Barbara Sparks v. Pilot Freight Carriers, Inc.

clearly wrong. The trial court This was following

erroneously upon relied dic- SPARKS, Plaintiff-Appellant, Barbara Lamm, tum in Ramos v. v. Cir.1983): CARRIERS, INC., PILOT FREIGHT fees courts have reduced when Some Defendant-Appellee. monetary was for re- thrust of the suit No. 86-8790. recovery was small com- covery and pared to the fees counsel would have United Appeals, States Court of compensated if at a normal rate received Eleventh Circuit. reasonably expended. We re- for hours Oct. ject practice. this Lamm, in Ramos v. dictum Judge McKay’s the cornerstone of dis- senting opinion Nephew City v. Auro- ra, 1464, clearly F.2d conflicts with

express language Hensley v. Eckerhart Signifi- City Riverside v. Rivera. cantly, Judge McKay does not cite to Ra- opinion in his

mos v. Lamm for the en court, though

banc even it was the basis original panel opin-

for his dissent from the though

ion this case and even guided gov-

court stated that it was (R., II, pp.

erned Ramos v. Lamm. Vol.

2, 8, 9.)

This case should remanded to be by panel

district court as directed of this Aurora, Nephew court in City supra,

where we said:

By holding imply we do not damages

an award of nominal necessar

ily corresponding means that a fee award However, where,

must also be nominal. here, seeks substantial

damages only but wins nominal dam

ages, the award must reduced to ac plaintiffs’ very

count for the limited suc

cess.3

766 F.2d at 1467. ing procedural process, may denial of pre- attorney's though due fees under yet only

vail on the damages properly merits recover nominal one of the factors to be considered on way award.) eligibility shall in no diminish his the amount of such

1556 Sweat, Player, Jeanne M.L. hands on David R. to rub her shoulders or Ga., Athens, plaintiff-appellant. hair; “fool with” repeatedly and smell her inquiring life; Sparks’ personal into on one Bockius, Morgan, & James J. Kel- Lewis asking occasion if he could come to her D.C., defendant-appel- ley, Washington, wine, and, house having with a bottle of lee. refused, calling been out to her over the

public system address leaving as she was stating the office that this was her “last chance;” making threatening remarks to KRAVITCH, HILL Before Sparks, “you’d such as better be nice to TUTTLE, Judges, Circuit Senior me,” “your hands,” my fate is in “revenge Judge. Circuit game;” is the name of the and at least one other remark that the district court con- KRAVITCH, Judge: Circuit sexually explicit” cluded was “too to re- Sparks appeals Barbara peat. Sparks notify any Long’s did not grant summary judgment court’s in superiors Freight at Pilot that he was ha- Sparks’ sexual harassment and sex discrim- rassing her. against ination action filed her former em- May Freight Pilot closed its Carriers, (Pilot ployer, Freight Pilot Inc. Duluth Long terminal. was transferred to VII, Freight), pursuant to Title 42 U.S.C. Atlanta where he resumed his job former seq. grant 2000e et We reverse the manager. as sales Sparks and several oth- summary judgment and remand. employees er also were transferred to the terminal; Atlanta other employees Duluth I. STATEMENT OF FACTS were laid off. manager The terminal Appellant Sparks employed by was Pilot the Atlanta terminal was Carl Connell. billing Duluth, in clerk Sparks given job billing as a clerk Georgia trucking May terminal from night on the shift where she worked for until February March 1984. In Pilot days. day, three Thursday, On fourth Freight promoted Long, Dennis a former 10th, May Sparks allegedly called the office terminal, manager sales in the Atlanta to and asked secretary, Connell’s Hilda Ta- position manager of terminal tum, change whether she could her work- manager, Duluth terminal. As terminal ing day hours. Later that Tatum called Long highest position held the in the Du- Sparks Sparks back to tell that she could and, according luth terminal had change Sparks her allegedly hours. authority virtually to exercise unfettered responded that she could not come in that personnel matters, discretion over includ- night Turner, because she was sick. Curtis ing hiring firing of employees. clerk, billing a male also called in sick that According Sparks, only Pilot day. following day, Connell called employees superior Long were stationed Sparks at home several hours before her Freight’s headquarters Pilot in North begin shift was to and fired her. Turner Carolina. Sparks replaced by was not fired. Sparks alleges shortly Long after Briscoe, billing John clerk who had been arrived in began Duluth he to harass her. laid off when the Duluth terminal was One of the earliest instances occurred when closed. Long called her into his office and asked Sparks her if she filed the instant action boyfriend, was married or had a Freight, and if pregnant. alleging she could three Sparks become violations of claims that Title promoted gen- during after she VII. Her first claim is that secretary, eral boss, with her as her tenure at the Duluth terminal she was March Long’s subject working unwelcomed sexual hostile environment sex- boss, harassment of her Long. continued. This harass- ual harassment Dennis ment included such putting acts as: his Her second claims relate to her dis- two conditions of en- alter the em- being that Connell [the first charge: victim’s] ployment working and create an abusive disparate treatment be- gaged in unlawful ” discharged her and environment.’ 106 S.Ct. at 2406 he sex when cause of Henson, (brackets Turner; original) (quoting, her dis- is that the second quo 903). quid pro F.2d at charge resulted from Long induced Connell to in that harassment The district court concluded that her refusal her in retaliation fire could survive as to demands. his sexual accede to prima these four elements of facie summary granted court granted summary judg- The district case. The court Freight on all three defendant, however, judgment ment for the We reverse. claims. concluded that failed to establish necessary Freight’s fifth element: Pilot ENVIRONMENT II. WORKING liability Long’s theory actions under the HARASSMENT superior. SEXUAL respondeat of Rights Act of 1964 the Title VII of Civil The district court based its decision that employer for “an ... it unlawful makes superior theory applies respondeat to this any with re- individual Henson, on this court’s decision in discriminate action terms, condi- compensation, spect to his supra. There we held that a Title VII tions, employment because privileges of or plaintiff employer who seeks to hold her sex —”42 U.S.C. individual’s ... of such super- liable for sexual harassment her 2000e-2(a)(l). § or co-workers must visor demonstrate that employer supervisor the is liable for the or A. theory co-worker’s conduct under the of respondeat superior. Consequently, the Bank, v. Vin In Meritor Sav. FSB prevail plaintiff cannot unless she can show son, Supreme held that an em the Court employer that her “knew or should have a violation of Title ployee establish question of the harassment and known employee’s employ by proving that the VII prompt to take remedial action.” failed sex, engaged in based on er discrimination Henson, Applying F.2d at 905. the 682 harassment, including created sexual Sparks court concluded that could district environment.1 a hostile or abusive work prevail she had not notified 2405-06, 91 106 S.Ct. supervisor Freight that any at Pilot she (1986); accord Henson v. Dun L.Ed.2d 49 being Long. sexually harassed was dee, (11th Cir.1982). 902 An 682 F.2d asserting work employee a claim of hostile respondeat superi- applying In ing sexual harassment an environment Henson, however, or requirement of prove following in “employer” must district court overlooked the fact that the (1) prima case: order establish facie employ respon Henson court’s decision to belongs employee protected to a superior theory deat assump rested on its Henson, 903; (2) group, F.2d at 682 plaintiff’s alleged harasser tion that employee subject to “unwelcome” was supervisor “employer.” her was her but not harassment, Vinson, 106 S.Ct. at sexual Henson, Here, F.2d n. 9. 682 at 2406; Henson, 682 F.2d at 903; 29 C.F.R. contrast, Sparks alleges Long was 1604.11(a) (1985); (3) the harassment § and supervisor “employer,” both her sex, Henson, complained of was based as that term is defined under Title VII. 903; at the harass 682 F.2d “term, directly “employer” complained con Under Title VII an ment affected of its dition, privilege” employment in that liable for its own sexual harassment 2000e-2(a)(l), See U.S.C. 42 “sufficiently pervasive employees. ‘to it was severe or § "employer." employee’s operation respondeat superior Through characterized as the 1. 897, 902, Dundee, theory may be liable to an & n. an also 905 9 Henson v. employee working (11th Cir.1982). environment properly employee by one not harassment Thus, acting 1604.11(c). supervisor "agent” as where the an 29 C.F.R. § “employer,” respon plaintiff’s courts purposes, Title VII look for harasser superior apply theory does deat guidance agency principles. law to common gave that she need not establish 2408, citing, U.S.C. harassment.2 Hunter anyone notice of the and Restatement 2000e(b) (Second) § Div., Corp., Engine Allis-Chalmers (1958). Agency 219-237 §§ Horn v. Cir.1986); (7th F.2d case, court, the instant district Homes, Mobile Windsor Div. Duke concluding incorrectly “agency” Inc., Homes, F.2d Cir. simply way one determination of estab- Vinson, Hen 2408-09; 1985); respondeat held, lishing superior;4 also in- son, F.2d n. at 905 correctly, agency that under common law “employer” term as The Act defines the principles Long “agent” was not an of Pilot industry affecting in an “person engaged Freight Apply- Sparks. he harassed when any agent such a ... commerce ing general agency rule of that “[a] 2000e(b) (emphasis 42 U.S.C. person.”3 § subject liability master is for the torts of Long added). Therefore, acting if acting his servants committed while Freight “agent” when he sexu- of Pilot scope employment,” of their Restatement is di- ally harassed (Second) Agency, 219(1), district Long’s rectly conduct— liable court determined that Pilot was not establish four ele- provided can Long’s liable actions because prima case outlined ments of facie Vinson, scope employ- not 2408; acting within the above. See of his 106 S.Ct. at Horn, Sparks. ment when he harassed The dis- 755 F.2d at 604. ruling trict this court based on its determi-

B. Long by nation not was “actuated purpose some to serve the when master” Title VII not define the term does Sparks.5 Sparks, Rather, determining “agent.” he whether harassed No. C85- 4, respondeat implicated superior theory of 2. See Note is infra. engaged allegedly person where the who in the 2000e(b) precise language §of is as fol- 3. The plain unlawful sexual harassment was not the lows: statutory “employer” example, tiffs where —for (b) "employer” person alleged plaintiffs means a the was one co term harasser of affecting engaged industry authority supervisor in an commerce workers or was a with no employees Vinson, 2409, has more each plaintiff. who working day fifteen or over 106 S.Ct. at twenty or (Marshall, in each of more calen- (notice concurring) em J. preceding dar weeks in the current or calen- ployer necessary may supervisor be where year, any agent person, such a dar and but agent acting of as an in that he had no authori (1) such term not include the United does ty harassing); employee over he the Rabi States, wholly by corporation owned the 611, 615, Co., Refining due v. Osceola 805 F.2d States, United Government of the an Indian — Cir.1986) (same), denied, 619-20 U.S.-, cert. tribe, any department agency or or of the 1983, (1987); 95 L.Ed.2d 823 subject by pro- District of Columbia statute to Henson, 9; at 905 & 29 C.F.R. 682 F.2d n. (as competitive of service cedures the defined 1604.11(d). § 5), (2) in section Title or 2102 of bona fide (other private membership club than a labor agency principles, law "a mas- Under common organization) exempt is from taxation liability subject ter is for the torts of his 501(c) except under during of Title section scope acting of servants committed while in the year the first after March (Second) employment.” their of Restatement persons having twenty-five fewer than em- 219(1). Agency, order con- In for a servant’s § (and ployees agents) shall their not be con- scope properly duct to be considered the "within employers. sidered (1) employment” be kind he is it must: of the added). (Emphasis (2) employed substantially perform; occur limits; space within time the authorized and employer’s "agents” 4. Because the acts of an are actuated, by pur- part, at least in employer, employer directly, those of the 228(1). pose to Id. at Alter- “agents" § serve master. indirectly, than rather liable its natively, of a servant is not within the Title VII "conduct See Hunter Allis-Chal- violations. Div., scope Corp., employment in kind Engine if it different mers (7th Cir.1986). contrast, authorized, liability beyond In the indirect from that far the authorized citing rules, 2941A, slip op. Interpreting general agency at Restatement 219(1), 228(2). (Second) Agency presumably relying primarily §§ section 219(2), Equal Employment Opportunity recognized Although the district court (EEOC) Commission has concluded that a employer be liable under sec- that an supervisor “agent” acts as an of the em 219(2) tion of the Restatement for its serv- ployer purposes, for Title VII thus render though the even servant was ant’s actions ing the employer directly liable for the scope employ- acting “within the his supervisor’s actions, supervi “where [the] ment,” the district court concluded that sor authority actually exercises the del 219(2)’s exceptions of section none egated to employer, by him his making 219(1) general apply to this rule of section threatening or affecting to make decisions Accordingly, grant- case. court the employment status of his subor ed Vinson, dinates.” at 2407-08 acting issue of whether (stating, on, ruling position without Freight’s agent when he harassed brief);6 Horn, see the EEOC in its amicus C85-2941A, Sparks. op. slip No. F.2d at (employing rule). the same (Second) Agen- citing Restatement The EEOC agency reasoned that principles 219(2). cy § require holding employer liable because holding of the that none enumerated it was the employer’s delegation of authori scope exceptions to the “within of em- ty empowered supervisor to so act. ployment” ap- apply, rule the district court 2408; Horn, accord 106 S.Ct. at 219(2)(d). parently overlooked section This 604-05; 219(d)(2), 755 F.2d at Re master provides section that a is liable for (Second) see also Agency; statement acting of his servants outside the torts Henson, (applying 682 F.2d at employment scope of their where: analysis employer strictly to hold an liable (d) purported servant to act or to quid pro quo sexual harassment principal speak on behalf direct; supervisors).7 liability This upon apparent there was reliance author- cannot find shelter the claim accomplishing was aided in or he ity, of, approved neither had notice agency the tort the existence Vinson, of, the unlawful conduct. 106 relationship, (emphasis added). Horn, 2408; at 755 F.2d at 604- section, unlike Under this under section 05; 1604.11(c); 219(d)(2), 29 C.F.R. Re § § 219(1), master is not insulated from (Second) Agency. statement liability by the fact that the servant was acting entirely Adopting applying See id. for his own benefit. this rule and it to 219(2), E; case,8 see also id. at 235 Comment the instant we observe it is §§ 262, undisputed Freight at 265. that when Pilot made §§ limits, Moreover, space by time and or too is little actuated we observe that this rule consistent 228(2). purpose guidelines, to serve the master." § Id. at with the which are EEOC entitled to deference, Vinson, 2409, great 106 S.Ct. at and 6. See Note provide: infra. responsible employer [A]n ... is its acts 7. To the extent that the Henson discus- court’s agents supervisory and and those of its em- sion of hostile work environment harass- sexual ployees respect with to sexual re- harassment holding can be read as that notice ment to gardless specific acts of whether the com- employer required defendant is even where plained even of were authorized or forbidden supervisor agent, was the defendant’s and thus by employer regardless and of whether "employer,'' by it was the victim’s overruled employer have knew or should known of Vinson, Supreme Court in Vinson. 106 S.Ct. at 1604.11(c). § the occurrence. 29 C.F.R. 2408. Finally, we have note that other circuits similar ly applied agency principles involving recognize to actions we that the While rule the EEOC Vinson, by employer’s liability an for sexual harassment proposed supra, an not official 604-05; Horn, supervisors. E.g., F.2d adopt its 755 at regulation, it we because we conclude (D.C.Cir. Taylor, simply application Vinson v. F.2d 148 an 753 that it is in the Title VII Bank, 1985), nom., 219(d)(2), (Second) Meritor Sav. FSB v. context of sub. § Restatement aff'd Vinson, which, Agency supra, 106 S.Ct. 91 L.Ed.2d rule under U.S. —the (1986), remand, Taylor, properly governs v. 801 F.2d we conclude this action. Vinson supervisors its absent “no- of the Duluth ter- harassment manager Long terminal tice,” colorably its claim is not even valid him with both actual it vested minal authority Sparks’ employ- Vin- Supreme holding to alter apparent given the Court’s authority fire including son.10 (employer liable ment status — evidence, Moreover, considered in notice); ac- agent’s her. even acts absent shows light favorable Horn, most 604; cord 755 F.2d at 29 C.F.R. delegated to authority Long used 1604.11(c). Freight him in ha- to assist him Pilot Freight’s Pilot claim fails to also Long re- rassing Sparks: specifically, Freight attempt by extent that it an Pilot he could Sparks that peatedly reminded language in Vinson to benefit from the comply his with she fail fire her should indicating employer may that an insulat- be that, Therefore, we conclude advances.9 liability working from ed hostile envi- light in the is viewed the evidence when (1) ronment sexual harassment where es- Sparks, Sparks has favorable most explicit policy against has an sex- fact genuine issue material tablished harassment, it has ual effective acting as Pilot as to whether procedures grievance “calculated to en- engaged he in the Freight’s agent when courage victims of harassment to come for- Sparks. alleged harassment of She sexual employ. did ward” genuine is- consequently has established Vinson, 106 S.Ct. at Pilot 2408-09. fact as to whether Pilot sue of material Freight proffered has no evidence that directly Freight liable to her under Title policy either a had sexual harass- Rogers, v. VII. See Hamilton grievance procedure; ment or an effective Cir.1986); Horn, F.2d 442-43 Freight has asserted that Pilot had Accordingly, the court’s at 604-05. district summary judgment purposes neither. For grant Sparks’ allegation as true. See accept we working environment sexual harass- hostile Liberty Lobby, 106 S.Ct. at 2513-14. We claim must be ment reversed. sugges- therefore conclude the Court’s Inc., Liberty Lobby, Anderson Vinson employer may an tion 2505, 2510-11, 2513-14, liability to shield from Title VII able itself (1986). L.Ed.2d supervisors’ for its sexual harassment enacting policy against C. explicit grievance pro- harassment an effective conclusion, Freight as- contests supervisors divest cedure —so serting Long’s that it cannot be liable apparent authority actual and to harass complain did actions because employees bearing appeal. no on this anyone Long’s —has at Pilot about con- prevail on this duct. cannot D.

claim. Nor we Freight’s accept that Pilot is are inclined to Pilot To the extent claim argument that, employer Freight’s is that an not liable sexual even if we re- (1986); authority Rodgers, itly v. F.2d threatened use his 1436 Hamilton 791 to (5th Cir.1986) Vinson, (employing 442-43 the same victim. See 106 S.Ct. at 2408. employer an rationale to find liable for race Freight's argument a lack 10. Pilot reflects by supervisors). discrimination intermediate understanding liability of the basis of its us, Long’s recently 9. The evidence before when considered in acts. As the Seventh Circuit Allis-Chalmers, Sparks, employer light explained supra, to most favorable shows that supervisors' authority delegated directly did to is liable for its violations of threaten use Therefore, to to Title those are as acts him detriment. we VII because acts viewed EEOC, by employer need not address the issue raised of the fore, itself. 797 F.2d at 1422. There- Court, require- by Supreme is no to a and not resolved in Vin- there reason have notice supervisory employee govern employer's son: what rule should ment because the liability supervisors employer itself and thus no- sexual harassment deemed to be the supervisor engaging rests he is where the sexual harassment claim "exclu- tice that sively" theory, “hostile is notice to the em- a environment" unwelcomed harassment supervisor explicitly ployer. implic- that neither nor See id. psychological being.” well that court’s conclusion victim’s] the district [the verse Freight’s Henson, acting Pilot F.2d at 904. as Long was should affirm the agent, nevertheless we test, Applying this we conclude that reversing summary judgment grant of court, properly Sparks found that district summary judg- court’s denial of summary judg- could survive a motion elements of to the first four ment as Long’s alleged ment on her claim that con- Spark’s prima facie case. Title as it duct actionable under VII “term, condition, privilege” affected a or asserts particular, Sparks’ employment. According Sparks, summary judgment it is entitled to Long repeatedly sexually harassed her and not established that Sparks has job threatened her which she said —conduct sufficiently severe Long’s harassment was her, “frightened” “upset” causing and her To be under Title VII.11 to be actionable job security. See to doubt No. VII, Title the “sexual actionable under C85-2941A, slip op. Accepting at 6. these “term, a must have affected harassment” true, allegations as we conclude condition, privilege” employment or Long’s Sparks sexual harassment Hen meaning of Title VII. within the sufficiently persistent satisfy severe son, Vinson 904. The Court in 682 F.2d at Vinson requirement the conduct requiring proof as that the interpreted this seriously plaintiff’s must have affected the “sufficiently severe sexual harassment psychological being.12 Accordingly, well pervasive ‘to alter the conditions or [the genuine has established a issue of employment and create an abusive victim’s] ” Long’s material fact as whether conduct working environment.’ “term, condition, privilege” a or Henson, affected 904). (quoting 682 F.2d at at 2406 employment; the district court there- showing may This test be satisfied summary judg- fore should have denied the sexual harassment was sufficient seriously ment for defendant on this issue.13 ly persistent “to affect severe assigning liability employer cannot raise sive before to the asserts that unnecessary. Supreme it did not Court has stated this claim before this court because actionable, general cross-appeal. harassment to be This is incorrect. As a sexual ”[f]or rule, filing sufficiently pervasive prevailing party may, 'to alter without must be severe or ground employment judgment any cross-appeal, the conditions of [the victim’s] defend a ” permit working and record create an abusive itor, environment.’ Mer- raised below which the law Henson, expand (quoting relief it has been 106 S.Ct. at 2406 that would not 904). granted, on this claim. Not all harassment rises to violation here Co., Telephone be liable for v. York of Title VII. For an See United States New harassment, must find that U.S. 166 n. S.Ct. 369 n. a factfinder Albers, (1977); sufficiently Whitley offensive see also the harassment had been L.Ed.2d 376 (1986). This rule obtains to be actionable. though arguments such involve an even Moreover, question we the usefulness re- reasoning upon the of the court below. attack distinguish quiring a between "am- factfinder Ludwig, Ins. Co. v. Massachusetts Mutual biguously" "patently” Life offensive actions con- 479, 481, 2158, 2159, 48 complaints sidering most of sexual harass- (1976). L.Ed.2d 784 which, although they are based on actions ment may settings, inap- permissible in some are (unwelcome 1604.11(a)(2) C.F.R. §§ 12. See 29 workplace. propriate can be a in the What it, sexual advances constitute sexual harassment “compliment," Judge puts Hill between made, where submission to such conduct is plicitly ex- relationship persons who have a social can two implicitly, is, or a term or condition of an workplace in be abusive in the —but added), employment) (emphasis cases, individual’s many point the whole of the sexual 1604.11(a)(3) (unwelcome sexual advances con- With to all the evi- harassment claim. dence, access they stitute sexual harassment where have the and with the common sense to make creating intimidating, purpose determinations, of or effect credibility should a factfinder environment). working offensive hostile or distinguish between ha- not find it difficult to rassing a violation of actions that constitute “ambiguous” Judge proposal require actions which the Title VII and those 13. Hill's that we working may en- harassing simply an abusive not "create factfinder to determine first whether "ambiguously" "patently” offen- vironment.” behavior was 1562 plain- prima and the case is rebutted DISCRIMINATION III. SEX facie demonstrate, by preponder- tiff now must claim is dis- Title VII second evidence, legitimate ance claim and is based criminatory treatment were reasons offered the defendant to fire her but decision Connell’s 253, 101 S.Ct. Id. at its true reasons. allegedly similarly situated

Turner —an 1093. employee. male Applying principles in the these instant A. concluded, case, correctly, the district court prima establish a In order to plaintiff summary judg- could survive facie discriminatory plaintiff treatment a case of prima ment as to case because facie facts sufficient for a demonstrate (1) she is and thus is a member of a female infer that discrimination jury reasonable (2) qualified protected group, was she Dept. Community has occurred. Texas clerk, (3) position billing she Burdine, 248, 253-54, v. (4) discharged, replaced by she was Affairs (1981); 1089, 1094, 101 67 L.Ed.2d 207 S.Ct. protected group. person outside Co., Lockheed-Georgia A Delgado see v. summary granted judg- court nevertheless Corp., 815 F.2d 641, Div. Lockheed 644 so ment for defendant. The court ruled (11th Cir.1987) (same Age under Dis accepting Freight’s claim after that it (ADEA)); Employment in Act crimination legitimate firing Sparks had a reason Labs, Inc., Savage Anderson v. 675 F.2d requiring employ- because of its rule work Cir.1982) (same).14 1221, This 1223 sick, ees to call violated on proof be established inference May did 10th but which Turner not violate. (1) belongs statutorily to the plaintiff: rejected, The district as a matter court (2) protected group, qualified for the law, Sparks’ argument rebuttal discharged, (4) job, was re Freight’s firing articulated reason placed by person protected outside so, doing was not actual reason for but Stores, Inc., v. Garner Wal-Mart group.15 pretextual. rather was 1536, (11th Cir.1987); see 807 F.2d 1538 Delgado, 815 F.2d at 644. B. pri

Once the establishes a case, ma production the burden of Because defendant Pilot rebut- facie by prof- presumption prejudice shifts to the defendant “to articulate some ted the legitimate, nondiscriminatory fering legitimate reason” for evidence of a nondiscrimi- Burdine, firing plaintiff. natory firing Sparks, the 450 U.S. at reason for issue 253, appeal grant summary judg- at 1093.16 de Should the from the satisfy production, its burden of ment for fendant defendant is whether record presumption plaintiff’s raised as a whole contains sufficient evidence Delgado Age 14. and Anderson are both United States Discrimi- Postal Service Bd. Governors v. cases, 3, Aikens, 711, 1478, (ADEA) Employment Act 460 n. S.Ct. nation U.S. 714 & 103 However, 3, (1983); 621-34. because Title VII 1481& n. §§ U.S.C. 75 L.Ed.2d 403 McCollum v. (11th Cir.1986), Bolger, purpose and ADEA share as a common 794 F.2d cert. — denied, U.S.-, employment elimination of discrimination and 93 L.Ed.2d (1987). proving discriminatory the method for similar, treatment under both acts decisions arising applying discriminatory burden, ADEA under the 16. To meet the defendant must analysis arising bear on those treatment under "produce would admissible evidence which al Labs, Inc., Savage Title VII. See Anderson v. rationally low the trier conclude of fact (11th Cir.1982) (Title 675 F.2d 1224-25 VII employment decision had not been motivat applying prece- cases the "work rule” are test by discriminatory Chipollini ed animus. ADEA). arising (3d under the Inc., dent for those Gifts, Spencer Cir. 1987) (en banc) (emphasis original), cert. — -, prima require dismissed, Proof of a case does not U.S. facie Burdine, discriminate; U.S. at proof (1987); of intent to direct evidence L.Ed.2d 254-56, disparate from treatment which the trier of at 1094-95. 101 S.Ct. may infer discrimination is fact sufficient. See Sparks’ primary claiming basis for could infer that the factfinder from which justification pre that Connell’s asserted is disc Freight guilty of intentional Pilot complied textual is that she with the work Chipollini Spencer See rimination.17 Sparks dispute not rule. does that Pilot Inc., (3d Cir.1987) 893, 898 Gifts, 814 F.2d — Freight requiring employees had a rule dismissed, -, banc), cert. (en U.S. notify they if coming it would not be 26, (1987). 97 L.Ed.2d 815 rule, however, day. according that This case, inquiry instant into wheth deposition testimony, Connell’s was unwrit Freight asserting alleged er Pilot Sparks ten. asserts that a reasonable con legitimate reason has satisfied its bur struction of this unwritten work rule is establishing gen den of the absence of a requirement it constituted that em uine issue of material fact as to whether Freight ployees notify they Pilot are discriminatory firing it had a for motive going day prior sick that to be out to the is subsumed the inquiry under Sparks start of their shift. claims that the See id. employer pretext. into record demonstrates that she satisfied this 898. requirement. The evidence most favorable may a defendant’s employee An rebut Sparks shows that several hours before legitimate it had a reason claim shift, Sparks’ the start Connell’s secre showing that the firing “indirectly by Tatum, tary, Sparks Hilda called about a explanation is employer’s proffered unwor- request Sparks had made earlier day Burdine, 450 U.S. at thy credence.”18 change call, During her hours. Chipollini, 1095; 101 S.Ct. at Sparks informed Tatum that she was sick (same ADEA). F.2d at 898 under coming would not to work that Where, here, employer’s asserted as Moreover, night. as the district court ob employee violated a justification served, is that the the evidence viewed for summary rule, employee prove pre- judgment purposes work shows that Connell showing reported Sparks either that she did not knew that had in sick. text that, did, rule or if she violate work claim, Sparks’ contests ar- employees protected other not within the guing that under its unwritten work rule engaged in similar acts were not class who employee required only notify not Mfg. v. Plastics Harris similarly treated. of her intention to be out Co., Cir.1980);19 see Del- 617 F.2d 438 sick, but also to initiate the call in which Inc., 644; gado, Savage Labs 815 F.2d at given. require- the notice is is this It latter Sparks F.2d at 1224. asserts that both ment, Freight asserts, Sparks here; grounds finding pretext apply we violated, not, but Turner did and which consider, consider, need and therefore do provided disparate the basis for their treat- only ground.20 ment. one prof- Sparks prior 17. asserts that Pilot did not of the former Fifth Circuit rendered legitimate fer evidence of a motive because the October 1981. Lack asserted motive is not credible. of credi- rebuttal; not, grounds bility is it is at least claiming pretext 20. second basis for here, in the form asserted the basis for claim that Connell failed to enforce the work rule Turner, that the defendant has not met its burden of similarly employee situated Burdine, production. See 450 U.S. at protected group. who not member of the S.Ct. at 1095. Although appears that Turner did in call fact in, Sparks deposition observes that Connell in employee 18. The also rebut the defendant's stated he did not remember how he learned that "directly by persuading the actually claim discriminatory court that a Turner would be absent or whether he likely reason more motivated talked to him. This evidence that Connell was Burdine, employer." 450 U.S. at that Turner had called in but aware at 1095. he one but other had not when fired not the inference, asserts, raises the that Con- Circuit, firing one

19. The Eleventh in the en banc decision nell’s articulated reason but Prichard, pretextual. Delgado, City F.2d at Bonner v. the other is (11th Cir.1981), adopted precedent decisions 1564 J., (Blackmun, (1983) viewing L.Ed.2d concur- that, the evidence We conclude Douglas/Burdine (the Pilot McDonnell ring) to most favorable light

in the its work rule —un- requires plaintiff pre- of Freight’s construction framework that the required to make Sparks was plaintiff der if the demonstrates that the vail re-report in de- call sick separate phone to nondiscriminatory prof- legitimate, reason Tatum, just she had told fact that spite the employer is not true rea- fered out secretary, she would be that Connell’s decision). employment We son implau- found to reasonably be sick —could that therefore conclude The im- unworthy of credence. sible and Sparks’ on claim of dis- for defendant sex is alleged justification plausibility of granted.21 not have been crimination should ma- genuine issue of create a sufficient to Lobby, Liberty at See Freight’s Pilot as to whether terial fact pretextual. See Chi- reason is articulated QUID QUO PRO SEXUAL IV. judg- (summary pollini, F.2d at 900 HARASSMENT inappropriate where ment defendant employer’s justifica- quid that pro there is evidence claim one of third is implausible). is tion quo sexual harassment. The of essence tangi- that this is suffered a claim Moreover, our conclusion in this case job detriment as result her reac- ble fact as to genuine issue of exists that a Long’s to of her tions harassment justifica- Freight’s Pilot asserted whether get revenge, Long, in order to because supported by the fact is pretextual tion Freight influenced to fire her. Connell no evidence that Pilot that there is rule; interpreted so had ever before prohibits an employer Title VII explanation as addition, offered no Connell requiring from sexual consideration from allegedly required are to why employees to quid quo pro employee job an as a telephone report made to initiate all calls prima In order to establish a benefits. undisputed it is sick. Furthermore quid pro quo case sexual harass facie employee never fired an Connell had before employer, employee ment initi- simply employee failed to because (1) prove: employee belongs that the Finally, phone report in sick. ate a call (2) protected group, employee to a Freight Pilot had there is no evidence that subject to unwelcome sexual harass solitary treated a violation ever before ment, (3) complained the harassment grounds for termination. this rule as sex, em of was based Accordingly, Sparks has raised a ployee’s reaction to the harassment com genuine fact as to wheth- issue material plained tangible aspects affected firing reason for er Connell’s articulated terms, employee’s compensation, or condi pretextual, genuine her is she has raised a Hen privileges of employment. tions of material fact as to whether issue son, 682 F.2d at 909.22 discriminatory motive for had Burdine, district court concluded summa- her. firing 450 U.S. at 1095; ry judgment inappropriate as States Postal United Aikens, elements, granted summary Bd. Governors first three but Service 717-18, judgment U.S. based the fourth element rule, summary judg- Finally, ployees. 21. Nor is our conclusion that even if there was such a inappropriate ment Sparks fact that altered not violate did it: Connell fired May report had not called in on 11 to several hours before she was due to come in returning she would work. It was work, report before and thus her time court, Connell, who district articulated expired. intention return to had work alleged work rule violation as a second reason Moreover, firing Sparks. appears from alleged plaintiffs is the 22. Where the harasser testimony alleged deposition that this Connell's rule liable; supervisor, directly not in work rule fact a prove superior. respondeat need not proper but was Connell’s own view of rather 909; Henson, F.2d at see 42 U.S.C. etiquette employee view that Connell indi- —a 1604.11(c). 2000e(b); § 29 C.F.R. explicitly cates been em- had not stated to his Because The district court was incorrect both case. prima Sparks’ facie quo testimony harassment in his construction of pro sexual Chastain’s Sparks’ quid part grant summary judg in her harassment in his decision to is based on and claim conclude, observes, reasons stated Sparks for the As did Long, we ment. Chastain opinion, district II this that the testify having of in section overheard a conversa Sparks estab- properly found that Long, court between Connell as the dis tion and fact as genuine issue of material lished court said. testified that trict Rather she prima of her three elements her, the first Sparks Long day recited on the was facie grant district court’s reverse the case. We fired, a conversation himself and between ele- fourth summary judgment on the of Sparks. it is clear Connell about While ment. deposition testimony from Chastain’s that Long the conversation between and herself following evi- alleges Sparks that fired, Sparks after Chastain’s occurred was dence, deposition testimo- from the drawn testimony does not when the con court, indicate permits to the ny submitted district Long versation between and Connell oc Long influenced Connell inference that conclude, reviewing her reaction to curred. We after her retaliation for to fire as (1) Long Chastain, testimony deposition harassment of her: of that a his sexual infer, if did Sparks have fired she testimony, could on her jury threatened based demands, (2) Long and to his Long not accede conversation and that between together worked in the Atlanta had Sparks Connell occurred before was fired. Connell friends, (3) apparently and were terminal one most fa Because this inference is the employee had refused female who another party opposing sum vorable to Long in- had Long’s advances stated that judgment, it is inference that we mary this her reprimand Connellto based fluenced adopt. Liberty Lobby, S.Ct. problems, Long and Connell fictitious at 2513. termination, al- allegedly Sparks’ discussed adopted, Connell’s Once this inference is to, they prior though whether discussed fire that he made the decision to statement unclear, shortly after termination or Long longer Sparks consulting no without (5) Sparks pretextual was fired for that the stands unrefuted. We conclude having the Atlanta reasons after been at Chastain, testimony in of when considered Therefore, days. less than five terminal presented light the rest the evidence grant summary Sparks asserts alleged Sparks particular the ab- —in judgment improper. firing legitimate sence of a reason Sparks’ evi- retorts that his Long’s purported attempts to use is insufficient to overcome Connell’s dence relationship with to retaliate Connell deposition in he made the statements employees suffi- against other female —is of, Sparks independently fire decision to issue genuine to establish a material cient consulting, Long. The district and without Long influenced Con- of fact as to whether deposition only court concluded that Sparks Sparks’ fire retaliation for nell to possibly that could undermine evidence his advances. Given reaction to unwelcome Long claim that did not influence Connell’s being tangible det- certainly fired is a fire that of Pilot him to riment, Sparks has estab- we conclude that Chastain, Kathy testified employee who as to genuine material fact lished a issue of Sparks’ discussed termination prima of her fourth and final element Connell. court found Chas- with Accordingly, we reverse case. fade Connell’s, testimony did not refute tain’s grant summary judgment court’s district however, construed because the court pro quo Sparks’ quid claim testimony stating that the Chastain’s as harassment. Long and purported conversation between fired. occurred after Connell V. Concluding no evidence there was conclusion, grant court’s claim, granted the district court refute Connell’s Freight. to each of judgment summary for Pilot argued: “in a hostile environment case the is REVERSED and Title VII claims proceedings con- no reason to employer often have know case REMANDED will opinion. about, cure, alleged this opportunity sistent with at-, wrongdoing.” Judge, concurring part; HILL, Circuit By employers at 2407. definition part: dissenting in have reason to know of should more biases ways displayed tangible in the decision to remand than biases IWhile concur court, I respectfully into case to woven the environment. this opinion. portion dissent from Likewise, the standard the court chooses parts opinion the I those concur with recognize gender must that racial and dis- discrimination which to sexual addressed crimination differ. both instances we plain to the tangible detriment results in types patently find offensive of conduct Supreme Court oth decides tiff. Until the justified which cannot and which the be law generally the concur with erwise I will in yet demands be And rectified. cases accepted employers are liable notion gender discrimination we find a second and supervi for the actions of such situations may more subtle of conduct which strain sors, such actions are unknown even when may given relationship not be offensive the Henson v. e.g., City Dun them. See given the time. parties between at the For dee, (11th Cir.1982). F.2d individual, gender- example, given the Vinson, Bank, also, Savings FBS v. Meritor compliment acceptable may based when 57,-, 4 91 placed relationship the context of be- (1986)(noting that the EEOC L.Ed.2d parties; may tween the the same statement this trend had described brief relationship be offensive when that does curiae, refusing to “issue a amicus but not exist or soured. The law stands has employer liability”). rule on Giv definitive ready protect sexually workers liability, en this standard behavior, harassing not but it need granted summary court should not have ought party neither intervene when portions judgment in those of the case di Thus, offended the the actions. stan- tangible rectifying a rected to detriment dard chosen the court must be able to plaintiff Sparks. measure the the behavior within contours time, At I the same dissent from that of the situation as it existed at time of part majority opinion of the which deals discriminatory behavior. allegedly workplace with environment discrimination. following propose two-step I would dismissed two extreme Vinson standards analyzing test for hostile environment situ- proposed evaluating work environment First, determined ations. it must be wheth- courts discrimination cases: could neither discriminatory allegedly er or not the be- employers those who insulate had no notice patently ambiguously or offen- havior was situation, them nor hold automatical patently sive. the conduct was of- Where ly -, 477 U.S. at liable. offending fensive and the individual was It is I at 2408. fear that plaintiff’s inquiry may supervisor, the end: today’s dips into the decision second of the wrong, with or notification of without part two extremes that I dissent from a employer may be held liable. it.1 However, where it is found the su- Workplace discrimination environment i.e., ambiguous, special pervisor’s deserves a standard for two rea- behavior offensive, First, overtly sons. as the defendant in a second find- Vinson less than standard; majority opinion suggests that because the laxer each claim be ex- plaintiff claims both work environment and according appropriate amined standard VII, quid pro quo Title Thus, violations of this court majori- that the to that contention. I find topic to the need not address itself of a standard ty opinion analysis, sweeping adopts, without litigation. disagree. for "hostile environment" I position on hostile and controversial environ- types Because asserts two of discrimi- ment discrimination. nation mean we does not measure both claims plain- to whether made as ing must be the time of action at

tiff, objective by some displayed conduct allegedly offensive supervisor. conduct to the

objection of dissatisfaction expressions

These channels of through formal always be (al- structure employer’s

protest within the best would be such methods

though ambiguous conduct fact that

display of the and thus employer), to the

was offensive provide notice to will often

while this test guarantee such employer, it will not However, demonstra- objective

notice. clarify and define displeasure will

tion of of the su- ambiguous actions

the otherwise reinterpreta- prevent any and will

pervisor, hindsight. via

tion of the situation a trial and the case for

I would remand according the standards

determinations dissenting concurring forth

set

opinion. REVENUE, STATE

DEPARTMENT OF FLORIDA, Agency and a State OF Director, Miller,

Randy its Executive

Plaintiff-Appellant, COMPANY, a

TRAILER TRAIN corporation,

Delaware

Defendant-Appellee. 87-3093.

No. Appeals, Court of

United States

Eleventh Circuit.

Nov. Keller, Deputy Kielbasa, Stephen J. Jeff Revenue, Counsel, Dept. of Florida

Chief Fla., Tallahassee, plaintiff-appellant.

Case Details

Case Name: Barbara Sparks v. Pilot Freight Carriers, Inc.

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Oct 20, 1987

Citation: 830 F.2d 1554

Docket Number: 86-8790

Court Abbreviation: 11th Cir.