830 F.3d 205
5th Cir.2016Background
- Kandice Pullen, a temporary clerical employee at Caddo Parish School Board, alleged repeated sexual harassment by coworker Timothy Graham while she worked in the purchasing department and after she transferred to classified personnel (HR).
- Graham supervised Pullen while she worked in purchasing; after she transferred, her supervisor was Cleveland White. Pullen alleges harassment continued after the transfer.
- No contemporaneous internal report by Pullen; another employee (Aimee Harris) filed a complaint in Feb 2013 identifying similar conduct and naming Pullen as another potential victim.
- The Board investigated, suspended Graham for one week, and required counseling; Pullen filed an EEOC charge in March–April 2013 and later sued under Title VII in 2014.
- The district court granted summary judgment for the Board, applying the Ellerth/Faragher defense to the period when Graham was Pullen’s supervisor and the coworker-standard to the later period. Pullen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board is entitled to Ellerth/Faragher affirmative defense for supervisor-period harassment | Pullen argued the Board failed to promulgate/publicize a usable anti-harassment policy and training, creating fact disputes | Board argued it had a detailed policy, conspicuously posted and available online, with training for most employees | Reversed: genuine dispute whether Board took reasonable care to prevent harassment (first prong unresolved) |
| Whether Graham remained Pullen’s supervisor after her transfer (triggering strict liability) | Pullen contended Graham still exercised supervisory authority and pursued her across offices | Board asserted Graham lacked power to take tangible employment actions after transfer | Affirmed: Pullen failed to show a fact dispute that Graham could take tangible employment actions; he was not a supervisor then |
| Whether the harassment should be treated as a single continuous supervisor-based violation | Pullen argued continuity would avoid shifting standards | Board maintained distinct legal standards apply to different periods based on supervisory status | Rejected: different standards apply; continuity argument not raised below and is unpersuasive on the merits |
| Whether the Board had constructive notice of post-transfer coworker harassment | Pullen argued harassment was open and obvious so the Board should have known | Board argued it had no actual or constructive notice before Harris’s complaint | Affirmed: Pullen waived the open-and-obvious argument on appeal; no preserved evidence that Board knew or should have known |
Key Cases Cited
- Vance v. Ball State Univ., 570 U.S. 421 (defines "supervisor" and tangible employment action concept)
- Burlington Indus. v. Ellerth, 524 U.S. 742 (establishes employer affirmative defense for supervisor harassment)
- Faragher v. City of Boca Raton, 524 U.S. 775 (same; addresses employer liability when policy not promulgated at worksite)
- E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. en banc) (discusses adequacy and promulgation of harassment policies for Ellerth/Faragher defense)
- Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (addresses continuing-violation doctrine and timeliness of hostile-environment claims)