Leanna C. BLANKENSHIP, Plaintiff-Appellant,
Amy E. Hеlton, formerly known as Amy E. Marshall, Plaintiff,
v.
PARKE CARE CENTERS, INC., doing business as Barbara Parke
Convalescent Center, Defendant-Appellee,
Walter Malcom, Defendant,
Westchester Management Company, Defendant-Appellee.
No. 96-3084.
United States Court of Appeals,
Sixth Circuit.
Argued Dec. 5, 1996.
Decided Aug. 22, 1997.
Katharine C. Weber (argued and briefed), Curtis L. Cornett (briefed), Cors & Bassett, Cincinnati, OH, for Plaintiffs-Appellants.
Mark J. Stepaniak (argued and briefed), Gregory P. Rogers (briefed), Taft, Stettinius & Hollister, Cincinnati, OH, for Defendants-Appellees.
Before: ENGEL, MERRITT, and RYAN, Circuit Judges.
ENGEL, J., delivered the opinion of the court. MERRITT (p. 875), and RYAN (pp. 875-77), JJ., delivered separate concurring opinions.
OPINION
ENGEL, Circuit Judge.
Plaintiff Leanna Blankenship appeals the district court's grant of summary judgment to defendants Parke Care Centers, Inc., and Westchester Management Company (collectively "Parke") in her suit based on claims of sexual harassment, assault and battery, and intentional infliction of emotional distress. Blankenship alleged that the conduct of a fellow Parke employee created a hostile work environment. The district court held that regardless of the severity of that employee's conduct, Blankenship failed to establish the element of "respondeat superior" necessary to hold Parke liable. We affirm.
I.
Blankenship, then 17, was employed as a dietary aide at one of Parke's nursing homes as part of a work-study program through her high school. She started work on September 13, 1993, six weeks after Parke hired Walter Malcom, 37, as a janitor for the same nursing home. Parke knew that Malcom had a history of substance abuse and that he had once been convicted of carrying a concealed weapon. Soon after Blankenship started working, she experienced several unwanted sexual advances by Malcom. On October 3, she complained to her immediate supervisor, Jacquelyn Sullivan. At Sullivan's request, Blankenship prepared a written statement on October 4 that noted, in five separate incidents, a total of four kisses on the cheek, a tickle, three hugs, and a declaration by Malcom that he was "falling in love."
In response, Sullivan asked all the members of the dietary department if they had witnessed any of this behavior; they all said no. She met with Judith Fadden, the director of nursing, and Mamie Lee, Malcom's immediate supervisor. This group formulated an "observation network" designed to separate Malcom and Blankenship and to keep an eye out for trouble: Malcom's work area was moved to minimize his interaction with Blankenship. Lee was instructed to check on Malcom's whereabouts and behavior every so often and Sullivan was to keep Blankenship as clоse to the kitchen as possible, so that she would not be alone. As a result of Blankenship's complaint, Sullivan also began to walk her to her car after work. She also asked Blankenship at the end of every day if she had had any problems with Malcom. None of the administrators confronted Malcom in any way.
Within a week or so, Blankenship suffered a further incident in which Malcom grabbed her breasts from behind. She mentioned this to Sullivan, who said she would see what could be done.1 Then, apparently at a separate time, Malcom asked Blankenship if he could takе her out; she declined.
On October 17, when she returned to work after a few days off, Blankenship filed another written complaint with Sullivan, in which she mentioned only that Malcom had asked her out--not the breast-grabbing incident. On the same day, Sullivan received a complaint from another dietary aide, Amy Marshall. Marshall complained of lewd touching, gestures, and language on the part of Malcom. Responding to these complaints, Alice Kalota, the chief administrator of the nursing home, along with Fadden and Lee, met with Malcom, who denied any wrongdoing. The administrators issued him the following warning on October 18:
We have had two written complaint[s] against you for harassment by females. This is your one & only warning. Harassment of any kind by an employee to another employee absolutely will not be tolerated. Any further occurr[e]nce will result in your immediate termination.
(J.A. at 406.)
On October 22, Blankenship became upset at work because Malcom "kept coming around" her. She spoke with Sullivan, who gave her permission to leave early. Blankenship's mother came to pick her up and unsuccessfully tried to discuss the situation with Kalota. Kalota ended up mеeting with Blankenship, Fadden, and Sullivan. Blankenship said that no specific incident had occurred since Malcom asked to take her out but that he was "around" her and she did not want to be near him. Kalota told Blankenship that she could not guarantee that Blankenship could work without ever coming into contact with Malcom. If she could not accept that, Kalota said, Blankenship would have to resign. Blankenship chose to resign, and she went home for good.
Blankenship sued Parke on federal and state claims of sexual harassment based on a hostile work еnvironment, and on state claims of assault and battery and intentional infliction of emotional distress; she did not sue for wrongful termination or constructive discharge. The district court granted Parke's motion for summary judgment, holding that even if Blankenship could prove the substantive elements of a hostile work environment claim, she could not establish Parke's liability under the respondeat superior doctrine. The district court found no evidence to support the purely state law claims. Blankenship does not contest that finding; she appeals the court's holding only as to sexual harаssment.
II.
We review the district court's grant of summary judgment de novo. Kauffman v. Allied Signal, Inc.,
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). Courts have recognized two types of workplace sexual harassment as constituting discrimination on the basis of sex: quid pro quo harassment, in which a supervisor requests sexual favors in exchange for job benefits, and "hostile work environment" harassment, in which a pervasive atmosphere of sexual harassment creates an оbjectively hostile work environment. Rabidue v. Osceola Refining Co.,
To prevail on her claim against Parke, Blankenship must show that (1) she is a member of a protected class; (2) she was subject to unwelcomed sexual harassment; (3) the harassment was based on her sex; (4) the harassment unreasonably interfered with her work performance and created a hostile work environment; and (5) Parke "knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Fleenor v. Hewitt Soap Co.,
Although the district court strongly suggested that Blankenship's claim might fail on the fourth element, it rested its grant of summary judgment on the fifth element (hereinafter "the Rabidue standard"), which it labeled as "respondeat superior liability." We used to describe an employer's liability in this situation as arising under the respondeat superior doctrine, but now we have noted the inaccuracy of that characterization. Pierce,
The Rabidue standard has two distinct parts. We need not concern ourselves with whether Parke "knew or should have known" of the alleged harassment. It is undisputed that Parke knew about Blankenship's complaints, with the possible exception of the breast-grabbing incident. We instead focus on whеther Parke "failed to implement prompt and appropriate corrective action." The promptness of Parke's various responses to Blankenship's complaints was evident; the dispute centers on their appropriateness.
We find little guidance in Rabidue as to what standard we should use to measure the appropriateness of the corrective action, other than a directive to proceed on a case-by-case basis.
In Bell v. Chesapeake & Ohio Railway,
In defining the employer's duties in the present case, we must keep in mind that the alleged harasser was not plaintiff's supervisor. When the harasser is a co-worker, the standard for determining employer liability is "markedly different" from that applicable to supervisors, and is not based upon the doctrine of respondeat superior. See Pierce,
We recognize that our conclusion creates some tension with the first part of the Rabidue test, which asks whether the employer "knew or should have known" of the charged harassment. That language establishes an objective standard as to the employer's awareness. In essence, it equates negligent ignorance of the existence of harassment with intentional discrimination. When Rabidue was written, we still viewed the employer's liability in сo-worker harassment cases as arising under the respondeat superior doctrine, so the awkward equation of negligence with intent was not present: if the employer was negligent, it was held responsible for its employees' intentional discrimination, even if it had not itself intentionally discriminated. Now that we understand an employer's liability to be direct, however, the continued validity of the "knew or should have known" language in Rabidue relies on a sort of legal fiction: because harassment is an especially invidious form of discrimination, as to which employers should be particularly vigilant, negligence as to the existence of harassment can be serious enough to constitute an intentional act of discrimination.
Once an employer is aware of and responds to charges of sexual harassment, though, mere negligence as to the content of the response cannot be enough to make the employer liable. When an employer responds with good-faith remedial action, we cannot say that the employer has itself committed an act of discrimination. In sum, although negligence as to the existencе of harassment may be enough, under Rabidue, for an employer to incur liability for discrimination, negligence in the fashioning of a remedy is not. When an employer implements a remedy, it can be liable for sex discrimination in violation of Title VII only if that remedy exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination.
A. The October 4 and October 17 complaints
As to her two written complaints, Blankenship asserts that Parke should have taken more drastic action to separate her from Malcom. It should have confronted Malcom right away, she argues, and either transferred or terminated him. As Parke notes, though, a harassment victim may not dictate an employer's action against a co-worker. See Bell,
After the first complaint, Parke took several steps to protect Blankenship. Although hindsight shows that these measures may not have been sufficient, they were appropriate at the time and easily satisfy the "good faith" standard we have discussed above. See Mullholand v. Harris Corp., No. 94-3725,
B. Blankenship's resignation
The most troubling facts of this case are those surrounding Blankenship's resignation. Blankenship argues that Parke unreasonably forced her to resign. Because she has not alleged wrongful termination or constructive discharge, this argument at first glance appears out of place. The events of October 22 can, however, be analyzed under Rabidue. Blankenship complained to Sullivan and to Kalota that day that Malcom was "around" her and that she did not want to work in the same building with him. Parke's response was that Blankenship had either to accept the status quo or to resign. That response, as such, was prompt; we must decide whether it was appropriate under the good-faith standard. Plainly it was.
The only thing that Blankenship could complain about with respect to Malcom on October 22 was that he was "around" her. No misconduct was cited on that day and therefore there was nothing to merit further censure by Parke. The workplace involved here was relatively intimate in all events and Kalota could very well have concluded that it was at least difficult if not impossible to guarantee that the two could never escape an occasional contact. Perhaрs Kalota could have handled the meeting with Blankenship and her mother more adroitly, but clearly the parties had reached an impasse. She had already implemented several steps in good faith to correct the problem; the confrontation on October 22, since it did not involve any untoward conduct on Malcom's part, could not occasion any further disciplinary action against Malcom himself.
While our holding can, we are satisfied, stand on its own, it is fortified by one other circumstance in this case which we believe could not realistically bе ignored by Parke. Blankenship was female and white. Malcom was male and black. As supervisor, Parke was charged by Title VII with a duty not to discriminate against employees either on account of sex or on account of race. This duty would extend both to Blankenship and to Malcom. Not one of the actions alleged as harassment on Malcom's part was supported by an independent eyewitness. For his part, Malcom denied the acts charged. It is true that by the time of Blankenship's second complaint, co-employee Marshall had also clаimed she was harassed by Malcom. Again, however, there was no independent eyewitness corroboration that we are aware of and Malcom denied these charges also. Although we do not attempt to quantify this circumstance in a legal way, it would be unfair indeed to ignore the very practical dilemma which presented itself to Sullivan. The propriety of her conduct, her good faith, and her freedom from any intent to discriminate are manifest. Considering the facts of this case up to and including October 22, we find that Parke's response did not, as a matter of law, evidence the kind of discriminatory conduct on its part necessary to support the charge against it. Parke was aware of Blankenship's complaints and had already implemented several steps in good faith to correct the problem. Preventing Malcom from coming near Blankenship was not yet a necessary step. If Malcom's harassment of Blankenship had further escalated, Parke might have been under a duty to prevent Malcom from being near Blankenship--indeed, it might have been under a duty to fire him. See Bell,
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
MERRITT, Circuit Judge, concurring.
I concur in Judge Engel's opinion for the Court. In light of Judge Ryan's separate concurring opinion I should comment on my previous statement indicating that in coworker sexual harassment cases "direct negligence," as distinguished from "respondeat superior," is sufficient to establish employer liability. See Fleenor v. Hewitt Soap Co.,
Quoting from a previous Sixth Circuit case, I said in Fleenor that employer liability is established in coworker sexual harassment cases when "the employer knew or should have known of the charged sexual harassment and failed to imрlement prompt and appropriate corrective action." I think this should be the general standard, whatever label we put upon it--negligence, recklessness, intentional, good faith, bad faith, and so on. Despite what I said in the Fleenor case, I do not think we should take our eye off the ball by insisting on a label drawn from the common law for this statutory tort which was unknown to the common law. The standard seems to me somewhere in between "negligence" and "intentional" wrongdoing. Perhaps we could call it "deliberate indifference" by the employer to the sexual harassment in its workplace if we must put a label or shorthand rhetorical characterization on the employer's conduct. Perhaps "deliberate indifference" catches the meaning of the standard better than older common law concepts. Call it what you will, the standard quoted above is the one used in Judge Engel's opinion in paragraph 13.
This area of employer liability for coworker sexual advances is hard to get a good handle on, and I think Judge Engel's opinion does quite well in clarifying the problem and providing a reasonable standard.
RYAN, Circuit Judge, concurring.
Dеfendants Parke Care Centers, Inc. and Westchester Management Company responded promptly and appropriately--that is to say, reasonably--to plaintiff Leanna Blankenship's hostile work environment allegations and therefore cannot be liable for her injuries under Title VII. Thus, the result reached by the majority is correct. However, the analysis my brother employs in reaching this result misstates the law in several respects and therefore I must concur separately.
First, the majority opinion erroneously states that, in order for an employer to be liable for coemployee hostile work environment sex discrimination, the employer must discriminate on the basis of sex. It is simply not the law that an employer's liability for sex discrimination under Title VII requires proof that the employer himself, herself, or itself is guilty of sex discrimination. And, as I shall show, the decisional authority makes that abundantly clear.
Certainly, Title VII prohibits an "employer" from discriminating on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). However, "employer" means "a person engaged in an industry affecting commerce ... and any agent of such a person ...." 42 U.S.C. § 2000e(b) (emphasis added). Although in Meritor Savings Bank, FSB v. Vinson,
Several courts have applied these agency principles, as directed by the Supreme Court, in coemployee cases. See, e.g., Faragher v. City of Boca Raton,
This theory of employer liability has been ratified many times over. "[I]t is clear, the criterion for when an employer is liable for sexual harassment is negligence ...." Baskerville v. Culligan Int'l Co.,
Although we erroneously referred to it as "respondeat superior," we later realized that the term "respondeat superior"--which connotes derivative liability--is an incorrect label for co-worker harassment cases, where the employer is directly liable for its own negligence. This understanding, that the emрloyer is directly not derivatively liable, and the underlying "knew or should have known" standard, are [sic] consistent with the law in other circuits. The standard is also consistent with the common law understanding of an employer's liability for the misconduct of employees.
Fleenor,
Second, my brother errs in implying that respondeat superior liability requires negligence on the part of the employer. Clearly, it does not. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 69 (5th ed.1988). Under respondeat superior, an employer is liable, despite having no fault whatsoever, for the acts of its employees which are within the scope of their employment. Id. This court eventually realized that, in the Title VII hostile-work-environment context, respondeat superior was a misnomer because 1) employer negligence is а prerequisite for liability, and 2) the creation of a hostile work environment is not generally within the scope of a coworker's employment. However, our realization that liability is direct, and not vicarious, did not change the substance of the law. An employer was liable for its negligence when we were mistakenly using the term respondeat superior, and it continues to be liable for its negligence now that we do not use that misnomer. The "tension" the majority identifies is created only by its mistaken belief that direct liability under Title VII must be of the intentional variety, a belief undermined by the clear precedent demonstrating that negligence is sufficient.
Third, the majority has arbitrarily adopted a "good faith" standard for judging an employer's response to charges of sexual harassment, despite the absence of supporting case law and despite the fact that such a standard conflicts with the reasonableness analysis the majority recognizes must be applied in determining whether an employer should have known of the harassment. The majority cites no direct authority for a "good faith" standard and indeed I suggest there is none. In fact, the cases that come closest to defining the familiar "prompt and appropriate" formulation indicate that employers' remedial actions must be "reasonably likely to" or be "reasonably calculated to" end the harassment. See Reynolds v. CSX Transp. Inc.,
Because, as a matter of law, defendants responded reasonably to plaintiff's allegations of sexual harassment by her coworker, defendants were entitled to summary judgment by the district court.
Notes
Parke disputes that this event happened and that Blankenship reported it to Sullivan, but recognizes that because the district court granted it summary judgment, the facts must be considered in the light most favorable to Blankenship
One part of Rabidue was abrogated by Harris v. Forklift Systems, Inc.,