Opposition Brief — Sloan v. Sharp

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No. 97-1656 ) JUN 996

} OFFICE OF TWE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

LINDA SLOAN,

Petitioner,

v.

JOHN SHARP, Comptroller, In His Capacity as

Head of Comptroller of Public Accounts for the State of Texas

and STATE OF TEXAS,

Respondents.

On Petition For Writ of Certiorari To The

United States Court of Appeals For The Fifth Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

DAN MORALES

Attorney Genera! of Texas

JORGE VEGA

First Assistant Attorney General

DAVID A. TALBOT, JR.

Deputy Attorney General for

Litigation

TONI HUNTER

Chief, General Litigation Division

JAMES C. TODD

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

Counsel for Respondent

i

QUESTION PRESENTED FOR REVIEW

Was it reversible error for the trial court iv decline to instruct

the jury, in a suit under Title VII of the Civil Rights Act of 1964,

that the employer entity is, in effect, strictly liable for the alleged

sexual harassment of the plaintiff by a lower-level supervisor, when

the plaintiff failed to satisfy the essential elements of either a “quid

pro quo” or a “hostile environment” sexual harassment claim,

resulting in a verdict for the defendant?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............... i

TABLE OF ALSTRSORE Games 5.65 6 eA eg ee oe iil

STATUTORY PROVISIONS INVOLVED ............. I

STATEMENT OF THE CASE 0. os UV Sete l

ARGUMENTS FOR DENYING THE PETITION ........ 8

I. Because The Petitioner Failed To Prove

Sexual Harassment, The Issue Of Whether

The Trial Court Correctly Instructed The

Jury On The Respondent’s Liability For

The Supervisor’s Conduct Is Moot. .............. 8

A. The Petitioner Failed to Prove

Quid Pro Quo Harassment .................. 9

B. The Petitioner Failed to Prove Hostile

Environment Sexual Harassment. ............ 11

C. The Petitioner Failed to Prove Toleration

of Peer-on Peer Harassment ................ 14

Il. The Fifth Circuit Decision In This Case Is

Not In Conflict With That Of Any

Ocher Cini rae ra na wis 15

Ill. Any Error In The Trial Court’s Instructions

Wan Fares 3 ees res aan 18

CONCLUSEGN © 02.055 icv nnn ae eee 19

ili

TABLE OF AUTHORITIES

Cases

Faragher v. City of Boca Raton, 111 F.3d 1530

(11th Cir.) (en banc), cert. granted, US. _,

SOU SO ROMEES eh alie ss ee Vink 5 eign oh 18

Fazekas v. University of Houston, 565 §.W.2d 299

(Tex. Civ. App. — Houston [1st] 1978, writ ref. n.r.e.),

appeal dismissed, 440 U.S. 952,

eC NE RS So Vey ste ves Ge waa da oy ss 9

Harris v. Forklift Systems, Inc., 510 U.S. 17,

ak tee GE. , | REARS OR ire any 6 eee 11, 13

Harrison v. Eddy Potash, Inc., 112 F.3d 1437

SE ean Bp ie ale teeta in Sas 15-18

Jansen v. Packaging Corp. of America,

123 F.3d 490 (7th Cir. 1997) (en banc),

cert. granted sub nom. Burlington Industries, Inc.

v. Ellerth, U.S. __, 118 S.Ct. 876 (1998). ....... 10, 11

Karibian v. Columbia Univ., 14 F.3d 773 (2nd Cir.),

cert. denied, 512 U.S. 1213, 114 S.Ct. 2693 (1994) ... 16-18

Katz v. Dole, 709 F.2d. 251 (4th Cir. 1983) ......... pte

Meritor Savings Bank v. Vinson, 477 U.S. 57,

ie Oi ROO ay ee 9,11

Moore v. Office of Atty. Gen., 820 S.W.2d 874

(Tex. App. — Austin 1991, no writ) .................. 9

iv

Rabidue v. Osceola Refining Co., 805 F.2d 611

SGN. SHER oil co in Fda SA eee RK Oath Eee 14

Scott v. Sears, Roebuck & Co., 798 F.2d 210

CRE ot ks Ca a 10, 15

State v. Ragland Clinic-Hospital, 159 §.W.2d 105

PE TIE. ea Keay Deep Eiicwae sb ee eres 9

Rules

Fed: 1. Cow, Bor: SORE Oe eis Ck Se ae 10

Statutes

SURG. BIOS oa ok ee ca ees 2

42 U.S.C. § 2000¢ et seq. (Title VII of the Civil

Bins AGE OE TIGRE BO Fa ewes passim

Miscellaneous

Faragher v. City of Boca Raton, No. 97-282,

Brief for Petitioner, 1997 WL 793076 *4............ 18

Wright & Miller, 9A FED. PRAC. &

PRO CAV: FEISS oS aE eee 8

l

No. 97-1656

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. !997

LINDA SLOAN,

Petitioner,

V.

JOHN SHARP, Comptroller, In His Capacity as

Head of Comptroller of Public Accounts for the State of Texas

and STATE OF TEXAS,

Respondents.

On Petition For Writ of Certiorari To The

United States Court of Appeals For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATUTORY PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e er

seq.

STATEMENT OF THE CASE

Linda Sloan, a former employee of the Comptroller of Public

Accounts for the State of Texas,’ sued the Comptroller and her

‘Which, as the trial court noted and as the petitioner acknowledges, Pet.

at 8 n. 1, is legally identical to the “State of Texas” and to “John Sharp in his

official capacity as Comptroller,” whom Sloan originally set out in her

pleadings as separate defendants. Here, as in the Petition for Writ of

2

former immediate supervisor, Grundy Wiley, for sexual

harassment. Her separate claim under 42 U.S.C. § 1983 against

Wiley was dismissed by the trial court, the dismissal was affirmed

on appeal, and Sloan does not seek to revive that claim here.

Consequently, her petition to this Court concerns only her claim

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII"), against the Comptroller for sexual harassment

of her by Wiley.

The jury to whom Sloan presented her c __ heard evidence

from which it could, and apparently did, reasv. .oly conclude as

follows:

Prior to coming under Grundy Wiley’s supervision in 1989,”

Linda Sloan had a history of insubordination, for which she was

reprimanded. Trial transcript at pages 351-352 (Tr. 351-352).

From 1988 (at the latest) onward, Sloan was frequently counseled

about depleting her sick leave and excessive absence. Tr. 258-265.

Wiley was “friendly” and “approachable” toward women in the

Comptroller’s Houston southwest office where he and Sloan

worked. Tr. 98-99. However, as at least five witnesses testified,

he did not behave offensively, inappropriately, flirtatiously, or

unprofessionally. Tr. 100, 103-105, 112-113, 141, 538, 545.

Wiley did not make a practice of hugging female employees. Tr.

389, 545. On a few occasions Wiley walked in the office in his

socks, when a new pair of shoes were hurting his feet. Tr. 85-86,

111, 386-387. When another female employee appeared in the

office wearing an evening gown, Wiley, after conferring with

higher management, counseled her to dress more appropriately.

Certiorari, the defendant is referred to as “the Comptroller.”

*Before he became her supervisor, Wiley was on an employee softball team

with Sloan in San Antonio, but he never asked her out for drinks. Tr. 379-

380.

liepeeeeerrererereseemnceteiiainemestatsiaeeiiiteiiiniiaiaiiiiitiinitiaaidaeesiililial

Tr. 392-394.

In the summer of 1990, unbeknownst to Wiley, his sister

arranged for a stripper to perform at the office on Wiley’s birthday.

Tr. 111-112, 137-141, 148-149, 390-392, 538-540. Surprised and

embarrassed, Wiley ordered the performance halted before the

dancer removed her clothes, much to the annoyance of the

assembled employees (including many of the women). /d. Sloan

was not ordered to attend the event nor prevented from leaving.

Tr. 538-540.

Sloan had difficulty completing tasks, concentrating on details,

and following directions. Tr. 113, 354, 358. These problems were

especially evident when she had to learn a new automated

collection system the office adopted. Tr. 360-362, 369. Together,

Wiley and female supervisor Fern Francis spent time at Sloan’s

desk assisting her with the new system. Tr. 101-102. But Wiley

helped others also, and did not spend an inordinate amount of time

with Sloan. Tr. 113, 142, 387-388.

Wiley did not enter Sloan’s office shoeless, sit on her desk

without shoes, or put his shoeless feet on Sloan’s feet. Tr. 386.

Wiley accompanied Sloan to “the field,” as he did the other

enforcement officers, but he never put his hand on Sloan’s leg. Tr.

388. He did not ask Sloan about her boyfriends, nor did he ask her

any more personal questions than he asked other employees. Tr.

380-381. Wiley asked Sloan and other employees to lunch on

occasion, but Sloan never objected. Tr. 382-383. Wiley never

joined Sloan for lunch uninvited. Tr. 383.

Wiley did not intrude on Sloan’s privacy at home. He did not

ask Sloan to let him come to her house for dinner. Tr. 383. Nor

did ever push his way into her home. Tr. 388. He once delivered

a travel reimbursement check to her house, during the daytime, but

only after she had repeatedly contacted his secretary indicating that

she needed the money urgently. Tr. 448-449.

4

Once, after work hours, when Wiley was about to leave town

and needed to get into the office, but did not have his pass key, he

contacted employees who lived close to the office for assistance.

Tr. 385-386. After calling two others (both males) who did not

answer, he called Sloan. /d. Without objection, Sloan met him at

the office with her pass key. /d. Wiley was accompanied by his

son, who was eleven or twelve at the time, and Sloan was

accompanied by her husband. Tr. 386.

Wiley never told Sloan that if she were nicer to him she could

get more out of him. Tr. 353. Nor did he, in any other words,

promise any job-related reward for sexual favors. Tr. 366.

Because she made progress in her performance, Wiley

recommended Sloan for a promotion, which she received in early

1992, with a raise. Tr. 352, 367-368, 443-448.

Alleged acts of harassment of Sloan by her peers Navarro

(remark that he could bring her to climax), Herron (touching her

leg), and Moore (inviting her to sit on his lap) were never reported

to Wiley. Tr. 388-389. Nor were they reported to Sloan’s direct

supervisor at the time, Paul Eicke. Tr. 136-137. Darrell Stewart,

who witnessed the “climax” remark, did not report it either to

Wiley or to the Comptroller’s investigator Judy Brittain. Tr. 94-

95. Wiley never said to Sloan, in response to any of the foregoing

incidents, that, “This is a man’s world and women have to get used

to it.” Tr. 390.

However, in May of 1992, when Sloan did report to Wiley a

crude remark by employee Jodie Moore, that some change Sloan

had brought him had pubic hairs in it, Wiley made Moore

apologize, orally reprimanded him, and moved him to an area away

from Sloan. Tr. 113, 300-301, 371-372, 381. Wiley and Moore

did not laugh together about it afterward. Tr. 372, 400.

In late June of 1992, Sloan accused supervisor Fern Francis

of intentionally bumping into her in the hallway. Tr. 289-290, 370-

5

371, 483-484. At about the same time, Wiley reprimanded Sloan

for errors in her use of the automated collection system. Tr. 371.

Thus, the stage was set for her July 1992 “bumping” allegation.’

The alleged “bumping” followed a July 8, 1992, birthday

celebration in the office breakroom, which Wiley did not attend.

Tr. 373-374. Not being present at the party, Wiley did not pinch

Sloan on the buttocks while standing in line behind her for cake

and punch. Tr. 373-375, 546. Thus, Sloan did not declare in

response to the pinch that she would “slap the shit” out of Wiley.

Tr. 375, 546.

Shortly after the party, fellow employee Rose Bonney stood

conversing with Sloan in the hallway. Tr 546. Wiley, who was

walking down the hall looking in another direction, bumped into

Sloan. Tr. 373-376, 547. Neither Sloan nor Bonney was knocked

down. /d. Sloan did not appear to Wiley to be hurt. Tr. 415.

Wiley apologized and asked if Sloan was “okay,” to which Sloan

replied, “Do you have a problem?” Tr. 374, 548. Sloan and

Bonney then continued their conversation. Tr. 549. Sloan did not

complain to Bonney that she had been hurt and did not have to be

assisted back to her office. /d.

Later that day, when Sloan complained to Eicke, he insisted

that she contact Judy Brittain at the Comptroller’s Austin

headquarters. Tr. 466. Sloan did not indicate to Eicke that she felt

she had been sexually harassed. Tr. 467. Ms. Brittain was the

employee assistance liaison, responsible for assisting employees

with a wide range of personal problems. Tr. 468-471. In her initial

call to Brittain on or about July 8, 1992, and in five or six calls

thereafter, Sloan did not describe the “bumping” in terms

*The trial judge would not allow the Comptroller to present evidence of

prior occasions, while Sloan worked for the Comptroller in Austin, when Sloan

accused supervisors or peers of deliberately bumping into her, soon after or just

before she was reprimanded for her conduct or performance. Tr. 24-27, 33-35.

6

suggesting sexual harassment. Tr. 479-482.

On July 21st, Sloan finally complained to Brittain of the

“bumping” as sexual harassment. Tr. 482. Sloan admits that

Brittain took her charge seriously. Tr. 283. Pursuant to Brittain’s

standard practice, her assistant listened in (with the complainant’s

knowledge) and took shorthand notes of Sloan’s statement as

Brittain questioned her. Tr. 482, 485, 513-516, 532-534.

Subsequently, a typed statement was presented to Sloan for her

review. /d. Although given the opportunity to edit and revise the

statement, Sloan neither amended it nor signed it. Tr. 292-294,

485-486, 533-534. Nor did she identify, prior to trial, how the

statement was incorrect. Tr. 294-298. Sloan’s statement to

Brittain included nothing about Wiley’s “rescinding” a promised

raise, pinching her, putting his hand on her leg, or tolerating

harassment by other employees. Tr. 291.

Brittain talked to all of the people identified by Sloan as

potential witnesses. Tr. 143-144, 377, 419-420, 487-494, 527-

529. Sloan did not identify co-workers Craddock, Coleman,

Shepherd, and Bridges to Brittain as persons with relevant

knowledge. Tr. 487. However, Bridges’ testimony was

supportive of Wiley, Tr. 110-114, while Craddock, Shepherd, and

Coleman did not witness harassment of Sloan. Tr. 69-70, 86, 102-

103.

After her thorough investigation, Brittain presented the results

to the executive committee (consisting of the highest officials of

the agency after the Comptroller), who reviewed them and

concluded that Wiley had not sexually harassed Sloan. Tr. 478-

479, 494-495.

In November of 1992, Wiley placed Sloan on probation for

excessive absences. Tr. 234. A thorough medical examination, in

conjunction with Sloan’s worker compensation application, casts

serious doubt on her claim of injury resulting from the July 1992

7

“bumping.” Tr. 304-310. In May of 1993, Sloan was transferred

to another field office, where she worked for five days before

leaving and never returning to work. Tr. 266-267.

Under the state Appropriations Act, which governs all state

agencies, an employee must be removed from the payroll after

twelve months of leave without pay. Tr. 557-558. After a year on

leave without pay, Sloan was terminated by the Comptroller

effective December 31, 1995. Tr. 236-237. The January 4, 1996

termination letter informed Sloan that she could re-apply for a

position during the next six months, but she never did. Tr. 267-

268.

When Debra Shepherd complained in late 1993 that Jodie

Moore had sexually harassed her, Judy Brittain investigated and

upheld the charge. Tr. 83-804, 504. Although Shepherd

complained only once, and incompletely, to Wiley, Tr. 79-80, the

Comptroller terminated Wiley in early 1994 and demoted Francis‘

for failing to report Shepherd’s complaint of harassment. Tr. 84-

85, 340-341, 402, 537.

As acknowledged in the Petition for Writ of Certiorari (“Pet.”)

at 7, the jury found for the defendants Comptroller and Wiley, and

the judgment on the verdict was affirmed on appeal.

* — Francis’ demotion lasted a year, since which she has not been restored

as a supervisor. Tr. 537, 541.

ARGUMENTS FOR DENYING THE PETITION

I. Because The Petitioner Failed To Prove Sexual

Harassment, The Issue Of Whether The Trial Court

Correctly Instructed The Jury On The Respondent’s

Liability For The Supervisor’s Conduct Is Moot.

Sloan argues in her petition that because the trial judge refused

to instruct the jury, in effect, that “once Wiley had knowledge of

sexual harassment, even if Wiley was the harasser, Wiley’s

knowledge was imputed to the [Comptroller],” consequently “the

jury did not understand . . . that if it believed the testimony of

Sloan and other witnesses with regard to Wiley’s sexual

harassment and Wiley’s failure to report sexual harassment to

upper management, the [Comptroller] was liable for sexual

harassment under Title VII unless the [Comptroller] took prompt

remedial action.” Pet. at 8-9.

Under well-settled Fifth Circuit precedent which Sloan does

not challenge, the court below, correctly, reviewed the trial court’s

jury instructions with deference, refusing to reverse the judgment

unless Sloan could show (1) that her proposed instruction correctly

stated the law, and (2) that the court’s instruction, in the context

of the charge as a whole, was misleading. App. A at 6a-7a. See

also, Wright & Miller, 9A FED. PRAC. & PROC. CIV. 2d (1995) at

§§ 2556, 2558.

Even if Sloan could show that the trial court’s instruction was

incorrect — which she cannot — the charge cannot have misled the

jury because, as a matter of law, Sloan did not prove sexual

harassment. Only if reasonable jurors could have found from the

evidence that Wiley harassed Sloan could the jury have been

“misled” about when the Comptroller’s duty to remediate the

harassment arose.

9

Sloan’s allegations against Wiley fall into three categories: (1)

Wiley’s alleged quid pro quo harassment of Sloan, (2) Wiley’s

alleged acts directly creating a “hostile environment,” and (3)

Wiley’s alleged toleration of “hostile environment” harassment of

Sloan by her co-workers.

A. The Petitioner Failed to Prove Quid Pro Quo

Harassment

As a matter of law, the quid pro quo claim fails on the merits,

regardless of respondeat superior liability. The trial court properly

instructed the jury, without objection by Sloan, that to prevail on

a quid pro claim, the plaintiff had to prove that “[t]he acceptance

or rejection of the harassment by Plaintiff [was] an express or

‘The record is quite consistent that, while Wiley had a variety of

supervisory responsibilities — e.g., to “motivate staff,” to evaluate employees,

to give oral reprimands, to assign personnel to specific workspaces, Tr. 348-

349, 351-353, 365, 371-372, 381-382 — when it came to terminations, raises,

and promotions, Wiley could only recommend action. Tr. 246, 352. Eicke

testified only that “the State of Texas” could fire him. Tr. 148. And there is

absolutely no indication from the evidence that Wiley had any sort of hiring

authority. Indeed, it appears that transfers of employees in and out of Wiley’s

unit had to be approved by the division director above Wiley. Tr. 501-502. In

Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1985), this

Court, while “declin[{ing] the parties’ invitation to issue a definitive rule on

employer liability,” declared “that Congress wanted courts to look to agency

principles for guidance in this area,” cautioning that “such common-law

principles may not be transferable in all their particulars to Title VII...” /d.

at 477 U.S. 72, 106 S.Ct. 2408. Under Texas common law, “agency

principles” apply differently to a state agency than to a private corporation. In

contrast to a private principal, a state agency cannot be bound beyond an

agent’s express authority. Moore v. Office of Atty. Gen., 820 S.W.2d 874, 878

(Tex. App. — Austin 1991, no writ) (“the rule that an agent can bind his

principal by acts within his apparent authority has been held not to apply to

public officers”), Fazekas v. University of Houston, 565 S.W.2d 299, 304 (Tex.

Civ. App. — Houston [Ist] 1978, writ ref. n.r.e.), appeal dismissed, 440 U.S.

952, 99 S.Ct. 1487 (1979), relying on State v. Ragland Clinic-Hospital, 159

S.W.2d 105 (Tex. 1942).

10

implied condition to the receipt of a job benefit or the cause of a

tangible job detriment .. .". Because, by her account, she spurned

all of Wiley’s advances, Sloan thus committed herself to show that

“rejection of [Wiley’s] harassment [was] the cause of a tangible job

detriment.”

However, the uncontrovered evidence, not only from Wiley’s

testimony but from the personnel records of the agency, shows that

in February of 1992, after the date of most of Sloan’s pre-

“bumping” allegations, Sloan received, pursuant to Wiley’s

recommendation, a promotion to Enforcement Officer IV and a

raise. Sloan’s subjective belief that she was not promoted, Tr.

247-248 (“Not to my knowledge”), is not evidence.

Even if Sloan were not required to show tangible adverse

consequences for spurning Wiley’s advances, it would make no

ditference for this case. To treat the one isolated remark Sloan

attributes to Wiley — i.e., that “if [she] would be. . . nicer to him

[she] could get more out of him,” Tr. 248 — as conditioning job-

related benefits on sexual benefits would trivialize the claim of quid

pro sexual harassment. Any verdict based on that evidence,

regardless of what the jury was instructed as to the Comptroller’s

vicarious liability, would be subject to judgment as a matter of law

for defendants under Fed. R. Civ. Pro. 50(b)(1)(c). Cf, Scott v.

Sears, Roebuck & Co., 798 F.2d 210, 211-212 (7th Cir. 1986) (the

comment, “what will I get for it?,” in response to the plaintiff's

request for assistance, was not sexual harassment).

Thus, even under the standard favored by the plurality opinion

in Jansen v. Packaging Corp. of America, 123 F.3d 44v (7th Cir.

1997) (en vanc), cert. granted sub nom., Burlington Industries,

Inc. v. Ellerth, _U.S. _, 118 S.Ct. 876 (1998), Sloan would

lose. Under that view, a supervisor’s threat may constitute quid

pro quo sexual harassment without subsequent adverse action, but

only when the “threat . . . clearly conditions concrete job benefits

or detriments on compliance with sexual demands. . .” /d. at 123

11

F.3d 499 (FAUM, J., concurring) (emphasis added). The plurality’s

reasoning was that “a clear and serious quid pro quo threat alters

the ‘terms and conditions’ of employment . . . even if the threat

remains unfulfilled.” /d. (emphasis added). The cases relied upon

by the plurality similarly stress clarity and concreteness. /d. at n.

6 (e.g., “intertwining of a request for the performance of sexual

favors with a discussion of actual or potential job benefits or

detriments in a single conversation”). Note that in each of the

cases consolidated in the Jansen decision, the supervisor made

“repeated advances.” /d. at 493 (per curiam).

B. The Petitioner Failed to Prove Hostile Environment

Sexual Harassment.

The trial court correctly charged the jury, without objection,

that Sloan “must prove that harassment was sufficiently severe or

pervasive so as to alter the conditions of the Plaintiff's

employment and create an objectively hostile . . . or abusive

environment, one that a reasonable person would find or abusive.”

See, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct.

367, 370 (1993), citing Meritor Savings Bank v. Vinson, 477 U.S.

57, 64-65, 67, 106 S.Ct. 2399, 2404-2405 (1986).

Even according to Sloan’s version of the events, the alleged

harassment was not so severe or pervasive as to violate Title VII.

According to Sloan, over a two to four year period:

* Wiley called Sloan into his office and visited her desk more

than he did other employees;

* Wiley walked into Sloan’s office without shoes on (but not

barefooted), sometimes sat on her desk, and on an

unspecified number of occasions touched Sloan’s feet with

his unshod feet;

-

12

Wiley asked Sloan “personal” questions, such as what kind

of perfume she was wearing;

Wiley asked Sloan out to lunch and on one occasion joined

Sloan and another employee for lunch uninvited;

Wiley called Sloan at home in the evening “ten or more”

times, sometimes asking if he could come over for dinner;

On one occasion Wiley put his hand on Sloan’s upper leg

while they were in the car together;

On one occasion, Wiley had Sloan (accompanied by her

husband) meet him at the office after hours so he could use

her pass key to get into the building;

On one occasion, when Sloan was home sick, Wiley took

an expense check to her house, “sort of pushed his way in,”

asked her how she was, and said he missed her and wanted

her to return to the office;

On one occasion, Wiley told Sloan that if she would be

nicer to him she might get more out of him;

On one occasion, a stripper performed in the office

(indisputably without Wiley’s prior knowledge or consent)

for up to twenty minutes before being made to stop;

On one occasion, Sloan felt a pinch on her buttock (though

she did not actually see Wiley do it);

On one occasion, Wiley bumped into Sloan in the hallway.

Brief of Appellant Linda Sloan (Sth Cir.) at 7-9, 11, 13. The

fact that Sloan has compiled a seemingly lengthy list does not

render Wiley’s conduct objectively abusive. Most of the acts are

13

not even “sexual,” much less harassment. Sloan’s subjective

interpretation of acts as sexual — Tr. 171 (“he placed his feet on

mine . . . in a sexual manner”; Sloan “felt it was a suggestive —

come-on"); 239 (“interpret[ing]" a co-worker’s conduct as

“sexual”), 248 (Sloan “interpret[ed]” Wiley’s “be nicer” remark as

meaning “[a] sexual relationship”) — does not make them that. A

reasonable person, for example, ordinarily would not regard such

things as running into someone in the hallway, even if intentional,

as conduct “based on sex” (an essential element of the claim). Note

that Sloan also charged female supervisor Fern Francis with

intentionally bumping into her.

Nor would a reasonable person find many of Wiley’s alleged

acts sO egregious as to alter the conditions of employment. Asking

a woman what perfume she is wearing, or, when she has been sick,

telling her that she is missed, is something that any supervisor, male

or female, might do. Asking an employee to go to the office after

hours to let the boss into the building with her pass key might be

an imposition, but it is hardly oppressive and is certainly not

sexually abusive. A female co-worker, called by Sloan as a

witness, testified that she herself sometimes walked through the

office without shoes and was not at all put off by Wiley’s doing so.

Tr. 111. Counseling an employee that being nicer may get her

better results with management (i.e., more flies with honey than

with vinegar, etc.) is good advice. A male manager should not

have to fear that such a remark could subject himself or his agency

or company to liability for sexual harassment.

Consequently, Sloan was obliged to show more of a

detrimental impact than she did. Although, to be actionable under

Title VII, sexual harassment need not “cause a_ tangible

psychological injury,” nevertheless it must be “severe or pervasive

enough to create . . . an environment that a reasonable person

would find hostile or abusive...” Harris, 510 U.S. at 21, 114

S.Ct. at 370. A key determining factor is “whether it unreasonably

interferes with an employee’s work performance.” /d. at 23, 371.

14

Far from showing that working conditions palpably

deteriorated because of sexually hostile conduct, all that Sloan

could offer prior to the “bumping” is that (1) one of her witnesses

saw her crying® and (2) Sloan did not complete her field work after

- the leg touching. Brief of Appellant at 8. Even if Sloan’s highly

dubious attribution of her absenteeism to injuries sustained in the

hallway collision is taken at face value, it is not injury from sexual

harassment. Such allegations might support some sort of state

common law negligence or assault claim, but they do not belong in

a Title VII sexual harassment claim.

C. The Petitioner Failed to Prove Toleration of Peer-on

Peer Harassment.

Finally, Sloan’s allegations of peer harassment tolerated by

Wiley suffer many of the same defects as the allegations discussed

above. Sloan alleges that Wiley failed to take action on (1) fellow

enforcement officer Navarro’s comment to Sloan in front of others

that he could bring her to climax and (2) co-worker Herron’s

“inappropriate sexual touching” Brief of Appellant at 10. It is

disputed whether either of these alleged occurrences was ever

reported to Wiley.

However, as isolated episodes, these alleged acts might be

inappropriate but they do not amount to hostile environment sexual

harassment. See, Rabidue v. Osceola Refining Co., 805 F.2d 611,

620 (6th Cir. 1986) (“the burden [is] upon the plaintiff to

demonstrate that injury resulted not from a single or isolated

offensive incident, comment, or conduct, but from incidents,

comments, or conduct that occurred with some frequency”). What

Sloan actually testified with regard to Herron is that while driving

Sloan and another female employee to lunch, Herron reached back

and rubbed the “lower calf” of Sloan, who was sitting in the back

*But the witness did not hear what Wiley said prior to Sloan’s crying. Tr.

70-71.

15

seat. Tr. 238-239. Sloan “interpret[ed]” the “rubbing” as “sexual.”’

Tr. 239.

What cannot be disputed is that when Sloan reported Moore’s

“pubic hair” remark (which, though tasteless, is not legally an

instance of sexual harassment’), Wiley reprimanded Moore and

made him apologize. Sloan also alleges that Moore once asked her

to sit on his lap, but does not claim to have asked Wiley to do

anything about it. Tr. 242-243. See, Scott v. Sears, Roebuck &

Co., supra, 798 F.2d at 211-212.

ll. The Fifth Circuit Decision In This Case Is Not In Conflict

With That Of Any Other Circuit.

In her petition at 11-15, Sloan does not identify a true conflict

among the circuits with respect to the facts and issues of this case.

The holdings of the decisions on which the petitioner relies, if

applied to her case, would not alter the outcome.

In Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th Cir.

1997), both the instruction sought by the plaintiff and the

instruction the appeals court said the trial court should have given

differed significantly from the instruction sought by Sloan in her

trial. The Harrison decision deals with the proper instruction for

a hostile environment sexual harassment claim. Under Sloan’s

proposed charge, the Comptroller would be held liable for the

hostile environment created by Wiley “if the supervisor was

entrusted with the position of responsibility of supervising the

employee.” Pet. at 7; App. D at 17a. In effect, the agency or

company would be strictly liable whenever the hostile environment

’She also alleged that “on several occasions” Herron asked her to massage

his shoulders and once asked her “to give him a smooch.” Tr. 239-240.

“Title VII is not a clean language act...” Katz v. Dole, 709 F.2d. 251,

256 (4th Cir. 1983).

16

is created by a supervisor. But in Harrison, the Tenth Circuit

concluded that strict liability “is rarely applicable in hostile work

environment cases...“ /d. at 112 F.3d 1444. “Generally speaking,

an employer will not be charged with constructive knowledge of

the harassment merely because a supervisor is the perpetrator of

the harassment.” /d.

Accordingly, the Harrison court found no error in the trial

court’s refusal to give an instruction comparable to that requested

by Sloan in this case (that the company “would be liable if [the

harasser] had significant supervisory authority over [the plaintiff]”).

Id., 112 F.3d at 1451. The court reiterated that “an employer is

not strictly liable for hostile work environment sexual harassment

committed by one of its supervisors.” /d.

The Harrison court concluded that the instruction in question

was “flawed in two major respects”: “First, and most significantly,”

because it told the jury that the company could be held liable for

hostile environment sexual harassment “only if [the supervisor] had

authority, apparent or otherwise, to harass plaintiff"; and second,

because it mis-defined “apparent authority”. /d., 112 F.3d 1449-

1450. The instructions in Sloan’s case did not suffer from those

deficiencies; nor did the petitioner object at trial or argue on appeal

that they did.

The petitioner characterizes Karibian v. Columbia Univ., 14

F.3d 773 (2nd Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693

(1994), as conflicting with the result in her case both as to quid pro

quo harassment and as to hostile environment harassment. Pet. 12.

But neither set of holdings in Karibian would alter the outcome if

applied in Sloan’s case.

The Second Circuit agreed “that the district court erred when

it required [the plaintiff] to present evidence of actual, rather than

threatened, economic loss in order to state a valid claim of quid pro

quo sexual harassment.” /d., 14 F.3d at 778. However, the court

17

applied that holding only to “the claim of the employee who

submits to the supervisor's demand.” /d. The court expressly

distinguished “a ‘submission’ case” from a ‘refusal’ case.” /d. For

the latter: “The gravamen of a quid pro quo claim is . . . that

adverse consequences follow from the employee’s refusal.” /cd.

Consequently, regardless of the Karibian court’s holding oa

agency or respondeat superior concepts (actually, it did not reach

those issues for quid pro quo claims), Sloan would still have lost

her quid pro quo claim because despite her refusal of Wiley’s

alleged demands, she nevertheless still received a raise and a

promotion on Wiley’s recommendauon.

The Karibian court’s holding on employer liability for hostile

environment harassment differs markedly from Sloan’s requested

instruction. “We hold that an employer is liable for the

discriminatorily abusive work environment created by a supervisor

if the supervisor uses his actual or apparent authority to further the

harassment, or if he was otherwise aided in accomplishing the

harassment by the existence of the agency relationship.” /d. at 14

F 3d 780. But the court expressly contrasts the situation “where

a low-level supervisor does not rely on his supervisory authority to

carry out the harassment...” /d. In the latter instance, the

standard is identical to the one articulated by the trial court in

Sloan’s case. /d.

A review of the petitioner’s laundry list of ellegations in I-B

above shows that for each, either (1) Wiley was not using actual or

apparent authority (e.g., the stripper episode, the bumping

incident); or (2) whether or not he used delegated authority,

Wiley’s actions were not sexual in nature and/or were not such that

a reasonable person would find abusive (e.g., asking Sloan to let

him into the office when he had forgotten his key).

In connection with the latter point, the acts of harassment

described in Harrison and Karibian stand in sharp contrast to

18

Sloan’s allegations (even viewed most favorably to Sloan and

against the verdict). Contrast Harrison, 112 F.3d at 1440-1441;

Karibian, 14 F.3d at 775-776.

Similar considerations distinguish Sloan’s case from that of the

petitioners challenging the decision in Faragher v. City of Boca

Raton, 111 F.3d 1530 (11th Cir.) (en banc), cert. granted, __ US.

__, 118 S.Ct. 438 (1997) . Compare the conduct described in

Faragher v. City of Boca Raton, No. 97-282, Brief for Petitioner,

1997 WL 793076 *4 - *8. See also, Faragher, 111 F.3d at 1540

(BARKETT, dissenting) (noting fact-finding of severe and pervasive

harassment).

Additionally, a major tenet of the petitioners’ argument in

Faragher, for holding the city liable for lower-level supervisors’

hostile environment harassment, is that the City’s sexual

harassment policy was minimal, not widely disseminated or known,

and weakly enforced. /d., Brief of Petitioner at *13 - *17; 111

F.3d at 1546 (TJOFLAT, dissenting). By contrast, the

Comptroller’s anti-sexual-harassment policy was strongly worded,

widely disseminated, and vigorously enforced. Wiley, for example,

was eventually terminated for failure to respond to another female

employee’s complaint.

Consequently, the Sloan result is not in conflict with, nor

would it be altered by, the holdings in Harrison and Karibian, or

the position of the dissent and the petitioners in Faragher.

Iii. Any Error In The Trial Court’s Instructions Was

Harmless.

Even if, contrary to all the foregoing, the petitioner’s theory of

liability is correct, Judge Gillmore’s charge to the jury still was not

reversible error. The court instructed jurors that Sloan must prove

“that the Defendants knew or should have known of the harassment

in question . . .". Under that instruction, Sloan was free to argue to

19

the jury in closing that because Wiley “ha[d] the power to make

employment decisions concerning [Sloan]’s discipline, promotion,

performance evaluations, or termination,” the Comptroller was thus

“responsible” for knowing about Wiley’s acts (tracking language of

plaintiff s proposed instructions at App. D 16a~-17a).

There is no indication in the record that the court blocked any

attempt by the plaintiff to make that argument to the jury. Closing

arguments do not appear to have been transcribed, a gap in the

record that works against the party with the burden of persuasion

(as petitioner and as the party with the burden of proof at trial).

The Court must presume, then, either that Sloan chose not to make

the argument, or that she made it and the jury did not believe it.

By adopting the magistrate judge’s November 30, 1995,

Memorandum and Recommendation, denying the Comptroller’s

motion for summary judgment, the district court concluded that, “if

the sexual harassment was as public and pervasive as the witnesses

indicate, Defendants, arguably, should have been aware of it, long

before Sloan complained to Brittain.” Record on Appeal, doc. 114

at 10; adopted in doc. 123. Nothing in the court’s instruction

prevented Sioan from making that argument to the jury. If she did,

the jury obviously was not persuaded.

CONCLUSION

In view of all the foregoing, the respondent respectfully urges

that the Petition for Writ of Certiorari be denied.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

20

DAVID A. TALBOT, JR.

Deputy Attorney General

for Litigation

TONI HUNTER

Chief, General Litigation Division

JAMES C. TODD

Bar No. 20094700

Assistant Attorney General

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2120

Counsel for Respondent

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