McWilliams v. Fairfax County Board of Supervisors

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK MCWILLIAMS,

Plaintiff-Appellant,

v.

FAIRFAX COUNTY BOARD OF

SUPERVISORS; WARD LEE CASH, JR.;

MIGUEL BOSCHULTE,

Defendants-Appellees, No. 94-1607

and

CARL HELLMANDOLLAR; TREVOR

PINNOCK; DAVID PUCKETT; JAMES

RIDDLE; CHARLES SHELTON; DOUGLAS

WITSMAN; ELMER POWELL,

Defendants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-93-1284)

Argued: January 31, 1995

Decided: January 9, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Phillips wrote the opin-

ion, in which Judge Niemeyer joined. Judge Michael wrote a dissent-

ing opinion.

_________________________________________________________________

COUNSEL

ARGUED: Marni Elaine Byrum, FITE, O'BRIEN & BYRUM,

LTD., McLean, Virginia, for Appellant. Peter Donald Andreoli, Jr.,

Senior Assistant County Attorney, Fairfax, Virginia, for Appellees.

ON BRIEF: Edna Ruth Vincent, FITE, O'BRIEN & BYRUM, LTD.,

McLean, Virginia, for Appellant. David P. Bobzien, County Attorney,

Robert Lyndon Howell, Deputy County Attorney, Fairfax, Virginia,

for Appellees.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Mark McWilliams, an employee of Fairfax County, Virginia,

appeals the dismissal by summary judgment of his claims under Title

VII and 42 U.S.C. § 1983 against the Fairfax County Board of Super-

visors (the County) and two of its supervisor-employees growing out

of alleged acts of sexual harassment and physical abuse of Mc-

Williams by fellow-employees. Reviewing the grant of summary

judgment de novo, we affirm.

I.

The facts as construed most favorably to McWilliams from the

summary judgment record are as follows.

Sometime in mid-1987, the Newington Facility of the Fairfax

County Equipment Management Transportation Agency (EMTA)

hired McWilliams as an automotive mechanic. At that time, Mc-

Williams informed the facility of a learning disability that had

arrested his cognitive and emotional development. Miguel Boschulte

acted as McWilliams' supervisor from approximately September

1987 until November 1991. From November 1991 until September

1992, Ward Lee Cash replaced Boschulte as McWilliams' supervisor.

Beginning sometime in 1989, McWilliams' coworkers, collective-

ly known as the "lube boys," beset McWilliams with a variety of

2

offensive conduct. They teased him, asked him about his sexual activ-

ities, and exposed themselves to him. They taunted him with remarks

such as, "The only woman you could get is one who is deaf, dumb,

and blind." On one occasion, a coworker who sometimes took on

supervisory responsibilities placed a condom in McWilliams' food.

The conduct involved physical assaults. On at least three occasions,

coworkers tied McWilliams' hands together, blindfolded him, and

forced him to his knees. On one of these occasions, a coworker placed

his finger in McWilliams' mouth to simulate an oral sexual act. Dur-

ing another of these incidents, a coworker, Doug Witsman, and

another placed a broomstick to McWilliams' anus while a third

exposed his genitals to McWilliams. On yet another occasion, Wits-

man entered the bus on which McWilliams was working and fondled

him.

The atmosphere of the all-male workplace at EMTA was heavily

focused on sex. Copies of Playboy magazine and a variety of porno-

graphic material were displayed in the bathrooms. Centerfold pictures

as well as Snap-On-Tool calendars of scantily clad women were

placed in and around mechanics' tool boxes. Off-color cartoons were

circulated around the workplace. The radio was often tuned to talk

shows that featured explicit sexual references.

On three occasions, McWilliams complained about certain of these

matters to his supervisors. None involved incidents of physical abuse.

In the spring or summer of 1991, he complained to Boschulte about

the incident in which his coworker had placed a condom in his food.

In response, Boschulte held a meeting with McWilliams' coworkers

to discuss the incident. On July 22, 1992, McWilliams complained to

Cash that Doug Witsman had offered him money for sex. Later in

July, McWilliams told Cash that Witsman was "flicking his tongue at

[him] and saying `I love you, I love you.'" When questioned by Cash,

Witsman admitted that he may have said something that McWilliams

had taken the wrong way. Witsman then promised Cash that he would

not "tease or harass Mr. McWilliams any more, any time."

McWilliams proffered evidence that others than he had informed

EMTA supervisors about the lube boys' conduct and the general

workplace environment. McWilliams deposed that Mike Stutzman, an

3

assistant supervisor, had informed Cash that the lube boys were taunt-

ing McWilliams and exposing themselves to him. Hannon Wallace

Davis, a coworker, deposed that Stutzman, had told him of a conver-

sation between Stutzman and Cash in which Stutzman had warned

Cash that, although he did not know what was going on, the lube boys

were engaging in horseplay and Cash ought to investigate the situa-

tion. McWilliams' name was not mentioned during the conversation.

Davis further deposed that he thought McWilliams had complained to

Billy Davis, a night foreman, about the lube boys and that Billy Davis

had then informed Buck George, the day-shift superintendent.

In August 1992, Cash noticed that McWilliams appeared dis-

traught. When he questioned McWilliams about his emotional state,

McWilliams replied that he was upset about his parents' divorce, a

failed relationship with a woman, and a potential reduction in force

at EMTA. Cash then referred McWilliams to the County's Employee

Assistance Program. Once there, McWilliams was diagnosed with

severe emotional problems, which caused him to leave his employ-

ment in September 1992 on medical leave.1

On October 12, 1992, McWilliams informed EMTA management

that he had been sexually abused by Witsman. The following day, the

County initiated an investigation of McWilliams' allegations and the

County Police Department began a criminal investigation of Wits-

man. In January 1993, McWilliams filed a charge with the Equal

Employment Opportunity Commission (EEOC), alleging discrimina-

tion on the basis of sex and disability. The EEOC issued a right-to-sue

letter on July 14, 1993, and on October 13, 1993, McWilliams com-

menced this action in federal district court. He alleged claims of

workplace sex discrimination under Title VII against the County,

related claims under 42 U.S.C. § 1983 against the County and his

supervisors Cash and Boschulte for alleged constitutional violations,

and other related claims under state tort law against his supervisors

and several of his coworkers.2 Following discovery, the defendants

_________________________________________________________________

1 After his accumulated leave was exhausted, the County extended him

additional leave through March 1993. From March 1993 until March

1994, McWilliams was carried by the County as an employee without

pay. In March 1994, he was officially terminated.

2 McWilliams also alleged claims under the Americans With Disability

Act, which were later dismissed voluntarily.

4

moved for summary judgment on each of McWilliams' claims. Con-

cluding that neither the County nor Cash or Boschulte had either

actual or constructive knowledge of the coworkers' conduct on which

the various claims were based, the district court granted those defen-

dants' motion for summary judgment on the Title VII and § 1983

claims. The court then dismissed without prejudice the state claims

against McWilliams' supervisors and coworkers.

This appeal by McWilliams challenging the grant of summary

judgment in favor of the County, Cash, and Boschulte followed.3 We

review the dismissal by summary judgment de novo . Overstreet v.

Kentucky Central Life Ins. Co., 950 F.2d 931, 938 (4th Cir. 1991).

II.

McWilliams first contends that the district court erred in dismissing

his Title VII claim of sexual harassment against the County.

Under Title VII of the Civil Rights Act of 1994, it is "an unlawful

employment practice for an employer . . . to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color,

religion, sex, or national origin." 42 U.S.C.§ 2000e-2(a)(1). Two

forms of workplace sexual harassment have been held to constitute

discrimination "because of" one's sex, hence to offend this statute: (1)

quid pro quo harassment, in which an employer requires sexual favors

of an employee in exchange for the benefits of employment, and (2)

sexually-oriented harassment by one's fellow-employees sufficiently

egregious to create a "hostile workplace environment" that is know-

ingly tolerated by the employer. McWilliams' claim is solely one of

hostile-environment harassment.

An employee claiming hostile-environment sexual harassment by

his employer must prove: (1) that the conduct in question was unwel-

_________________________________________________________________

3 Though McWilliams purports to challenge the district court's dis-

missal of Title VII claims against Cash and Boschulte, no such claims

were actually pleaded against those defendants, but only § 1983 claims.

McWilliams does not challenge dismissal of his state-law claims which

we are advised have been refiled in state court.

5

come, (2) that the harassment was based on his sex, (3) that the

harassment was sufficiently pervasive or severe to create an abusive

working environment, and (4) that some basis exists for imputing lia-

bility to the employer. Swentek v. USAir, Inc. , 830 F.2d 552, 557 (4th

Cir. 1987).

The County raises serious questions as to whether McWilliams has

proffered sufficient admissible evidence to support the necessary find-

ing that any of his supervisors, hence the County, were on actual or

constructive notice of coworker conduct sufficient to have created a

hostile workplace environment. We need not address those problems,

however, for we hold that McWilliams' hostile-environment claim

fails for the more fundamental reason that such a claim does not lie

where both the alleged harassers and the victim are heterosexuals of

the same sex.4 Here, both McWilliams and all his alleged harassers

were indisputably males, and no claim is made that any was

homosexual.5

_________________________________________________________________

4 It is important to emphasize that our holding of non-cognizability is

not just limited to claims involving only heterosexual males but, further

within that set, to claims of hostile-environment"harassment" claims.

Our holding does not, therefore, purport to rule out claims of discrimina-

tion by adverse employment decisions (hiring, firing, etc.) involving only

same-sex heterosexual actors (e.g., male employee fired by male

employer who prefers females for particular work). Nor, most signifi-

cantly, does it purport to reach any form of same-sex discrimination

claim where either victim or oppressor, or both, are homosexual or bisex-

ual (hereafter "homosexual").

We therefore specifically reserve decision on the general question

whether, when all the actors involved in a Title VII claim of

sex-discrimination (in any of its forms) are of the same sex, the homo-

sexuality of any may make the claim nevertheless cognizable as one of

"discrimination because of [the victim's] sex." Because we do not reach

it, it suffices here simply to note that the Supreme Court has not

addressed the issue and that the lower federal courts which have are

hopelessly divided. See Quick v. Donaldson, 895 F. Supp. 1288, 1294

(S.D. Iowa 1995) (recent survey of cases revealing the current state of

the division).

5 Though there is no allegation or proffered proof that either Mc-

Williams or any of the "lube boys" was in fact homosexual, our dissent-

6

We believe this result compelled by a commonsense reading of the

critical causation language of the statute: "because of the [claimant's]

sex". As a purely semantic matter, we do not believe that in common

understanding the kind of shameful heterosexual-male-on-

heterosexual-male conduct alleged here (nor comparable female-on-

female conduct) is considered to be "because of the [target's] `sex.'"

Perhaps "because of" the victim's known or believed prudery, or shy-

ness, or other form of vulnerability to sexually-focussed speech or

conduct. Perhaps "because of" the perpetrators' own sexual perver-

sion, or obsession, or insecurity. Certainly, "because of" their vulgar-

ity and insensitivity and meanness of spirit. But not specifically

"because of" the victim's sex.

The difficulty of construing this causation language to reach such

same-sex claims and the commonsense of not doing so are empha-

_________________________________________________________________

ing brother apparently would either find that fact properly inferable from

the nature of some of the harassing conduct, or consider it unnecessary

to prove homosexuality-in-fact, homosexual innuendo being sufficient.

And, on this basis he would reach the homosexuality issue and hold that

same-sex "harassment" claims may lie under Title VII where homosexu-

ality (either in-fact or as merely suggested by conduct) is involved. With

respect, we believe that were Title VII to be so interpreted, the fact of

homosexuality (to include bisexuality) should be considered an essential

element of the claim, to be alleged and proved. The dissent expresses

concern, because of proof (and privacy?) problems, about requiring such

allegation and proof, but we believe it critical and eminently fair to

require it if homosexuality is to be the critical fact making same-sex

harassment claims cognizable under Title VII. The (ordinarily different)

sexes of the relevant actors always has been an essential element of

either form of Title VII sexual harassment claims. If such claims were to

reach past different-sex to same-sex situations where homosexuality of

one or the other or both of the actors is involved, that added fact would

seem equally essential to the statement and proof of such a claim. If not

required to be alleged, a defendant could be blindsided by proof of con-

duct merely suggestive of homosexuality between persons of the same

sex who actually are heterosexuals. If not required to be proved, the sex-

ual harassment claim would effectively have been extended to cover any

conduct between even same-sex heterosexual workers that included suf-

ficient homosexual innuendo. For these reasons, we do not believe that

the homosexual issue properly can be considered to be presented in this

case.

7

sized when the practical implications are considered. That this sort of

conduct is utterly despicable by whomever experienced; that it may

well rise to levels that adversely affect the victim's work perfor-

mance; and that no employer knowingly should tolerate it are all

undeniable propositions. But to interpret Title VII to reach that con-

duct when only heterosexual males are involved as harasser and vic-

tim would be to extend this vital statute's protections beyond

intentional discrimination "because of" the offended worker's "sex"

to unmanageably broad protection of the sensibilities of workers sim-

ply "in matters of sex." We cannot believe that Congress in adopting

this critical causation language and the Supreme Court in interpreting

it to reach discrimination by the creation of hostile workplace envi-

ronments could have intended it to reach such situations. There per-

haps "ought to be a law against" such puerile and repulsive workplace

behavior even when it involves only heterosexual workers of the same

sex, in order to protect the victims against its indignities and debilita-

tions, but we conclude that Title VII is not that law.

McWilliams' Title VII claim was therefore properly dismissed by

summary judgment.

III.

McWilliams also challenges the dismissal of his several claims

under 42 U.S.C. § 1983 against the County and supervisors Cash and

Boschulte in their individual capacities. These claims, all based essen-

tially on the same conduct as that upon which his Title VII

sex-harassment claim was based, confusedly alleged violations by the

County and the two supervisor-defendants of several constitutional

rights incident to McWilliams' harassment by his coworkers. Only

two warrant discussion.6

_________________________________________________________________

6 In addition to the § 1983 claims discussed in the text that follows,

McWilliams also (apparently) claimed a violation of procedural due pro-

cess rights; an equal protection violation in that his coworkers (as

state-actors?) invidiously discriminated against him on the basis of his

learning disability; and a claim that by failure to put a stop to his

coworkers non-physical sexual harassment, the County (and his supervi-

sors?) violated his substantive due process rights.

We have considered these and think none has any merit that warrants

discussion.

8

A.

The principal claim under § 1983 was that by tolerating the work-

place harassment suffered by McWilliams, these defendants violated

his rights under the Equal Protection Clause not to be discriminated

against on account of his gender. This claim of course is perfectly

parallel to the hostile workplace claim brought under Title VII. While

such parallel constitutional claims may lie in appropriate situations

where, as here, the employer is a state-actor, see Beardsley v. Webb,

30 F.3d 524, 529 (4th Cir. 1994), that of McWilliams fails for the

same reason we found his parallel Title VII claim not cognizable

under that statute. We do not believe that the protection afforded by

the Equal Protection Clause against invidious gender discrimination

extends, any more than does the protection of Title VII, to acts of

harassment by persons who are of the same gender and as those of the

public employee-victim.

Without regard then to whether, as the district court thought, these

defendants could not be charged with the requisite knowledge of

harassing conduct, McWilliams' equal protection claim was rightly

dismissed as one not involving invidious gender discrimination.

B.

The other § 1983 claim that warrants brief discussion is one seek-

ing to hold the County and the two supervisor-defendants liable for

a deprivation of McWilliams' substantive due process rights resulting

from the instances of actual physical assaults that allegedly occurred

during his coworkers' general course of harassment.

In order to hold his supervisors and his local government employer

liable on such a claim, McWilliams must prove (1) that the injury

alleged was caused by a violation of some settled constitutional right,

and (2) that the individual supervisors and the local government

employer were liable under some recognized theory of direct fault.

See Collins v. City of Harker Heights, #6D6D 6D# U.S. ___, ___, 112 S. Ct.

1061, 1066 (1992).

We may assume that McWilliams' proffer of evidence sufficed to

support a finding that he suffered constitutional injury as a result of

9

the physical assaults allegedly involved in the course of his general

harassment by coworkers. The Due Process Clause of the Fourteenth

Amendment affords, as one of its components, "substantive" protec-

tion against unreasonable bodily intrusions by state-actors. See, e.g.

Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (unreasonable pad-

dling of public school student by school official could violate substan-

tive due process right). The physical assaults alleged by McWilliams

would, if proven, constitute the infliction of constitutional injury.

The problem, however, is with imposing liability for the infliction

of the injury on persons--here supervisors and the municipal

employer of the direct perpetrators--who did not engage in the spe-

cific conduct that inflicted injury. It cannot be done on any theory of

vicarious liability; principles of respondeat superior do not apply in

imposing liability under § 1983. Monell v. Dept. of Social Servs. of

the City of New York, 436 U.S. 658, 692-94 (1978). Neither the super-

visors in their individual capacities nor the County could be held lia-

ble except by proof of their direct culpability in causing the injury to

be inflicted by subordinate employees. Id. at 694; see Shaw v. Stroud,

13 F.3d 791 (4th Cir. 1994) (bases for supervisor liability); Spell v.

McDaniel, 824 F.2d 1380 (4th Cir. 1987) (bases for municipal liabil-

ity).

Liability might be imposed upon the supervisor-defendants, Cash

and Boschulte, only by proof of their direct culpability in causing the

injury either by directly authorizing it or by expressly or tacitly con-

doning by inaction a known pattern of comparable coworker conduct.

See Shaw, 13 F.3d at 798-99. There is of course no evidence that

either supervisor directly authorized the physical assaults or expressly

condoned a known pattern of comparable conduct. To establish culpa-

bility by tacit condonation, the only remaining possibility, Mc-

Williams must have proffered evidence that the supervisors knew or

reasonably should have known of a comparable pattern of coworker

conduct that was sufficiently widespread to pose a pervasive and

unreasonable risk of constitutional injury to McWilliams, and that in

the face of that knowledge they took no action to stop it but remained

deliberately indifferent to it. See Slakan v. Porter, 737 F.2d 368,

372-73 (4th Cir. 1984). McWilliams' proffer of evidence here failed

on the threshold requirement that Cash or Boschulte knew or had any

reason to know of the specific incidents of physical assault (as

10

opposed to teasing and "horseplay") that alone could have involved

violation of substantive due process rights. McWilliams repeatedly

conceded he had never spoken to anyone, particularly to these two

supervisors, about those specific incidents of physical assaults. J.A.

245, 254, 259, 260, 263.

The district court did not, therefore, err in dismissing McWilliams'

substantive due process claim against Cash and Boschulte.

For essentially the same reasons, McWilliams' substantive due pro-

cess claim against the County did not suffice to withstand summary

judgment. The only available theory, roughly paralleling that of

supervisor liability, upon which the County's liability might be based

was that the County, through its "final decisionmakers," was itself

directly culpable in the infliction of the constitutional injury by its

agents. This might be established by proof either that a policy for

which it was responsible was the effective cause of its employees'

infliction of the injury, or that the County had effectively condoned

the employees' conduct by inaction in the face of actual or construc-

tive knowledge that it was occurring and that unless stopped it would

almost surely result in the very constitutional injury alleged to have

been suffered by McWilliams. See Canton v. Harris, 489 U.S. 378

(1989); Spell, 824 F.2d at 1385-88.

Here, McWilliams sought to invoke a "policy-as-effective-cause"

theory of municipal liability by pointing to deficiencies amounting to

"policy" in the County's training program for employees such as the

"lube-boys." This is a viable theory, see id. at 1389, but the evidence

proffered to support it was, however, wholly lacking on the critical

requirement that a direct causal connection between specific deficien-

cies and specific injury be demonstrated. Cf. id. at 1390 (police train-

ing). The only possible evidence of any such causal connection was

that this injury did occur and that whatever training had or had not

been provided did not serve to prevent it. This simply cannot, for

obvious reasons, suffice. See Oklahoma City v. Tuttle, 471 U.S. 808

(1985); Spell, 824 F.2d at 1391.

McWilliams' attempt to invoke the "condoned-custom-as-

effective-cause" theory of municipal liability was similarly lacking in

even minimal evidentiary support. There simply was no proffered evi-

11

dence in the summary judgment record of any pattern, known or

unknown to the County, of pervasive conduct by its employees of the

type that allegedly befell McWilliams.

The district court did not err, therefore, in dismissing McWilliams'

§ 1983 claims against the County, Cash and Boschulte.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

It is too early to write this case off to meanness and horseplay. For

now there is a material factual issue whether McWilliams was dis-

criminated against because of his sex.1 In addition, McWilliams has

forecast sufficient facts to survive summary judgment on the issue of

whether his employer had sufficient knowledge of the Title VII viola-

tions to be held accountable. I, therefore, respectfully dissent.

I.

I believe the majority makes a mistake to affirm summary judg-

ment on the ground that there is no allegation that McWilliams and

his male harassers are of different sexual orientations. That puts too

fine a point on the "discriminat[ion] . . . because of [his] . . . sex"

issue. I would simply hold that Title VII is implicated whenever a

person physically abuses a co-worker for sexual satisfaction or propo-

sitions or pressures a co-worker out of sexual interest or desire. This

can be established by an account of what the harasser did or said to

the victim, and proof of the harasser's sexual orientation should not

be required. The harassment must, of course, be sufficiently pervasive

to create a hostile working environment.

_________________________________________________________________

1 I would find same-sex harassment in the workplace to be actionable

under Title VII. See, e.g., Sardinia v. Dellwood Foods, Inc., 1995 U.S.

Dist. LEXIS 16073, *8 ("dominant trend" is to allow such claims)

(S.D.N.Y. Oct. 30, 1995), interlocutory appeal certified, 1995 U.S. Dist.

LEXIS 17967 (S.D.N.Y. Nov. 29, 1995); King v. M.R. Brown, Inc., 1995

U.S. Dist. LEXIS 14211, *14 (E.D. Pa. Sept. 22, 1995) ("the trend is to

permit such claims to proceed").

12

I recognize that in a same-sex harassment claim, evidence of sexual

orientation could be relevant to either side's case. However, it should

not be elevated to a required element of the plaintiff's proof. See

Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409, 1416 (1993).

That would burden the statute too much because the focus would shift

from an examination of what happened to the plaintiff to a pursuit

(surely to be complicated, far-ranging and elusive) of the "true" sex-

ual orientation of the harasser.

Here, McWilliams alleges that his co-workers (i)"approach[ed]

him in a sexual manner, touch[ed] him," Amend. Compl. ¶6, (ii)

"asked him to perform sexual acts on them," id. ¶7, and (iii) "re-

strained him and touched him in a sexual manner," id. ¶8. The details

are amply provided in the summary judgment record. On several

occasions defendant Witsman told McWilliams that he wanted to

have sex with him. At least once Witsman offered McWilliams

money for sex. Witsman would do things such as flick his tongue at

McWilliams, say "I love you, I love you," and ask for sex. Witsman

would also follow McWilliams into the restroom where Witsman,

with one hand in his unzipped fly, would put his arm around Mc-

Williams or invite him into a stall. On several occasions Witsman

asked McWilliams if he (Witsman) could masturbate McWilliams.

Once when McWilliams was working under the dashboard of a bus,

Witsman came up and rubbed McWilliams' penis until it became

erect. At least three times defendants Pinnock, Riddle and Witsman

tied McWilliams' hands together, blindfolded him and pushed him to

his knees. During one of these incidents Witsman put his finger in

McWilliams' mouth and simulated a sex act. In a separate incident,

Riddle and Witsman held McWilliams down while Pinnock exposed

himself and defendant Shelton put a broom handle between Mc-

Williams' buttocks. These assaults and propositions were against the

backdrop of constant, obsessive talk about sex -- and not just

male-female sex. One defendant even talked about having sex with

little boys.

I would not require McWilliams to allege on top of these facts that

his harassers were homosexual. The acts of assault and harassment

are sufficiently direct and suggestive by themselves to raise the ques-

tion whether they were done "because of [McWilliams'] . . . sex."

13

I appreciate the majority's concern that Title VII not be trivialized

to encompass claims for horseplay of a sexual variety. Fortunately,

courts are already dealing with this concern and are distinguishing

between actionable hostility and non-actionable horseplay. E.g., Reed

v. Shepard, 939 F.2d 484, 491 (7th Cir. 1991) (plaintiff who relished

sexual horseplay could not recover under Title VII); Easton v. Cross-

land Mortgage Corp., 1995 U.S. Dist. LEXIS 15889, *37-40 (C.D.

Cal. 1995) (same); Niccoli v. Runyon, 1995 U.S. Dist. LEXIS 14499,

*10 & n.9 (E.D. Va. 1995); Quick v. Donaldson Co., 895 F. Supp.

1288, 1296 (S.D. Iowa 1995) ("To say `bagging'[sneaking up behind

a man and grabbing a testicle] is merely horseplay is to trivialize its

cruel and physical nature. Yet, to say `bagging' is purely a sexually

motivated activity exaggerates the sexual component involved

[because the `baggers' were neither] demanding sexual favors, [nor]

were expressing sexual interest."); Taylor v. Nat'l Group of Cos., 872

F. Supp. 462, 464 (N.D. Ohio 1994) (jury question presented as to

whether conduct was merely horseplay engaged in"in a spirit of jocu-

larity" or was "sexually hostile"); D.R. v. Middle Bucks Area Voc.

Tech. School, 1991 U.S. Dist. LEXIS 1292, *19-20 (E.D. Pa. 1991)

(school held not liable under 42 U.S.C. § 1983 when it had no knowl-

edge of sexual assaults and harassment but knew only of "non-

criminal horseplay" and "inappropriate and incorrigible classroom

behavior"), aff'd en banc, 972 F.2d 1364 (3d Cir. 1992), cert. denied,

113 S. Ct. 1045 (1993); Smith v. Acme Spinning Co., 40 Fair Empl.

Prac. Cas. (BNA) 1104, 1105 (W.D.N.C. 1986) ("on-the-job horse-

play" in which plaintiff voluntarily participated and sometimes initi-

ated not actionable as hostile environment sexual harassment);

Vermett v. Hough, 627 F. Supp. 587, 599 (W.D. Mich. 1986) (plain-

tiff found office horseplay to be amusing, except when she was the

target of the joke; Title VII claim denied).

McWilliams has forecast sufficient evidence of abuse and pressure

to avoid summary judgment on the basis of horseplay. The facts, con-

strued in McWilliams' favor, are sufficient to show that he was sub-

ject to a hostile work environment because of his sex. I would remand

his Title VII claim for a trial.

14

II.

The district court also erred in granting the Board of Supervisors

summary judgment on the Title VII claim on the ground that the

Board lacked actual or constructive knowledge of the hostile work-

place environment to which McWilliams was subjected. 2 Mc-

Williams' Title VII claim against the Board is viable if knowledge

about the abuse he suffered "was imputable on some factual basis to"

it. Spicer v. Commonwealth of Virginia, 66 F.3d 705, 710 (4th Cir.

1995) (en banc).

McWilliams produced sufficient evidence to create a genuine issue

of material fact as to whether the EMTA supervisors had actual

knowledge of a Title VII violation. McWilliams complained to super-

visor Lee Cash at least three times that his co-workers were "teasing

him about girls and other things."3 Later, McWilliams expressly com-

plained to Cash about the way Witsman would flick his tongue at him

and say, "I love you, I love you." Mike Stutsman, an assistant supervi-

sor at EMTA, told Cash that the teasing was sexual in nature and

involved indecent exposure. Billy Davis, EMTA's night foreman, also

told Cash and another supervisor, Miguel Boschulte, as well as Buck

George, EMTA's day shift superintendent, that McWilliams was

being harassed. Cash also learned from Witsman himself that Witsman

had been teasing McWilliams. Another superintendent, Frank Knapp,

held a meeting to discuss the way McWilliams was being mistreated.

Two back-up supervisors, Dave Puckett and John Bowden, even par-

ticipated in the condom incident described by the majority. See ante

at 3. These facts about the supervisors' knowledge of the harassment

provide an ample basis for imputing knowledge to the Board.

***

For all of these reasons, I would allow McWilliams to proceed with

his Title VII claim.

_________________________________________________________________

2 Because it affirms on other grounds, the majority does not reach this

issue.

3 Because Cash knew that McWilliams was learning-disabled and

found it difficult to communicate at an adult level, Cash should have

inquired further at this point.

15