*1 simply questions mand raises more than it principle in its First jurispru- Amendment dence, answers. I would affirm district court in this case. “pervasively Hunt, test sectarian” Roemer, already places judi- and Bowen
ciary in the uncomfortable role of determin- just ing religious is, how an institution requires draw somewhat arbitrary long
lines. But as directly controlling precedent requires inquiry, such an I would
carefully shape the standards which we measure an institution’s sectarian nature Cynthia LISSAU, Plaintiff-Appellant, C. judiciary such that the does delve even deeper necessary than religious into inquiries unqualified
we are likely most to answer. Cf. SERVICE, SOUTHERN FOOD INCOR Vincent, 263, Widmar v. 271 n. U.S. PORATED; Cesar De (1981) 70 L.Ed.2d (terming fendants-Appellees. the distinction religious speech between religious worship “judicially unmanageable”). Equal Employment Opportunity By requiring the district court to conduct a Commission, Amicus here, trial majority plunged govern- has Curiae. ment at all levels into the intimacies of reli- No. 96-2672. gious faith. respect, With I would not choose that course. United Appeals, States Court of
Fourth Circuit. III. Argued Oct. 1997. plea Maryland final Higher Decided Oct. 1998. Education funding Commission for under the Sellinger Program, president of Colum- asked,
bia College recant, Union “If we would we qualify?” capture Those words
what this case is about. Despite the fact that
it has met aid, all neutral criteria for state despite the fact that religious other insti- receiving
tutions are funding, Columbia Un- yet ion has penny to receive so as a much state only way assistance. The it could re-
ceive such aid is compromising or aban-
doning religious its views. That to me is impermissible inhibition religion, imper-
missible discrimination our Constitu- clauses, religion
tion’s and a violation of the First right express religious Amendment beliefs. “That Amendment requires
state to be a neutral its relations with
groups religious believers and non-believ-
ers; it
require
does not
state
their
adversary.”
Educ.,
Everson v. Board
pressly funding prohibition overruled the *2 Grimes, King, Fulg- Terry N.
ARGUED: P.C., Roanoke, Grimes, hum, Snead, Nixon & Sloan, Equal VA, L. Appellant. Barbara for Commission, Opportunity Employment DC, Melis- for Amicus Curiae. Washington, Meschan, Davis, Tuggle, Duggins & Robin sa Greensboro, NC, P.A., Appellee for Southern Rutherford, Jr., Service; Fain Food William Densmore, Morse, Rutherford & Flippin, Roanoke, VA, Jessee, Appellee for Castillero. Stewart, Gregory General BRIEF: C. ON Jr., Counsel, Ray Terry, Deputy General J. Reams, Counsel, Gwendolyn Young Associate Blackwood, Counsel, As- Vincent J. General Counsel, Equal Employment sistant General DC, Commission, Washington, Opportunity Johnston, Jr., Amicus J. Reed for Curiae. Meschan, P.A., Greens- Tuggle, Duggins & boro, NC, Appellee Food Ser- for vice. WILKINSON, Judge, Chief
Before HERLONG, MICHAEL, Judge, and Circuit Judge the District District United States Carolina, sitting by designation. of South part, in part, in reversed Affirmed by published opinion. Chief remanded opinion, in Judge wrote the WILKINSON joined. Judge Judge which HERLONG concurring in opinion MICHAEL wrote opinion and parts majority I II of the judgment. concurring in the
OPINION
WILKINSON,
Judge.
Chief
appeals
grant of sum-
Cynthia Lissau
in
her Title VII claims
mary judgment on
for-
Cesar
favor of defendants
Service,
supervisor, and Southern Food
mer
alleges that both
employer. She
her former
sexually
hostile
are liable for
defendants
by Castillero.
work environment created
is liable
Lissau maintains
viola-
capacity for a Title VII
his individual
argues that
as Cas-
tion.
also
She
miscon-
employer, is hable for his
tillero’s
liability, we
of Castillero’s
duct. On
issue
summary judgment.
grant
affirm the
individual
Employees are not hable
their
On the
capacities for Title VII violations.
habihty,
remand for
we
issue of Southern’s
City
Faragher v.
hght
reconsideration
—Raton,
U.S. -,
Boca
talking
the one
about
making
sex and
com-
(1998),
Lissau spoke that Castillero whom a worker bring allegation can acted inappropriately during peri- her second harassment. The employment. First, policy od of included South- alleged- Castillero employee ern’s ly provocative made several handbook and was distributed statements about to the sales in all appearance region- Lissau’s forces of Southern’s implied a sexual offices, al including interest in her. ranged Roanoke office. inquiries These from Lis- deposition about sau’s conflicting whether Lissau was contains state- sug- married to a gestion that ments about “pounded policy. she whether she saw this needed all night Second, long.” Additional memoranda sent regional allegedly Castillero offices also occasions, touched Lissau on discussed several Southern’s includ- policy. ing thigh notify any when he Lissau did not pick reached down to up paper Third, designated some Southern’s employees any- on the floor. Castille- management ro one in allegedly alleged made about Castillero’s comments of a sexual na- ture conduct. inappropriately behaved toward em-
ployees other than Lissau. charge Lissau filed of discrimination with Friday On June Castillero Equal Employment called the Opportunity Com- (EEOC) Lissau into inquired his office and whether mission in September 1994. Ac- she unhappy. was Lissau did not cording voice it first became aware concerns at that following day, On the time. allegations Lissau’s when the EEOC notified Lissau, office, who was at the called Castille- it charge. of her Upon learning of the ro at home. She upset stated that she was charge, Nussbaum referred the matter to the inappropriate his request- company’s comments and counsel. investigated Counsel ed his they and, assurances complaint, would cease. findings, based its Nuss- Castillero, however, all of denied Lissau’s baum concluded that allegations Lissau’s replied accusations and that Lissau had been were without merit. persons who em- certain employer to include VII Title claims brought “any agent ploy twenty or more workers pendent state and Southern 630(b). We con- person.” of such district against Castillero. The
law claims “agent” did that the inclusion cluded summary judgment to both court impose liabil- congressional desire signal a claims and dis- Title VII on the defendants Instead, supervisors. ity on individual with- law claims remaining state missed the ex- “an unremarkable simply represented that Castillero It held prejudice. out superior dis- respondeat pression of su- summary judgment because entitled —that by an taken criminatory personnel actions individually liable under are not pervisors liability for the agent may create employer’s held that South- further Title The court VIL Birkbeck, *4 F.3d at 510. We 30 employer.” summary judgment be- to was entitled ern little sense that it would make also noted notice of Castillero’s cause it did not Congress liable when single individual hold resolving not whether While behavior. companies em- exempted all expressly per- had sufficiently or severe alleged acts were twenty persons from the than ploying fewer working environ- an abusive vasive to create rejected the Accordingly, statute. Id. we ment, note that court did the district ADEA. liability under the individual claim of egregious an “was not of alleged conduct appeals. Lissau now nature.” employer must definition The Title VII ADEA as the in the same fashion be read II. em employer. Title VII defines definition against Lissau’s suit We first address employ persons who ployer include certain supervisors argues Castillero. and, ADEA, like the more workers fifteen or capacities for in their individual are liable Compare 42 person.” “any agent of such in violation of Title VII. 630(b); 2000e(b), § § with 29 U.S.C. U.S.C. supervi as her contends that Co., She Elec. 115 see, v. General also Wathen thereby sor, fell agent and was Southern’s Cir.1997) (6th 400, (noting that 404 n. 6 F.3d “employer.” of an definition within Title VII’s ‘employer’ es ADEA “define Title VII lan analysis of Title disagree. An VII’s We way”); v. sentially EEOC AIC Sec. the same us to scheme leads guage (7th and its remedial 1276, Ltd., n. 1 1280 Investig., 55 F.3d courts and conclude join the other circuit Cir.1995) are (noting that the definitions two liable their indi supervisors are not identical”). already have ob “essentially We capacities for Title VII violations. vidual is the “closest Title VII ADEA’s served that Birkbeck, F.3d statutory kin.” 30 provides, part, in relevant Title VII omitted). (citations Thus, reading Title VII employment prac- unlawful shall be ah “[i]t liability represents the individual foreclose ... employer discriminate tice for Like the only logical extension of Birkbeck. respect ... with his individual ADEA, exempts employers; small Title VII conditions, employ- terms, privileges of that Title VII incongruous hold it would be ment, ... sex.” individual’s because of such five-person owner of a apply to the does 2000e-2(a). § It defines 42 U.S.C. full force to a applies with company but industry affecting person engaged in an as “a number of supervises an identical person who employ- has fifteen or more commerce who company. See id. We employees larger in a Id. “any person.” such a agent of ees” and in Title VII’s agent interpret the inclusion 2000e(b). § does not The statute define employer simply to establish definition “agent.” term employ for its employer’s liability limit on an interpreted a similar recently This court Birkbeck, at 510- F.3d See 30 ees’ actions. employer. Birk statutory See definition Inc., 11; 991 F.2d Maxwell’s Int’l. v. Miller 507, Corp., 30 F.3d Lighting Marvel beck v. Cir.1993). (9th 583, 587 Cir.1994). Birkbeck, (4th we ad In 510 VII further to Title amendments and su 1991 individual officers whether dressed are conclusion that individuals Age bolster our liable for violations of pervisors were 1991, (ADEA). Act. Prior to under that not liable Employment Act Discrimination ordinarily Title VII were remedies § The ADEA defines 621. See 29 U.S.C.
181
pay
equitable
limited to back
such
relief
since the enactment of the
rejected
CRA has
“typically
only
reinstatement
are
ob
claims of individual liability. These circuits
employing entity,
tainable from an
not from a
have founded this conclusion on the language
AIC,
(cita
mere individual.”
in compensatory punitive damages and while
companies employing 100 workers liable are III. for $50,000. a maximum of next We address Lissau’s claims 102(b)(3)(A)-(B), (codified § 105 at Stat. 1073 Southern. parties After the argued had this 1981a(b)(3)(A)-(B)). at 42 U.S.C. This slid issue, Supreme the agreed Court to decide ing liability scale of stipulate does not an two cases addressing when employer an amount plaintiff in cases where a seeks to supervisor’s could be liable for a supervisor hold an individual liable. Faragher harassment. See v. City Boca - Raton, -, These amendments to the remedial scheme 118 S.Ct. 141 suggest (1998); Indus., thus Congress only that L.Ed.2d 662 Burlington intended Inc. employers Ellerth, - U.S. -, liable for Title VII viola- tions. Nowhere L.Ed.2d 633 appeal does the CRA We mention indi- held this liability abeyance vidual as an remedy. pending Supreme the available Had deci Court’s Congress felt that sions. Now that Court liability individual was the has decided those “needed to deter cases and unlawful new criteria employ harassment and announced on discrimination,” liability, er surely intentional we remand this it would case to the dis trict remedy apply included this court to the 1991 those criteria to Lissau’s Wathen, 406; claims. Amendments. See 115 F.3d at Tomka, Miller, 1315; 66 F.3d at F.2d The district summary judg- court Instead, 588 n. 2. linkage the between the ment to ground Southern on the South- that size employer the amount of avail- ern lacked notice of Castillero’s behavior. clearly able relief congressional indicates a Supreme Court has since announced a plaintiffs’ intent to limit remedies suits to complete more governing rule employer’s an against employers. permit To individual lia- liability supervisor’s for a sexual harassment.
bility improperly expand would the remedial Ellerth, Faragher both the by scheme Congress. crafted Court following articulated the standard:
Finally, we large note a that An employer subject number liability to vicarious circuit courts have held super- that individual employee a victimized for an actionable fact, visors not are liable Title VII. In supervi- hostile environment created every (or circuit has confronted issue this sor with successively higher) immediate record, court the district complete no more employee. When
authority
the
over
taken,
newly announced criteria
apply the
a de-
action is
employment
tangible
developed in
are
After the facts
those facts.
affirmative
may raise an
fending employer
Ellerth,
Faragher and
district
light of
subject to
damages,
liability or
defense
motion
to consider a renewed
court is free
of the evidence.
by preponderance
proof
remand.*
judgment on
necessary
summary
ele-
comprises two
The defense
(a)
employer exercised
ments:
however,
view,
express
no
We
prevent
correct
care
reasonable
motion. Af
disposition of such a
proper
behavior,
harassing
sexually
any
promptly
Ellerth,
may be
Faragher and
ter
(b)
employee unrea-
plaintiff
that the
interpose an affirmative defense
able
advantage of
take
sonably failed to
prevent and correct
its efforts to
based on
pro-
opportunities
preventive or corrective
workplace and Lissau’s
in its
to avoid harm
employer vided
opportuni
advantage
take
failure to
otherwise.
Faragher
her.
company
afforded
ties
(citation omit
at 2292-93
Faragher, 118 S.Ct.
employer
that an
make clear
and Ellerth
(citation
ted);
omit
118 S.Ct. at
a defense where no dis
may
such
advance
rule,
ted).
rejected the
re
thus
Court
employment
criminatory tangible
action
court,
by the district
lied on
2293;
El
Faragher, 118 S.Ct.
taken. See
supervisor’s
of a
only if it has notice
is liable
lerth,
employ
Tangible
at 2270.
however,
reaffirmed,
It
behavior.
offensive
discriminatory
actions, if not taken for
ment
are
principle
employers
longstanding
reasons,
affirmative de
not vitiate the
do
automatically
for sexual
“always
liable
result
termination did not
fense.
If Lissau’s
supervisors.” Meritor
by their
sexu
to submit Castillero’s
from refusal
*6
72,
Vinson,
57,
Bank,
477 U.S.
FSB v.
Sav.
harassment,
may advance
then Southern
al
(1986) (citation
2399,
183 however, the Harris, district court finds no propriate. effective See 510 U.S. policy place anti-harassment was in or that S.Ct. 367. avail policy, did herself of the then identify We simply these issues provide summary judgment would inappropriate. guidance some to the district court on re- (sexual Faragher, See S.Ct. express view, mand. We however, no policy generally necessary ex- summary whether judgment appropriate cept workforce, for “employer of a small who ground. on either parties Until the might expect prevent that sufficient care to briefed the issue of liability Southern’s in tortious behavior could be exercised infor- light Court’s recent decisions mally”). and until the district court has reviewed the Alternatively, the district record, court entire premature would be for us to may address whether Castillero’s conduct rule. sufficiently pervasive severe and to con stitute discrimination under Title VII. Title IV.
VII does not
provide
remedy
every
We
grant
affirm the
summary
judgment
physical
instance of
or
verbal
in
in favor of Castillero. We reverse
grant
workplace.
Oncale v. Sundowner Offshore summary
judgment in favor of Southern
—
rvs.,
Inc.,
-, -,
Se
118 and remand the case for
proceedings
further
998, 1002, 140
(1998).
S.Ct.
L.Ed.2d 201
Re
opinion.
consistent with this
lief is unavailable where
alleged
conduct
PART,
AFFIRMED IN
REVERSED IN
pervasive
“is not severe or
enough to create
PART, AND REMANDED
objectively
hostile
abusive work envi
ronment” or where the victim “does not sub
MICHAEL,
Judge,
Circuit
concurring in
jectively perceive the environment to be abu
part
concurring
judgment:
in the
Inc.,
sive.”
Sys.,
Harris v.
510 U.S.
Forklift
I
parts
concur
I
II
of the majority
“unique competence facts of the person standard” able “summary says that majority also al., Wright Alan et 10A Charles case. See ap- would be judgment in favor of Southern Procedure Practice and Federal was not se- if conduct propriate” Castillero’s ed.1998). (3d a hostile enough to create pervasive vere relating facts majority recognizes that This ante 183. work environment. See developed on part prompted defense must appears to the new suggestion dictum) (in happens, we cannot remand. Until comment by the court’s district keep this case possible egre- it is of an know whether “was not conduct Castillero’s It summary judgment track. Food on the Lissau v. Southern gious nature.” can, given Inc., 95-487-R, the fact-intensive Serv., slip op. that we doubtful No. 1996). Faragher-Ellerth (W.D.Va. defense. This dictum bears nature Oct. outcome, many too allega- as of now If Lissau’s Whatever serious reexamination. *8 unknown, true, jury the reasonableness find are and could facts are a reasonable tions contested, likely to be work envi- subjected too much conduct to hostile that she was summary any for suggest scenario for us to harassment. ronment If Far- under the new defense. alleges Lissau that Castillero’s anything, it is that signal agher and Ellerth contacts and began with their first of her will be re- harassment cases fewer sexual one-year tenure throughout her continued summary judgment. on solved hired predecessor Castillero’s Southern. time to close cases gave her some Lissau and B. job, was a social worker. old where she at her ready begin work was Shortly she majority, in its before I also believe company telephoned the Lissau summary potential for discussion manager, Cas- the new was referred to expands Southern’s judgment, impermissibly conversation Castillero In this first tillero. Faragher-Ellerth opportunity to assert married, and she if was correctly Lissau she by asked majority begins defense. sched- was not. Castillero replied that she “Faragher Ellerth acknowledging that Lissau, a meeting uled with night, which occurred “he felt like he had ‘made love to [her] ” day within the next or two. At that initial before.’ meeting July face-to-face Castillero In December 1993 Castillero learned that blouse, was flirtatious. He touched Lissau’s daughter Lissau’s was out of town for a few saying it was “nice silk.” Castillero then days, and suggested he that the two of them asked Lissau if she went away with men on go should to Lissau’s house for a par- “wild weekends, replied and Lissau that she did ty.” Lissau told him that she was not inter- not, noting that she single parent. was a By ested. this time Castillero was often The next week Lissau went to Southern’s telling Lissau that sex, she needed to have drop office to off some items and to tell and he even asked her when she last had sex. Castillero that going she was to the beach for In March 1994 when Lissau inwas a co- day a or two beginning before work. Cas- office, worker’s Castillero walked in. Cas- tillero made a comment about Lissau’s new dropped tillero piece paper near where hairstyle and hinted that she going must be Lissau sitting. was As he pick bent over to pick up the beach to replied men. Lissau up, it put he his on hand thigh Lissau’s that she was going with two of her married left it pushed there away. until she friends, female who were social workers. next week Castillero went into Lissau’s office and shut the door. very After Lissau work He July started in late moved close to her and told her that she good Castillero would needed “some legs comment her sex” skirt, and that whenever she she ‘pounded wore “needed to be saying, for exam- all night ple, long.’” “Look at Lissau legs.” those became sick He also made to her stomach and frequent hair, as, cannot comments about her how she such remember re- sponded. pretty “Your hair is so Lissau black.” tried to deflect Castillero’s comments sim- persisted in this conduct over ply saying you” moving “thank on. As year, course of a though even Lissau on, time went Castillero’s comments became repeatedly expressed her discomfort and lack more direct. He told Lissau that he was of interest. depressed Lissau became attracted to her and asked her whether she actions, Castillero’s comments and and she thought they together.” would ever “be At struggled to her Finally, do work. in June times Castillero they intimated that 1994 Lissau called Castillero at home and regularly affair. Lissau told him told him upset that she was with his sexual that she was unavailable and that he was also comments, upset that she was with his sexual (Castillero married). harassment, and that she wanted assurances
On October Castillero called Lis- stop he would the harassment and leave sau at get home report her sales for the her alone. Castillero denied month, which not meet personal did Lissau’s and accused having prob- Lissau of mental goal. began cry, and Castillero lems. About a month later Castillero called said, crying “You’re your about sales —that her, Lissau into his office and fired saying makes me want to come you.” and hold that he unhappy understood she was late November 1993 Lissau and a job. co-worker staffed sales booth at a home show at the When true, these facts are taken as
Roanoke Civic Center. After the show Cas- they summary must judgment pur- suggested tillero that she and her co-worker *9 poses, per- Castillero’s conduct was severe or go out to dinner with him. Lissau felt the enough vasive actionable Title dinner was a performance command because VII. Castillero employees ostracized who would
not socialize with him after work. After they
left the restaurant at the end evening, grabbed
Castillero Lissau in the middle of the street hugged her passionately for
several A days seconds. few later told Lissau that when he “felt her” that