Mikels v. City of Durham

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JASEY MIKELS,

Plaintiff-Appellant,

v. No. 96-2560

CITY OF DURHAM, North Carolina,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

William L. Osteen, District Judge.

(CA-95-261-1)

Argued: April 8, 1998

Decided: June 29, 1999

Before WILLIAMS, Circuit Judge,

PHILLIPS, Senior Circuit Judge, and

G. ROSS ANDERSON, JR., United States District Judge

for the District of South Carolina, sitting by designation.

_________________________________________________________________

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

ion, in which Judge Williams and Judge Anderson joined.

_________________________________________________________________

COUNSEL

ARGUED: R. Hayes Hofler, III, HAYES HOFLER & ASSO-

CIATES, P.A., Durham, North Carolina, for Appellant. Reginald B.

Gillespie, Jr., FAISON & GILLESPIE, Durham, North Carolina, for

Appellee. ON BRIEF: Laurel E. Solomon, HAYES HOFLER &

ASSOCIATES, P.A., Durham, North Carolina, for Appellant. Keith

D. Burns, FAISON & GILLESPIE, Durham, North Carolina, for

Appellee.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Jasey Mikels appeals the district court's entry of summary judg-

ment for defendant City of Durham ("City") on her Title VII and

§ 1983 "hostile environment" sexual harassment claims. The district

court dismissed both claims, concluding that once made aware of the

allegedly harassing conduct, the City had taken prompt and adequate

remedial measures to relieve it of liability under Title VII and that the

City did not have a custom or policy which caused the conduct so as

to make it liable for that conduct on the § 1983 claim. We affirm.

I.

The essential facts of the case, either undisputed or, where dis-

puted, recited in the light most favorable to Mikels as nonmovant on

the summary judgment record, are as follows. Mikels began work as

a police officer for the City in May 1988. Around midnight on

March 28-29, 1993, while both were on duty as members of Squad

2D, Corporal Robert Acker grabbed Mikels on each side of her face,

pulled her to him, and kissed her on the mouth. This unwelcome act

was preceded by several seconds of "shadow boxing" in which Acker

repeatedly jabbed at Mikels' face without actually hitting her. Imme-

diately after Acker kissed her, Mikels pushed him away and

demanded that he never touch her again. Mikels expressed her dis-

pleasure in clear and certain terms and Acker immediately apolo-

gized. Mikels did not accept the apology.

This incident occurred in the presence of several other police offi-

cers, including Mikels' and Acker's immediate supervisor, Sergeant

Robert Cox. Cox did not immediately respond, but after a few

moments, he came over, put his hand on Mikels' shoulder, and stated

"he apologizes, she accepts, it's over with." Shortly afterward and

2

during that shift, Cox privately issued an oral reprimand and warning

to Acker, advising him that the conduct was inappropriate, would not

be tolerated and if repeated would subject him to more severe punish-

ment. During a follow-up meeting with Mikels in which Cox advised

her of his having reprimanded Acker, Mikels repeated her objection

to the conduct and told Cox of an incident some five months before

in which Acker had made unwelcome sexually suggestive bodily con-

tact with her. This was her first report of the earlier incident. During

the next work shift on March 29-30, Cox reported the March 28-29

kissing incident to his immediate supervisor, Captain Rigsbee, and by

Rigsbee's direction issued a formal reprimand and warning to Acker

in the form of a written memorandum confirming those earlier given

orally. In this memorandum, Cox characterized the incident as "horse-

play" but as conduct violative of departmental rules and regulations

which if repeated would "lead to stricter disciplinary action," and he

incorrectly stated (as later determined on conflicting evidence in an

internal review process) that Mikels had accepted Acker's immediate

apology. Cox also met with the entire 2D squad and warned that

horseplay, practical joking and the like would not be tolerated in the

future, and Cox and Rigsbee met with the four female members of the

squad other than Mikels to discuss the incident and to determine

whether and to what extent they had experienced or observed compa-

rable conduct.

During the March 29-30 shift, Mikels told Cox that she was filing

a formal administrative complaint respecting the kissing incident. Cox

advised her against doing so, suggesting, according to Mikels, that

she would "regret it." Mikels nevertheless filed her complaint with the

Internal Affairs Division of the Department on March 30. And, when

Acker then reported for duty on April 2, he was summoned to Police

Headquarters and placed on administrative leave with pay for two

months. During this period of leave, he was transferred to another

squad effective upon his return from leave.

Following an extensive internal investigation of Mikels' complaint,

the investigating officer prepared a report and recommendation which

was forwarded for action to Police Chief Jackie W. McNeill. Acting

upon the report, Chief McNeill found that Acker's conduct in the

March 28-29 incident violated the City's sexual harassment policy

and constituted conduct unbecoming a police officer in violation of

3

Department regulations. McNeill ordered a two-week suspension

without pay, reduction in rank, transfer to another department, and

corrective counseling.

Acker appealed this disciplinary action through employee griev-

ance procedures. A five-member Police Department Board of Inquiry

conducted a new evidentiary hearing. Following its own review, the

Board concurred in Chief McNeill's recommendations, affirming his

findings that Acker had violated the City's sexual harassment policy

and the Department regulations respecting officer conduct.

Acker appealed again, this time exercising his final administrative

option: review by the City Manager's Office. Assistant City Manager

Cecil A. Brown conducted a hearing on Acker's grievance. Following

the hearing and a review of internal affairs reports, on December 20,

1993, Brown, citing various steps in the internal departmental review

process that he asserted were irregular, affirmed the imposition of a

formal reprimand of Acker, but set aside the Board-approved further

sanctions of demotion and pay reduction as unauthorized under

Department procedures. The net effect of this final administrative

action was to let stand the formal reprimand and warning imposed by

Cox and the administratively ordered transfer of Acker to another

squad, but to restore Acker to his pre-incident rank and pay-grade.

Following Cox's oral reprimand and warning of Acker immedi-

ately after the March 28-29 incident, neither Acker nor any other

member of the Department engaged in any form of sexual harassment

of Mikels. Acker and Mikels served together in squad 2D on only one

shift following the March 28-29 incident. Upon Acker's return to

active duty from the two-month's administrative leave that was

imposed following the filing of Mikels' internal complaint, he and

Mikels were in different squads, operating in different areas and on

different work schedules as a result of Acker's administratively

ordered transfer. They saw each other from time to time, but had no

personal contact while on duty.

Mikels' filing of a formal complaint did, however, arouse great

resentment on the part of some of her fellow officers, male and

female, that caused her working conditions to become increasingly

unpleasant. Some fellow officers openly voiced their resentment;

4

some belittled the merits of her complaint, suggesting that she had

effectively invited Acker's conduct by her own participation in simi-

lar conduct; some gave her the "silent treatment;" some refused to

answer her calls for assistance. Some of her superiors were similarly

resentful of what they considered her creation of trouble within the

Department; one urged her to transfer from Squad 2D to escape the

unpleasantness she was experiencing in that setting. Eventually, in

December 1994, she did request and obtain a transfer to another squad

where for a time her working conditions improved. This did not last,

however, and she began increasingly to call in sick to escape the

unpleasantness of her working conditions. Finally, because of her

continued distress resulting from the unpleasantness which began

with the March 28-29 kissing incident, she resigned from her employ-

ment in October 1995, claiming psychological problems resulting

from the course of events triggered by the March 28-29, 1993 inci-

dent.

On January 6, 1994, shortly after Brown's final decision reducing

the disciplinary sanctions imposed upon Acker, Mikels filed a charge

of sex discrimination with the Equal Employment Opportunity Com-

mission ("EEOC"). In it, she identified as the only basis of her charge

Acker's March 1993 conduct and Brown's December 1993 decision,

which she characterized as one that "exonerated[Acker] of all wrong-

doing" and that found him "not guilty of sexual harassment."

Following the EEOC's issuance of a right-to-sue letter, Mikels

commenced this action against the City, alleging parallel federal

claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and 42 U.S.C. § 1983, and a number of pendent state-

law tort claims.1 The gravamen of her Title VII claim was that

Acker's March 28-29, 1993, conduct was sexual harassment creating

an "abusive or hostile workplace environment" for which the City was

liable by reason of its failure to take prompt and adequate remedial

measures respecting that conduct.2 The gravamen of the § 1983 claim

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1 These pendent claims, along with a prayer for punitive damages in

relation to all claims, were dropped by Mikels during pre-trial proceed-

ings and are not involved in the appeal.

2 It is important at this point to note the exact scope of the Title VII sex

discrimination claim alleged by Mikels. As fixed by her EEOC charge

5

was that Acker's conduct was effectively caused by a City policy or

custom which encouraged or acquiesced in such conduct by its

employees.

In addition to denying essential elements of both federal claims, the

City raised a statute of limitations defense to the Title VII claim,

alleging untimely filing of the predicate EEOC charge.

Following extensive discovery, the district court granted the City's

motion for summary judgment as to both the Title VII and § 1983

claims. Though the court opined that the Title VII claim "may be

barred by the applicable statute of limitations," it declined to dismiss

the claim on that basis, but did so instead on the basis that, under

Fourth Circuit precedent, the City's remedial response to Acker's

March 28-29, 1993, conduct was, as a matter of law, sufficiently

prompt and adequate to relieve it of any potential liability for that

conduct. And, it dismissed the § 1983 claim on the basis that, as a

matter of law on the undisputed facts, the City had no policy or cus-

tom which could be considered the effective cause of Acker's chal-

lenged conduct.

This appeal by Mikels followed.

II.

We review de novo the district court's grant of summary judgment

dismissing both the Title VII and § 1983 claims, see Ballinger v.

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and then alleged in her complaint, it concerned only Acker's conduct on

March 28-29, 1993, (and conceivably the one earlier incident first

reported following that of March 28-29) and the City's remediation

responses to that conduct, culminating in Brown's final administrative

decision concerning the March 28-29 incident. For this reason, Mikels'

proffered evidence of post-incident hostility of fellow-employees and

superiors with resulting emotional distress and eventual resignation could

have relevance to that claim only as it might be probative of compensa-

tory damages traceable to the charged violation. Her complaint does not

allege separate Title VII claims of retaliation or constructive discharge

and, by her own account, any hostility she experienced following the

charged incident was not because of her sex (or"sex" in general) but

because of the resentment of some at her having filed a complaint which

they thought unwarranted.

6

North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004 (4th Cir.

1987), and take them in turn.

A.

(1)

Addressing the Title VII claim, we first decline, as did the district

court, to rule on the statute of limitations defense which the City con-

tinues to press on appeal as an alternative basis for affirmance.

Though the district court suggested cogent reasons why the defense

might be a valid one, we believe, as did that court, that the limitations

issues need not, and in prudence should not, be addressed in this case.3

We therefore proceed to the merits of Mikels' claim.

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3 As the district court noted, Mikels' EEOC filing on January 6, 1994,

was untimely under the basic 180-day limitation period of 42 U.S.C.

§ 2000e-5(e)(1) unless the "unlawful employment practice" being

charged was properly considered to be Brown's December 20, 1993,

sanction-reducing decision rather than the March 28-29, 1993, incident,

or unless Mikels properly had invoked the extended 300-day limitation

period available in "deferral states" such as North Carolina. See id. As

to the first possibility, the court apparently assumed it obvious that the

triggering occurrence was the March 28-29, 1993, incident, rather than

Brown's December 20, 1993, sanction-reducing decision. As to the sec-

ond, the court indicated the view that Mikels had not properly invoked

the 300-day period by "initially institut[ing] proceedings with a [proper]

State or local agency," id., because the Police Department's Internal

Affairs Division was not such an agency.

The court then merely noted, without addressing their merits, that

Mikels also sought to avoid the limitations bar of 42 U.S.C. § 2000e-5(e)

by invoking "continuing violation" and "estoppel" tolling principles.

The question raised by Mikels' contention that accrual of a sexual

harassment claim may be deferred by continuing developments in an

employer's remediation response appears to be one of first impression.

The uncertainties and opportunities for manipulation that would be cre-

ated were the contention upheld would seem at first blush to make it a

highly doubtful one. But claim-accrual doctrine, dependent as it is upon

determining when all of a claim's elements have occurred, is sufficiently

arguable in its application to this particular claim to counsel reservation

of the issue for another day when its resolution cannot be avoided--as

it can be here.

7

(2)

As earlier noted, the district court dismissed the claim on the basis

that on the undisputed facts of record it failed as a matter of law under

directly controlling circuit precedent. At the time, our most recent

precedent defined the elements of the "hostile or abusive work envi-

ronment" claim recognized in Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57 (1986), and Harris v. Forklift Systems, Inc., 510 U.S. 17

(1993), as being that "(1) the subject conduct was unwelcome; (2) it

was based on the sex of the plaintiff; (3) it was sufficiently severe or

pervasive to alter the plaintiff's conditions of employment and to

create an abusive work environment; and (4) it was imputable on

some factual basis to the employer." Spicer v. Virginia Dep't of

Corrections, 66 F.3d 705, 710 (4th Cir. 1995). And, our precedents

had long defined the basis for imposing liability under element (4) as

being that after having acquired actual or constructive knowledge of

the allegedly harassing conduct, the employer had taken "no prompt

and adequate remedial action [to correct it]." Id. at 710 (quoting

Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (quoting

Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983))); Paroline v. Unisys

Corp., 879 F.2d 100, 106 (4th Cir. 1989) (quoting Swentek, 830 F.2d

at 558 (quoting Katz, 709 F.2d at 255)), vacated and remanded on

other grounds, 900 F.2d 552 (4th Cir. 1990). 4

_________________________________________________________________

4 It is now settled that this failure-to-act-after-notice standard is one for

imposing Title VII liability on employers for their direct negligence

rather than on respondeat superior or other"imputed" liability principles.

See Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2267 (1998) (so

characterizing standard as deriving from employer negligence principle

stated in Restatement (Second) of Agency§ 219(2)(b)); Faragher v. City

of Boca Raton, 118 S. Ct. 2275, 2288-89 (1998) (categorically rejecting

respondeat superior as basis for imposing employer liability because

sexual harassment not within scope of employment). To the extent we

have sometimes characterized the standard as one for imposing

respondeat superior liability, see Katz, 700 F.2d at 255 ("some theory of

respondeat superior"), our characterization has been revealed to be an

incorrect one, but no more than that. The mischaracterization has had no

substantive effect on our application of the standard. Cf., Fleenor v.

Hewitt Soap Co., 81 F.3d 48, 49-50 (6th Cir. 1996) (noting and correct-

ing similar mischaracterization of standard in previous decisions).

8

Treating element (4) as dispositive, and addressing only it, the dis-

trict court ruled that on the undisputed facts of record, the City had,

as a matter of law, taken prompt and adequate remedial action to cor-

rect the harassing conduct charged by Mikels, and was therefore not

liable for it. Specifically, the court pointed to the actions of Cox in

promptly reprimanding and warning Acker, first orally then formally

in writing for the record, in quickly convening the entire squad to for-

bid further "horseplay" such as Acker's at peril of disciplinary sanc-

tions, and in promptly reporting the conduct to his supervisor,

Rigsbee; to Rigsbee's prompt ordering of an investigation and his

directing Acker's official reprimand; and to Acker's two-months' sus-

pension from duty and reassignment to a different squad upon his

return to duty. And, the court pointed out that"perhaps most impor-

tantly" under our precedents, there had been no reports of any further

harassing conduct by Acker (or anyone else in the Department) fol-

lowing the remedial actions taken by City officials. See Spicer, 66

F.3d at 711 (holding that "when an employer's remedial response

results in the cessation of the complained of conduct, liability must

cease as well"); see also Swentek, 830 F.2d at 558 (treating as proba-

tive of adequacy of remedial response the fact that following repri-

mand no further complaints were made against alleged harasser).

We agree with the district court's ruling that under our precedents

the remedial responses made by City officials to Acker's conduct

were sufficiently "prompt and adequate" to relieve the City of poten-

tial liability for that conduct. In so holding, we agree with the court's

rejection of two principal challenges to its ruling, which Mikels con-

tinues to press on this appeal.

In her principal challenge, she contends that even if the initial

remedial responses were considered "adequate" when made, they later

were completely undercut by Brown's sanction-reducing decision.

Rhetorically characterizing that decision as a "complete exoneration"

of Acker, she argues in effect that by reducing the effectiveness of the

initial response to zero, it made the overall response inadequate as a

matter of law.

In rejecting this contention, the district court noted that Brown's

decision--however motivated and even if legally erroneous--had no

effect upon the official reprimand and warning directed by Rigsbee,

9

upon Acker's reassignment to another squad upon his return to duty,

nor upon his two-months' suspension from duty. These"residual

effects," coupled with the critical fact that the conduct ceased, suf-

ficed to demonstrate that the overall response was prompt and ade-

quate.

We agree with that assessment. We have not required that particu-

lar remedial responses be the most certainly effective that could be

devised, see Spicer, 66 F.3d at 710, and have given great weight to

the fact that a particular response was demonstrably adequate to cause

cessation of the conduct in question. See id. at 710-11 (holding that

immediate action taken to prevent posting of sexually offensive mem-

orandum, counseling greater sensitivity by its authors, and warning

that inappropriate sexual remarks would not be tolerated, after which

no further offensive conduct occurred, was adequate remedial

response as a matter of law); Swentek, 830 F.2d at 558 (holding same

as to prompt investigation of charges followed by written reprimand

and warning, after which "no further complaints were lodged").

In a closely related contention, Mikels argues that under our deci-

sion in Paroline, Brown's action in significantly reducing the sanc-

tions sufficed to raise a genuine issue of material fact, precluding

summary judgment, as to whether the overall course of remedial

action taken was but a "sham," hence inadequate. The district court

held that Paroline was distinguishable on the "sham" point, and we

agree.

In Paroline, the evidence as forecast on the summary judgment

record showed that well before Paroline, the Title VII claimant, had

been employed by Unisys, the employer-defendant, Unisys had been

put on notice that Moore, Paroline's eventual supervisor, had been

sexually harassing other female employees. See Paroline, 879 F.2d at

103. At that time, Unisys management did nothing but convene a staff

meeting to instruct male staff members to avoid conduct that might

be considered sexual harassment and privately caution Moore to

desist. See id. Having done that, management officials openly joked

and made light of female employees' sexual harassment complaints

and Moore did not cease his harassing conduct. See id. When Paroline

was later employed, Moore quickly turned his attentions to her,

engaging in overtly offensive sexual harassment. See id. When Paro-

10

line as quickly complained to management officials, they acknowl-

edged to her their previous awareness of Moore's behavior and then

gave him a written reprimand and warning, directed him to seek coun-

seling, and advised him to limit his contact with female employees.

See id. Advised of the action taken, Paroline protested its inadequacy.

See id. at 103-04. And, despite entreaties that she not do so, she

resigned from her employment less than a month after she had lodged

her complaint and less than four months after being employed. See id.

at 104.

In these circumstances, we held that there was sufficient evidence

as forecast to create a genuine issue as to whether all of Unisys'

asserted remedial responses--both those before and those after Paro-

line's complaint--had been mere "shams," hence not legally ade-

quate. See id. at 106-08. And, on that basis, we held, notwithstanding

that no more complaints against Moore had been lodged following

Paroline's, that summary judgment for Unisys was not proper. See id.

The critical distinction between the Paroline situation and that in

this case is the fact that in Paroline the employer was already on

notice, before Paroline's complaint, of the harasser's propensities, and

of the demonstrated inadequacy of mere verbal and written repri-

mands and warnings to deter him. From this, we concluded that based

on this prior history, a jury might reasonably find that the employer's

response following Paroline's complaint, like that following earlier

complaints, was equally ineffectual. Here, in contrast, there was no

prior history of demonstrably ineffectual, hence possibly "sham,"

responses to draw in question the adequacy of the overall remedial

response to Mikels' complaint.5 We therefore agree with the district

court's rejection of Mikels' "sham response" contention.

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5 This distinguishing fact also explains why the undisputed fact that

Moore's harassment of Paroline ceased following Unisys' remedial

action did not have the probative significance that cessation was

accorded in Spicer and Swentek. In those cases, causal connection

between response and cessation was considered established as a matter

of law, thereby confirming in the most obvious possible way the "ade-

quacy" or "effectiveness" of the response. See Spicer, 66 F.3d at 710

(noting that evidence of the "effectiveness of the response in eliminating

the problem" was "undisputed"); Swentek , 830 F.2d at 558 (assuming

11

(3)

While this appeal was pending, the Supreme Court, in Burlington

Industries v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of

Boca Raton, 118 S. Ct. 2275 (1998), significantly clarified extant law

respecting employer liability under Title VII for sexual harassment by

its employees. Of possible relevance to Mikels' claim, the Court held

that under the aided-by-agency principle expressed in Restatement

(Second) of Agency § 219(2)(d), as "adapt[ed] to the practical objec-

tives of Title VII," Faragher, 118 S. Ct. at 2290 n.3, "an employer is

subject to vicarious liability to a victimized employee for an action-

able hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee," Ellerth, 118 S. Ct.

at 2270; Faragher, 118 S. Ct. at 2292-93. But only "subject to," not

"automatically liable," because not all harassment even by supervi-

sory personnel is necessarily "aided by the agency relation." See

Ellerth, 118 S. Ct. at 2269 (noting that some acts of harassment by

supervisor "might be the same acts a co-employee would commit"

and that "there may be some circumstances where the supervisor's

status makes little difference"). The fundamental determinant of this

form of vicarious liability is not, therefore, the harasser's formal rank

vis-a-vis that of the victim in the particular employment hierarchy,

though that is of critical and sometimes decisive evidentiary impor-

tance, but whether the particular conduct was "aided by the agency

relation." See id. Two bright-line rules define the boundaries of the

root principle. Any harassing conduct that culminates in a "tangible

employment action" against the victim is necessarily conduct "aided

by the agency relation," since it can only be taken by supervisory

employees empowered by their employer's to take such action. See

Ellerth, 118 S. Ct. at 2268-69 (gives "assurance [that] the injury could

not have been inflicted absent the agency relation"). In that circum-

stance, vicarious liability is absolute, without regard to whether the

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causal connection from undisputed fact that no further complaints about

harasser were lodged following remedial response). In Paroline, by con-

trast, such a causal connection could not be considered to be evident as

a matter of law, both because Paroline's resignation came too quickly to

permit the conclusion and because previous remedial responses of the

same kind had proven ineffectual to stop earlier harassment.

12

employer knew, or should have known, or approved of the act, or

sought to prevent or stop it. See Faragher, 118 S. Ct. at 2284-85,

2293; see also Ellerth, 118 S. Ct. at 2269. At the other end, "absent

some elaborate scheme," harassment by a fellow-employee having no

authority of any kind over the victim never can be found "aided by

the agency relation"; as to such employees, the agency relation pro-

vides no "aid" for their conduct but workplace proximity, and that

does not suffice for the purpose. See Ellerth , 188 S. Ct. at 2268. For

such "unaided" harassment, by whomever done, employers are liable

only for their own negligence in failing, after actual or constructive

knowledge, to take prompt and adequate action to stop it. See id. at

2267.

Between these extremes, there remains otherwise actionable

harassment that, though it does not culminate in tangible employment

action, is nevertheless "aided by the agency relation," as that may be

demonstrated by other features of the employment relations between

harasser, victim, and employer and the particular circumstances of its

occurrence. Vicarious liability arising in this way is not absolute, but

subject to an affirmative defense that the employer had (1) "exercised

reasonable care to prevent and correct promptly any sexually harass-

ing behavior," and (2) the victim had "unreasonably failed to take

advantage of any preventive or corrective opportunities provided by

the employer or to avoid harm otherwise." See Ellerth, 118 S. Ct. at

2770; Faragher, 118 S. Ct. at 2292-93. And as indicated, it can only

arise from the conduct of an employer having some measure of super-

visory authority over the victim; it cannot arise from the conduct of

a mere co-worker, one with no form of authority.

Which leads to the possible relevance to Mikels' claim of the new

regime announced in these intervening Supreme Court decisions. At

the time Mikels' claim was litigated in the district court and her

appeal briefed and argued in this court, our precedents applied the

failure-to-act-after-notice standard as the sole basis for imposing lia-

bility upon employers for abusive or hostile workplace conditions

whether caused by victims' co-workers or supervisors (at lower than

"alter-ego" levels of management). See, e.g., Andrade v. Mayfair

Management, Inc., 88 F.3d 258, 261-62 (4th Cir. 1996) (applied

where harasser was victim's immediate supervisor); Swentek, 830

F.2d at 557-58 (applied where harasser found not to be supervisor);

13

Katz, 700 F.2d at 253-56 (applied where both co-workers and supervi-

sors were involved). In consequence, there was no reason prior to

argument in this court for Mikels to raise any issue as to whether the

City might be subject to vicarious liability under the more stringent

aided-by-agency-relation principle if not directly liable under the

failure-to-act-after-knowledge negligence principle. Though Mikels

has not since submission of the case sought to raise the issue with us,

as she might have by invoking Fed. R. App. P. 28(j) to suggest the

Supreme Court decisions as relevant intervening authority, we think

it proper to address the matter sua sponte in the interest of fairness.

See Ellerth, 118 S. Ct. at 2271 (instructing that on remand, district

court might consider justice of allowing Title VII claimant to re-plead

and supplement discovery in light of newly-announced rule); cf.

Reinhold v. Virginia, 151 F.3d 172, 176 (4th Cir. 1998) (on petition

for rehearing; previous opinion applying pre-Ellerth/Faragher circuit

precedents withdrawn, case remanded for reconsideration in light of

Supreme Court decisions).

Here, we do not believe a vacatur and remand for reconsideration

is warranted. Because Acker's conduct did not result in any tangible

employment action, that means of establishing absolute vicarious lia-

bility would not be available. The only available theory would be that

Acker's conduct was that of one with sufficient supervisory authority

over Mikels that its doing under the circumstances was "aided by the

agency relation." We are satisfied that, as a matter of law, this theory

could not be established in the face of the record. Cf. Faragher, 118

S. Ct. at 2293 (remand for possible raising of newly-announced affir-

mative defense not warranted where "it appear[ed] from the record

that any such avenue is closed").

Faragher and Ellerth, not having the issue directly before them,

attempt no definitive explanation of what conduct short of that culmi-

nating in tangible employment action can be found nevertheless to be

"aided by the agency relation." See Ellerth, 118 S. Ct. at 2269

(describing conduct so qualifying only as "less obvious"). We know

that it cannot be the conduct of a mere co-worker--one having no

form of authority over the victim--and that it therefore can only be

the conduct of one having some measure of supervisory authority.

But, because not all harassment even by "supervisory" employees

necessarily qualifies under the "malleable terminology" of this stan-

14

dard, see id., the inquiry may have to run deeper into the details of

relationships and particular circumstances. The touchstone, though

not a prescription, can be found in critical observations by the Ellerth

and Faragher courts respecting the way in which the agency relation

may aid a particular "supervisor" in a particular act of actionable

harassment. The determinant is whether as a practical matter his

employment relation to the victim was such as to constitute a continu-

ing threat to her employment conditions that made her vulnerable to

and defenseless against the particular conduct in ways that compara-

ble conduct by a mere co-worker would not. See Faragher, 118 S. Ct.

at 2291 (because "victim may well be reluctant to accept the risks of

blowing the whistle on a superior . . . [and]"generally cannot check

a supervisor's abusive conduct the same way that she might deal with

abuse from a co-worker"). The most powerful indicator of such a

threat-induced vulnerability deriving from the supervisor's agency

relation lies in his authority, though not exercised in the particular sit-

uation, to take tangible employment actions against the victim, such

as "hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in

benefits." See Ellerth, 118 S. Ct. at 2268-69 (so defining this level of

authority as necessarily derived from the agency relation); Faragher,

118 S. Ct. at 2293 (imposing aided-by-agency vicarious liability

where no tangible employment action taken but one of two harassing

supervisors had authority to hire and fire, both had"virtually

unchecked authority" over subordinates, "directly controlling and

supervising all aspects of [the victim's] day-to-day activities," and

victim and colleagues were "completely isolated from the [employ-

er's] higher management").

Short of that most threatening form of supervisory authority, we

may assume, without deciding here, that lesser forms derived from the

agency relation may aid particular acts of supervisor harassment. In

such less clear circumstances, the victim's response in context may

be highly probative on the issue whether any agency authority pos-

sessed by the harasser has actually aided his conduct by increasing

her sense of vulnerability and defenselessness. This point was antici-

pated, though obliquely, in Faragher. There the Court noted that

"when a fellow-employee harasses, the victim can walk away or tell

the offender where to go, but it may be difficult to offer such

responses to a supervisor `whose power to supervise--[which may be

15

to hire and fire], and to set work schedules and pay rates--does not

disappear when he chooses to harass through insults and offensive

gestures rather than directly with threats of firing or promises of pro-

motion.'" Id. at 2291 (quoting Estrich, Sex at Work, 43 Stan. L. Rev.

813, 854 (1991). Which is to suggest that where the level of authority

had by a harasser over a victim--hence her special vulnerability to his

harassment--is ambiguous, the tip-off may well be in her response to

it. Does she feel free to "walk away and tell the offender where to

go," or does she suffer the insufferable longer than she otherwise

might?

In the face of these principles derived from Ellerth and Faragher

and the facts of record, we are satisfied that Mikels would have no

"serious prospect" of proving upon remand that Acker's conduct was

aided by the agency relation in the required way. See Faragher, 118

S. Ct. at 2293 (similarly concluding as to prospect that employer

could establish newly-announced affirmative defense were the case

remanded). From the undisputed facts of record, informed by a modi-

cum of judicial notice, it is evident that any authority possessed by

Acker over Mikels was at best minimal. In the typical paramilitary

structure of the Police Department he was, as Mikels put it, Appel-

lant's Br. 3, only her "superior" in rank, he a corporal, she a private-

level member of the same squad. In that position, Acker's authority

assuredly did not include the power to take tangible employment

actions against Mikels and her rank-peers. At most it would involve

the occasional authority to direct her operational conduct while on

duty. Importantly, the record is clear that in her relationships with

Acker, she was not isolated from the continuing protective power of

higher management in the Department. She operated under the stated

understanding that her direct "supervisor" was her squad-leader ser-

geant, id. at 4, and, as the record plainly indicated, she had immediate

access to him without going through Acker or anyone else to lodge

grievances. Cf. id. (basing conclusion of aided-by-agency vicarious

liability on unchallenged findings that harassing supervisors had "vir-

tually unchecked authority" over "all aspects of [victim's] day-to-day

activities," and that victim was "completely isolated from the

[employer's] higher management").

If these facts did not suffice to foreclose the claim, the clincher lies

in Mikels' demonstrated lack of any sense of special vulnerability or

16

defenselessness deriving from whatever authority Acker's corporal

rank conferred. Immediately following Acker's unwelcome conduct,

Mikels, by her own testimony, rebuffed him in an obscenity- and

profanity-laced outburst (see J.A. 67) rejected his immediately prof-

fered apology, and the next day filed a formal grievance against him.

That is not likely the conduct of one "reluctant to accept the risks of

blowing the whistle on a superior," but more naturally the conduct of

one who thinks of her harasser as merely a fellow-employee from

whose unwelcome conduct she is free to walk away or whom she can

"tell where to go." See id. at 2291.

We therefore conclude that a remand to allow attempted proof of

aided-by-agency-relation vicarious liability is not warranted.

B.

Mikels' challenge to the district court's dismissal of her parallel

§ 1983 claim requires little discussion. Her apparent theory--and it is

not too plain--is that Brown's decision in reducing the sanctions

imposed upon Acker violated her Fourteenth Amendment equal pro-

tection rights. Under settled doctrine, the City could only be liable for

this action by Brown--assuming that its effect was to deprive her of

equal protection rights by discriminating against her because of her

sex--if it was effectively caused by a City "policy or custom," Monell

v. Department of Social Servs. of New York, 436 U.S. 658, 694

(1978); Spell v. McDaniel, 824 F.2d 1380, 1385-86 (4th Cir. 1987),

or if in taking the action Brown was acting by express or implied del-

egation of authority from the City, as its "policymaker" in matters of

personnel management. See Spell, 824 F.2d at 1387.

The district court considered both of these possible theories, and

properly rejected both as a matter of law. Mikels'"municipal policy

or custom" contention was based on Brown's having at one point

explained his decision as having been based on "double jeopardy"

concerns which he first erroneously attributed to City personnel regu-

lations, then to his own "sense." Mikels contended in the district court

and repeats the contention here--as we understand it--that if there

was such a City regulation, it embodied the requisite "policy" for

holding it liable for Brown's decision implementing it; that if it was

not, then allowing Brown to act upon his own "sense of double jeop-

17

ardy" is indicative of a customary practice which the City condoned

by allowing it to go "unchecked." The lack of any merit in these con-

tentions is patent and the district court properly so held.6

The alternative contention, that in making the administrative deci-

sion, Brown was acting under delegated authority as the City's final

policymaker in matters of personnel management, is equally without

merit. It suffices to say that even if Brown's decision were taken as

"final" action concerning the discipline of Acker, it could only be

considered an episodic exercise of discretion in an operational detail

of municipal government, and not an exercise of delegated authority

to establish and directly implement overall City policy respecting

employee discipline. See id. at 1386 (differentiating policymaking and

execution from discretionary actions, even if "final," that concern

mere "operational details of government"). Brown's decision--even

assuming that it could be found to have caused injury to any

constitutionally-protected right of Mikels--clearly falls on the non-

policymaking side of municipal officials' conduct, and the district

court properly rejected this theory of municipal liability.

AFFIRMED

_________________________________________________________________

6 Mikels sought to support this theory of municipal liability resulting

from Brown's decision with proffered evidence of an ulterior motive for

it. The specific proffer was of circumstantial evidence designed to sup-

port an inference that the decision was induced by a favorable credit

transaction arranged for Brown by a female credit-officer friend of

Acker's. The district court noted the proffer and declined to consider it

on the basis that, because entirely speculative, it could not properly be

considered under Fed. R. Civ. P. 56. We think that ruling was proper on

the more fundamental basis that the proffered showing, even if true, was

irrelevant to the issue whether the decision could be attributed to the City

as one of its policy or condoned custom. As the district court put it, the

"propriety" of Brown's conduct, in the sense suggested by this disturbing

proffer, was not within its "province."

18