Kandice Pullen v. Caddo Parish School Board

Case: 15-30871 Document: 00513600612 Page: 1 Date Filed: 07/20/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30871 United States Court of Appeals

Fifth Circuit

FILED

July 20, 2016

Lyle W. Cayce

KANDICE PULLEN, Clerk

Plaintiff–Appellant,

versus

CADDO PARISH SCHOOL BOARD,

Defendant–Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

Before SMITH, BARKSDALE, and COSTA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Kandice Pullen, an employee of the Caddo Parish School Board, claimed

that she was sexually harassed by Timothy Graham, another board employee,

in violation of Title VII. Graham was Pullen’s supervisor for certain periods of

the alleged harassment, but Pullen claims that the harassment continued after

she had transferred to a different department. The district court granted the

board’s motion for summary judgment, and Pullen appeals. We reverse the

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summary judgment as to the period during which Graham was Pullen’s super-

visor and affirm as to the period during which he was not.

I.

Pullen was hired as a temporary clerical employee and worked in the

purchasing department at the central office for two spans of time. The first

was from February 2011 until the end of June 2011; the second was from Feb-

ruary 2012 until May 2012. Graham was her supervisor in the purchasing

department. From May 2012 until the end of July 2012, she worked in the

department of classified personnel (which is one of the board’s two human

resources (“HR”) departments 1), also in the central office. During that time,

Pullen’s supervisor was Cleveland White.

Pullen avers that Graham sexually harassed her during all three of these

periods and at a lunch in October 2012. During the first period, Graham

allegedly engaged in repeated verbal sexual harassment. During her second

stint in the purchasing department, Pullen says that, in addition to frequent

verbal harassment, Graham touched her thigh once and put his arm around

her several times. On one occasion he also called her into his office and showed

her inappropriate pictures of other women that he had stored on an external

hard drive. Pullen further states that, after she moved to the classified per-

sonnel department (also located at the central office), Graham would come to

the personnel department to talk to her; sometimes he would make inappro-

priate comments in the same vein as before.

Pullen did not contemporaneously tell anyone at the office about the

harassment. But in late February 2013, another temporary clerical employee,

1 The board had two separate HR departments, one for employees with a teaching

certificate (“certified personnel”) and one for those without (“classified personnel”).

2

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Aimee Harris, informed White (the head of classified personnel) and Mary

Robinson (the board’s chief of staff) that she wished to file a sexual-harassment

complaint against Graham based on inappropriate remarks made during her

first week on the job in the purchasing department. In Harris’s written com-

plaint, she detailed allegations similar to Pullen’s. Harris’s written complaint

also identified Pullen as a person potentially subject to similar harassment

from Graham.

The board placed James Woolfolk, its chief operations officer, in charge

of investigating Harris’s complaint and preparing a written report according

to the board’s standing procedures for investigation of sexual-harassment alle-

gations. Woolfolk interviewed several people in the course of the investigation,

including Harris and Pullen, concluding that Graham’s conduct was not sexual

harassment but was nonetheless unprofessional and inappropriate. He there-

fore recommended that Graham be suspended without pay for a week and

required to undergo counseling. The board’s superintendent agreed, and that

punishment was imposed on April 4, 2013.

On March 6, 2013—during the pendency of Woolfolk’s investigation—

Pullen sent a letter complaint to the Equal Employment Opportunity Commis-

sion (“EEOC”) detailing Graham’s alleged harassment. On March 18, the

EEOC contacted Pullen to confirm that she wanted to file a formal charge. On

April 17, the EEOC mailed a draft charge of discrimination for her review and

signature; she signed and returned it.

II.

Pullen sued Graham and the board in state court on January 29, 2014,

and the board removed. The suit claimed violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., for sex discrimination in the form

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of sexual harassment. 2 Pullen later amended to remove Graham as an indi-

vidual defendant. After discovery, the parties filed cross-motions for summary

judgment.

The district court granted summary judgment for the board. It agreed

with the board that the sexual-harassment claim had to be analyzed under two

distinct legal standards—one for the period in which Pullen worked in the pur-

chasing department under Graham’s supervision, and one for the later period.

Then, it rejected the board’s contention that Pullen had not filed her EEOC

complaint timely. 3 The court then turned to the substance of the motion.

First, the district court addressed the period of harassment in which

Graham was Pullen’s supervisor. It held that the board had established that

there were no material factual disputes regarding its entitlement to judgment

on its Ellerth/Faragher affirmative defense. 4 The court held that the first

prong of the test was satisfied because the board had put forward evidence that

it had a detailed sexual-harassment policy that was posted on bulletin boards

around the central office and was available online, and on which it trained the

2Pullen also asserted quid pro quo and retaliation claims, but she jettisoned them in

her opposition to summary judgment.

3 Timely filing an EEOC claim is a condition precedent to filing a Title VII claim in

federal court, but it is not jurisdictional; therefore, ordinary waiver and abandonment princi-

ples control. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002). The board does

not press its timeliness argument on appeal, so it is waived under this court’s normal princi-

ples of argument presentation and preservation. E.g., Yohey v. Collins, 985 F.2d 222, 224–

25 (5th Cir. 1993).

4 See Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca

Raton, 524 U.S. 775, 807 (1998). The Ellerth/Faragher defense allows an employer to claim

immunity from vicarious liability for a supervisor’s sexual harassment if it establishes “(a)

that the employer exercised reasonable care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage

of any preventive or corrective opportunities provided by the employer or to avoid harm other-

wise.” E.E.O.C. v. Boh Bros. Constr. Co., 731 F.3d 444, 462 (5th Cir. 2013) (en banc) (quoting

Watts v. Kroger Co., 170 F.3d 505, 509–10 (5th Cir.1999)).

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majority of its employees on a regular basis. The second prong was satisfied

because Pullen’s failure to report the alleged harassment for well over two

years was unreasonable.

Second, the district court addressed the period of harassment during

which Graham was not Pullen’s direct supervisor. It agreed with the board

that Pullen had not put forth any evidence to indicate that management actu-

ally knew or should have known about the harassment. Thus, the court

granted summary judgment on the coworker-harassment claims.

III.

Because there is a genuine dispute of material fact as to whether the

School Board is entitled to immunity under the Ellerth/Faragher defense, we

reverse the summary judgment in that regard. Normally an employer is

strictly liable for a supervisor’s harassment of an individual whom he or she

supervises. Vance v. Ball State Univ., 133 S. Ct. 2434, 2439, 2442 (2013). The

Ellerth/Faragher affirmative defense is an exception and is available to

employers where a plaintiff alleges sexual harassment by a supervisor but does

not claim that the harassment resulted in a tangible employment action. Id.

The defense has two elements. First, the employer must show that it

exercised reasonable care to prevent and correct sexual harassment. Second,

it must establish that the employee unreasonably failed to take advantage of

preventive or remedial opportunities provided by the employer. See Boh Bros.,

731 F.3d at 462. The employer bears the burden of proving both elements by

a preponderance of the evidence. Id. We conclude that the board did not meet

its burden on the first element.

The first element focuses on the company’s conduct. The core of the dis-

pute in this case concerns the principle that “[a]n employer can satisfy the first

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prong of the Ellerth/Faragher defense by implementing suitable institutional

policies and educational programs regarding sexual harassment.” Id. at 462–

63. 5 Both the harasser’s knowledge of the policy and the victim’s awareness of

it (and of associated complaint procedures) are relevant to whether the

company acted reasonably. 6

The issue is whether the evidence adduced on summary judgment was

sufficient to demonstrate that the board took reasonable care to prevent sexual

harassment through promulgation of a policy and complaint mechanism. The

cases addressing whether a company has satisfied its burden on the first prong

of the Ellerth/Faragher defense sort into two basic clusters. Where the plaintiff

admits that he or she was on notice of a policy and complaint procedure and

the court determines that the policy was reasonable, we have consistently

found the first prong satisfied. 7 In Boh Bros., however, id. at 463–65, our

en banc court held that the defendant was not entitled to judgment as a matter

5 Such a policy is not necessary as a matter of law to prevail on the defense, but the

Supreme Court has indicated that it is, in almost all cases, a relevant and important factor

(and, in the instant case, the board does not point to any other preventive measures aside

from its policy and educational programming). Ellerth, 524 U.S. at 765. Thus, our inquiry

usually focuses heavily on whether the employer promulgated a reasonably specific sexual-

harassment policy and complaint procedure and whether it diligently investigated (and,

where appropriate, remedied) alleged sexual harassment. Boh Bros., 731 F.3d at 463.

6 See Faragher, 524 U.S. at 781–82, 808–09 (noting that defendant had failed to prom-

ulgate its policy such that harassing supervisors were aware of it); Boh Bros., 731 F.3d at 464

(examining impact of company’s failure effectively to promulgate a detailed policy on both

harasser’s and victim’s knowledge regarding sexual-harassment policy and complaint

procedures).

7 See, e.g., Giddens v. Cmty. Educ. Ctrs., Inc., 540 F. App’x 381, 389 (5th Cir. 2013);

Williams v. Barnhill’s Buffet Inc., 290 F. App’x 759, 762–63 (5th Cir. 2008); Lauderdale v.

Tex. Dep’t of Criminal Justice, Institutional Div., 512 F.3d 157, 162, 164 (5th Cir. 2007);

Thompson v. Naphcare, Inc., 117 F. App’x 317, 323–24 (5th Cir. 2004); Wyatt v. Hunt Plywood

Co., 297 F.3d 405, 410 (5th Cir. 2002); Casiano v. AT&T Corp., 213 F.3d 278, 286–87 (5th

Cir. 2000); cf. Williams v. Admin. Review Bd., 376 F.3d 471, 478–79 (5th Cir. 2004) (analyzing

Ellerth/Faragher framework in review of Department of Labor Administrative Review

Board’s adjudication of whistleblower retaliation claim under Energy Reorganization Act).

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of law (“JML”) on its Ellerth/Faragher defense when it had only a vague and

general antidiscrimination policy without any mention of sexual harassment,

the policy did not specify complaint procedures, and employees were not in-

formed of the policy save for inconspicuous postings that the employees did not

notice or read. And in Faragher, 524 U.S. at 808–09, the Court held that an

employer’s failure to promulgate its policy to a given worksite meant that its

defense failed as a matter of law when raised against claims arising at that

worksite.

Pullen does not cite, and we are not aware of, any other Fifth Circuit

decisions holding that a company’s policy and complaint mechanisms were

unreasonable or that they were not sufficiently publicized to employees for the

company to prevail at summary judgment. But Pullen does refer us to two

closely analogous cases from sister circuits. In Harrison v. Eddy Potash, Inc.,

158 F.3d 1371, 1377 (10th Cir. 1998), the court denied JML where the evidence

indicated that the policy was posted on a bulletin board, but the plaintiff testi-

fied that she was not aware of the policy and had never been given a copy. 8

Similarly, in Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 21–22 (1st Cir.

2002), the court denied JML where the company put on evidence that it had

hung posters describing the company sexual-harassment policy, but plaintiffs

and other employees testified that they never received training on the policy,

were not given a copy, and never saw the purported posters. Pullen also points

to a pair of district court cases that reach similar conclusions, 9 and the board

8 Harrison was initially tried before Ellerth and Faragher were decided; the Tenth

Circuit reversed the judgment in the employer’s favor. See 112 F.3d 1437, 1451 (10th Cir.

1997). The Supreme Court granted certiorari, vacated, and remanded for reconsideration in

light of its recent decisions in Ellerth and Faragher. 524 U.S. 947 (1998). On remand, the

circuit held that there were genuine disputes of material fact as to the employer’s entitlement

to immunity under Ellerth and Faragher.

9 See Wilburn v. Fleet Fin. Grp., Inc., 170 F. Supp. 2d 219, 228–31 (D. Conn. 2001);

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does not cite any cases that hold to the contrary on similar facts.

A review of the summary-judgment evidence reveals that the district

court erred in holding that the board’s efforts to prevent sexual harassment

were reasonable as a matter of law. Pullen produced evidence that, if believed,

would show that employees at the central office were not trained on sexual

harassment, were not informed of the existence of a policy, were not shown

where to find it, and were not told whom to contact regarding sexual harass-

ment. This would be a sufficient basis for a reasonable jury to find that the

company did not take reasonable steps to prevent and remedy sexual

harassment.

Pullen concedes the existence of the sexual-harassment policy and does

not contend it would have been unreasonable if it had been promulgated and

publicized. She maintains instead that the policy was not sufficiently publi-

cized to allow for summary judgment in the board’s favor. She points to the

following evidence to show that the policy was not sufficiently publicized:

• Joyce Clemons, a longtime employee who had spent about thirty years

at the central office in both permanent and substitute capacities, testi-

fied that she had never been given any information or training about

sexual harassment.

• Mary Russell, a secretary in the classified-personnel department (part of

the HR department) since 2003, testified that she was not given a copy

of the harassment policy or any training on the subject.

• Pullen testified that she had never seen the sexual-harassment policy,

was not aware that it was available online, was not trained on the policy,

and had not seen it on any bulletin board at the central office. She made

Meng v. Ipanema Shoe Corp., 73 F. Supp. 2d 392, 401 (S.D.N.Y. 1999).

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similar claims by affidavit. She further attested that the bulletin board

nearest her office in purchasing was encased in glass, such that even if

the policy had been posted thereon, she would have been able to see only

the first page.

• White testified that temporary employees at the central office were not

trained on the sexual-harassment policy; that it was posted on several

bulletin boards at the central office; that looking at the boards was the

only way that temporary employees could find out about the policy; and

that temporary employees were not instructed to look at the bulletin

boards to learn about the policy.

• Annette Dunlap, secretary to the director of classified personnel, served

in various capacities at the board for sixteen years. She testified that

she had never spoken about sexual harassment or a sexual-harassment

policy with anyone from the board and was unaware of any duty to report

sexual harassment; that she had never had any training about sexual

harassment; that she had never reviewed the sexual-harassment policy;

and that she was not aware of any posted copies of it.

• Ebonie Nelson, a permanent employee of the board, indicated that she

had never been trained on the policy. She further testified that, though

a paper copy of the policy was posted on an ordinary, non-enclosed bulle-

tin board in the classified-personnel office, she had never noticed it until

the day before the deposition. She also said that the policy’s pages were

yellowing, so she surmised they had been posted for a long time.

• Shari Foreman, who was hired on a permanent basis to replace Pullen

in the purchasing department, testified that, although she had received

sexual-harassment training and information in a previous job in one of

the schools that the board managed, she no longer received any training

or information about the policy once she started working in purchasing

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at the central office.

• Graham—the accused harasser—indicated that he was never directly

trained about the sexual-harassment policy and never received a copy of

it but had been to outside training that covered “harassment in the

workplace” among other topics.

The board responds by referencing record evidence of its own:

• Mary Robinson, the board’s chief of staff, stated, by affidavit, that the

board maintained a detailed anti-harassment policy that expressly pro-

hibited sexual harassment. Further, she explained that the policy

offered detailed instructions regarding how to assert a complaint, how to

investigate a complaint, and the like; it also prohibited retaliation. The

policy was a matter of public record because it was approved by the

elected board and was available online. Robinson additionally averred

that the policy was conspicuously posted in the central office. Finally,

she averred that the board conducted sexual-harassment training for the

majority of its employees, including supervisors and directors at the

central office.

• Based on the deposition testimony of Nelson, Joyce Lars, and White, the

board averred that the evidence indicated that the policy was placed con-

spicuously on bulletin boards in the central office.

• White testified that the board held sexual-harassment training for many

of its employees.

• Shari Foreman testified that, when she was working at one of the school

campuses, she received frequent sexual-harassment training.

• Graham testified that he had received outside training that covered

“harassment in the workplace.”

The board also pointed to various pieces of record evidence regarding its

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response to Graham’s alleged conduct after Aimee Harris complained. Fur-

ther, the board urges that Pullen’s evidence does not create a fact issue as to

whether the policy was conspicuously posted, because at most the testimony

indicates that certain individuals did not see it. Finally, the board posits that

Pullen’s close acquaintance with Annette Dunlap, secretary to the head of the

HR department, provided her with an avenue to report the misconduct.

The board’s presentation is insufficient to satisfy its burden to show that

there is no genuine dispute of material fact as to its entitlement to immunity

under the Ellerth/Faragher defense. Similar to the evidence in Faragher, Boh

Bros., Harrison, and Marrero, Pullen presented testimony from employees who

indicated that they were given no training or information about the sexual-

harassment policy and were not even aware of its existence. The evidence,

construed in Pullen’s favor, also shows that Graham was never given a copy of

the policy, never saw it, and was never trained regarding its contents. 10 More-

over, the evidence generates a reasonable inference that the policy was not

posted in a conspicuous location (given that several employees said they had

never noticed it). Thus, just as in Faragher, Boh Bros., Harrison, and Marrero,

there is a genuine dispute of material fact as to whether the board took rea-

sonable steps to prevent sexual harassment in the central office.

Because the board has not demonstrated its right to summary judgment

on the first element of the Ellerth/Faragher defense, we need not address the

second. The summary judgment as to the period of time in which Graham was

10 The district court disregarded this testimony on the grounds that Graham also tes-

tified that he had attended training on “harassment in the workplace.” But this is precisely

the sort of conflicting or ambiguous testimony that will not support summary judgment. The

district court’s discussion improperly drew inferences in the board’s favor rather than Pul-

len’s. Even without the thumb on the scale for Pullen, nothing in Graham’s testimony indi-

cates that he received any training at all on sexual harassment—as distinct from other pro-

hibited forms of hostile-environment harassment.

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Pullen’s supervisor is reversed.

IV.

The district court granted summary judgment in favor of the board for

the period of time during which Pullen worked in the HR department. The

court reasoned that Graham was no longer Pullen’s supervisor then, so her

claim for that period should be analyzed under the standard for sexual harass-

ment by a coworker. To hold a company vicariously liable for sexual harass-

ment by a coworker, the plaintiff must show, inter alia, that the employer

“knew or should have known of the harassment in question and failed to take

prompt remedial action.” 11 Because Pullen did not put forth any evidence that

the board knew or should have known about the harassment, the court granted

summary judgment.

In opposing summary judgment for this period of alleged harassment,

Pullen makes three distinct claims. First, she contends that Graham was still

her supervisor during this period of harassment, and thus she need not

demonstrate that the board knew or should have known of the harassment.

Second, she theorizes that the entire suit must be adjudicated under a

supervisor-harassment standard, because the harassment was one continuous

course of action. Third, she says the harassment was open and obvious, and

therefore the board should have been aware of it. We disagree.

A.

Graham was not Pullen’s supervisor during the period of time in which

Pullen worked for White in HR. A person is a “supervisor” for purposes of

sexual-harassment law when he or she can take tangible employment action

11Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 401 (5th Cir. 2013) (quoting

Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)) (internal quotation

marks omitted).

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against the victim. Vance, 133 S. Ct. at 2443–44. A tangible employment

action is a “significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.” Id. (quoting Ellerth,

524 U.S. at 761) (internal quotation marks omitted).

Our caselaw does not plainly indicate who has the burden of proof to

show that a given person was or was not the plaintiff’s supervisor to trigger

strict liability. But logic dictates that the burden is on the plaintiff. The har-

asser’s status as a supervisor converts a negligence action into an action in

strict liability. In closely analogous contexts—such as products-liability suits

and tort actions in strict liability for injuries suffered from others’ “abnormally

dangerous” activities—it is universally the plaintiff’s burden to establish the

condition that triggers strict liability. 12 In effect, showing that an individual

was the plaintiff’s supervisor is an element of a strict-liability action for sexual

harassment. 13 Pullen has the burden of showing that Graham was her super-

visor during this period.

In its motion for summary judgment, the board averred that there was

no record evidence that would support a finding that Graham was Pullen’s

supervisor; the board pointed to specific portions of the record that it believed

demonstrated that failure of proof. The burden therefore shifted to Pullen to

point to specific facts in the record that would allow a reasonable factfinder to

12 Thus, in tort cases, the plaintiff bears the burden of demonstrating that a product

is defective, or an activity is abnormally dangerous, such that strict liability is proper. See,

e.g., Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44, 47 (5th Cir. Unit A May 1981) (Louisiana

law); Davidson v. Stanadyne, Inc., 718 F.2d 1334, 1340 (5th Cir. 1983) (Texas law).

13 See Indest v. Freeman Decorating, Inc., 168 F.3d 795, 805 (5th Cir. 1999) (Wiener,

J., concurring); cf. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003) (placing burden

on plaintiff to show that the harasser was a supervisor), abrogated on other grounds by Vance,

133 S. Ct. at 2434.

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conclude that Graham retained the power to take tangible employment actions

against her after she had left the purchasing department. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Pullen’s opposition did not identify any such

facts. Her only statement in response was this paragraph:

Plaintiff disagrees that she must show the claim for any harassment

after she left Purchasing around May 29, 2015, is simple co-worker har-

assment. Graham used his authority to move about the Central Office

to pursue Pullen and sexually harass her. No simple co-worker could do

that. Practically, to require a different standard of proof for the later

harassment would simply confuse a jury as to what liability standard

should be imposed and would unduly confuse the jury as to what dam-

ages should be awarded.

Pullen did not reference any legal authority, or facts in the record, to

support this argument. The district court therefore rejected her “conclusory

statement” and held that Graham was merely a coworker during this period of

alleged harassment. We agree: A person’s ability to move about an office and

converse with those present there does not speak to his or her ability to fire,

promote, demote, or otherwise affect the terms of one’s employment. 14 Because

Pullen did not show the existence of a genuine dispute of material fact as to

whether Graham was her supervisor in the third harassment period, the dis-

trict court was correct to conclude that he was not.

B.

The district court analyzed the harassment under two distinct

standards—one for the period in which Graham was Pullen’s supervisor and

another for when he was not. Pullen argues that this was error. We disagree.

It is blackletter law that supervisor harassment generates strict liability

14On appeal, Pullen broadens her arguments substantially. But because she did not

make those arguments to the district court, they are waived. See Little v. Liquid Air Corp.,

37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (per curiam).

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and that coworker harassment does not. In the face of this firm principle,

Pullen presented only one theory, unsupported by authority, in the district

court: that using different liability standards for the distinct periods of

harassment would unduly confuse the jury. But Pullen does not explain how

this minor increase in the complexity of the case would so overwhelm a jury as

to justify a substantive modification of the fundamental principles of vicarious

liability in sexual-harassment suits. We therefore reject the argument.

On appeal, Pullen also cites National Railroad Passenger Corp. v. Mor-

gan, 536 U.S. 101, 115 (2002), and Stewart v. Mississippi Transportation Com-

mission, 586 F.3d 321, 329 (5th Cir. 2009), for the proposition that hostile-

environment harassment is a single continuing violation. But Pullen did not

present that argument to the district court, so it cannot support her appeal.

See Little, 37 F.3d at 1071 n.1. Furthermore, the argument is meritless. The

cited portions of Morgan and Stewart are inapposite—they address only the

timeliness of a hostile-environment claim and have nothing to do with the

correct standard for imputing vicarious liability to an employer.

C.

Pullen claims the board should have been aware of the harassment be-

cause of its open and obvious character, though conceding that it did not have

actual notice of the harassment until Harris reported it. But Pullen did not

make this argument in the district court—her claim that the board should have

known about the harassment is made for the first time on appeal. We therefore

will not consider it. See id.

Because Pullen does not have any properly presented and preserved

argument for why the board knew or should have known about the harass-

ment, she cannot make out a prima facie case under the standard for coworker

sexual harassment. Thus, we affirm the summary judgment for the period of

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alleged harassment that took place after Pullen had left the purchasing

department.

V.

In summary, the summary judgment for the board as to the period of

alleged harassment when Pullen worked in the purchasing department is

REVERSED. The summary judgment as to the period of alleged harassment

after Pullen left the HR department is AFFIRMED. The case is REMANDED

for further proceedings. We express no view on the ultimate merits or on what

decisions the court should make on remand. We rule only on the basis of the

summary-judgment record filed in this appeal.

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