Petition for Writ of Certiorari — Reed v. Delta Air Lines, Inc.

Supreme Court, U.S.

KE D

94-

the gd JUL 1 2 1994,

=BHHEE—OF -TFHE-CEERIE

In The

Supreme Court of the United States

October Term, 1994

°

PAMELA REED,

Petitioner,

V.

DELTA AIR LINES, INC.,

Respondent.

®

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

— a

PETITION FOR WRIT OF CERTIORARI

&

JoHN D. LocxripcGe, EsQuire

(Counsel of Record)

JerrotD L. Becker, Esquire

SAMUEL W. Brown, ESQUIRE

Counsel for Petitioner

LockripGeE & Becker, P.C.

P.O. Box 107

Suite 600, One Centre Square

620 Market Street

Knoxville, TN 37902

(615) 522-4194

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Is an employer in a sexual harassment suit

relieved of liability for his supervisor’s creation of a

sexually hostile workplace environment by termination of

the supervisor’s employment, where the prolonged pat-

tern and practice of sexually inappropriate conduct has

produced severe psychological injury in the plaintiff?

ii

TABLE OF CONTENTS

Page(s)

OR re OR 6 |): rr rere a i

oe er err re errr rrr 1

STATEMENT OF JURISDICTION ...........0cc-eeee. 2

SEALE Oe Fee EE e965 450 0nd beh Ces aaeoeeeo eel 3

SEAR Ce Beate Ge 0 ov bs be bees esc eveies8 3

REASONS FOR GRANTING THE WRIT ........... 8

ee Ras} | Pree ror ry rs wane ory 17

APT RII boxe ssovncdas aevkenss eee eee Al

ORDER AND MEMORANDUM GRANTING

MOTION FOR SUMMARY JUDGMENT........... Al

ORDER DENYING PETITION FOR

RETS COOKS 6 45x 0c es 094 e eee ee aes ee Al8

OPINION AND JUDGMENT OF COURT OF

Play t) 8. Serr rr rare fre Ose er Al9

ili

TABLE OF AUTHORITIES

Page(s)

CASES:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..... 4

Andrews v. City of Philadelphia, 895 F.2d 1968 (3rd

Re REED ses actiee: OT TET ees HT eae 13

Brenner v. Textron Aerostructures, 1993 WL 523647

po ee | ee Y

Bruce v. Western Auto Supply, 669 S.W.2d 95 (Tenn.

Re IE adds cha kos tet he ie es 9

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir.

ES ee Nea eine Uke ge ea ce cox. ss « 13

Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir.

OO ab res aici, (Se ana ee 2 ae 13

Harris v. Forklift Systems, Inc., 510 U.S. __, 114

S.Ct. 367, 126 L.Ed.2d 295 (1993)............... 11, 16

Henson v. Dundee, 682 F.2d 897 MEE Shiai oe ba oa oe 15

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d

Ts oo Wi educa Gs bcdbuc che ced kek 14

Kauffman v. Allied Signal, Inc., 970 F.2d 178 (6th Cir.

(MOREE ERR ai SRE ira era li, 72. 18

Meritor Savings Bank v. Vincent, 477 U.S. 57, 106

S.Ct. 2399, 91 L.Ed.2d 49 (1986)... 8, 9, 10, 12, 15, 16

Paroline v. UniSys Corp., 879 F.2d 100 (4th Cir.

RRS Diy Sa iy ks ee We a 14

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th

Cir. 1986), cert. denied, 481 U.S. 1041, 107 S.Ct.

eG Sy.) ke i 11, 12

iV

TABLE OF AUTHORITIES —- Continued

Page

Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert.

denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d

EP CROP MP is has cota caGaeds bes tesonseeeeerres ea 10

Trentham v. K-Mart Corp., 806 F. Supp. 692 (E.D.

Ws BOON is pieced aesesavunewaaeunese vet bes eas 9

Waltman v. International Paper Co., 875 F.2d 468

Seek SMe. POD «6 5-64 oe ca eis nats e pameles Aah? owes 13

Wright v. Lamar Advertising Co., 1990 WL 37366

(pees. Ce. Ae, Hees G, Freee veins visas a caas ders )

Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987) ..... 12

STATUTES:

Tennessee Human Rigiits Act (T.C.A. Section

Sa aso 80 Knee ee Cae et chp eee el y a ee

Section 703(a)(1) of Title VII, Civil Rights Act

of 1964, as amended, 42 U.S.C. Section

Ko | PEEPS Ee eee Pe Pr ee re is De Se eh ee

No. 94-___

>

In The

Supreme Court of the United States

October Term, 1994

o

PAMELA REED,

Petitioner,

DELTA AIR LINES, INC.,

Respondent.

o—

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

PETITION FOR WRIT OF CERTIORARI

&

The Petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit

entered in the above styled proceeding on April 13, 1994.

o-

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit has not been reported. It appears in the

Appendix at A119.

The opinion of the United States District Court for

the Eastern District of Tennessee has not been reported. It

appears in the Appendix at Al.

.

STATEMENT OF JURISDICTION

Petitioner filed her Complaint seeking damages and

other relief for alleged violations of the Tennessee Human

Rights Act, T.C.A. Section 4-21-191, et seq., alleging sexual

harassment in the workplace, in the Chancery Court for

Knox County, Tennessee on March 26, 1992.

Subsequently, on April 29, 1992, the Respondent

removed the matter to the United States District Court for

the Eastern District of Tennessee. Thereafter, the parties

consented to the case being assigned to Magistrate Robert

P. Murian. The United States District Court for the East-

ern District of Tennessee had subject matter jurisdiction

over this action under 28 U.S.C. Section 1332 (1988).

The Magistrate granted the Respondent’s Motion for

Summary Judgment, dismissing the Petitioner’s claims,

oad

on December 7, 1992.

Petitioner filed a timely notice of appeal with respect

to the case on the merits.

On February 24, 1994, the Sixth Circuit issued its

opinion affirming the District Court.

On March 10, 1994, the Petitioner filed a timely Peti-

tion for a Rehearing en Banc, or in the alternative, a

Petition for Rehearing. On April 13, 1994, the Sixth Cir-

cuit declined the suggestion for a Rehearing en Banc,

denied the Petition for Rehearing but amended its opin-

ion, which was filed nunc pro tunc. The jurisdiction of this

Court to review the judgment of the Sixth Circuit is

invoked pursuant to 28 U.S.C. Section 1254(1).

*

STATL 5s INVOLVED

The Tennessee Human Rights Act (T.C.A. Section

4-21-401) provides, as follows:

It is a discriminatory practice for an employer

to:

(1) Fail or refuse to hire or discharge any person

or otherwise to discriminate against any indi-

vidual with respect to compensation, terms, con-

ditions or privileges of employment because of

such individuai’s .. . sex. .

Section 703(a)(1) of Title VII, 42 U.S.C. Section 2000e-2(a)

provides:

It is unlawful employment practice for an

employer —

. . . to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his com-

pensation, terms, conditions, or privileges of

employment, because of such individ-

Ca sss ees

STATEMENT OF THE CASE

As this matter was dismissed by the District Court

below on motion for summary judgment, the state of the

record is that “the evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in

his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

Petitioner Pamela Reed had been an employee of

Respondent Delta Airlines since February 22, 1978. She

was assigned to the Knoxville, Tennessee Reservation

Sales Office, and for the past several years was employed

there as a Reservation Sales Agent.

The composition of the work force of the Knoxville

office consisted of approximately one hundred fifty (150)

reservation sales agents who were supervised by eight (8)

individual supervisors. The supervisors reported to the

office’s chief supervisor, Ms. Deborah Freshwater, and

Ms. Freshwater in turn reported to the Reservation Sales

Manager, Ms. Mary Howington. Each supervisor had a

team consisting of between fifteen (15) and twenty (20)

agents. Since Delta rotated supervisors over its Reserva-

tion Sales Agents, Ms. Reed eventually fell under the

ervision of Mr. Shan Harris in April 1991.

A continuous and prolonged period of sexual harass-

ment occurred during Ms. Reed’s period of employment

with Delta, beginning when Mr. Harris accosted and

kissed her in a stockroom and continuing until some ten

(10) years later wher Mr. Harris sexually assaulted Ms

Reed. Ms. Reed alleged that some time during the early

part of 1980 through 1982, Mr. Harris made a sexual

advance upon her by cornering hes in a stockroom and

kissing her. When she challenged him for that act, he

simply laughed and left. When knowledge of this inci-

dent was eventually forwarded to Delta Management,

Ms. Reed had a meeting with two (2) male supervisors,

Mr. Patterson and Mr. Agee, both of whom were friends

of Mr. Harris. These two male supervisors rebuffed Ms.

Reed and told her that if she ever said anything of a

similar nature, it would be grounds for her dismissal.

These two (2) male supervisors were eventually

rotated from the Knoxville office and were subsequently

replaced by new supervisors who had no actual knowl-

edge of the incident between Ms. Reed and Mr. Harris.

During the following years, Ms. Howington and Ms.

Freshwater, the two (2) main supervisory personnel in the

Delta office, displayed a lax attitude regarding sexual

harassment. They had at most one (1) meeting with their

subordinates concerning sexual harassment in the work-

place. At the one meeting, the supervisors were included

but sales agents were not.

Ms. Howington and Ms. Freshwater did, however,

know of the repeated sexual jokes and sexuaily provoca-

tive incidents that frequently occurred within the Knox-

ville office. Their only admonition was to tell the staff

essentially to “keep it down”, so that others would not

hear.

During the period of Ms. Reed’s empioyment with

Delta, the following examples of Delta management's

failure to control properly the workplace environment

occurred: (1) Ms. Diane Jordan, a co-employee of Ms.

Reed, testified that there was an incident in which bal-

loons shaped like women’s breasts were placed up and

down a hallway in full view of customers, staff, and

supervisors to celebrate the birthday of a full chested

employee; (2) Admitted statements by Mr. Harris that he

constantly referred to women’s breasts as “tits”, “boda-

cious tata’s,” and “big hooters” without being repri-

manded; (3) Sexually explicit statements by Mr. Harris

every time he would walk into the commons area of the

office, such as, “who’s going to give me a blow job

today”; (4) Mr. Harris’ asking various women if they

resembled women modeling underwear in various maga-

zines; and (5) Mr. Harris placing his hands upon Reed’s

buttocks after being told not to do so. During this time,

Delta management never attempted to correct Mr. Harris’

behavior or to rebuke him.

Contemporaneously, moreover, a series of events

occurred which dissuaded Ms. Reed from sharing her

earlier accounts of Mr. Harris’ activities with either Ms.

Freshwater or Ms. Howington. Mr. Harris was allowed to

remain as a supervisor after several incidents were

brought to management’s attention which strongly

underscored his instability and lack of judgment. During

two (2) major crises involving air traffic problems, Mr.

Harris’ stability and judgment were questioned, and in

fact, he was relieved of his position once when upper

management felt that he could not perform his job prop-

erly. In another incident, Mr. Harris was mildly repri-

manded for being very discourteous to a female attorney

who was talking to Delta staff.

Ultimately, these events culminated in 1991 in an

incident that occurred during the Labor Day weekend, in

which Mr. Harris, after arranging for Ms. Reed to be in

the Delta office when it was largely vacant, sexually

assaulted her. In the assault, he pushed her down on his

desk, kissed her, placed his finger inside of her, and

kissed her leg. Delta management, upon learning of this

Mth hia

particular incident, terminated Mr. Harris for unprofes-

sional conduct in that he engaged in sexual activities

while on the premises and during employment with

Delta. A similar recommendation was not made against

Ms. Reed.

After the sexual assault and subsequent firing of Mr.

Harris, Ms. Reed returned to a work environment which

was still extremely hostile toward her. She faced the

resentment of co-workers who were sympathetic to Mr.

Harris and who viewed Ms. Reed as an antagonist. Delta

management did nothing to address the problem.

As a result of the sexual assault, the prolonged

period of being subject to a hostile work environment,

and the reaction of her co-workers to the above incident,

Ms. Reed has suffered severe psychological injury. She

has been diagnosed as suffering from Post Traumatic

Stress Disorder.

The Magistrate dismissed the Plaintiff’s case on

Motion for Summary Judgment, reasoning in his Mem-

orandum Opinion that: (1) Although Ms. Reed had told

Delta management of Mr. Harris’ propensities as early as

1980 or 1982, the Respondent lacked knowledge of

Harris’ propensities in 1990 or 1991, because Respondent

had rotated away the early management team that did

have notice; and (2) The timely investigation and firing of

Mr. Harris after the sexual assault in 1991 was reported to

them relieved the Respondent of any liability for the

action of its agent.

. a a ~ — ee a ee eo re er ee ee ee ee

REASONS FOR GRANTING THE WRIT

Without clear guidance from this Court, the Circuit

Courts of Appeal have adopted positions in conflict with

Meritor Savings Bank v. Vincent, 477 U.S. 57, 106 S.Ct. 2399,

91 L.Ed.2d 49 (1986), on the extent to which agency

principles should be applied in a sexual harassment case

where the Plaintiff proceeds under a “sexually hostile

workplace environment” theory. The Circuit Courts of

Appeal, and especially the Sixth Circuit, have implicitly

adopted a position of “reverse absolute liability” in

regards to the question of employer liability for the

actions of the employer’s supervisory personnel in creat-

ing a sexually hostile workplace environment. Such a

standard results where employers whose supervisory

personnel are responsible for the creation of a sexually

hostile workplace environment are relieved of any lia-

bility for the effects of this environment if eventually the

employer learns of the supervisor’s improper behavior

and terminates the supervisor’s employment. Such is true

even when the environment has long been sexually hos-

tile and has had a profound effect upon the psychology of

the victim.

The Tennessee Human Rights Act provides:

It is a discriminatory practice for an employer

to:

(1) Fail or refuse to hire or discharge any person

or otherwise to discriminate against any indi-

vidual with respect to compensation, terms, con-

ditions or privileges of employment because of

such individual’s ... sex... . T.C.A. Section

4-21-401.

A ners ae ewe

The language of T.C.A. Section 4-21-401 closely paral-

lels that of Section 2000e-2(a)(1) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000e.

Although the remedies available under the Tennessee

Human Rights Act are broader than those provided by

Title VII, the standard of liability for an employer is the

same under both statutes. See Trentham v. K-Mart Corp.,

806 F. Supp. 692 (E.D. Tenn. 1991); Bruce v. Western Auto

Supply, 669 S.W.2d 95, 97 (Tenn. Ct. App. 1984). As there

are no reported decisions under the Tennessee Human

Rights Act defining “sexual harassment” or outlining the

elements of a cause of action thereof, the Tennessee

courts have looked to federal decisions under Title VII of

the Civil Rights Act of 1964, or the Age Discrimination in

Employment Act, 29 U.S.C. Sections 621, et seq., for guid-

ance in cases brought-under the Tennessee Human Rights

Act based on age, race, or sex discrimination. See Bruce,

669 S.W.2d at 95; Brenner v. Textron Aerostructures, 1993

WL 523647 (Tenn. Ct. App., Dec. 10, 1993); or Wright v.

Lamar Advertising Co., 1990 WL 37366 (Tenn. Ct. App.,

April 4, 1990).

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

Section 2000(e), et seq., provides that “it is unlawful for an

employer to discriminate against any individual with

respect to his compensation, terms, conditions or privi-

leges of employment . . . because of such individual’s.. .

sex,...". Title VII invests in employees the right to work

in an “environment free from discriminatory intimida-

tion, ridicule and insult.” Meritor Savings Bank v. Vincent,

477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

eee a er a a ee

oe ee — -

10

In Meritor, this Court stated that it

declined the parties’ invitations to issue a

definitive rule on employer liability, but

. . . [that] we do agree with the EEOC that

Congress wanted courts to look to agency prin-

ciples for guidance in this area. While such com-

mon law principles may not be transferrable in

all of their particulars to Title VII, Congress’

decision to define “employer” to include an

“agent” of an employer, 42 U.S.C. Section

2000e(b) [42 U.S.C.S. Section 2000e(b)j, surely

evinces an intent to place some limits on the acts

of employees for which employers under Title

VII are to be held responsible.

Meritor, 477 U.S. at 72, 91 L.Ed.2d at 63.

This Court in Meritor went on to hold that the Court

of Appeals for the District of Columbia Circuit erred in

concluding that employers are always automat-

ically liable for sexual harassment by their

supervisors. See Generally Restatement (Second) of

Agency, Sections 219 through 237 (1958). For the

same reason, absence of notice to an employer

does not necessarily insulate the employer from

liability.

Id.

This Court also observed in Meritor that “one can

readily envision working environments so heavily pol-

luted with discrimination as to destroy completely the

emotional and psychological stability of minority group

workers.” Meritor, 477 U.S. at 66, 106 S.Ct. at 2405; Rogers

v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S.

957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

een eer

CONNIE <A, Canter

11

This Court should grant certiorari to resolve the issue

of whether the termination of a Plaintiff’s supervisor’s

employment relieves an employer of liability to the

alleged victim of sexual harassment where the prolonged

pattern and practice of sexually inappropriate conduct

produced severe psychological damage in the plaintiff.

In the Sixth Circuit, the elements of a sexually hostile

workplace environment claim are: (1) The employee was

a member of a protected class; (2) The employee was

subjected to unwelcome sexual harassment in the form of

sexual advances, requests for favors, or other verbal or

physical conduct of a sexual nature; (3) The harassment

complained of was based on sex; (4) The charged sexual

harassment had the effect of unreasonably interfering

with the Plaintiff's work performance in creating an

intimidating, hostile, or offensive working environment

that affected seriously the psychological . . . well-being of

the Plaintiff!; and, (5) The existence of respondeat supe-

rior liability. Kauffman v. Allied Signal, Inc., 970 F.2d 178,

183 (6th Cir. 1992), quoting Rabidue v. Osceola Refining Co.,

805 F.2d 611, 619-620 (6th Cir. 1986), cert. denied, 481 U.S.

1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 (1987). The Sixth

Circuit, moreover, held in Rabidue that courts should look

to common law principles of agency for guidance in

determining an employer’s liability for acts committed by

their supervisors. See also Kauffman, 970 F.2d at 183. An

employer’s liability for the actions of his supervisor

' This element in the post-Harris era is more properly

regarded as an environment which a reasonable person would

find offensive. See Harris v. Forklift Systems, Inc., 510 U.S. __,

114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

12

depends upon: (1) Whether [the supervisor’s] harassing

actions were foreseeable or fell within his scope of

employment and (2) if they were, whether [the employer]

responded adequately and effectively to negate liability.

Kauffman, 970 F.2d at 184. See also Yates v. Avco Corp., 819

F.2d 630 (6th Cir. 1987). To determine whether the acts

complained of occurred in the scope of the supervisor’s

employment, the court must look to factors such as

“when and where the acts took place, and their fore-

seeability.” Kauffman, 970 F.2d at 184, citing Yates, supra.

Even if an act is forbidden, it can still be within the scope

of employment. Id.

An employer is liable for the actions of his supervisor

when the actions of a supervisor were foreseeable. This

“foreseeability” standard differs from the respondeat

superior standard for a “co-worker” sexually hostile envi-

ronment case in that where sexual harassment results

from interaction with a co-worker, the Plaintiff must

prove “that the employer, through its agents or super-

visory personnel, knew or should have known of the

charged sexual harassment and failed to implement

prompt and appropriate corrective action.” Kauffman, 970

F.2d at 183, citing Rabidue, 805 F.2d at 621.

In practice, the actual difference between the

approach of the Sixth Circuit (foreseeability) and absolute

employer liability for a supervisor’s harassment has his-

torically been negligible. See, e.g., Yates, 819 F.2d at 634.

Yates does provide, however, that there is a prohibition

against the automatic imposition of employer liability for

supervisor’s hostile sexual harassment. Yates, 819 F.2d at

634 (interpreting Meritor as holding that employers will

not be automatically liable for the sexual harassment

13

committed by supervisors). The Sixth Circuit further pro-

vides that an employer may be relieved of liability for his

supervisor’s actions when he responds adequately and

effectively to negate liability (i-e., terminate the super-

visor) upon receiving notice of the sexually hostile envi-

ronment. Kauffman, 970 F.2d at 184.

This approach of limiting employer liability upon the

employer’s receipt of notice of the work place environ-

ment has been followed by other circuits applying tradi-

tional agency principles. See, e.g., Andrews v. City of

Philadelphia, 895 F.2d 1469, 1486 (3rd Cir. 1990) (holding

that if a Plaintiff proves that management-level

employees have actual or constructive knowledge about

the existence of a sexually hostile environment, to avoid

liability the employer must “demonstrate that its super-

visory employees investigated plaintiff’s complaints and

took adequate action to adequately curb sexism [pre-

sent]”); Waltman v. International Paper Co., 875 F.2d 468,

479 (Sth Cir. 1989) (holding that an employer is not auto-

matically liable for the actions of its employees but that

the employer “may be liable despite having taken reme-

dial steps if the Plaintiff can establish that the employer’s

response was not reasonably calculated to halt the harass-

ment”); Guess v. Bethlehem Steel Corp., 913 F.2d 463,

464-465 (7th Cir. 1990) (holding that the employer is liable

for the supervisor’s actions only if he “unreasonably fails

to take appropriate corrective action,” i.e., “if it delays

unreasonably or if the action it does take, however

prompt, is not reasonably likely to prevent the conduct

from recurring”); EEOC v. Hacienda Hotel, 881 F.2d 1504,

1516 (9th Cir. 1989) (holding that liability exists on

employers for actions of employees and/or supervisors

14

in cases of hostile sexual environment harassment, when

the employer was aware of such harassment but does not

take effective steps to end the behavior); and, Huddleston

v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir.

1988) (noting that the employer’s threat to fire the super-

visor if the employee complained again “even if she was

wrong — constitutes prompt remedial action for the

harassment”).

The sum and substance of the aforementioned cases

spanning the various Circuit Courts of Appeals is that an

employer may be relieved of liability for the actions of his

supervisory employees in creating a sexually hostile

workplace environment, if the employer immediately ter-

minates the supervisor when he ultimately obtains notice

of the improper conduct. While such a rule may be appro-

priate for situations involving a single incidence of sexual

harassment, such a rule is inappropriate in those situa-

tions where there has been a pattern or practice of sexu-

ally inappropriate conduct. This rule, moreover, has been

rejected by the Fourth Circuit. See, e.g., Paroline v. UniSys

Corp., 879 F.2d 100 (4th Cir. 1989) (holding that an

employer is liable for the actions of its supervisors under

Title VII when an employer “anticipated or reasonably

should have anticipated that the Plaintiff would become a

victim of sexual harassment in the workplace and yet

failed to take action reasonably calculated to prevent such

harassment”).

In such a situation the employer should not be

relieved of liability for his supervisor’s actions merely

because the employer terminates the supervisor. Such

action on the part of the employer is relevant toward the

15

issue of mitigation of damages, but it should not be used

to foreclose the issue of liability.

The rule is in effect a rule of “reverse absolute lia-

bility” on an employee who has been the victim of sexual

harassment. Under this rule an employee who has been

forced to endure a sexually hostile workplace environ-

ment created by a supervisor is denied recovery if the

employer promptly reacts to terminate the supervisor

irrespective of the length of time the Plaintiff has been

forced to endure the environment, and irrespective of the

degree of harm which the supervisor’s actions have

caused. The employer moreover can readily limit hic

liability by, for example, rotating his senior supervisory

personnel, even though the environment long persists.

The harm to the Plaintiff resulting from the pattern and

practice of sexually hostile conduct found in such an

environment has become irrelevant to the issue of the

employer’s liability. The focus of the court’s inquiry is on

causation, and the employee/victim is no longer part of

the equation.

Such a rule is at odds with the Civil Rights Act of

1964 and this Court’s holding in Meritor. In recognizing a

cause of action for violation of Title VII upon proof that

“discrimination based on sex has created a hostiie or

abusive work environment,” this Court quoted with

approval the Court of Appeals for the Eleventh Circuit's

holding in Henson v. Dundee, 682 F.2d 897, 902 (1982) that:

. surely a requirement that a man or woman

run a gauntlet of sexual abuse in return for the

privilege of being allowed to work and make a

living can be as demeaning and disconcerting as

the harshest of racial epithets.

16

The Petitioner would urge this Court to revisit the

question it left unanswered in the Meritor decision, that is

the issuance of a definitive rule on employer liability, and

the limits to which the application of agency principles

can be invoked to relieve an employer of the liability for

injury to a Plaintiff resulting from the actions of the

employer’s supervisory personnel.

Such a further pronouncement by this Court would

provide needed guidance to the Circuit Courts of Appeal

and would be in keeping with this Court’s holding in

Harris, supra. In Harris, this Court stated that:

But Title VII comes into play before the harass-

ing conduct leads to a nervous breakdown. A

discriminatorily abusive work environment,

even one that does not seriously effect an

employee’s psychological well-being can and

often will detract from the employee’s job per-

formance, discourage employees from remain-

ing on the job, or keep them from advancing in

their careers. Moreover, without regard to these

tangible effects, the very fact that the discrimi-

natory conduct was so severe or pervasive that

it created a work environment abusive to

employees because of their race, gender, religion

or national origin offends Title VII’s broad rule

of work place equality.

Harris, supra.

This Court should hold that Title VII does not permit

an employer to be relieved of the consequences of his

supervisory personnel’s long term pattern and practice of

creating a sexually hostile workplace environment merely

by discharging the offending supervisor upon notice of

the supervisor’s conduct. This Court should re-focus the

17

inquiry on whether the employee has suffered injury as a

result of being forced to work in such an environment, for

determining the basis upon which the employer should

be held liable.

CONCLUSION

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

JoHN D. Locxripce, Esquire

(Counsel of Record)

JerRotD L. Becker, Esquire

SAMUEL W. Brown, Esquire

Counsel for Petitioner

Locxripce & Becker, PC.

P.O. Box 107

Suite 600, One Centre Square

620 Market Street

Knoxville, TN 37902

(615) 522-4194

APPENDIX

Al

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

PAMELA REED, ;

ieee)

Plaintiff, ) CIV. No.

ad ) 3-92-0273

DELTA AIR LINES, INC.. | (MURRIAN)

Defendant. )

ORDER

For the reasons stated in a Memorandum Opinion

this day passed to the Clerk, it is hereby ORDERED that

the defendant’s motion for summary judgment be, and

same hereby is, GRANTED; that plaintiff take nothing on

her claim; and that the Clerk close the file in this case.

ENTER:

/s/ Robert P. Murrian

Robert P. Murrian

UNITED STATES

MAGISTRATE JUDGE

A2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

PAMELA REED,

Plaintiff,

CIV. NO.

m 3-92-0273

DELTA AIR LINES, INC., (MURRIAN)

Defendant.

Ne meee eee ee”

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28

U.S.C. § 636(c) and Rule 73(b), Federal Rules of Civil

Procedure, for all further proceedings, including entry of

judgment [Doc. 4]. The defendant’s motion for summary

judgment is currently pending before this court [Doc. 19].

This is an action brought pursuant to the Tennessee

Human Rights Act, T.C.A. § 4-21-101, et seqg., alleging

sexual harassment in the work place. The plaintiff claims

that her supervisor, Mr. Shan Harris, subjected her to

sexually harassing activity between 1980 to 1982 until the

fall of 1991; that this activity occurred with sufficient

frequency so as to be anxiety provoking and detrimental

to plaintiff’s ability to perform her work activities; and

that Mr. Harris wanted sexual favors from her in return

for good evaluations and assistance.

Two types of sexual harassment claims are recog-

nized by the case law:

A3

1) harassment that creates an offensive or hos-

tile environment; and 2) quid [pro] [quo] harass-

ment, in which a supervisor demands sexual

favors as a condition for job benefits.

Kauffman v. Allied Signal, Inc., Autolite Division, 970 F.2d

178, 182 (6th Cir. 1992). The plaintiff in this case alleges

that she was subjected to both forms of sexual harass-

ment.

A. QUID PRO QUO

The elements of a quid pro quo claim of sexual harass-

ment include the following:

1) that the employee was a member of a pro-

tected class; 2) that the employee was subjected

to unwelcomed sexual harassment in the form

of sexual advances or requests for sexual favors;

3) that the harassment complained of was based

on sex; 4) that the employee’s submission to the

unwelcomed advances was an express or

implied condition for receiving job benefits or

that the employer’s refusal to submit to the

supervisor's sexual demands resulted in a tang-

ible job detriment; and 5) the existence of

respondeat superior liability.

Kauffman, 970 F.2d at 186. See also Highlander v. K.F.C.

National Management Co., 805 F.2d 644, 648 (6th Cir. 1986).

A quid pro quo sexual harassment claim is grounded upon

an employer/supervisor’s sexually discriminatory behav-

ior which forces an employee to choose between submit-

ting to sexual demands or losing job benefits,

employment, promotion, or other job related detriment.

Highlander, 805 F.2d 649. The plaintiff bears the burden of

A4

demonstrating that her acquiescence was an express or

implied condition for receiving job benefits or that a

tangible job detriment resulted from the employee’s fail-

ure to submit to the sexual wishes of the supervisory

employer. Id.

Under a quid pro quo theory of sexual harass-

ment, an employer is held strictly liable for the

conduct of its supervisory employees having

authority over hiring, advancement, dismissal,

and discipline, under a theory of respondeat

superior (citation omitted).

“Kauffman, 970 F.2d at 186. See also Highlander, 805 F.2d at

648. It is not necessary that the supervisory employee

have complete authority in all respects of hiring, firing,

and controlling; rather, it is only necessary that the super-

visory employee have “significant control” over employ-

ment conditions. A tangible job detriment need not be

economic in nature. The United States Court of Appeals

for the Sixth Circuit cited Chamberlain v. 101 Realty, Inc.,

915 F.2d 777 (1st Cir. 1990), with approval, wherein the

court broadly interpreted the phrase “tangible job detri-

ment”:

It is the essence of quid pro quo harassment that

the employee “was subject[ed] to unwelcome

sexual advances by a supervisor... and... her

reaction to these advances affected tangible

aspects of . . . her compensation, terms, condi-

tions, or privileges of employment. . . . In rebut-

tal, the defendant may show that the behavior

complained of either did not take place or that it

did not affect a tangible aspect of the plaintiff’s

employment... .

AS

Kauffman, 970 F.2d at 187, quoting Chamberlain, 915 F.2d at

783.

The plaintiff in this case alleges that her supervisor,

Mr. Harris, conditioned his help and support in plaintiff’s

efforts to obtain a transfer to an “In-Flight” position upon

the receipt of sexual favors from her.

It is my opinion that plaintiff's quid pro quo claim fails

as a matter of law because the uncontradicted evidence of

record demonstrates that plaintiff was not denied a job

benefit and that she did not suffer a job detriment as a

result of her failure to engage in any activities allegedly

suggested by Mr. Harris. See Highlander, 805 F.2d at 648.

Plaintiff testified at her deposition taken on August 27,

1992, that Mr. Harris initiated a conversation proposing

the idea that plaintiff try to transfer to a job in inflight

[Doc. 19a, Exhibit 2, Reed deposition at p. 107]; that after

he made the initial suggestion to her, she pursued an

interest in such a position |id. at 127]; that she did not

know what input Mr. Harris might have in her ability to

obtain an inflight job [id.]; that she believed that for

someone in Reservations to transfer to a job in in-flight,

the immediate supervisor’s recommendation was needed

lid. at 127-128]; that she thought she needed both her

supervisor’s and her manager’s recommendation [id. at

128]; that Mr. Harris told her that she needed Mary

Howington’s recommendation [id.].; but that she was not

told that Ms. Howington’s recommendation was the only

one she needed. Id. In her written memorandum to Ms.

Howington setting forth her claims of sexual harassment

by Mr. Harris, Ms. Reed states that regarding her transfer

to in-flight, Mr. Harris told her, “If you will [f __] me I

will help you get anything.” Plaintiff testified that there

A6

was nothing inaccurate in that written memorandum [id.

at 120]. Plaintiff further testified at her deposition that

Mr. Harris told her that if she reconciled with her hus-

band she could kiss any future position she wanted good-

bye [id. at 180-181]; that Mr. Harris did not tell her what

he meant by this statement at the time it was made [id.];

that four or five days later when Ms. Reed asked him

why he made that statement, Mr. Harris explained to her

that he meant that her judgment would be questioned if

she reconciled with her husband [id., and at 185]; that he

never said he would do anything to interfere with her

obtaining a job in inflight; but that the implication was

there [id. at 183-184].

Mary Howington, Delta’s Reservations Sales Man-

ager, states in her affidavit that she has been in her

position since June 1, 1981; that beginning in 1986, she

talked informally with plaintiff several times about a

transfer to an in-flight position; that each time, she

informed plaintiff that she did not believe she would be a

competitive candidate unless she improved her depend-

ability and attendance record; that in the summer of 1991,

plaintiff again informally approached her about the pos-

sibility of a transfer to in-flight; that she again told her

that unless she improved her dependability, job presence,

and attendance, she did not think plaintiff would be a

competitive candidate; that on October 21, 1991, plaintiff

submitted a memorandum requesting a transfer to in-

flight; that at the time, no openings for in-flight jobs had

been posted; that she told plaintiff she should bid when

an opening was posted; that to her knowledge she never

submitted a bid; that as her manager, she was never

asked about plaintiff’s qualifications regarding such a

A7

position; that Mr. Harris approached her in the summer

of 1991 and expressed support for plaintiff and asked if

she would support plaintiff for an in-flight position; that

she told Mr. Harris that plaintiff's poor dependability

and attendance would prevent her from doing so; and

that Mr. Harris was always supportive of the plaintiff and

never sought to undermine her efforts to obtain an in-

flight position [Doc. 19a, Exhibit 1}.

Mr. Barry Noggle, Delta’s Senior Personnel Represen-

tative since 1984, states in his affidavit that he is respons-

ible for evaluating and interviewing applicants and

bidders for flight attendant (or in-flight) and for hiring

and placing applicants and bidders in such positions; that

openings for in-flight positions are posted by Delta; that

interested permanent employees are eligible to “bid” ona

vacancy by completing and submitting a bid form; that

his office reviews personnel files of bidders and selects

for interviews those who appear most qualified from

their files; that above average dependability and atten-

dance records are prerequisites; and that after the inter-

view the opinion of the bidder’s manager is sought [Doc.

19a, Exhibit 4].

Plaintiff states in her affidavit that she spoke with

Ms. Howington in early October, 1991, and expressed an

interest in obtaining an in-flight transfer; that she asked

her what she needed to do in this regard; that Ms. How-

ington told plaintiff that she should get written reports

from physicians saying that her recent health problems

would not interfere with her ability to perform the func-

tions and duties in in-flight; that she obtained the letters;

that at the time there was no formal vacancy for an in-

flight position posted; that she prepared an Intracompany

A8

memorandum on October 21, 1991 to Ms. Howington

asking to be considered for in-flight; that on November 8,

1991, a Delta company bulletin was issued advising all

employees that an in-flight position was available; that on

November 12, 1991, she prepared and submitted a bid;

and that on November 22, 1991, she received an acknowl-

edgement that Delta had received her bid [Doc. 25a,

Exhibit 2].

Mr. Mark Baxter, Delta’s Senior Analyst - Equal

Opportunity since 1985, states in his affidavit that he

recommended that Mr. Harris be discharged; and that

Delta approved his recommendation on October 21, 1991,

retroactive to October 7, 1991, the day that Ms. How-

ington suspended Mr. Harris [Doc. 19a, Exhibit 5].

Assuming, arguendo, that the plaintiff's allegation

that Mr. Harris offered to help her obtain an in-flight

position with favorable evaluations and recommenda-

tions in return for sexual favors as true, the clear and

uncontradicted evidence of record demonstrates that

plaintiff did not suffer any tangible job detriment as a

result of her refusal to comply with Mr. Harris’ sugges-

tions. Mr. Harris was suspended on October 7, 1991. The

day that plaintiff informally expressed an interest in writ-

ing to Ms. Howington for an in-flight position was the

day that Mr. Harris was terminated retroactive to the

date of his suspension. Plaintiff's own affidavit estab-

lishes that Delta did not post an opening for an in-flight

position until November 8, 1991, a little more than two

weeks after Mr. Harris’ termination, and plaintiff did not

bid on the position until November 12, 1991. There is

absolutely no evidence in this record linking the plain-

tiff’s failure to obtain an in-flight position with her

AY

refusal to comply with any of Mr. Harris’ sexual requests.

Rather, the record before me demonstrates that Mr. Harris

supported plaintiff’s efforts to obtain an in-flight posi-

tion. Accordingly, the defendant has demonstrated, with

the help of plaintiff's own testimony, that “the behavior

complained of ..., did not affect a tangible aspect of the

plaintiff's employment. . . . ” Kauffman, 970 F.2d at 187,

quoting Chamberlin, 915 F.2d at 783. See also Highlander,

805 F.2d at 648 (court held that there was no viable quid

pro quo claim because, inter alia, there was no evidence

showing that the plaintiff was denied a job benefit or

suffered a job detriment as a result of her failure to

engage in the activities suggested by her supervisor).

For the reasons stated, the defendant’s motion for

summary judgment on the plaintiff’s quid pro quo sexual

harassment claim will be granted.

B. HOSTILE WORKING ENVIRONMENT

The elements of a hostile work environment sexual

harassment claim are as follows:

1) the employee was a member of a protected

class; 2) the employee was subjected to

unwelcomed sexual harassment in the form of

sexual advances, requests for sexual favors, or

other verbal or physical conduct of a sexual

nature; 3) the harassment complained of was

based upon sex; 4) the charged sexual harass-

ment had the effect of unreasonably interfering

with the plaintiff’s work performance and creat-

ing an intimidating, hostile, or offensive work-

ing environment that affected seriously the

Al10

psychological . . . well-being of the plaintiff; and

5) the existence of respondeat superior liability.

Kauffman, 970 F.2d at 183, quoting Rabidue v. Osceola Refin-

ing Co., 805 F.2d 611, 619-620 (6th Cir. 1986), cert. denied,

481 U.S. 1041, 107 S.Ct. 1983 (1987). The Sixth Circuit held

in Rabidue, supra, that courts should look to common law

principles of agency for guidance in deciding an

employer’s liability for acts committed by their super-

visors. See Kauffman, 970 F.2d at 183. Thus, to determine

whether an employer is liable for the actions of its super-

visors depends upon

1) whether [the supervisor’s] harassing actions

were foreseeable or fell within his scope of

employment and 2) even if they were, whether

[the employer] responded adequately and effec-

tively to negate liability.

Kauffman, 970 F.2d at 184. See also Yates v. Avco Corp., 819

F.2d 630 (6th Cir. 1987). To determine whether the acts

complained of occurred in the scope of the supervisor/

agent’s employment, the court must look to factors such

as “when and where the acts took place, and their fore-

seeability.” Kauffman, 970 F.2d at 184, citing Yates, supra.

Even if an act is forbidden it can still be within the scope

of employment. Id.

Assuming, for purposes of this motion, that plain-

tiff’s allegations are true; that Mr. Harris’ charged harass-

ment unreasonably interfered with plaintiff’s work

performance and created an intimidating, hostile, or

offensive working environment seriously affecting the

plaintiff’s psychological well being; and that Mr. Harris

was acting within the scope of his employment, it is my

All

opinion that the record demonstrates without contradic-

tion that as soon as plaintiff complained to Delta manage-

ment regarding Mr. Harris’s activities, Delta took

immediate, adequate and effective measures to stop the

harassment. See Kauffman, 970 F.2d at 185 (court held that

; even if the supervisor were acting within the scope of his

employment, the defendant was protected from liability

because “its response upon learning of [the supervisor's]

harassment was adequate and effective. As soon as

[plaintiff’s] union representative informed the Director of

Employee Relations about [the supervisor’s] harassment

of [plaintiff] . . . the management immediately confronted

[the supervisor] and fired him.”).

6 ah ew GW th die

a ee ee Ee

Mary Howington states in her affidavit that Delta's

“Standard Practices” contains a written statement prohib-

iting sexual harassment; that the Standard Practices were

available for all Knoxville employees to review in her

Secretary's office; that she spoke with the plaintiff

numerous times over the years regarding complaints

plaintiff had about her work situation; that she also spoke

with her about actions of supervisors with which the

plaintiff did not agree; that plaintiff never complained of

any sexual harassment until October, 1991; that she first

heard of possible harassment of the plaintiff by Mr.

Harris from Joan Mynatt, Janice O'Callaghan, and Mar-

ilyn Bible on or about October 4, 1991; that she con-

fronted Mr. Harris on October 6 about these allegations;

that on October 7, 1992, she suspended Mr. Harris pend-

ing investigation; that on October 7 she asked plaintiff

specifically about the charges and told her to prepare a

memorandum about her charges; that plaintiff gave her

the memorandum on October 8, 1992; that plaintiff

Ta sts

ee ee ee Ge oe ee Ter ee ete Meee

A12

related two incidents, one in 1981 and the other in

November, 1990; that she also said that in the summer/

fall of 1991, Mr. Harris had engaged in inappropriate

contact when the two were alone in his office; and that

plaintiff never related to her that Harris had created a

sexually hostile working environment for her between

1981 and 1991 [Doc. 19a, Exhibit 1].

The plaintiff testified at her deposition that when she

called Delta’s Equal Employment office she reached Mr.

Richard Ealy, Director of Delta’s Equal Employment

office, see Doc. 17, Verification attached thereto; that Mr.

Ealy told her to report the Labor Day incident to the

supervisor over Mr. Harris; that she personally decided

not to do that; that somewhere around late September she

told Marilyn Bible, a supervisor on the same level as Mr.

Harris, of the incident with Mr. Harris [Doc. 19a, Exhibit

3, Reed deposition at p. 39]; that her conversation with

Mr. Ealy was mid to late September; that the supervisor

above Ms. Bible, as well as Mr. Harris, is Deborah Fresh-

water, and the supervisor above Ms. Freshwater is Mary

Howington [id. at 40]; that after Ms. Bible talked with Ms.

Howington about the Labor Day incident, Ms. How-

ington talked to plaintiff [id.]; that Ms. Howington initi-

ated the conversation three to four days after her

conversation with Ms. Bible [id. at 41]; that the reason she

decided not to report the incident to a manager over Mr.

Harris was because she reported him many years prior

and the validity of her statement was questioned; and

that Mr. Harris had instilled mistrust in her regarding Ms.

Howington and Ms. Freshwater by telling her that they

did not like her and were out to get her [id. at 41]. The

plaintiff admitted that she never had a conversation with

a ne

Sn BARES AN nett Ba Oe ned wn San ted Si ie LR Sy AS ie Rin a ga A doe

Mae

hioigesh

Dee PY ae Ad

Al3

Ms. Howington and/or Ms. Freshwater regarding a com-

plaint of sexual harassment; that she “quite possibly” had

conversations with Ms. Howington or Ms. Freshwater

regarding complaints about things that other managers

had done [id. at 49]; that she never had any problem

talking with Ms. Howington about supervisors or other

problems at Delta [id. at 50]; that Ms. Howington did not

do anything directly or indirectly to make her feel

uncomfortable in talking to her [id.]; that she is familiar

with Delta’s “open door” policy; that the “open door”

policy means that any Delta employee can make an

appointment to see any member of management about

any problems they have; that this was standard policy [id.

at 51]; that Delta’s “Standard Practices” was a manual of

Delta’s policies and procedures; that she had previously

looked at this manual regarding benefits; that the manual

was available in the manager’s office or the manager's

secretary's office [id. at 52]; that she asked to see the

manual from time to time when she had an interest in

examining some Delta policy [id.]; and that she does not

recall ever complaining to any co-workers about Mr.

Harris’ conduct or comments prior to 1991, with the

exception of the incident alleged in 1980 or 1982 |id. at

78]. Finally, plaintiff testified that Ms. Howington called

her to her office and said she’d been made aware of a

situation and asked plaintiff to tell her about it; that Ms.

Howington told her to write up a statement and submit it

to her within 24 hours [Doc. 19a, Reed deposition at p.

115]; and that Ms. Howington was concerned about the

incident [id. at 119].

Again, according to the affidavit of Mr. Mark Baxter,

Mr. Harris’s discharge was recommended and approved

Al4

on October 21, 1991, retroactive to his suspension of

October 7, 1991.

Donna Freshwater testified at her deposition, in per-

tinent part, that she had heard Mr. Harris refer to “well-

endowed ladies” as having “bodacious ta-tas” [Doc. 25a,

Freshwater deposition, at p. 19]; that he made these state-

ments in a joke; that she does not recall such a statement

ever being addressed to anyone; and that such comments

were usually made in a relaxed social setting. Id.

Although Sheila Diane Jordan testified at her deposi-

tion that Mr. Harris used slang phrases for certain parts

of the female anatomy, particularly breasts [Doc. 25a,

Exhibit 6, Jordan deposition at pp. 14-18], she admits that

she never complained to anyone about the breast jokes

[id. at 23]. In fact, Ms. Jordan testified that none of the

“Delta girls” who were the brunt of breast jokes talked

with anybody at Delta about this [id. at p.23]. Addi-

tionally, although Ms. Jordan identifies Ms. Donna Brown

as one of the female employees who was the subject of

several large breast jokes and states that Ms. Brown was

offended thereby, and although the plaintiff has submit-

ted a portion of Ms. Brown’s deposition testimony, plain-

tiff neither cites nor submits any portion of Ms. Brown’s

testimony wherein she testified to complaining to anyone

at Delta about comments or jokes of a sexual nature made

by Mr. Harris or any other employee.

Admittedly, Ms. Deborah Freshwater’s testimony

demonstrates that Delta management was aware of off-

color jokes of a sexual nature. Her testimony does not at

all indicate, however, that management was aware of any

sexual harassment by Mr. Harris or any other male

a ee liebe stent

Cree en et

A15

employees. In fact, none of the evidence submitted by the

plaintiff contradicts the defendant’s evidence that as soon

as Delta management received notice of the harassment

complained of by the plaintiff, Mr. Harris was suspended

and subsequently terminated retrcsctive to his suspen-

sion. Although there is proof that off-color jokes were

frequently told and off-color statements were frequently

made, the evidence does not support a finding that these

jokes or statements were unwelcome, or, if they were,

that Delta management knew that the jokes and state-

ments were offensive and unwelcome. The record is

devoid of any evidence that said jokes or statements were

made the subject of any complaint to persons in a posi-

tion to stop such activity at Delta. In fact, the plaintiff

admits that she may have told and laughed at a few off-

color jokes herself [Doc. 19a, Exhibit 3, Reed deposition at

pp. 69-70]. Although plaintiff complained to management

about a sexually offensive incident committed by Mr.

Harris approximately 10 to 11 years prior to 1991, the

statute of limitations has long run on this incident, see

Hoge v. Roy H. Park Broadcasting of Tennessee, Inc., 673

S.W.2d 157 (Tenn. App. 1984); Puckett v. Tennessee Eastman

Co., 1988 U. S. Dist. Lexis 18425 (E.D.Tenn. 1988)

(UNPUBLISHED OPINION), and plaintiff's counsel, Mr.

Jerrold Becker, Esq., represented at the pretrial conference

that this incident is not the gravamen of plaintiff's com-

plaint. Rather, Mr. Becker, represented at the pretrial con-

ference that this incident is being used to demonstrate the

beginning of Delta’s notice of Mr. Harris’ sexually harass-

ing activities and to demonstrate the foreseeability of his

offensive behavior. There is no dispute, however, that

when plaintiff made her complaint known in 1980, 1981,

Al6

or 1982, the complaint was made to two male managers,

Mr. Clarence (“Sammy”) Patterson and Mr. John Agee,

who were soon replaced by Ms. Howington and Ms.

Freshwater. There is no evidence that either Ms. How-

ington or Ms. Freshwater were made aware of any pro-

clivity Mr. Harris may have to sexually harass either the

plaintiff or any other female employee or that either of

them was made aware of the specific complaint plaintiff

had made to previous management. As indicated, the

statute of limitations has run on the incident about which

Delta had notice in the early 1980’s. Plaintiff did not

complain about Mr. Harris’s activities again for ten or

more years. Certainly, Delta cannot be held liable based

upon notice given of a single incident occurring ten or

eleven years prior to the notice upon which Delta took

action when no other complaint had been made in the

interim sufficient to give Delta notice of any offensive

activity. Although plaintiff relies upon the alleged threat

to terminate her if she again complained about sexually

harassing activity by Mr. Harris, which threat was made

by Messrs. Patterson and Agee who preceded Ms. How-

ington and Ms. Freshwater, plaintiff admits in her deposi-

tion testimony that she complained about other problems

with other supervisors to Ms. Howington and that Ms.

Howington never did anything directly or indirectly to

indicate to plaintiff that she would not be receptive to her

problems or complaints. Plaintiff has not cited, and the

undersigned has not found, any case law supporting the

plaintiff’s position that her subjective belief that manage-

ment would not believe her complaints of harassment

constitutes a justification for her failure to report these

a a ; ee

mat Dic

ee ee

Al17

incidents to someone at Delta who could rectify the situa-

tion. Delta should not be held liable for acts committed

by its agents that it either knew nothing about or that it

did not know were offensive and/or unwelcome. Thus, I

find that there is no genuine issue of material fact regard-

ing Delta’s liability on plaintiff's hostile work environ-

ment claim because the undisputed record demonstrates

that Delta took immediate, adequate and effective mea-

sures to stop the harassment once Delta management was

made aware of its existence. See Kauffman, 970 F.2d at 185.

Accordingly, accepting plaintiff's allegations regard-

ing her hostile work environment claim as true, for the

reasons stated, I find that Delta cannot be held respons-

ible for the conduct of Mr. Harris prior to being given

notice that his conduct was harassing and offensive; and

that Delta cannot be held responsible for the conduct of

Mr. Harris after being given notice of his conduct because

Delta took swift and appropriate action to stop the offen-

sive activities in that he was immediately suspended and

later terminated. Accordingly, the defendant’s motion for

summary judgment on the plaintiff’s hostile work envi-

ronment claim will be granted.

Order Accordingly.

FILE:

/s/ Robert P. Murrian

Robert P. Murrian

UNITED STATES

MAGISTRATE JUDGE

Al18

No. 93-5031

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Apr. 13, 1994)

PAMELA REED, )

Plaintiff-Appellant,

v. . ORDER

DELTA AIR LINES, INC., (Filed

)

Defendant-Appellee.

BEFORE: NELSON and BATCHELDER, Circuit Judges;

and CONTIE, Senior Circuit Judge.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original submis-

sion and decision of the case; however, the panel has

amended its opinion (attached) which has been filed nunc

pro tunc. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE

COURT

/s/ Leonard Green

Leonard Green, Clerk

ce tial cay BRR ih ab CRRA Ui a KS eC:

esha ati he SAAT Ne AL SID ts Dic Rb SAN SOE ti lo) An atest Ie BI

Al19

No. 5031

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAMELA REED, ON APPEAL

Plaintiff-Appellant, FROM THE

UNITED STATES

v. DISTRICT

COURT FOR

DELTA AIR LINES, INC., THE EASTERN

DISTRICT OF

TENNESSEE

(Filed

Feb. 24, 1994)

Defendant-Appellee.

Decided and Filed

BEFORE: NELSON and BATCHELDER, Circuit Judges,

and CONTIE, Senior Circuit Judge.

PER CURIAM. This is a sexual harassment case in

which the plaintiff seeks damages from her employer

because of the misconduct of a first-line supervisor. The

employer promptly fired the supervisor when it learned

of his inappropriate behavior. Summary judgment was

entered in favor of the employer, and the plaintiff has

appealed. Upon de novo review, we conclude that there is

no genuine issue as to any material fact and that the

defendant is entitled to judgment as a matter of law. We

shall therefore affirm the district court’s disposition of

the case.

A20

I

The plaintiff, Pamela Reed, started with defendant

Delta Airlines in 1978 as a reservation sales agent in

Knoxville, Tennessee. Delta’s Knoxville office employs

about 150 reservation sales agents and eight reservation

sales supervisors. Each supervisor oversees a team of

fifteen to twenty sales agents, and the supervisors report

to the Chief Supervisor, Ms. Deborah Freshwater. Ms.

Freshwater, in turn, reports to the Reservation Sales Man-

ager, Ms. Mary Howington. An individual named Shan

Harris, who was a Delta employee for 23 years and a

reservation sales supervisor throughout Ms. Reed’s

employment, became Ms. Reed’s supervisor in April of

1991.

A. Evidence of a Hostile Environment

Ms. Reed says that sometime during the period

between 1980 and 1982 - long before he became her

supervisor — Mr. Harris cornered her in a stockroom and

kissed her. When she reprimanded him, he laughed and

left the room. Ms. Reed told a co-worker about the inci-

dent, and the story ultimately came to the ears of two

other reservation sales supervisors, Messrs. Patterson and

McGee. They told Ms. Reed that they thought she was

lying and that any future complaints of a similar nature

would be grounds for her dismissal. There is no indica-

tion in the record that either Ms. Howington or Ms.

Freshwater knew about any of this prior to the lawsuit,

although their predecessors were aware of the incident.

A21

A second episode between Mr.. Harris and Ms. Reed

occurred eight or ten years later, in November of 1990, at

a marketing meeting both were attending in Asheville,

North Carolina. Ms. Reed says that Mr. Harris invited her

to spend the night with him. She refused and left the

meeting early. Ms. Reed did not tell Ms. Howington, Ms.

Freshwater, or anyone else at Delta about the incident

before bringing suit.

During the summer of 1991, according to Ms. Reed,

after Mr. Harris had become her supervisor, he initiated

discussions in which he questioned her about personal

matters, including her recent marital separation. In the

course of these conversations he also made personal ani-

madversions on his own marital situation. These discus-

sions became uncomfortable, according to Ms. Reed,

when Mr. Harris began to make professions of love and

expressed sexual desire for her. Ms. Reed says that she

responded to Mr. Harris’ overtures by telling him he was

crazy.

Ms. Reed says there were two occasions that summer

when Mr. Harris touched her in a inappropriate manner.

Ultimately, she says, Mr. Harris sexually assaulted her.

She describes the incident as follows:

“ _. 1 was going to use his phone. His phone

was on the credenza behind him. And I was

facing him. And he stands up, stands with his

leg in between mine, and pushes me on his

desk, and kissed me at that time . . . [He] put his

hand up my shirt. And he had pushed me down

on his desk and pulled my underwear over, put

his finger inside of me and kissed my leg.”

A22

Ms. Reed reported the incident to Marilyn Bible, and

through her it came to the attention of Ms. Howington.

After promptly investigating the incident and interview-

ing both parties, Ms. Howington recommended that Mr.

Harris be fired for having engaged in sexual activity in

the office. (Mr. Harris did not deny that sexual activity

occurred, but he gave a different account of the nature of

the activity and claimed that Ms. Reed was a willing

participant.) Ms. Howington’s recommendation was

approved, and Mr. Harris was discharged.

Aside from these incidents, Ms. Reed says, Mr. Harris

repeatedly made sexual comments directed toward her

and other female co-workers. On four or five occasions,

she says, he issued generalized invitations, before groups

of sales agents, to participate in lewd activities with him.

She also alleges that Mr. Harris regularly told her she was

“sexy” and occasionally picked up magazines and made

suggestive remarks to her and others about the women

depicted in them. There is no contention that any

employee — including Ms. Reed herself - reported any of

this to Mr. Harris’ superiors. !

Ms. Reed describes one incident, connected with the

birthday of one of her co-workers, that did come to

' Mr. Harris did receive reprimands for other types of

unprofessional conduct during his tenure at Delta. He was once

reprimanded for insulting a female attorney who was giving a

presentation to Delta employees, and he was also rebuked for

making a disparaging comment about the female managers at

Delta. On two occasions, Delta management expressed dissat-

isfaction with Mr. Harris’ handling of crisis situations that arose

at work.

Slee AER RE RS ina Aaah ac

A23

management’s attention. To mark the co-worker’s birth-

day, employees put up balloons shaped like breasts along

the hallways, in plain view of the staff and customers.

Although management clearly was aware of this situation

nobody ordered that the decorations be removed.

Delta had a published policy against sexual harass-

ment in the workplace, but Ms. Reed and her co-workers

never complained to management about Mr. Harris’ con-

duct or any other workplace conduct they found offen-

sive. Delta contends that they did not complain because

Ms. Reed and her co-workers were willing participants in

the sexual commentary that occurred in the office. Mr.

Harris testified that Ms. Reed was a flirtatious person

who regularly talked about her sexual activities, com-

mented on the appearance of male employees, and once

asked him, after she had undergone breast implant sur-

gery, if he would like to see her “new” breasts.

After Mr. Harris was fired, Ms. Reed requested a

transfer out of the Knoxville office. The request was not

granted, and Ms. Reed says that she was subjected to

various forms of retaliation by co-workers who were

upset with her for having caused Mr. Harris to lose his

job. Ms. Reed complains that Delta did nothing to amelio-

rate this situation.

B. Evidence of Quid Pro Quo Harassment

In 1986 Ms. Reed let Delta know that she would like

to become a flight attendant. Mr. Harris was aware of this

desire, and Ms. Reed says that Harris told her explicitly

that he would help her get the flight attendant position if

she would engage in sexual intercourse with him. On a

A24

subsequent occasion, conversely, when Ms. Reed told Mr.

Harris that she was patching things up with her husband,

Mr. Harris told her that he would prevent her from

getting an in-flight position. Ms. Reed admits, however,

that he later told her he would not interfere.

Although Ms. Reed acknowledges that Mr. Harris did

not have authority to decide whether she would get an

in-flight position, she contends his recommendation for

the job was crucial to the hiring decision. She maintains,

therefore, that her difficulties with Mr. Harris are the

reason she was nev <r given the position.

I]

Ms. Reed sued Delta in state court under the Tennes-

see Human Rights Act, T.C.A. §§4-21-101, et seq. Delta

removed the case on diversity grounds to the United

States District Court for the Eastern District of Tennessee.

The parties consented to the assignment of the case to

Magistrate Judge Robert P. Murrian, pursuant to 28

U.S.C. §636(c), for all purposes including judgment. Mag-

istrate Judge Murrian granted a motion by Delta for

summary judgment, and this appeal followed.

Ill

The Tennessee Human Rights Act provides, in rele-

vant part, as follows:

“It is a discriminatory practice for an employer to:

(1) Fail or refuse to hire or discharge any per-

son or otherwise to discriminate against any

individual with respect to compensation, terms,

ee ee eT hiss Wines we

Acieiles ae ge ne

A25

conditions or privileges of employment because

of such individual’s . . . sex... . ” T.C.A.

§ 4-21-401.

The language of §4-21-401 closely parallels that of

§2000e-2(a)(1) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §2000e. Although the remedies available under

the Tennessee Human Rights Act are broader than those

provided by Title VII, the standard of employer liability

is the same under both statutes. See Trentham v. K-Mart

Corp., 806 F.Supp. 692 (E.D. Tenn. 1991); Bruce v. Western

Auto Supply, 669 S.W.2d 94, 97 (Tenn. App. 1984). In the

absence of contrary Tennessee case law on the subject of

employer liability for sexual harassment in the work-

place, we are guided in our decision by Title VII cases.?

The prohibition against discrimination because of sex

extends to sexual harassment. Actionable sexual harass-

ment may take a “quid pro quo” form in which favorable

terms of employment are conditioned on submission to

sexual advances, or it may take the form of a sexually

hostile work environment. Meritor Savings Bank v. Vinson,

477 U.S. 57, 64 (1986).

A

In the recent case of Harris v. Forklift Systems, Inc., 114

S. Ct. 367 (1993), the Supreme Court declared that a

hostile environment claim may be based on a showing

that the harasser’s conduct was “severe or pervasive

2 The parties have relied exclusively on federal cases to

support their positions concerning employer liability for the

harassing conduct of supervisory personnel.

A26

enough to create an objectively hostile or abusive work

environment — an environment that a reasonable person

would find hostile or abusive.” Id. at 370. The Court also

said that the plaintiff must “subjectively perceive the

environment to be abusive” to such a degree that the

conduct “actually altered the conditions of the [her]

employment.” Id. To succeed on a hostile environment

claim based on the conduct of one of the defendant's

employees, the plaintiff must articulate a basis on which

to hold the employer liable. Vinson, 477 U.S. at 72.

The magistrate judge assumed the truth of Ms.

Reed’s allegations and assumed that Mr. Harris had sub-

jected her to a severe and pervasive sexually-hostile work

environment in the summer of 1991. He found, however,

that Ms. Reed had made no showing that Delta should be

held answerable for the unauthorized misconduct of its

employee. The court reasoned that because Delta had

taken immediate and effective remedial action by firing

Mr. Harris as soon as it had notice of his wrongdoing,

there could be no liability on Delta’s part.

In Vinson, 477 U.S. at 72 (1986), the Supreme Court

declined to prescribe a definitive rule on employer lia-

bility for harassment at the hands of supervisors. The

Court declared, however, that the courts should look to

common law agency principles for guidance. Under

established agency principles, the Court noted, absence

of notice does not necessarily insulate the employer from

liability; by the same token, however, there is no invari-

able rule of absolute liability for sexual harassment prac-

ticed by supervisory personnel, whether or not the

employer knew or should have known of the misconduct.

Id. The existence of grievance procedure and a failure to

A27

invoke it are not necessarily dispositive, finally, although

facts such as these are “plainly relevant.” Id. Unwilling to

generalize further, the Court indicated that employer lia-

bility for sexual harassment by supervisors is heavily

dependent upon “the circumstances of [the] particular

case.” Id. at 73.

In Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987),

where a supervisor with authority to hire, fire, and pro-

mote was found to have engaged in sexual harassment

against a subordinate at work, and the employer,

although it had been placed on notice of the supervisor's

apparent inability to conduct himself properly toward the

company’s female employees, failed to deal with the

problem effectively, this court, guided by traditional

agency principles, concluded that the employer could be

held liable. Yates recognized that “agency liability,” as we

subsequently termed it, “is not strict and can be negated

if the employer responds adequately and effectively once

it has notice of the actions.” Kauffman v. Allied Signal, Inc.,

970 F.2d 178, 184 (6th Cir.), cert. denied, 113 S. Ct. 831

(1992). Kauffman was a case in which the employer did

respond “adequately and effectively” once it had notice

of what the offending supervisor was doing; when

apprised of the facts, the company immediately termi-

nated the wrongdoer’s employment. The discharge was

held to protect the employer from liability for sexual

harassment. Id. at 184-85.

In the case at bar Ms. Reed argues that the dismissal

of Mr. Harris was not sufficient, Delta’s management long

having acquiesced in a sexua!ly-charged workplace and

having failed to put an end to off-color jokes and com-

mentary. She also argues that Delta’s response was too

A28

late because management had long been on notice -

because of the rude and unstable, albeit non-amorous,

behavior for which Harris had been reprimanded - that

Mr. Harris was likely to harass employees sexually.

Having reviewed the record before us de novo, we are

satisfied that Delta’s response was sufficient to relieve it

of liability. The dismissal of Mr. Harris adequately and

effectively eliminated any sexually-hostile work environ-

ment created by him, and the response was not untimely.

The rude behavior for which Mr. Harris had been repri-

manded was not indicative of a propensity to harass

people sexually, and Delta had no real notice of any such

propensity. None of the earlier incidents involving sexual

commentary by Mr. Harris had been reported to Delta,

moreover, and the company had no reason to know that

the office environment was unacceptable (if it indeed

was) to any of its female employees.

The fact that Delta did not discipline Mr. Harris

earlier does not make its response inadequate. Neither

does the fact that Delta tock no action against the co-

workers who were said to be unpleasant to Ms. Reed

after Mr. Harris lost his job. The unpleasantness, if any,

was not itself sexual in nature, and the law obviously

cannot require a company to insure that its employees

will be liked by their peers.

B

Ms. Reed also claims that the district court erred in

granting the defendants summary judgment on her quid

pro quo claims. In Highlander v. KFC National Mgmt. Co.,

3

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A29

805 F.2d 644 (6th Cir. 1986), this court set forth the ele-

ments of such a claim. The plaintiff must show

“(1) that [she] was a member of a protected

class; (2) that [she] was subjected to

unwelcomed sexual harassment in the form of

sexual advances or requests for sexual favors;

(3) that the harassment complained of was

based on sex; (4) that the employee’s submission

to the unwelcomed advances was an express or

implied condition for receiving job benefits or

that the employee’s refusal to submit to the

supervisor’s sexual demands resulted in a tang-

ible job detriment; and (5) the existence of

respondeat superior liability.” Id. at 648.

The magistrate found here that even if the other

elements of the claim could be proved, Ms. Reed could

not establish the fourth element of her case — namely, that

any job benefit was made conditional on her compliance

with sexual demands, or that she suffered any tangible

job detriment by virtue of her refusal to acquiesce. Ms.

Reed contends that she was denied a tangible job benefit

— the in-flight position she requested — as a result of her

refusal to submit to Mr. Harris’ requests for sexual favors.

Ms. Reed admits that Mr. Harris did not have decision-

making authority with regard to her bid for an in-flight

position, but she says that his recommendation carried

significant weight in the ultimate hiring decision. Be that

as it may, Ms. Reed has offered no evidence that Mr.

Harris did, in fact, give her a less than positive recom-

mendation for the job. According to the affidavit of Mary

Howington, Chief Supervisor Freshwater’s superior,

Harris always expressed support for Ms. Reed’s bid for

an in-flight job - and the affidavit stands unrefuted. In

A30

order to be actionable, the loss of a job benefit must be

causally related to the plaintiff's response to sexual

demands. Highlander, 805 F.2d at 649.3

AFFIRMED.

3 The Supreme court’s recent decision in Harris does not

alter our conclusion that a tangible job detriment is required in

quid pro quo cases. Although Harris removed the requirement

that a plaintiff show concrete psychological harm arising out of

sexual harassment, the Harris decision applies only to hostile

environment theories of sexual harassment. 114 S. Ct. at 369

(“[iJn this case we consider the definition of a discriminatorily

‘abusive work environment’ (also known as a ‘hostile work

environment’)”).

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