whitten identified. Id. Ford called Whitten several days later. According to Whitten, Ford "couldn't say it didn't happen, they just didn't have enough proof to substantiate my claim." JA 134. Green testified that although Ford told him he was investigating Whitten's claim, neither Ford nor anyone at the company ever spoke to Green about the results of the investigation and Green concluded, "there were no findings inside of our company." JA 297-98. Fred's employee handbook contained a harassment policy. According to the policy, "[a]ny employee who has a complaint of harassment by anyone should report the problem to his or her Store Manager unless the Store Manager is personally involved in the objectionable conduct. In addition, you should also contact the Vice President of Personnel . . ." JA 502. C. Magistrate's Report and Recommendation On January 13, 2009, the magistrate issued a report recommending that the district court deny defendant's motion for summary judgment. JA 348. The magistrate concluded that Fred's could be found liable for Green's harassment of Whitten whether or not he was considered her supervisor for purposes of Title VII liability.<4> JA 346-48. According to the magistrate, Fred's could be held liable whether Green was a co-worker or a supervisor because there is evidence that Whitten notified Eunice, a management official responsible for recommending tangible employment actions, and the company failed to take reasonable action in response. Id. According to the magistrate, Whitten's testimony that she recounted Green's offensive conduct to Eunice, "constitutes evidence that the defendant 'knew or should have known' of the harassment, even if Green is considered a co- worker of the plaintiff . . . ." JA 347. Further, the magistrate concluded, a jury could find that Eunice's response that Whitten was "overreacting" and should return to work demonstrated a "complete disregard" of her sexual harassment allegations. Id. The magistrate added that the evidence that she complained to Eunice and that he "either unreasonably disbelieved her, in the absence of investigation, or had no concern for the allegation . . . also undermines the defendant's contention that the plaintiff failed to avail herself of opportunities to complain," thereby "destroy[ing] the defendant's Faragher defense" if Green is considered a supervisor. JA 347-48; Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). D. District Court's Decision On February 11, 2009, the district court rejected the magistrate's recommendation and granted summary judgment for the defendant. JA 564. The court concluded that Green was not a supervisor of Whitten, but rather a co- worker. In setting forth the legal standard, the court initially stated that "'[t]he fundamental question . . . is whether [Green's] conduct was aided by the agency relation.'" JA 570 (quoting Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006)). The court concluded that, because Green "'did not possess any power to take tangible employment actions or economic decisions affecting her' and '[t]he record is devoid of any evidence suggesting that [Green] could fire [Whitten], promote or demote her, reassign her, or take any other direct action against her,'" Green's authority to "affect her work schedule and assign tasks is insufficient to establish Green as a supervisor." JA 571 (quoting Howard, 446 F.3d at 566). Based on its ruling that Green was not Whitten's supervisor, but merely a co-worker, the court held that Fred's was not liable for Green's conduct unless Whitten could prove that Fred's "knew or should have known" about the harassment and failed "to take prompt and adequate action to stop the harassment." JA 572 (internal citation omitted). The court found that because "Fred's never knew that any alleged sexual harassment was occurring prior to Whitten's decision to quit" and Fred's investigated after she quit but found nothing, summary judgment is appropriate.<5> JA 574-75. 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," grounding the higher standard of liability for supervisors in the fact that the "acts of supervisors have greater power to alter the environment than acts of coemployees generally." Faragher v. City of Boca Raton, 524 U.S. 775, 805-06 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998). On appeal, Whitten argues that, consistent with decisions from this Court and contrary to the standard applied by the district court, her alleged harasser was her supervisor even if he did not have the authority with respect to her to take or recommend tangible employment actions. This Court should reject the district court's overly rigid construction of the vicarious liability standard in which, regardless of the amount of control a managerial official has to direct an employee's daily work activities, he can never be considered a supervisor unless he also has the ability to take tangible employment actions. In addition, because the evidence is sufficient for a reasonable jury to find the defendant liable whether Green is considered a supervisor or co-worker, summary judgment was granted improvidently. ARGUMENT I. 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 EMPLOYMENT ACTIONS The Supreme Court has held that an employer is vicariously liable under Title VII for sexual harassment committed by a supervisor with immediate authority over the victim unless it can prove that (1) it exercised care to prevent and correct promptly any sexually harassing behavior; and (2) the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742. 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). By contrast, where the harasser is merely a co-worker, the 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. Faragher, 524 U.S. at 799; see also Ochetree v. Scollon Productions, 335 F.3d 325, 334 (4th Cir. 2003). The Supreme Court concluded that a higher standard of liability for supervisors was necessary because the "acts of supervisors have greater power to alter the environment than acts of co-employees generally." Faragher, 524 U.S. at 805-06; Ellerth, 524 U.S. at 763. In Faragher and Ellerth, the Court defined a "supervisor" simply as one "with immediate (or successively higher) authority over the employee," but did not state what sort of "authority" an individual must have to be a supervisor. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. In guidance addressing this issue, the EEOC has stated that a supervisor is an individual with "the authority to direct the employee's daily work activities." Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, 8 FEP Man. (BNA) 405 at 7654 (June 18, 1999); http://www.eeoc.gov/policy/docs/harassment.html. 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. In Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999), this Court held that, in deciding whether a harasser should be treated as a supervisor for purposes of Ellerth and Faragher, "[t]he determinant is whether as a practical matter his 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." 183 F.3d at 333 (citing Faragher, 524 U.S. at 803-05). See also Howard v. Winter, 446 F.2d 559, 565 (4th Cir. 2006) ("In determining McCall's supervisory status with respect to Howard, the fundamental question we ask is 'whether [McCall's] conduct was aided by the agency relationship.'") (quoting Mikels, 183 F.3d at 332) (internal quotation omitted). Because the harasser in Mikels was "only [the victim's] 'superior' in rank" and had only "occasional authority to direct her operational conduct," the Court did not need to decide whether a harasser who does not possess the authority to take or recommend tangible employment actions with respect to the victim can ever be considered her supervisor for purposes of vicarious liability. Mikels, 183 F.3d at 334; see also id. at 333 ("we may assume, without deciding here, that lesser forms [of authority] derived from the agency relation may aid particular acts of supervisor harassment").<6> In Howard, this Court once again acknowledged the possibility that a harasser could be considered the supervisor of his victim even though he admittedly did not have the authority, with respect to her, to take or recommend tangible employment actions. Howard, 446 F.3d at 566 (while noting that "Howard concedes that McCall [the alleged harasser] did not possess any power to take tangible employment actions or make economic decisions affecting her," the Court proceeded to consider whether "the fact that Howard provided administrative support to McCall" could support a finding that he was her supervisor). As in Mikels, the Court concluded that the harasser could not be found to be Howard's supervisor because his "authority over Howard was only an occasional authority - shared with the other fifty-four staff members - to direct her operational duties." 446 F.3d at 566. Accordingly, the Court held that the harasser was not Howard's supervisor because he did not have the authority to take tangible employment actions against her and there was "no evidence in the record that could lead to the conclusion that [the harasser's] authority to request administrative assistance from Howard enabled his harassment." Id. The evidence in this case, regarding Green's authority over Whitten, is markedly different. In contrast with Howard and Mikels, here it is uncontested that, as Whitten's immediate supervisor, Green directed Whitten's activities throughout the day. Green gave Whitten daily directives and required her to immediately stop what she was doing to complete another task at his request; he set her work rules; he punished her by giving her undesirable work assignments when he did not approve of her performance; and he had the authority to alter her work schedule at whim. On most days, and on all the days when Whitten worked there, Green was the highest ranking Fred's employee in the Belton store. Cf. Mikels, 183 F.3d at 334 ("Importantly, the record is clear that in her relationships with Acker, [Mikels] was not isolated from the continuing protective power of higher management[;] . . . she had immediate access to [her squad-leader] . . . to lodge grievances."). Green viewed himself as her supervisor. JA 153, 299, 302, 539 (Whitten "worked for me for two day[s];" she was "my assistant"); as did Whitten. JA 119 ("[h]e was my supervisor . . . I would do what he told me to do"). This evidence is sufficient, we submit, to support a finding that Green was Whitten's supervisor under the standard articulated by this Court in Mikels and Howard. In a case with similar facts, the Second Circuit held that an individual who did not have the authority to make or recommend tangible employment actions could be considered his victim's supervisor where he supervised her work on a daily basis and regularly dictated her work assignments. Mack, 326 F.3d at 126- 27. In Mack, the Court rejected the defendant's argument that vicarious liability may never be imposed unless the harasser had the authority to take tangible employment actions against his victim. The court reasoned that, because the Supreme Court made clear that vicarious liability can be imposed even in cases where supervisory authority was not used to take tangible employment action (id. at 125 (citing Ellerth, 524 U.S. at 761-63)), it would make no sense to limit the definition of supervisor to persons who have such authority. Id. Instead, the Mack court held, the inquiry should focus broadly on "whether the authority given by the employer to the employee enabled or materially augmented the ability of the latter to create a hostile work environment for his or her subordinates." Id. at 126. In granting summary judgment in this case, the district court failed to apply the practical test articulated by this Court in Mikels and Howard, and applied by the Second Circuit in Mack. The court did not analyze the evidence to determine whether it would support a finding that "as a practical matter [Green's] relationship to [Whitten] was such as to constitute a continuing threat to her employment conditions that made her vulnerable and defenseless against the particular conduct in ways that comparable conduct by a mere co-worker would not." Mikels, 183 F.3d at 333 (citation omitted). Instead, the district court, without considering all of the evidence indicating that Green had direct and comprehensive control over Whitten's work day and work environment, summarily stated that "Whitten's assertion that Green could affect her work schedule and assign tasks is insufficient to establish Green as a supervisor." JA 571. As support for this conclusion the court cited Hall v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir. 2002), and other cases adopting the position that the harasser's authority to take tangible employment actions is a sine qua non for imposing vicarious liability for sexual harassment. As the Second Circuit explained in Mack, however, the "narrow," mechanical approach advanced by the Seventh Circuit and other courts is inconsistent with the holdings of Faragher and Ellerth. Although the Supreme Court did not define the term "supervisor" in those cases, it made clear that the determination of supervisory status should not be based on rigid, technical definitions, but rather should be based on the practical considerations that underlie the decision to impose vicarious liability in hostile environment cases. The Court expressly rejected "a mechanical application of indefinite and malleable factors set forth in the Restatement [of Agency]," favoring instead "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. A definition of supervisor that excludes an individual like Green, who clearly had substantial authority to control Whitten's working conditions by assigning work and controlling work hours, despite lacking the authority with respect to her to take tangible employment actions, would unduly restrict Title VII's intended reach. Under the mechanical test applied by the district court, the same act committed by two individuals, both clothed in sufficient supervisory authority to intimidate or restrict the employee's willingness to complain, would be treated differently for technical reasons divorced from reasoned judgments about why employers should be held to lower standards in one circumstance compared to the other. Id. Furthermore, a holding that a harasser who does not have the authority to take tangible employment actions may never be considered a supervisor cannot be reconciled with the specific holding in Faragher. In that case, the plaintiff alleged that she was harassed by two male employees, Terry and Silverman. The Supreme Court held that both of the harassers could be considered Faragher's supervisors notwithstanding the fact that Silverman, while responsible for making daily assignments and overseeing her work, did not have the authority with respect to Faragher to take tangible employment actions. The Court did not distinguish Silverman from the other harasser, Terry, who had the authority to hire and fire, subject to the approval of higher management. The City was held vicariously liable for the actions of Silverman as well as Terry. Faragher, 524 U.S. at 808 ("It is undisputed that these supervisors 'were granted virtually unchecked authority' over their subordinates, 'directly control[ling] and supervis[ing] all aspects of [Faragher's] day-to-day activities.'") (internal citations omitted). Thus, like Silverman, who threatened Faragher that she would have to clean toilets for a year if she did not sleep with him (524 U.S. at 780), a reasonable jury could find that Green's authority to give Whitten the least desirable tasks aided his harassment of her by coercing her into tolerating his offensive conduct. A more flexible approach to the definition of supervisor is not unfair to an employer like Fred's. The company presumably derives economic benefits from its decision to name Green manager of one of its stores. At the same time, as the Supreme Court recognized, because sexual harassment is a known risk in the workplace which an employer can reasonably anticipate, "one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim." Faragher, 524 U.S. at 798. Even in the absence of the formal authority to take or recommend tangible employment actions, the authority vested in a store manager like Green over the working conditions of the store's employees is clearly sufficient to create a foreseeable risk that he could use it to create a hostile work environment. Moreover, if the term supervisor were artificially limited based on technicalities that are not directly relevant to the Title VII violation at issue, it would be too easy for an employer so inclined to evade responsibility for Title VII violations by its managers. As one court recognized, 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). II. THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING THAT FRED'S KNEW OR SHOULD HAVE KNOWN ABOUT THE ALLEGED HARASSMENT AND FAILED TO TAKE EFFECTIVE ACTION TO STOP IT The district court also erred in holding that Fred's could not be found liable for the harassment even if Green is considered merely her co-worker. The district court properly recognized that Whitten brought her concerns to Fred's attention through proper channels immediately after the harassment began. The district court nevertheless reasoned that Fred's was not liable for the harassment on the grounds that "Whitten reported the harassment after she had decided to resign and never provided Fred's any opportunity to investigate the allegations or remedy any alleged sexual harassment." JA 574. According to the court, because "Whitten informed Cox of the alleged conduct, that she was going to quit, and that someone needed to pick up her keys," Whitten definitively quit at that point. JA 573. However, a reasonable jury could conclude that Whitten quit during her conversation with Eunice, not beforehand. The court concluded that by notifying Paula Cox, the manager of another store, of her intention to quit, Whitten had, in fact, quit. However, as the magistrate noted in his decision, although Whitten "admits that quitting was apparently her subjective intent, . . . a focus on those remarks misapprehends the most salient points - notably, that the plaintiff had not, in fact, quit because until such time as she declared that intent to the defendant or failed to show for work on Sunday, she was free to change her privately held decision." JA 347. Unlike Green, who was her immediate supervisor and controlled her daily activities, Paula Cox had no supervisory authority over Whitten. Thus, even if Whitten had told Cox that she quit rather than that she intended to quit, it would not have put Fred's on notice of Whitten's decision. Whitten reported the harassment to management promptly. She spoke with district manager Eunice over the phone and told her everything that had happened. At this point, Fred's management had the information it needed from Whitten, thereby triggering its obligation to take action. A reasonable jury could conclude that Eunice's response, dismissing her concerns and fear as a mere overreaction and requiring her to report to work, demonstrated that Fred's knew of the harassment and failed to take appropriate remedial steps. As the magistrate noted, when Whitten "told the defendant's district manager, Robert Eunice, that Green had touched his genitals to her back," a reasonable jury could believe that Eunice "reacted with complete disregard to that knowledge." JA 347. Moreover, Green's threat to Whitten that if she "went over [his] head, [he] will make your life a living hell," could be viewed as further support for the conclusion that Eunice's directive to Whitten to return to work, isolated from protection of upper level management and where Green could walk in even though he was not scheduled to work (which he, in fact, did), does not constitute an appropriate response. Thus, summary judgment was wrongly granted. CONCLUSION For the foregoing reasons, we request that this Court reverse the judgment of the district court and remand this case to the district court for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _____________________ Susan L.P. Starr Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, D.C. 20507 susan.starr@eeoc.gov CERTIFICATE OF SERVICE I, Susan L.P. Starr, certify that I filed this brief with the Court by sending, via Federal Express, eight copies of the foregoing brief together with an electronic version, PDF formatted. I also certify that I served two copies of this brief, this 1st day of July, 2009, by Federal Express, to the following counsel of record: Counsel for Plaintiff-Appellant, Clara Whitten Mary C. McCormac Attorney at Law, LLC Post Office Box 1535 Clemson, SC 29633 Counsel for Defendant-Appellee, Fred's Inc. Shahin Vafai GIGNILLIAT, SAVITZ 7 BETTIS 900 Elmwood Avenue, Suite 100 Columbia, SC 29201 ___________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, DC 20507 (202) 663-4727 (phone) (202) 663-7090 (fax) susan.starr@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rule 28.1(e)(2)(B) because it contains 5,282 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. ______________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7044 Washington, DC 20507 (202) 663-4727 susan.starr@eeoc.gov July 1, 2009 *********************************************************************** <> <1> We take no position on any other issues presented in this appeal. <2> All references to "JA" are to the corresponding page in the Joint Appendix filed in this Court on June 23, 2009. <3> Eunice testified that "Whitten complained that Green had spoken to her disrespectfully and given her a list of tasks to accomplish," and did not complain about sexual comments or inappropriate touching by Green. JA 527. <4> Although Whitten alleges only a violation of the South Carolina Human Affairs Law ("SCHAL"), the magistrate relied exclusively on Title VII law in determining whether there was sufficient evidence to support a claim that the defendant violated the South Carolina law. See JA 340 (because "Title VII cases 'are certainly persuasive if not controlling in construing the [SCHAL] . . . the Court will look to that statutory body and related decisional law'" (internal citation omitted)). <5> The court also dismissed plaintiff's quid pro quo and constructive discharge claims. The court reasoned that the quid pro quo claim was not viable because "scheduling changes and assignment of cleaning duties are not tangible employment actions." JA 575. The court dismissed plaintiff's constructive discharge claim because "Whitten's working conditions were not so intolerable that she reasonably thought that resignation was the only option." JA 577. <6> Misreading Mikels, the Court of Appeals for the Eighth Circuit stated that this Court held that "to be a supervisor, the alleged harasser must have had the power (not necessarily exercised) to take tangible employment action against the victim." See Joens v. John Morrell & Co., 354 F.3d 938, 940 (8th Cir. 2004). See also Noviello v. City of Boston, 398 F.3d 76, 95-96 (1st Cir. 2005) (contrasting Mikels and the Seventh Circuit's decision in Parkins v. Civil Constructors of Ill., 163 F.3d 1027, 1033 (7th Cir. 1998), with the standard adopted by the Second Circuit, which "considers a supervisor to be someone who has actual authority to direct an employee's work-related tasks in a way that could increase her workload or saddle her with less desirable tasks." Mack v. Otis Elevator Co., 326 F.3d 116, 126-27, n.5 (2d Cir. 2003)).