Petition for Writ of Certiorari — Domino's Pizza, Inc. v. Equal Employment Opportunity Commission

ze Supreme Court, U.8&

Vy) rrtL E D

07.5525 2607

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

DoMINO’S P1zZA, INC.,

Petitioner,

V.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

and DAVID PAPA,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

JORDAN B. CHERRICK

Counsel of Record

JOAN Z. COHEN

JENNIFER S. LOHMAN

ARMSTRONG, TEASDALE,

SCHLAFLY & DAVIS

One Metropolitan Square

Suite 2600

St. Louis, Missouri 63102-2740

(314) 621-5070

Attorneys for Petitioner

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether this Court should clarify the standard for

imposing liability on employers for sexual harassment by

supervisory employees, where there is substantial conflict

among the circuits about the correct standard to apply

in light of Meritor Savings Bank, FSB v. Vinson, 477

U.S. 63 (1986).

2. Whether Title VII permits a district court to order

sweeping injunctive relief against an employer where the

court found that a single employee at one location had

been subjected to harassment by a single low-level super-

visory employee roughly seven years earlier.

(i)

ii

PARTIES TO THE PROCEEDING

Neither Domino’s Pizza, Inc. nor any of its affiliated

companies are publicly traded. Domino’s Pizza, Inc. is

wholly owned by TISM, Inc. |

TABLE OF CONTENTS

Page

SUED ye 9) Mw Lik 1 9 y+) RRsat camer ama S Sanam i

PARTIES TO THE PROCEEDING ............................. ii

RIE GI BET I cine cntescebosetsscsaete ndersndvcosrecnear enn v

ee UU I ca as oe ee 1

Pg 4 ARES eons eee ee eC eee 1

CONSTITUTIONAL AND STATUTORY PROVI-

I aa Ps 2

SPR Ie GC Re CAS ainsi sno }

ae Deere Deeroune :

=. Zoe Procsedines Below ..........................--...i.-0. es 4

REASONS FOR GRANTING THE PETITION ......... 6

I. THE PETITION SHOULD BE GRANTED TO

RESOLVE EXISTING CONFLICT AND CON-

FUSION AMONG THE CIRCUITS ABOUT

THE CORRECT STANDARD TO APPLY IN

DETERMINING WHEN AN EMPLOYER

SHOULD BE HELD LIABLE FOR SEXUAL

HARASSMENT BY A SUPERVISOR .............. 6

A. Conflicting Standards for Imposing Liability.. 11

B. The Circuit Courts Have Obscured the Dis-

tinction Between Quid Pro Quo and Hostile

Environment Harassment ................................ 15

C. The [nappropriate and Overly-Expansive

Application of Agency Principles in the

I 18

iv

TABLE OF CONTENTS—Continued

_- Page

II. TITLE VIISHOULD NOT BE INTERPRETED.

TO PERMIT A DISTRICT COURT TO ORDER

SWEEPING INJUNCTIVE RELIEF AGAINST.

AN EMPLOYER WHERE THE EMPLOYER

HAD NEITHER ACTUAL NOR CONSTRUC-

TIVE KNOWLEDGE OF ITS EMPLOYEE’S

IMPROPER CONDUCT ..... ss » 22

III. THE QUESTIONS PRESENTED ARE PROP-

ERLY BEFORE THIS COURT ie |

CONCLUSION POSE SR RE LER AN MEENN M.T GReRw R 29

APPENDIX FEIN Ae GAMES CI OREO scorn nt eo la

APPENDIX B CANE NE TN ADEE AE PCIE oie me HR Se ee | 8a

APP RNGER C werent SO. Dan 18a

FEC DE AE odesbeig co nchienhentacrnuntaconinbnaioeiianveonnanbetcinn 21a

Vv

TABLE OF AUTHORITIES

CASES Page

Andrade v. Mayfair Management, Inc., 88 F.3d

Re ah) RE eae Sees 8 SE 11,14

Banker’s Life and Casualty Company v. Crenshaw,

PBR Bk | Fae iate eet e hgh aienees m. 2 x Rea eZ 27

Bouton v. BMW of North America, Inc., 29 F.3d

TO6 106 Ge, 1006) nti 12, 13, 17

Boykin v. Georgia-Pacific Corp., 706 F.2d 1384 (5th

CFE SAIS iaisiccestnsina sdascacusrias acetpitinidtomsisbedoatienalanes sted 26

Brown v. Trustees of Boston Univ., 891 F.2d 337

2) SMB): Petanenaeneimminieaace eters samen Pee RIN 24, 25

Carlson v. Green, 446 U.S. 14 (1980) ...............-.... 28

Davis v. City of Sioux City, 115 F.3d 1365 (8th

Cit: TOF) os Se a ei ia 33. 37

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

(1ith Cir. 1907): (om Oeste) ....2..000 ces passim

Farley v. American Cast Iron Pipe Company, 115

PB8 1848 Cie Gis: OS? viii whe 21

Gary v. Long, 59 F.3d 1891 (D.C. Cir.), cert. de-

nied, —— U.S. ——, 116 S.Ct. 569 (1995) .......... 13, 17

Harrison v. Potash, Inc., 112 F.3d 1487 (10th Cir.

PU i ee aks, 12, 14, 16, 17

Henson v. City of Dundee, 682 F.2d 897 (11th Cir.

CORRE Sa Se A Ste MES TTS Ie Pe a Po 17, 20

Jansen v. Packaging Corporation of America;

Ellerth v. Burlington Industries, —— F.3d ——,

Nos. 95-3128, 96-1861 (7th Cir. August 12,

SEIS isiiiicicosinesirii secsscdaebisaenssdlermenpanaitiahadalih sick teadiiadioaeed 8, 11, 12

Karibian v. Columbia University, 14 F.3d 773 (2d

Cir.), cert. denied, 512 U.S. 1213 (1994) -....... 14, 16, 17

Kauffman v. Allied Signal, Inc., Autolite Division,

970 F.8d 178 (6th Cir.), cert. denied, 506 U.S.

BD SNS Sides iciecsiens enecabacicactaiakaniabiiiedaslaniinion 13

Kirkland v. Buffalo Board of Fd., 487 F. Supp. 760

(W.D.N.Y. 1979), aff'd, 622 F.2d 1066 (2nd Cir.

PIII cies cin piss schaiiccededabiaesapiiaianienibdnivalanagannninainiiaale 23, 24

Lawrence v. Chater, —— U.S. ——, 116 S.Ct. 604

“2 * SSISRO SSRIS SEIS SPE SRM re meee SLE ON 29

Lebron v. National R.R. Passenger Corp., 513 U.S.

By ED iidiidcssestdbennadiceminceninicuanselansaintadhdinatinie 27

vi

TABLE OF AUTHORITIES—Continued

Page

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 63

(1986) ERA EN ELON ROTI OOF IE RING at hao PER passim

Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994) ....11, 17, 18

Rizzo v. Goode, 423 U.S. 362 (1976) ........-............. 24, 26

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d

Be CERI Ss BOD cinesnenceindiddiccnstkackobcbedecielnes 9, 20

Spencer v. General Elec. Co., 894 F.2d 651 (4th

i SI iki icsiiai is enitinilistichastsitcaeciedatieanle jen laidedebesuen 23, 25

Stutson v. U.S., —— U.S. ——, 116 S.Ct. 600

ER TER: cisissibsidchnshssabsbicnsstpatnnadbouneosedsteieigila i RAR aati ta dicts 29

Swann v. Charlotte-Mecklenberg Board of Ed., 402

Ts BR SIO aE i i ea ns 24

Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir.

BID hisinctictivlchocnchittlonanteise tt Me Rea ia 17

Torres v. Pisano, 116 F.3d 625 (2nd Cir. 1997) ...... 11, 16,

17, 20

United States v. Oregon Medical Society, 343 U.S.

REA mee OF Be wee RE en ea eR 25

Virginia Bankshares Inc. v. Sandberg, 501 U.S.

De ET tiki aii en teeebhateanei es EG taal 53S 27

Webb v. Missouri Pac. R.R. Co., 98 F.3d 1067 (8th

Cit BeOS) oa hei ee Be, 26

Yee v. City of Escondido, 503 U.S. 519 (1992)... 28

STATUTES

ES ES 5 ULE a SCRE EO Cok 5S Ce POET 1

NN a ics ince os asdatlomnedericacmndien callie 24

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq... 4

SEs UE CLD kaikki 2

re ks kin a 2, 24

i iaicechacicieestn tlic itelopeeatiowthadianecd 2, 23

MISCELLANEOUS

RESTATEMENT (SECOND) OF AGENCY §§ 219-237

Ie IIIT. icrsndis diss ssdicicatihesdessdiggiandtinieducriostaiinsaisaaiebabhenhabcbestiatae al passim

In THE

Supreme Court of the United States

OCTOBER TERM, 1997

No.

DomMINo’s P1zza, INC.,

‘ Petitioner,

EQuAL EMPLOYMENT OPPORTUNITY COMMISSION

and Davip PAPA,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Domino’s Pizza, Inc. respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A) is

unreported. The opinion of the District Court (App. B)

is reported at 909 F. Supp. 1529 (M.D. Fla. 1995).

JURISDICTION

The Court of Appeals for the Eleventh Circuit sum-

marily affirmed the judgment of the District Court on

Avril 17, 1997. The Eleventh Circuit denied a timely

Suggestion of Rehearing En Banc on July 3, 1997. (App.

C). The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS

42 U.S.C. § 2000e-2(a)(1) (1988)* provides in relevant

part: |

(a) Employer practices

It shall be an unlawful employment practice

for an employer—

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to his

compensation, terms, conditions, or priv-

ileges of employment, because of such in-

dividual’s race, color, religion, sex, or na-

tional origin... .

42 U.S.C. § 2000e-3(a) (1988) provides in relevant part:

It shall be an unlawful employment practice for an

employer to discriminate against any of his employees

. . . because he has opposed any practice made an

unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted or

participated in any manner in an investigation, pro-

ceeding or hearing under this subchapter.

42 U.S.C. § 2000e-5(g) (1988) provides in relevant part:

(g) Injunctions; appropriate affirmative action; equi-

table relief; accrual of back pay; reduction of back

pay; limitations on judicial orders

If the court finds that the respondent has intention-

ally engaged in or is intentionally engaging in an

unlawful employment practice charged in the com-

plaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and

order such affirmative action as may be appropriate,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

1 The District Court applied the pre-1991 version of Title VII in

this case, because the pertinent events occurred in 1988. App. B at

13a, n.38. The 1991 Amendments, however, did not affect the sub-

stance of the Title VII provisions in question here.

aS

3

pay (payable by the employer, employment agency,

or labor organization, as the case may be, responsi-

ble for the unlawful employment practice), or any

other equitable relief as the court deems appropriate.

STATEMENT OF THE CASE

The fundamental question presented by this Petition

is one that has been presented to courts with increasing

frequency in recent years, and has resulted in confusion

and conflict in the case law: What is the proper standard

for evaluating employer liability for sexual harassment by

a supervisory employee? A related issue concerns the

propriety of imposing broad, sweeping injunctive relief

against a company based on a finding that a single em-

ployee at one of the company’s hundreds of locations

nationwide had been subjected to sexual harassment by a

low-level supervisor approximately seven years earlier.

1. Factual Background.

This case involves allegations that David Papa, while

employed by Petitioner Domino’s Pizza, Inc. (“Domino’s”),

was sexually harassed and retaliated against by his imme-

diate supervisor, Beth Carrier. At the time the events in

question occurred, Papa worked as store manager at

Domino’s Port Richey, Florida location, and Carrier was

a Corporate Area Supervisor. App. B at 4a.

According to the findings of the District Court, be-

tween January and May of 1988, Carrier engaged in

various instances of inappropriate conduct towards Papa.

These incidents included touching Papa, making several

comments with sexual connotations, including comments

about Papa’s body, and expressing caring and affection

for Papa. See id. at 4a-5a. On one occasion, during a

conversation about where Papa and his young son, David,

would live, Carrier expressed her caring for Papa, and

offered to let Papa and his son come live with her. Papa

responded by ordering Carrier to leave his office and

threatening to report Carrier’s conduct to her supervisor.

4

The District Court found that, when Carrier left the store,

she made a comment to the effect that she would “get”

Papa. Id. at 5a.

Approximately a week after Papa’s last encounter with

Carrier, she and her supervisor, Mike Haskins, came to

the store and informed Papa that he was being fired for

violating company policy, including manipulating company

paperwork. Id. at 5a-6a. The District Court credited

testimony to the effect that Carrier had been involved in

or had approved the manipulation of paperwork, and

that Papa did not know these actions violated company

policy. Id. at 6a.

Papa never reported his claims of sexual harassment to

Carrier’s supervisors. Jd. Indeed, the District Court ex-

pressly found that Domino’s had neither actual nor con-

structive knowledge of Carrier’s alleged activities. Jd. at

10a.

2. The Proceedings Below.

The Equal Employment Opportunity Commission

(EEOC) filed suit on August 12, 1991, alleging that

Domino’s violated Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seg., when Carrier subjected

Papa to sexual harassment. The EEOC also alleged that

Papa’s subsequent termination was retaliatory. On Oc-

tober 17, 1991, Papa was granted leave to intervene in

the case.

Following a bench trial in November 1994, the District

Court entered judgment in favor of the EEOC and Papa,

finding Domino’s liable for hostile environment harass-

ment, quid pro quo harassment and retaliation. The Court

held that Domino’s was not “indirectly” liable for Car-

rier’s harassment via respondeat superior because, in order

to establish such liability, the plaintiff would have to show

that the employer knew or should have known of the

harassment, and failed to take remedial action. /d.

CT TN |

5

at 9a-10a. Because Papa never made a report of harass-

ment to anyone at Domino’s, and no one from manage-

ment was present to observe Carrier’s conduct, Domino’s

had neither actual nor constructive knowledge of the

hostile environment created by Carrier. Jd. at 10a. The

Court concluded that Domino’s was nevertheless “di-

rectly” liable for Carrier’s conduct on the ground that,

“where the harasser is the employer or an agent of the

employer, the employer is directly liable.” Id. The Court

noted that the Eleventh Circuit had previously adopted

the EEOC’s view that a supervisor acts as an “agent” of

the employer when the supervisor uses the authority dele-

gated to him to make or threaten to make decisions affect-

ing the employment status of his subordinates. Domino’s

was therefore directly liable because, when Carrier fired

Papa, she was exercising the authority delegated to her by

Domino’s. Id.

With regard to the allegation of quid pro quo harass-

ment, the Court noted that acceptance or rejection of

harassment by an employee must be an express or implied

condition for receiving a job benefit or must be the cause

of a tangible job detriment in order to create liability

under this theory. /d. at lla. The Court then relied

on the same facts—Papa’s negative reaction when Carrier

expressed her caring and offered to let Papa and his son

come live with her, coupled with his subsequent termina-

tion—as a basis for finding quid pro quo harassment.

Id. The Court also relied on these facts to find retalia-

tion. Jd. at 12a. The District Court awarded Papa

$237,257.52 as well as attorneys’ fees.? Jd. at 16a;

App. D. In addition, the Court permanently enjoined

Domino’s “from engaging in any employment practice

which discriminates against employees by subjecting them

to sexual harassment and or [sic] which discriminates

2 Papa ultimately recovered $34,641.49 as a separate attorneys’

fees award. If the present Petition is granted and the judgment is

vacated, Domino’s requests that the award of attorneys’ fees also

be vacated.

6

against employees who oppose what the employee believes

to be a discriminatory employment decision.” Jd. at 16a-

17a. The Court aiso directed Domino’s “to post a written

sexual harassment and retaliation policy in each of its

stores for a period of at least two years from the date of

this judgment.” 7d. at 17a. Domino’s was further directed

“to conduct yearly training of each of its managers, in-

cluding store managers, regarding [Domino’s] sexual har-

assment and retaliation policy for a period of two years

from the date of this judgment.” /d.

Domino’s filed a timely appeal and, on April 17, 1997,

the Eleventh Circuit summarily affirmed the District

Court’s judgment. App. A. Domino’s then filed its timely

Suggestion of Rehearing En Banc, which the Eleventh

Circuit denied on July 3, 1997. App. C.

REASONS FOR GRANTING THE PETITION

I. THE PETITION SHOULD BE GRANTED TO RE-

SOLVE EXISTING CONFLICT AND CONFUSION

AMONG THE CIRCUITS ABOUT THE CORRECT

STANDARD TO APPLY IN DETERMINING WHEN

AN EMPLOYER SHOULD BE HELD LIABLE FOR

SEXUAL HARASSMENT BY A SUPERVISOR.

This case presents difficult and important questions

about the law governing an employer’s liability for sexual

harassment by supervisory employees. Since this Court’s

decision in Meritor Savings Bank, FSB v. Vinson, 477

U.S. 63 (1986), courts have struggled to forge proper

standards for evaluating employer liability, and in the

process, have reached confusing and conflicting results.

In some instances, including the present case, courts have

applied standards that essentially conflate the theories of

quid pro quo harassment and hostile work environment

harassment, and blur the distinction between these types

of harassment and retaliation claims. This Court should

grant Domino’s Petition for a Writ of Certiorari to resolve

the conflict among the circuits and bring order to the

chaotic case law on this important and frequently litigated

issue.

7

In Meritor, this Court declined to announce any defini-

tive rule on employer liability, stating only that courts

should look to agency principles for guidance. 477 U.S.

at 72. Beyond that general instruction, the Court pointed

out that, when Congress defined “employer” in Title VII

to include any “agent” of an employer, it was surely

evincing an intent to place some limits on the acts of em-

ployees for which employers are to be held liable. Jd. Cit-

ing generally to the RESTATEMENT (SECOND) OF AGENCY

§§ 219-237 (1958) (“the RESTATEMENT’), the Court held

that it was error to conclude either that employers are

automatically liable for sexual harassment by their super-

visors or that an employer will necessarily be insulated by

lack of notice of the harassment. Meritor, 477 US. at

72. There was no ruling or suggestion that Title VII

incorporates the RESTATEMENT; in fact, the Court cau-

tioned that “common-law [agency] principles may not be

transferable in all their particulars to Title VII.” 7/d.

In the decade following Meritor, courts have largely

failed to heed this warning. Instead, they have attempted

simply to apply traditional agency principles as set forth in

the RESTATEMENT—a text drafted some forty years ago

with very different kinds of problems in mind—as a frame-

work for evaluating liability in the harassment context.

The result has often been awkward and opaque formula-

tions of liability rules, as well as confusion and conflict

in the case law. As Chief Judge Posner of the Seventh

Circuit recently stated,

by citing the Restatement, [the Supreme Court] gave

lawyers and judges a straw to grasp at. The straw

has broken in their hand. The Restatement turns out

to be hopelessly vague in its bearing on the issue of

employer liability for sexual harassment, being

vaguely worded and addressed to other issues. So

judges can in good faith reach opposite results when

they seek guidance in the Restatement to employers’

liability for sexual harassment by supervisory em-

ployees. See, e.g., Faragher v. City of Boca Raton,

111 F.3d 1530 (11th Cir. 1997) (en banc).

8

Jansen v. Packaging Corporation of America; Ellerth v.

Burlington Industries, F.3d , Nos. 95-3128,

96-1361, slip op. at 19 (7th Cir. August 12, 1997) (en

banc) (Posner, C.J., concurring and dissenting) .*

Faragher, cited by Chief Judge Posner as an example

of the confusion that exists despite the good faith efforts

of judges, is an en banc decision of the Eleventh Circuit

addressing circumstances in which an employer may be

held liable for supervisor-created sexual harassment. It

was handed down at virtually the same time as the panel

decision summarily affirming the District Court in the

present case. Yet the District Court’s analysis, effectively

adopted by the panel’s summary affirmance, is incon-

sistent with Faragher. The District Court’s opinion is also

an excellent example of the analytical distortion that can

result when courts simply engraft traditional agency prin-

ciples onto Title VII/harassment law, and broadly apply

them. :

As noted above, in analyzing the issue of Domino’s lia-

bility for the hostile environment harassment of store

manager David Papa by a low-level supervisor, Beth

Carrier, the District Court noted that an employer may

be held “indirectly” liable via respondeat superior if the

plaintiff can establish that the employer knew or should

have known of the harassment, and failed to take remedial

action. Because Domino’s had neither actual nor con-

structive knowledge of the atmosphere created by Carrier,

the Court concluded that Domino’s could not be held

“indirectly” liable. App. B at 9a-10a.

3 The Seventh Circuit’s recent decision in Jansen is an excellent

illustration of the confusion and dissension that exist on the issue

of employer liability, not only between circuits but within circuits.

The en banc Court was unable to forge a majority position regard-

ing the proper standard for evaluating an employer’s liability for

sexual harassment by a supervisor. Eight judges wrote separately

to express their views on various aspects of the issues presented.

9

Alternatively, the District Court stated, where the

harasser is the employer or an agent of the employer, the

employer is “directly” liable. App. B at 10a. The District

Court noted that the Eleventh Circuit had adopted the

EEOC’s view that a “ ‘supervisor acts as an “agent” of

the employer . . . where [the] supervisor exercises the

authority actually delegated to him by his employer, by

making or threatening to make decisions affecting the em-

ployment status of his subordinates.’” Jd. (quoting

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554,

1558-59 (11th Cir. 1989)).* In an overly expansive and

attenuated application of this principle, the District Court

concluded that Domino’s was therefore “directly” liable

for Carrier’s hostile environment harassment, because

Carrier was exercising the authority delegated to her as

an agent of Domino’s when she was involved in the sub-

sequent firing of Papa. App. B at 10a.

In Faragher, the Eleventh Circuit reformulated its

standard for liability for claims of hostile environment

sexual harassment. The en banc Court explained that an

employer is directly liable for hostile environment sexual

harassment if it knew or should have known of the harass-

ment and failed to take immediate and appropriate reme-

dial action. Under this theory, the employer “can be held

liable for its own negligence or recklessness, but not for

the conduct of it supervisors or employees.” Faragher,

111 F.3d at 1535. In contrast, employers may gener-

ally be held indirectly liable for hostile environment

harassment by a supervisor under two agency principles:

(1) where the harasser is acting within the scope of his

or her employment in perpetrating the harassment; and

(2) where the harasser is acting outside the scope of his

or her employment, “but is aided in accomplishing the

harassment by the existence of the agency relationship.”

4 The language in Sparks on which the District Court relied is a

quote from Meritor, in which this Court stated, without ruling

upon, one portion of the EEOC’s position on liability issues as set

forth in its amicus brief. Meritor, 477 U.S. at 70-72.

10

Id. at 1536 (citing RESTATEMENT (SECOND) OF AGENCY

§ 219(1) and (2)).°

Addressing the first agency principle, the Eleventh Cir-

cuit stated that harassing conduct is typically outside the

scope of the supervisor’s employment, because the super-

visor generally does not intend to perform any service for

his employer, but acts from purely personal motives to

further some personal end. 7d. at 1535-36. As for the

second agency principle, the Court observed that, in a

sense, a supervisor is always aided in accomplishing hostile

environment harassment by virtue of his agency relation-

ship with the employer because of his role and responsi-

bilities as a supervisor. The Court cautioned, however,

that the term “aided” should not be used in such a broad

sense. “Rather, the employer is liable only if the harass-

ment is accomplished by an instrumentality of the agency

or through conduct associated with agency status,” as, for

example, where the harasser repeatedly reminds the victim

he can fire her if she refuses his advances. Id. at 1537.

The Eleventh Circuit’s evolving formulation of a lia-

bility standard raises several significant issues. First, it

conflicts with the standards applied in other circuits.

Second, it obscures any meaningful distinction between

5 The RESTATEMENT (SECOND) OF AGENCY § 219 provides:

(1) A master is subject to liability for the torts of his servants

committed while acting in the scope of their employment;

(2) A master is not subject to liability for the torts of his

servants acting outside the scope of their employment,

unless:

(a) The master intended the conduct or the consequences,

or

(b) The master was negligent or reckless, or

(c) The conduct violated a non-delegable duty of the mas-

ter, or

(d) The servant purported to act or to speak on behalf

of the principal and there was reliance upon apparent

authority, or he was aided in accomplishing the tort

by the existence of the agency relation.

11

hostile environment harassment and quid pro quo harass-

ment. And third, it illustrates how the broad and con-

clusory application of generic agency principles—which

were certainly not drafted with sexual harassment in mind

—can result in an inappropriate and dangerously expan-

sive analysis of harassment claims.

A. Conflicting Standards for Imposing Liability.

The Eleventh Circuit’s formulation in Faragher of a

standard for imposing liability for hostile environment

harassment by a supervisor is not only vague and confus-

ing, it is inconsistent with standards applied in other

circuits. As the Second Circuit recently understated,

“[rjelying on the imperfect analogy to agency law, and

specifically on the Restatement of Agency, courts have

had difficulty establishing coherent rules in this area.”

Torres v. Pisano, 116 F.3d 625, 633 (2d Cir. 1997).

For example, in contrast with the Eleventh Circuit’s

more complex formulation, several circuits apply a

straightforward negligence standard. See, e.g., Davis v.

City of Sioux City, 115 F.3d 1365, 1368 (8th Cir. 1997)

(in cases alleging hostile environment sexual harassment

by a supervisor, the employer is liable only if it knew or

should have known of the hostile environment); Andrade

v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th

Cir. 1996) (an employer is liable for a sexually hostile

work environment created by a supervisor or other em-

ployee only if the employer knew or should have known

of the illegal conduct and failed to take prompt and

adequate remedial action); Nichols v. Frank, 42 F.3d

503, 508 (9th Cir. 1994) (the proper analysis for

employer liability in hostile environment cases is what

management-level employees knew or should have known,

not whether an employee was acting within the scope of his

employment). Indeed, one of the few issues a majority

of the Seventh Circuit was able to agree upon in Jansen

was that negligence is the only proper standard of em-

ployer liability in cases of hostile environment sexual

12

harassment, whether the harasser is a supervisor or a

co-worker. Jansen, F.3d , Slip op. at 2 (per

curiam opinion).

Other circuits include negligence as one basis for lia-

bility, but, like the Eleventh Circuit, also incorporate

various other agency principles into their liability formu-

lations. Thus, the Tenth Circuit, in Harrison v. Potash,

Inc., 112 F.3d 1437 (10th Cir. 1997), adopted a

broad view of § 219 of the RESTATEMENT, holding that an

employer can be held liable for hostile environment

harassment by one of its supervisors if (1) the supervisor

committed the harassment while acting in the scope of his

employment; (2) the employer knew or should have

known of the harassment and failed to respond appro-

priately; (3) the employer manifested in the supervisor

the authority to act on its behalf, and such manifestation

resulted in harm to the plaintiff, who acted or relied on

the apparent authority; or (4) the employer delegated to

the supervisor the authority to control plaintiff's work

environment and the supervisor abused that delegated

authority by using it to aid or facilitate in perpetrating

the harassment. /d. at 1446.

The Third Circuit also combines a negligence standard

with other agency principles, recognizing three potential

bases under § 219 of the RESTATEMENT for imposing lia-

bility on employers: (1) for torts committed by employees

within the scope of their employment; (2) for the em-

ployer’s own negligence in failing to take action upon

notice of harassment; and (3) where the harassing em-

ployee relied upon apparent authority or was aided by

the existence of the agency relationship. Bouton v. BMW

of North America, Inc., 29 F.3d 103, 106-08 (3d Cir.

1996). According to the Third Circuit, scope-of-employ-

ment liability does not apply in the hostile environment

context because, unlike the quid pro quo case, “the

harasser is not explicitly raising the mantle of authority

to cloak the plaintiff in an unwelcome atmosphere.” /d.

at 106-07. Supervisors can be “aided” by the existence

ee .

13

of the agency relationship by having power or “apparent

authority” over the victim. In this regard, however, the

Third Circuit in Bouton included a significant caveat:

the harassed employee must have a reasonable belief that

the supervisor is authorized in his actions before the

employer is bound, and such a belief is unreasonable if the

employer has a remedial sexual harassment policy that is

known to the employee. See id. at 108-110.

The D.C. Circuit’s liability standard adopts a narrow

view of the principles in § 219(2), and similarly incor-

porates a “reasonableness” requirement. In Gary v. Long,

59 F.3d 1391 (D.C. Cir.), cert. denied, USS. :

116 S.Ct. 569 (1995), the Court stated that

an employer may not be held liable for a super-

visor’s hostile work environment harassment if it is

able to establish that it had adopted policies and

implemented measures such that the victimized em-

ployee either knew or should have known that the

employer did not tolerate such conduct . . . While a

supervisor might purport to act or speak on behalf

of the employer, there can be no liability if the victim

could not reasonably rely on the supervisor’s repre-

sentations.

Id. at 1398.

The Sixth Circuit, unlike the Fourth, Seventh and

Eighth Circuits, applies the negligence (i.e., knew-or-

should-have-known) standard only in cases of co-worker

hostile environment harassment. In determining whether

an employer should be held liable for hostile environment

harassment by a supervisor, the Sixth Circuit considers

(1) whether the supervisor’s harassing actions were fore-

seeable or fell within the scope of his employment, and

(2) even if they were, whether the employer responded

adequately and effectively to negate liability. Kauffman v.

Allied Signal, Inc., Autolite Division, 970 F.3d 178, 183

(6th Cir.), cert. denied, 506 U.S. 1041 (1992). In

determining whether the acts complained of occurred

14

within the scope of the agent’s employment, the Sixth

Circuit has stated that courts must examine such factors

as when and where the act took place, and whether it was

foreseeable. Id. But see Andrade, 88 F.3d at 261 (“Our

precedent rests on the presumption that illegal sexual

activity is an illegitimate corporate activity, beyond the

scope of supervisors’ employment.”); Harrison, 112 F.3d

at 1444 (scope-of-employment liability rarely applicable

in hostile environment context because sexual harassment

is simply not within the job description of any supervisor

or any other worker in any reputable business.

The Second Circuit not only distinguishes between co-

worker harassment and supervisor harassment, but be-

tween harassment by high-level supervisors and _harass-

ment by low-level supervisors. Citing § 219 of the RE-

STATEMENT, the Second Circuit has held that an employer

will be liable for hostile environment harassment by a su-

pervisor when the supervisor uses his actual or apparent

authority to further the harassment, or is aided in accom-

plishing the harassment by the existence of the agency

relationship. If the supervisor in question is sufficiently

high in the employer’s hierarchy, his actions will neces-

sarily be imputed to the employer. If the harassment is by

a low-level supervisor who does not rely on his super-

visory authority to carry out the harassment, a negligence

standard applies, i.e., the employer will not be liable

unless it provided no reasonable avenue for complaint or

knew of the harassment and did nothing about it. Kari-

bian v. Columbia University, 14 F.3d 773, 780 (2d Cir.),

cert. denied, 512 U.S. 1213 (1994).

These various formulations cast more doubt than light

on the issue, and raise as many questions as they answer.

The agency principles as incorporated by a number of

courts result in rules that are murky at best. When is

hostile environment harassment really “accomplished” by

an “instrumentality of agency”? What distinctions should

puns A ei

15

be made for liability purposes depending solely on whether

the harasser is a co-worker, a low-level supervisor or

a high-level supervisor? Should liability depend upon

whether the harassed employee could reasonably have

believed the harassing supervisor was exercising apparent

authority? Is the “essential question” for agency purposes

whether the supervisor was “acting within the scope of

his employment,” as the Sixth Circuit had suggested?

Or is the proper analysis, as the Ninth Circuit indicates,

not “scope of employment,” but whether management

knew or should have known of the harassment? Is a

supervisor ever acting within the scope of his employment

when he illegally harasses an employee? Is the knew-or-

should-have-known standard inapplicable when the ha-

rasser is a supervisor, as the Sixth Circuit has indicated?

Or is it the essential inquiry, as the Fourth, Seventh,

Eighth and Ninth Circuits have indicated?

This Court should grant Domino’s Petition to resolve

these and other questions presented by the inconsistent

case law, and bring order and clarity to the law on this

important issue.

B. The Circuit Courts Have Obscured the Distinction

Between Quid Pro Quo and Hostile Environment

Harassment.

As noted above, several circuits—including the Eleventh

Circuit—have adopted liability standards that impose

liability on employers when supervisors use actual or

apparent authority to aid in accomplishing hostile environ-

ment harassment. In the present case, for example, the

District Court imposed liability on Domino’s for Carrier’s

hostile environment harassment based on the proposition

that a supervisor acts as the employer’s “agent” when the

supervisor exercises authority actually delegated to him

to make or threaten to make decisions affecting his sub-

ordinates’ employment status. App. B at 10a. Under the

liability standard as it evolved in Faragher, an employer

will be held “indirectly” liable if a supervisor is “aided in

16

accomplishing [hostile environment] harassment by the

existence of the agency relationship.” 111 F.3d at 1536.

See also Harrison, 112 F.3d at 1446; Karibian, 14 F.3d

at 780.

These standards tend, however, to obscure any mean-

ingful distinction between hostile environment harassment

and quid pro quo harassment. As a practical matter, it is,

of course, the role and function of supervisors to exercise

the authority delegated to them to manage subordinates.

This often includes making decisions that affect subordi-

nates’ employment status in some way. Thus, it may be

the case that a supervisor has engaged in hostile environ-

ment harassment toward a particular employee, and that

same supervisor has also, in the course of properly carry-

ing out his duties and responsibilities, been called upon to

make decisions that adversely affect the harassed em-

ployee. That does not mean the two actions are neces-

sarily connected; the employment decision may in no way

be conditioned on or related to the harassment.

Supervisory status becomes relevant for liability pur-

poses when there is a link between the supervisor’s use of

his delegated authority and the extortion of sexual favors.

As the Second Circuit pointed out in Torres—and as the

Eleventh Circuit acknowledged in Faragher—supervisors

are, in a sense, always aided in accomplishing harassment

by the existence of the agency because their responsibili-

ties provide proximity to and contact with the harassed

employee:

But that proves too much, and would allow the

exception to swallow the rule. ... It is likewise the

case that the supervisor is always aided by the em-

ployment relationship because the employee will fear

the repercussions that might result from her com-

plaining or resisting. But this exception too, if

applied in the absence of specific evidence that the

supervisor used his authority to place the employee

in a position in which she felt she could not com-

plain without facing adverse consequences, would

a

17

swallow the rule .... Thus, in order to establish

liability on the theory that the supervisor exploited

the agency relationship in committing the harass-

ment, a plaintiff “must allege facts which establish a

nexus between the supervisory authority” and the

harassment.

Torres, 116 F.3d at 635 (quoting Tomka v. Seiler Corp.,

66 F.3d 1295, 1306 (2d Cir. 1995) ).

The existence of this type of nexus, however, is the

essence of quid pro quo harassment, not hostile environ-

ment harassment. When a supervisor uses his position

explicitly or implicitly to condition the receipt of job

benefits or threaten a job detriment based on the sub-

ordinate’s response to requests for sexual favors, such

improper wielding of the authority delegated to him is

the gravamen of a quid pro quo claim. See Karibian, 14

F.3d at 777; Harrison, 112 F.3d at 1443. See also

Nichols, 42 F.3d at 509 (the essence of the quid pro quo

theory uf harassment is that a supervisor relies upon his

actual or apparent authority to extort sexual considera-

tion from an employee) (quoting Henson v. City of

Dundee, 682 F.2d 897, 910 (11th Cir. 1982) ).

This Court distinguished quid pro quo and hostile en-

vironment harassment as separate and distinct forms of

discrimination in Meritor, with the implication, certainly,

that they should be treated differently. Since Meritor,

courts have generally held employers strictly liable for

quid pro quo harassment. See, e.g., Davis, 115 F.3d at

1367; Harrison, 112 F.3d at 1443; Nichols, 42 F.3d at

513-14; Bouton, 29 F.3d at 106-07; Karibian, 14 F.3d

at 777.° As this Court pointed out in Meritor, however,

® Some conflict among the circuits exists even on this issue.

Several courts have concluded that it takes more than a mere threat

to impose quid pro quo liability on an employer. Rather, the plain-

tiff must show that he or she actually was denied a job benefit or

suffered a job detriment as a result of failing to submit to sexual

advances. See, e.g,. Gary v. Long, 59 F.3d at 1896 (“it takes more

than saber rattling alone to impose quid pro quo liability on an

18

employers are not always liable for hostile environment

harassment by supervisors. 477 U.S. at 72.

Yet, by incorporating such broad views of agency prin-

ciples into their liability standards for hostile environ-

ment harassment by supervisors, the Eleventh Circuit and

several other circuits have so expanded the definition

of this form of harassment that they have effectively

conflated the two theories and have eliminated any mean-

ingful distinction between hostile environment harassment

and quid pro quo harassment. The result is essentially a

uniform mode of analyzing all harassment claims involv-

ing a supervisor, utilizing a standard that approaches strict

liability. Given the harshness of that result, it is important

to keep definitions clear and narrow, so that plaintiffs

meet the burden of showing that employer liability should,

in fact, attach.

This Court should grant Domino’s Petition and, in

clarifying the proper standard for liability in the hostile

environment context, should also clarify the distinctions

between supervisor hostile environment harassment and

quid pro quo harassment for liability purposes, so courts

will have a clear, coherent basis for enforcing the law.

C. The Inappropriate and Overly-Expansive Applica-

tion of Agency Principles in the Present Case.

The present case illustrates how the conclusory applica-

tion of generic agency principles in the hostile environ-

ment context can result in an inappropriate and overly-

expansive analysis of liability for harassment claims. As

noted above, in holding Domino’s liable for Carrier’s

employer; the supervisor must have wielded the authority entrusted

to him to subject the victim to adverse job consequences as a result

of her refusal to submit to unwelcome sexual advances). But see

Nichols v. Frank, 42 F.2d at 513 (“[A] supervisor’s intertwining

of a request for the performance of sexual favors with a discussion

of actual or potential job benefits or detriments in a single conver-

sation constitutes quid pro quo harassment.”’).

19

hostile environment harassment of David Papa, the Dis-

trict Court broadly applied general agency principles re-

garding the exercise of delegated authority to make or

threaten to make decisions regarding a subordinate’s em-

ployment status. But even under the Eleventh Circuit's

expansive formulations, conduct warranting imposition of

what Faragher refers to as “indirect” liability did not occur

here.

Carrier’s alleged harassment of Papa was not “accom-

plished by an instrumentality of the agency or through

conduct associated with agency status.” Faragher, 111

F.3d at 1537. As set forth above, the District Court cred-

ited testimony that Carrier had engaged in instances of

inappropriate touching, made several sexually-related com-

ments, and also expressed her caring and love for Papa.

App. B at 4a-5a. These were all modes of harassment

easily available to a non-supervisory employee. The trial

court did not find that Carrier made any sexual demands,

let alone that the conduct in question was accompanied by

Statements or suggestions that, if Papa did not submit

to her overtures, a job detriment would occur.

Rather, the District Court’s decision to impose liability

on Domino’s for hostile environment harassment essen-

tially rested on one occasion when Carrier expressed her

affection for Papa, following which Papa ordered her out

of his office and threatened to report her conduct to her

supervisor. Upon leaving the store that day, Carrier

reportedly made a statement to the effect that she would

“get” Papa. Approximately a week later, Papa was ad-

vised by Carrier and Mike Haskins, Carrier’s direct super-

visor, that he was being terminated for violations of com-

pany policy, i.e., for the fraudulent manipulation of store

paperwork. /d. at 5a. The District Court concluded

that Carrier was exercising the authority delegated to her

by Domino’s when she was involved in Papa’s termina-

tion, and that Domino’s was therefore liable for her hostile

environment sexual harassment of Papa. /d. at 10a.

a

20

As discussed above, any actions supervisors take in

their supervisory capacity could be deemed an exercise of

the authority delegated to them by the employer. But, as

Faragher warns, that principle should not be so broadly

applied. 111 F.3d at 1537. See also Torres, 116 F.3d at

635. Carrier did not “accomplish” the harassment in ques-

tion by using her role as supervisor. The District Court’s

expansive application of general agency principles to

impose liability on Domino’s for Carrier’s hostile environ-

ment harassment is unwarranted even under the standard

in Faragher.

In formulating a framework for analyzing hostile en-

vironment claims by supervisors in Faragher, the Eleventh

Circuit repeatedly cited to and relied upon Sparks v. Pilot

Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987), a

case involving allegations of both hostile environment

harassment and quid pro quo harassment. Faragher, 111

F.3d at 1536-37. Among other things, Sparks is cited

to describe an example of a supervisor engaging in hostile

environment harassment by using “the authority delegated

to him to assist in the harassment: He repeatedly reminded

the victim that he could fire her if she refused his ad-

vances.” /d. at 1537 (citing Sparks, 830 F.2d at 1560).

This is notable for two reasons. First, such linking of

sexual favors and a threatened job detriment describes

quid pro quo harassment, underscoring the Eleventh Cir-

cuit’s move toward conflating the two theories. Cf. Hen-

son v. City of Dundee, 682 F.2d 897, 910 (11th Cir.

1982) (in a quid pro quo case, “the supervisor relies upon

his apparent or actual authority to extort sexual consid-

eration from an employee. Therein lies the quid pro

quo.”). Second, there was no finding that Carrier made

any threats, conditions or demands to elicit sexual favors

from Papa in the present case. Carrier never gave Papa

an ultimatum—or even a strong suggestion—that he had

better comply with her sexual demands or a job detriment

would result. Thus, the record in the present case not only

21

fails to provide any reasonable basis for imputing liability

to Domino’s for Carrier’s hostile environment harassment,

it also fails to support a finding of quid pro quo harass-

ment. Cf. Farley v. American Cast Iron Pipe Company,

113 F.3d 1548, 1552-1553 (11th Cir. 1997) (reciting

Faragher standard, analyzing hostile environment claim

only in terms of whether employer knew or should have

known of the harassment, and finding no quid pro quo

harassment because evidence did not show supervisor con-

ditioned or demanded acquiescence to his sexual overtures

in exchange for tangible job benefit).

The District Court’s decision in the present case illus-

trates the confused state of the law on issues courts are

confronting with increasing frequency: Can the requisite

nexus be established in circumstances where the trier of

fact makes no finding that the supervisor made explicit

sexual requests or demands, and any implicit suggestions

or requests were not associated with the plaintiff's job?

Is quid pro quo harassment established where, as here. the

only possible link was an equivocal remark Carrier sup-

posedly made after being ordered from Papa’s office,

coupled with the fact that Papa was subsequently termi-

nated? And if these facts are sufficient to establish a

prima facie case of quid pro quo harassment, what is the

distinction between this analysis and imposing liability on

employers in hostile environment cases, where the “harass-

ment is accomplished by an instrumentality of the agency

or through conduct associated with agency status”? Fara-

gher, 111 F.3d at 1537. For that matter, what mean-

ingful distinction exists between the District Court’s ex-

pansive interpretation that quid pro quo harassment was

established because the plaintiff was subsequently termi-

nated, and claims of retaliatory discharge? ”

* The District Court’s analysis of the retaliation claim was simi-

larly flawed for two reasons. First, although the District Court

concluded that Carrier’s motivation for reporting the paperwork

manipulation was improper—and even that she was involved in the

22

Most important, the practical effect of the District

Court’s expansive analysis is that, in virtually every situa-

tion where there is a finding of any conduct amounting to

sexual harassment by a supervisor and where subsequent

adverse action is taken against the employee claiming

harassment, even when the employer has no actual or con-

structive knowledge of the harassment, the plaintiff will be

found to have established a prima facie case against the

employer under all three separate and independent the-

ories: quid pro quo harassment, hostile environment har-

assment and retaliation. The District Court’s application

of the facts to the law in the present case essentially con-

flates these distinct theories, and demonstrates the need

for clarification of the relationship—and analytical dis-

tinctions—among them. This case presents an opportunity

for the Court to provide much-needed clarification on issues

of substantial importance in a growing area of the law.

II. TITLE VII SHOULD NOT BE INTERPRETED TO

PERMIT A DISTRICT COURT TO ORDER SWEEP-

ING INJUNCTIVE RELIEF AGAINST AN EM-

PLOYER WHERE THE EMPLOYER HAD NEITHER

ACTUAL NOR CONSTRUCTIVE KNOWLEDGE OF

ITS EMPLOYEE’S IMPROPER CONDUCT.

The District Court expressly found that “Domino’s had

neither actual nor constructive knowledge of the hostile

atmosphere created by Carrier.” App. B at 10a. There

were no allegations or findings of a pattern or practice of

manipulation—it is undisputed that improprieties did occur in

paperwork for which Papa admitted he was ultimately responsible.

This may mean that Carrier should also have been discharged, but

it does not establish that Papa was fired for an improper reason.

Second, the District Court’s conclusion that Papa’s “termination by

Carrier” (App. B at 12a) was retaliatory completely overlooks the

role of Carrier’s supervisor, Mike Haskins, in the termination.

App. B at 5a. Surely the actions of Haskins must be considered to

be the actions of Domino’s to an even greater extent than Carrier’s,

and there has been no suggestion that Haskins had any retaliatory

motive. This issue should also be reconsidered on remand.

23

discrimination or retaliation. Rather, the trial court found

one isolated instance of sexual harassment by one low-

level supervisor directed against one employee at one of

Domino’s approximately seven hundred locations.

Yet, the District Court granted sweeping injunctive re-

lief against Domino’s, permanently enjoining the Company

“from engaging in any employment practice which discrim-

inates against employees by subjecting them to sexual

harassment and or [sic] which discriminates against em-

ployees who oppose what the employee believes to be a

discriminatory employment decision.” App. B at 16a-17a.

The Court also required Domino’s “to post a written sexual

harassment and retaliation policy in each of its stores for

a period of at least two years from the date of this judg-

ment,” and “to conduct yearly training of each of its man-

agers, including store managers, regarding [Domino’s] sex-

ual harassment and retaliation policy for a period of two

years from the date of this judgment.” Jd. This sweep-

ing relief is neither appropriate nor warranted in the con-

text of this case.

Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e(e)-5(g), permits courts to “order such

affirmative action as may be appropriate” if a party “is

intentionally engaging in an unlawful employment prac-

tice. . . .” This Court has not addressed the propriety

of imposing a far-reaching injunction under this statute

where, as here, the District Court has made no finding of

company-wide discrimination meriting broad-based remedi-

ation. In addition, uncertainty about the permissible scope

of injunctive relief exists in the lower federal courts, with

courts outside the Eleventh Circuit expressing reluctance

to impose sweeping injunctions in similar circumstances.

See, e.g., Spencer v. General Elec. Co., 894 F.2d 651, 660

(4th Cir. 1990) (affirming the denial of an injunction in

a sexual harassment case, noting there was no systematic

company-wide discrimination but rather an isolated inci-

dent involving one supervisor); Kirkland v. Buffalo Board

24

of Ed., 487 F. Supp. 760, 773 (W.D.N.Y. 1979) (plain-

tiff not entitled to an injunction placing him in position |

and enjoining defendant from continuing allegedly dis- |

criminatory practices because there was no proof or find- i

ing of a pattern or practice of discrimination; case was

based on “an isolated violation of Title VII, § 2000e-3(a)

which does not portend a recurrence.”), aff'd, 622 F.2d

1066 (2nd Cir. 1980) (affirmed for reasons given by

District Court).

The District Court’s interpretation of the breadth of its

equity power under Title VII is inconsistent with both the |

language of the statute and the general equity jurispru- |

dence of this Court. In Rizzo v. Goode, 423 U.S. 362

(1976), a 42 U.S.C. §$ 1983 case, this Court held in part

that, where responsible authorities did not play a part in

unconstitutional deprivations by a few individual police

Officers, injunctive relief was improper. As this Court

explained:

The scope of federal equity power, it is proposed, |

should be extended to the fashioning of prophylactic

procedures for a state agency designed to minimize

. . . misconduct on the part of a handful of its em-

ployees. . . [T]his novel claim [is] quite at odds with

the settled rule that in federal equity cases “the

nature of the violation determines the scope of the

remedy. ...”

423 U.S. at 378 (quoting Swann v. Charlotte-Mecklenberg

Board of Ed., 402 U.S. 1, 16 (1971)).

As the First Circuit noted in Brown v. Trustees of

Boston Univ., 891 F.2d 337, 361 (1st Cir. 1990), “[a]n

injunction should be narrowly tailored to give only the (

relief to which plaintiff[] [is] entitled.” Jd. at 361. In

Brown, the First Circuit vacated as overbroad an order

enjoining defendant from discriminating against other

putative members of plaintiff's class. “[Plaintiff’s] case

established that she alone had been the victim of sex

discrimination. The only permissible focus of the injunc-

siti iia

25

tive relief, therefore, would be on protecting her from

further instances of sex discrimination.” Jd. In the present

case, there was no finding or evidence showing that broad

injunctive relief was “appropriate,” or that it was necessary

to prevent future violations of Title VII. See United

States v. Oregon Medical Society, 343 U.S. 326, 333

(1952) (injunctive relief should not be considered unless

the record shows “a real threat of [a] future violation [of

the law] or a contemporary violation of a nature likely

to continue or recur’’).

Despite the dearth of evidence in this case of a pattern

of discrimination or retaliation, and the District Court’s

express finding that Domino’s was unaware of this one

isolated instance of wrongdoing by a low-level supervisor,

the Court imposed a sweeping injunctive remedy that will

impact roughly seven hundred Domino’s stores across the

nation. The scope of this remedy is dramatically dispro-

portionate to the events giving rise to it.

In deciding whether injunctive relief is appropriate, “a

district court must, of course, exercise its discretion in

light of the prophylactic purposes of the [Civil Rights]

Act... .” Spencer, 894 F.2d at 600. Here, however, no

finding by the District Court supports the conclusion that

injunctive relief will serve any such prophylactic purpose,

or that prophylactic measures are even required.

The overbreadth of the injunction imposed on Domino’s

is perhaps best illustrated by its first provision: perma-

nently enjoining Domino’s “from engaging in any employ-

ment practice which discriminates against employees by

subjecting them to sexual harassment and or [sic] which

discriminates against employees who oppose what the em-

ployee believes to be a discriminatory employment deci-

sion.” This sweeping mandate does little more than restate

basic principles of federal discrimination law. Further-

more, it is wholly undeserved where, as here, the District

26

Court acknowledged that Domino’s was completely un-

aware of the situation between Carrier and Papa.

The remainder of the injunction is similarly unwarranted.

The trial court at once absolved Domino’s from having

any knowledge—actual or constructive—about the Car-

rier/Papa situation, while, at the same time, it punished

Domino’s by imposing an injunction requiring Domino’s

“to post a written sexual harassment and retaliation policy

in each of its stores for a period of at least two years |

from the date of this judgment,” and “to conduct yearly |

training of each of its managers, including store man-

agers, regarding [Domino’s] sexual harassment and retalia-

tion policy for a period of two years from the date of this

judgment.” App. B at 16a-17a. The scope of this remedy

far outstrips the isolated Title VII violation giving rise to

it. See Rizzo, 423 U.S. at 378.

The injunction imposed here is also inappropriate in

light of the nearly seven-year time gap between the al-

legedly improper conduct and the District Court’s judg-

ment. This suit was brought as the result of a discrete

series of events occurring between January and May of

1988. The District Court’s opinion was issued more than

seven years later, on November 17, 1995.

Courts outside the Eleventh Circuit have held that,

where a significant amount of time has lapsed between

the illegal activity and imposition of an injunction, equi-

table relief is inappropriate. See, e.g., Webb v. Missouri

Pac. R.R. Co., 98 F.3d 1067, 1069 (8th Cir. 1996)

(even findings of widespread discrimination do not sup-

port an injunction issued five years after the close of all

the evidence); Boykin v. Georgia-Pacific Corp., 706 F.2d

1384, 1394 (Sth Cir. 1983) (holding injunction inappro-

priate where last testimony about class-wide discriminatory

treatment was seven years old). The relief affirmed by

the Eleventh Circuit here is even more inappropriate since

the allegedly improper activity was a brief series of inci-

dents that took place nearly a decade ago involving two

individuals who are no longer employed by Domino’s.

a

27

Because of the untimeliness and overbreadth of the

injunctive relief ordered by the District Court and affirmed

by the Eleventh Circuit in this case, Domino’s respect-

fully requests that this Court grant its Petition for a

Writ of Certiorari to consider the permissible scope of

injunctive relief under Title VII.

Ill. THE QUESTIONS PRESENTED ARE PROPERLY

BEFORE THIS COURT. :

In the District Court and in the Eleventh Circuit,

Domino’s generally denied any liability under Title VII.

This Court should not, however, limit Domino’s to these

specific arguments, and should allow Domino’s to raise

the questions presented in this Petition. This Court has

said that “{o]ur traditional rule is that “once a federal

claim is properly presented, a party can make any argu-

ment in support of the claim; parties are not limited to

the precise arguments they made below.” Lebron v. Na-

tional R.R. Passenger Corp., 513 U.S. 374, 379 (1995)

(petitioner had not raised point below and had even

expressly disavowed it in both lower federal courts; this

Court characterized point as “a new argument to support

what has been his consistent claim.”).

In addition, the questions presented here were also

raised in Domino’s Suggestion of Rehearing En Banc in

the Eleventh Circuit. Banker’s Life and Casualty Com-

pany v. Crenshaw, 486 U.S. 71, 77 (1988) (Court de-

clined to address issues not raised and passed on in state

court, but noted that result might have been different if

party had raised issue on rehearing below).

Moreover, this Court should allow Domino’s to raise

any issue that the District Court and Court of Appeals

“passed upon.” Lebron, 513 U.S. at 379. See also Vir-

ginia Bankshares Inc. v. Sandberg, 501 U.S. 1083, 1099,

n.8 (1991) (If court below passed on issue presented,

particularly where issue is in a state of evolving definition

and uncertainty and is one of importance to the admin-

28

istration of federal law, the Court will consider an issue

not raised below).

In any event, even if this Court finds that the questions

Domino’s has presented were not otherwise preserved, it

may still consider them. The decision to review issues

presented for the first time is a prudential determination

in the context of cases arising from federal courts. Yee v.

City of Escondido, 503 U.S. 519, 533 (1992) (citing

Carlson v. Green, 446 U.S. 14, 17, n.2 (1980)). Here,

Domino’s decision to raise issues in its Suggestion of Re-

hearing En Banc in the Eleventh Circuit and in this Peti-

tion for a Writ of Certiorari that were not raised in its

initial brief on appeal was based in large part upon inter-

vening decisions such as Faragher, which brought to light

the evolving nature of the law on issues that Domino’s had

not anticipated or previously considered. Because the ques-

tions presented by Domino’s are important and timely, and

are based on evolving principles of law, this Court should

exercise its discretion to grant Domino’s Petition.

29

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted and the case set for full

briefing and argument. In the alternative, the Petition

should be granted, the judgment vacated, and the case

remanded to the United States Court of Appeals for the

Eleventh Circuit for reconsideration in light of Faragher

v. City of Boca Raton, 111 F.3d 1530 (11th Cir. 1997)

(en banc), petition for cert. filed, No. 97-282 (August 13,

1997).°

Respectfully submitted,

JORDAN B. CHERRICK

Counsel of Record

JOAN Z, COHEN

JENNIFER S. LOHMAN

ARMSTRONG, TEASDALE,

SCHLAFLY & DAVIS

One Metropolitan Square

Suite 2600

St. Louis, Missouri 63102-2740

(314) 621-5070

Attorneys for Petitioner

8 Stutson v. United States, ——— U.S. ——-, 116 S.Ct. 600 (1996),

and Lawrence v. Chater, - U.S. , 116 S.Ct. 604 (1996),

provide this Court with ample authority to enter a “GVR” order

in this case.