Lead Opinion
Former employees of National Communications Inc., operator of KVHP Fox 29 (“Fox 29”), appeal the district court’s summary judgment dismissal of their Title VII supervisor sexual harassment and retaliation claims. These claims arise out of an alleged pattern of sexual harassment by Gary Hardesty, the employer’s former President and General Manager. Because the record at least creates a question of fact as to whether Hardesty was Fox 29’s proxy so that his actions are imputed to the employer, we vacate the summary judgment rendered against three of the employees and affirm as to the fourth. We affirm the district court’s grant of summary judgment in favor of National Communications on the plaintiffs’ retaliation claims. We remand the case to the district court for further proceedings consistent with this opinion.
I
At the time of the events giving rise to this litigation, plaintiffs Lynette Ackel, Charlotte Gross, Deanna Dugan and Karen Myers were employed at the main office of Fox 29, which is located in Lake Charles, Louisiana. Fox 29 is operated by defendant National Communications, Inc. Prior to his removal, defendant Gary Har-desty was the President and General Manager of Fox 29. He also served on the corporation’s board of directors and owned two percent of its stock. Defendant Bruce Hamilton was the local sales manager at Fox 29 in Lake Charles and, following Hardesty’s removal, became the General Manager.
The summary judgment record indicates that Hardesty had a history of making inappropriate advances towards female employees at Fox 29 and that his tendencies were well-known to Fox 29’s managers. Ken Smith, a Vice President in Fox 29’s Beaumont office, testified that, prior to the events at issue here, two female employees complained that Hardesty called them asking for dates. A third complained that Hardesty forcibly kissed her without her consent. There was also testimony that Dianna Thibodeaux, the designated manager for complaints under Fox 29’s sexual harassment policy, requested that all new female employees be warned about Hardesty’s “flirtatious” behavior.
Lynette Ackel began working at Fox 29 in June of 1994. Ackel testified that, after being hired, she was warned by her then-supervisor, Hamilton, not to be alone with Hardesty and to report any inappropriate
Although she did not report Hardesty’s harassment to Thibodeaux, Ackel testified that she did respond affirmatively to inquiries from Hamilton, while he was her immediate supervisor and afterwards, as to whether Hardesty was still harassing her. She became emotional on each occasion, however, and did not provide details. Ack-el testified that, at least once, Hamilton promised that he would “take care of it” but that no action was taken against Har-desty and the harassment continued. Ack-el stated that she eventually stopped complaining because she felt nothing would be done. Ackel also testified that Hardesty intervened on her behalf when Hamilton threatened to fire her. After Ackel filed suit, she was reprimanded for receiving personal calls at work and for opening packages addressed to her supervisor, and she was not permitted to attend a convention that she had attended the previous year. In addition, Ackel’s pay was changed from salaried to hourly, although she did not experience any decrease in overall compensation. Ackel resigned from Fox 29 in November of 1998.
Charlotte Gross began working at Fox 29 in April of 1997. She quickly became Thibodeaux’s assistant, replacing Karen Myers. Shortly after moving into this position, Gross entered into a sexual relationship with Hardesty. Hardesty stated that he believed the relationship was consensual. Gross, however, testified that she acquiesced to Hardesty’s advances only after she was unable to prevent him from forcing himself on her physically. She stated that she was scared of Hardesty and of losing her job. Gross also testified that she did not report Hardesty’s actions because she was ashamed, because Hardesty instructed her not to, and because she did not believe that Thibodeaux or anyone else could do anything due to Hardesty’s position at Fox 29. After Gross informed Thi-bodeaux that she needed to leave Fox 29 in order to obtain a higher paying job, she received two raises. According to Gross, Hardesty took credit for the initial raise, although Thibodeaux testified that final approval came from Fox 29’s outside accountant and that she sought the raise on her own initiative because Gross was a good employee. Thibodeaux testified that she and Hamilton suspected that Hardesty was sexually involved with Gross but took no further action when Hardesty denied it.
Although Gross was familiar with Fox 29’s sexual harassment policy, she did not file a complaint until January of 1998 when National Communications’ board of directors learned of her relationship with Hardesty. Hardesty was immediately barred from the office, an investigation was conducted, and his employment with Fox 29 was ultimately terminated. Gross testified that, for a brief period of time following her complaint, her telephone was removed and she was not permitted to socialize without supervision. In addition, she stated that some of her work was taken away and then gradually restored, she frequently had to unlock the door to her office with a key, she was reprimanded for various reasons, and she received a poor evaluation. According to Gross,
Deanna Dugan began working at Fox 29 in August of 1997. Dugan testified that Hardesty frequently subjected her to unwelcome sexual advances, including attempting to pull up her skirt, instructing her not to wear pantyhose, and twice trying to kiss her. Dugan stated that she was aware of Fox 29’s sexual harassment policy but never complained to Hamilton or Thibodeaux because they were Hardesty’s friends and subordinates. According to Gross, after Dugan informed her of Hardesty’s actions, Gross decided to tell Hardesty that Dugan would file a complaint against him if he did not stop. Du-gan testified that in November of 1997, shortly after being warned by Hamilton that her personal life was interfering with her work, Hamilton fired her for that reason in Hardesty’s presence.
Karen Myers began working full-time at Fox 29 in June of 1991. After Gross replaced Myers as Thibodeaux’s assistant, Myers was moved to another department. Myers repeatedly complained to Thibo-deaux about the move and was informed that the changes were made because Gross was the better employee. Myers testified that she once asked Thibodeaux whether Hardesty was harassing Gross and Thibo-deaux responded that she did not know. Myers was terminated in November of 1997, arguably for discussing Gross’ salary with two other employees. The other employees were not discharged. Myers does not contend that she was ever sexually harassed by Hardesty.
II
We review a grant of summary judgment de novo. Tango Transp. v. Healthcare Fin. Servs. LLC,
III
The employees brought supervisor sexual harassment claims against National Communications alleging that the corporation was liable for the conduct of its President, Hardesty.
A.
Although Myers does not allege that she was ever harassed by Hardesty, she nevertheless contends that she should survive summary judgment on her sexual harassment claim because she was removed as Thibodeaux’s assistant as a result of Hardesty’s favoritism for Gross and then was terminated for complaining about that favoritism. As we noted in Green v. Administrators of the Tulane Educational Fund,
B.
With regard to the remaining plaintiffs, they argue that the district court erred in granting summary judgment in favor of National Communications on the issue of vicarious liability. In holding that National Communications was not vicariously liable for Hardesty’s conduct, the district court found that Hardesty was not the corporation’s proxy, and National Communications successfully raised the Faragher /Ellerth affirmative defense to liability. In its reasons, the district court explained that, “Hardesty could not be an alter-ego of Fox 29 in any event because he owned only 2% of the stock and he answered to Lester Langley[, the corporation’s outside CPA].” The issue of whether Hardesty was National Communications’ proxy is central to the resolution of this case because an employer is automatically liable for its proxies’ harassment of employees. Harris v. Forklift Systems, Inc.,
In two opinions published the same day, the Supreme Court addressed the issue of an employer’s vicarious liability and established an affirmative defense that may be raised in some hostile environment cases. Faragher v. City of Boca Raton,
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed.*383 Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Faragher at 807,
In Faragher, the Supreme Court began its discussion of vicarious liability by outlining the development of the Title VII caselaw. The Court recognized that it established the foundation of employer liability in Meritor Savings Bank, FSB v. Vinson,
We read the Supreme Court’s opinions in Faragher and Ellerth as the Seventh Circuit did in Johnson v. West,
In Ellerth and Faragher, the Supreme Court considered an employer’s vicarious liability for the sexually harassing conduct of its supervisory staff. “An employer is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee.” Ellerth,524 U.S. at 765 ,118 S.Ct. 2257 ,141 L.Ed.2d 633 ; Faragher,524 U.S. at 807 ,118 S.Ct. 2275 ,141 L.Ed.2d 662 . Vicarious liability automatically applies when the harassing supervisor is either (1) “indisputably within that class of an employer*384 organization’s officials who may be treated as the organization’s proxy,” Faragher,524 U.S. at 789 ,118 S.Ct. 2275 ,141 L.Ed.2d 662 , or (2) “when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Id. at 808,118 S.Ct. 2275 . Absent either of these situations, however, an employer may avoid vicarious liability by showing “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth,524 U.S. at 765 ,118 S.Ct. 2257 .
Similarly, the Ninth Circuit has cited Faragher’s discussion of Harris for the proposition that “an individual sufficiently senior in the corporation must be treated as the corporation’s proxy for purposes of liability,” which “constitutes a bar to the successful invocation of the [Faragher/El-lerth ] defense.... ” Passantino v. Johnson & Johnson Consumer Products, Inc.,
The Fox 29 employees presented summary judgment evidence that at the time of the harassment, Hardesty was the President and General Manager of Fox 29 as well as a stockholder and member of the board of directors. National Communications argued that Hardesty was not the corporation’s proxy, and presented evidence that Hardesty owned only 2% of the stock and consulted the corporation’s outside CPA before awarding raises to employees. Stock ownership is not a prerequisite for acting as a corporation’s proxy; the only factor relevant to the determination of whether Hardesty was a proxy for Fox 29 is whether he held a “sufficiently high position in the management hierarchy” so as to speak for the corporate employer. Faragher at 789,
IV.
Finally, we address the plaintiffs’ retaliation claims. “The allocation of the burden of proof in Title VII retaliation cases depends on the nature of the plaintiffs evidence supporting the causation element.” Fierros v. Tex. Dep’t of Health,
“Protected activity is defined as opposition to any practice rendered unlawful by Title VII, including making a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.” Green,
“Adverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.” Id. “Title VII does not ... address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions.” Banks,
At the prima facie stage, “the standard for satisfying the causation element is ‘much less stringent’ than a ‘but for’ causation standard.” Fierros,
Based on our review of the record, the district court correctly dismissed the plaintiffs’ retaliation claims.
V.
We VACATE the district court’s grant of summary judgment on the issue of National Communications’ vicarious liability as to Ackel, Gross and Dugan on their sexual harassment claims, and REMAND for further proceedings in accordance with this opinion. We AFFIRM the district court’s summary judgment ruling in all other respects.
AFFIRMED in part; VACATED and REMANDED in part.
Notes
. Individuals are not liable under Title VII in either their individual or official capacities. Smith v. Amedisys Inc.,
. Like the harasser in Harris, Hardesty was also the President of the corporate employer at the time of the actionable conduct.
Concurrence Opinion
specially concurring:
In Faragher v. City of Boca Raton,
It would be easy to follow the majority in accepting uncritically the Seventh Circuit’s cursory reading of Faragher in Johnson v. West,
Because employers cannot, as a general matter, be held automatically liable for sexual harassment by their supervisors,
The majority, however, holds that the affirmative defense is unavailable as a matter of law because Hardesty is the proxy of National Communications. This conclusion finds no support in Faragher or Ellerth. The majority, in relying on Far-agher ’s discussion of Harris v. Forklift Systems, Inc.,
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. PROC. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm oth*388 erwise- No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
Faragher,
Thus, under Faragher and Ellerth, the presence or absence of a tangible employment action is the only relevant factor when determining whether the affirmative defense is available. The majority, in creating an additional bar to the defense, unjustifiably expands the scope of automatic vicarious liability in Title VII supervisory sexual harassment cases beyond the narrow parameters authorized by the Supreme Court.
Furthermore, the majority’s derogation of binding Supreme Court precedent is unnecessary because, although Ackel, Gross and Dugan did not suffer a tangible employment action, National Communications has not satisfied the reasonableness standard of the affirmative defense for summary judgment purposes. In my view, the grant of summary judgment in favor of National Communications was improper because genuine issues of material fact exist as to whether National Communications exercised reasonable care in preventing and promptly correcting Hardesty’s blatant harassment of its female employees. See Sharp v. City of Houston,
Accordingly, while I concur in the judgment and in Parts I, II, III.A, and IV of the majority’s opinion, I cannot join the reasoning of Part III.B.
. See Faragher,
. As the Court explained in Ellerth, an employer will always be vicariously liable when a supervisor takes a tangible employment action against a subordinate because "[t]he supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control,” and "[tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear, on subordinates.”
. Although Faragher notes that the results in these cases remain sound "in light of basic agency principles,”