Petition for Writ of Certiorari — Brooks v. Delta Air Lines

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heme Court, U.S

tien

991735 pros om

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

REBECCA BROOKS,

Petitioner,

v.

DELTA AIR LINES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JAMIE G. MILLER

LAW OFFICE OF

JAMIE G. MILLER

75 Fourteenth Street, NW

Suite 2500

Atlanta, Georgia 30309

(404) 875-5854

Attorney for Petitioner.

Washington,0.C. ¢ THIEL PRESS © (202) 328-3286

(:)

QUESTION PRESENTED

DID THE ELEVENTH CIRCUIT ERR WHERE IT AF.

FIRMED A DISTRICT COURT’S RULING THAT NO

REASONABLE JUROR COULD FIND THAT AN EM.-

PLOYER’S EFFORTS TO PREVENT FURTHER HAR.

ASSMENT OF AN EMPLOYEE WERE INADEQUATE?

PARTIES TO THE PROCEEDING

The parties to the proceeding are identical to those

listed in the caption.

(11)

Page

TABLE OF CONTENTS

Ouestion Peasemee’ «ooo cc kwk ec eae esi Sik eee ae i

Parties 3 Te FORGO, 66 oka chase kak beridsceees 1

Table OF AumQReeth 666s ce scu sienna ckeevecenees 1V

Opinions BORO. oo no 4 kbs es REE ee Ee ]

Juviedictiom. .. .6sicsénnnechhedsemeeewesaseenay ]

Federal Statutes Ivonne o.oo kc 6c cede nseenssb cna ]

Statement Of The Case................. sce ees 2

A. Proceedings RON 66k cdc hank eeras eas 5

B. Seatemnent CH FOG. occa ks 05k b45 2 eee 7

Reason For Granting The Wnit .................0.. 9

Did The Eleventh Circuit Err Where It Affirmed

A District Court’s Ruling That No Reasonable

Juror Could Find That An Employer’s Efforts

To Prevent Further Harassment Of An Employee

Were Mnadequener «os 5660554005 4acdcaeheesuens 9

Come oon is c0es 6n4da eae eee 15

APPENDICES:

Appendix A — February 18, 1998 Magistrate

Judge’s Report and Recommendation in an

Employment Discrimination Action for

the United States District Court for the

Norther District of Georgia, Atlanta Div-

ision, citing issues of material fact and

denying Delta Airlines’ Motion for Summary

Judgment as to Brooks’ Title VII claim of

ee

(111)

sexual harassment and Brooks’ Americans Page

with Disabilities Act claim. ...........2.cc00.% la

Appendix B — March 27, 1998 order by United

States Senior District Court Judge uphold-

ing the Magistrate Judge’s prior ruling and

denying Delta Airlines’ Motion for Sum-

mary Judgment as to Brooks’ Title VII

claim of sexual harassment and Brooks’

Americans with Disabilities Act claim......... 30a

Appendix C — October 1, 1998 order by

United States District Court Judge grant-

ing Delta Airlines’ Motion for Summary

Judgment as to Brooks’ Title VII claim of

sexual harassment and Brooks’ Americans

with Disabilities Act claim..................38a

Appendix D — October 2, 1998 from the court’s

order and judgment, Rebecca Brooks gives

notice of her appeal to the United States

Court of Appeals for the Eleventh

Peer oe Tere eT ee Te Cee eee eee 46a

Appendix E — January 26, 2000 per curiam

opinion by the United States Court of

Appeals for the Eleventh Circuit affirming

the October 1, 1998 order granting Delta

Airlines’ Motion for Summary Judgment

as to Brooks’ Title VII claim of sexual har-

assment and Brooks’ Americans With Dis-

MUNENES FEC CIMIIN 6 on ce i cence nees 48a

Appendix F -- Relevant Statutes.............-- 50a

(1v)

TABLE OF AUTHORITIES age

Cases:

Anderson v. Liberty Lobby Inc., 477 U.S. 242,

rk | eee reer er rer re reste re re 10

Burlington Indus., Inc. v. Ellerth, 118 S.Ct.

ET OT CEPR eo oe 8 ee 4s 12

Celotex Corp. v. Catlett, 477 U.S. 311, 322

ti | Serre eT Tree re rer er ee re err ee 10

Fleming v. Boeing, 120 F.3d 252 (11th Cir.

Ls era arene ae eer er ce rr a ee eee 11

Huddleston v. Roger Jean Chevrolet, Inc., 845

Fae Soe, Sem CLEC Cie, TRON oon ec ee dss ca eee 11

Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) ......... 12

Mtkels v. City of Durham, 183 F.3d 323, 329

oo Me Pee Te oe eee Tee er ee Te ere 12

Mills v. Amoco Performance Paper Co., 875

F, wee. Dee Cee Cie, OPO sek ew hen dvsae es 13

Munn v. City of Savannah, 906 F. Supp. 1577

Cee rere er re rrr Ty Cre rere rT ee 13

Paroline v. Untsys Corporation, 874 F.2d 100

(4th Cir. 1989), partially vacated on other

grounds, 900 F.2d 27 (4th Cir. 1990)......... 13,14

Reynolds v. CSX Transp., Inc., 115 F.3d 860,

Per CLO Gl, BOT FS As baa neta ee Ree bens 15

Sanchez v. City of Miami Beach, 720 F. Supp. 974,

Pe Tea PON Ti econ ccketuiaekean es $, 12

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

eee Le ae ft erie ere err 3

ae

(v)

Cases, continued: Page

United Air Lines, Inc. v. Evans, 97 S.Ct. 1885, |

ROOD CISGT) kc ccccdk ag esmkaaekseeaesccens 4,13

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

yo Et Ee Ae th or rer rere re err re 13

Federal Statutes:

yp; BIA. Nome Pt. |) eres Pew ee ere Sieg re ]

Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e et seg., as amended by the

Civil Rights Act of 1991, 42 U.S.C.

he 2 ere ye eee rere re ee eee ks er

OPINIONS BELOW

The January 26, 2000 per curiam decision of the Court

of Appeals, Eleventh Circuit, is unreported. A copy of

the decision is included in the Appendix. (App. E, pp.

48a-49a).

The October 1, 1998 decision by the District Court

on reconsideration is unreported. A copy of the deci-

sion is included in the Appendix. (App. C, pp. 38a-45a).

The March 27, 1998 decision by the District is unre-

ported. A copy of the decision is included in the Appen-

dix. (App. B, pp. 30a-37a).

The February 18, 1998 Magistrate Judge’s Report and

Recommendation in an Employment Discrimination is

included in the Appendix (App. A, pp. 1a-29a).

JURISDICTION

On January 26, 2000, the Court of Appeals for the

Eleventh Circuit affirmed the October 1, 1998 decision

of the District court. (App. E, pp. 48a-49a). ‘the judg-

ment to be reviewed was entered on October 1, 1998.

(App. C, pp. 38a-43a). This Court has jurisdiction pur-

suant to 28 U.S.C. §1254(1).

FEDERAL STATUTES INVOLVED

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

§2000e et seqg.), by the Civil Rights Act of 1991, 42

U.S.C. §1981A.

Because of the length of these statutes, only the

relevant sections of the text of these provisions are set

out in the Appendix (App. F, pp. 50a-52a).

2

STATEMENT OF THE CASE

Brooks’ complaint alleged a sexual harassment claim

under Title VII of the Civil Rights Act of 1964 (42

U.S.C. §2000(e) et seq.) as amended by the Civil Rights

Act of 1991. Brooks requested a jury trial.

This action challenges the Eleventh Circuit’s per curiam

affirmance of the district court’s granting of Delta Air

lines’ summary judgment motion as to Brooks’ Title VII

sexual harassment claim and the district court’s failure to

allow her to proceed to trial. Brooks’ sexual harassment

claim was based upon the hostile work environment

theory. Summary judgment was granted based upon the

district court’s determination that the corrective action

taken by Delta Airlines in response to the sexual harass-

ment was dispositive as to whether Brooks could survive a

motion for summary judgment. (App. C, p. 41a). The

district court then summarily ruled that no reasonable

juror could find that Delta Air Lines’ efforts to prevent

further sexual harassment of Brooks were inadequate.

(App. C, pp. 41a-43a). As a result, the district court

granted Delta Airlines’ motion for summary judgment.

(App. C, pp. 38a-43a).

In the instant case, Brooks, a female Delta Air Lines

employee, was subjected to two instances of sexual har-

assment by the same co-employee. The first incident

occurred in 1989, where the harasser exposed his genitals

to Brooks at her workplace. Brooks reported the inci-

dent, and the harasser admitted his conduct to his

employer. Following this incident, Delta Air Lines

took remedial action and disciplined the harasser. A

second incident occurred in 1993, where the same har-

3

asser on his first opportunity to see Brooks in four years

gave her an unwelcome hug. Brooks immediately reported

the incident, and once again, Delta Airlines took limited

remedial action. Following the second incident, Brooks

was not able to return to work and subsequently filed

a sexual harassment charge with the Equal Employment

Opportunity Commission. Brooks then filed a lawsuit —

the subject of this action.

In response to Delta Airlines’ motion for summary

judgment, the magistrate judge issued the Magistrate

Judge’s Report and Recommendation in an Employment

Action (hereinafter ‘‘Report”) on February 18, 1997.!

The report denied Delta Air Lines’ motion for summary

judgment as to the Title VII sexual harassment claim.

(App. A, pp. 14a-2la). The magistrate judge noted that

a “plaintiff can establish a prima facie case for a hostile

work environment sexual harassment claim by showing

that: (1) the employee belongs to a protected group;

(2) the employee was subjected to unwelcome sexual

harassment; (3) the harassment complained of was based

upon sex, (4) the harassment complained of affected a

“term, condition or privilege of employment, and (5)

either that the harasser meets the definition of employer

or that the employer is liable through respondent super-

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

1554, 1557 (11th Cir. 1987). (App. A, p. 16a). The

magistrate judge also noted that while untimely acts of

sexual harassment-do not create actionable causes of

action, the acts may be used as relevant background

evidence in a determining if a plaintiff can withstand

lin the United States District Court Norther District of

Georgia, any complaint containing a Title VII claim is initially

assigned to a United States Magistrate Judge.

4

summary judgment. (App. A, p. 14a). Thus, the magis-

trate judge considered the totality of the events, includ-

ing all of the harasser’s actions and Delta Air Lines’

limited attempts at corrective action, and concluded that

Brooks had met her burden and denied summary judg-

ment. (App. A, pp. 14a-21a).

Delta Air Lines filed objections to the Report. On

March 27, 1998, the district court issued an order affirm-

ing the Report. (App. B, pp. 30a-37a). The district court

agreed with the magistrate that while the “exposure”’

incident of 1989 and Delta Air Lines’ subsequent attempts

to remedy the problem were time-barred evidence in

establishing a prima facie case of discrimination, such

evidence could be used as “relevant background evidence

where the status of a current practice is at issue.” United

Air Lines, Inc. v. Evans, 97 S.Ct. 1885, 1889 (1997).

(App. B, p. 34a). Thus, the district court concluded that

Brooks had established a prima facie case for a hostile

work environment. Furthermore, the district court held

that, based upon the evidence, a reasonable juror could

conclude the harasser’s 1993 conduct was sufficiently

abusive so as to create a hostile work environment, and

the defendant failed to take prompt remedial action.

(App. B, pp. 34a, 35a).

Delta Air Lines requested reconsideration or an inter-

locutory appeal. On October 8, 1998, the district court,

with a different judge reviewing the summary judgment

motion, reconsidered the earlier order and reversed

the earlier ruling. (App. C, pp. 38a-43a). The district

court held that the dispositive issue was: ‘“‘could a reas-

onable juror conclude that Delta Air Lines’ remedial

actions taken after the 1993 incident were inadequate?”

In this context, inadequate means that the action is not

‘“‘reasonably calculated to prevent further harassment.”

ate ee

DE ORR ORY et OR

5

Sanchez v. City of Miami Beach, 720 F. Supp. 974, 980

(S.D. Fla. 1989). In analyzing this question, the district

court apparently failed to look at the totality of the

circumstances as the other judges and viewed Delta Air

Lines’ remedial actions as isolated responses to the har-

assing incidents that triggered the response. This was

done even though the district court noted that the haras-

ser blatantly chose to ignore the earlier corrective actions

taken by Delta Air Lines in response to the 1989 inci-

dent. (App. C, p. 43a). In spite of this recognition, the

district court failed to consider these facts when anal-

yzing the adequacy of the corrective actions taken by

Delta Air Lines following the 1993 harassment incident.

Thus, the district court erroneously held that no reason-

able juror could find Delta Air Lines’ remedial actions

inadequate. (App. C, p. 43a). Yet, surely a reasonable

juror who considered all of the facts and information

known to Delta Air Lines following the 1993 harass-

ment incident — as is allowed by the law — could have

found Delta Air Lines’ 1993 remedial actions inade-

quate. Thus, the granting of summary judgment and

the denial of Brooks’ right to a jury trial was erroneous.

A. Proceedings Below.

1.On August 5, 1996, the case was filed in the State

Court of Fulton County, Georgia. After the dismissal

of various state law claims, the case was removed to the

United States District Court for the Northern District

of Georgia, Atlanta Division, by Delta Air Lines on

September 3, 1996. Because the case contained Title

VII claims, it was assigned to a magistrate judge.

2.On July 14, 1997, Defendant Delta Air Lines,

Inc. filed a motion for summary judgment pursuant to

Rule 56(b) of the Federai Rules of Civil Procedure with

6

regards to Brooks Title VII sexual harassment claim

and Americans with Disabilities Act claim.”

3. On February 18, 1997, the Magistrate Judge issued

the Magistrate Judge’s Report and Recommendation in

an Employment Action (“Report”). (App. A, pp. la-

29a). The Magistrate Judge, noting the existence of

material issues of fact, recommended that Delta Air

Lines, Inc.’s motion for summary judgment be denied

as to both the Title VII claim and the Americans with

Disabilities Act claim. Delta Air Lines filed objections

to the Report for consideration by Senior United States

Senior Judge Richard Freeman.

4. On March 27, 1998, the Report was adopted by an

Order entered by the Senior United States District

Court Judge Richard Freeman, who noted that triable

jury issues existed as to Brooks’ Title VII sexual harass-

ment claim and the Americans with Disabilities Act

claim. (App. B, pp. 30a-37a). On April 13, 1998,

Delta Air Lines moved for reconsideration, or, in the

alternative, for an interlocutory appeal.

5.On October 1, 1998, on reconsideration, United

States District Court Senior Judge Marvin Shoob entered

an order ruling in favor of Delta Air Lines’ motion for

summary judgment on both Brooks’ Title VII sexual

harassment claim and the Americans with Disabilities

Act claim. (App. C, pp. 38a-45a). Brooks noticed her

intent to appeal this order on October 23, 1998. (App.

1), pp. 46a-47a).

2 The only claim before the Court is Brooks’ Title VII claim.

5

6. On January 26, 2000, the United States Court of

Appeals for the Eleventh Circuit issued a per curiam

affirmance of the October 1, 1998 order. (App. E, pp.

48a-49a).

B. Statement Of Facts

Rebecca L. Brooks, a female employee of Delta Air

Lines, was hired in 1969. (App. A, p. 2a). During the

relevant time period, Brooks was assigned to Delta Air

Lines’ Atlanta airport operations in Atlanta, Georgia.

(App. A, p. 2a-3a). Brooks held the position of pas-

senger service agent. (App. A, p. 2a). On September

4, 1989, Brooks went to the ticketing area to get some

information about a lost bag. (App. A, p. 3a). While

Brooks was there, a male co-employee exposed his

genitals to her. (App. A, p. 3a).

Brooks left the area and reported the incident to super-

visors. (App. A, p. 3a). Brooks was asked to provide a

written statement describing the event. (App. A, p. 3a).

Brooks also told management that she could not work in

the same location as the harasser. (App. A, p. 3a). Delta

Air Lines obtained a written statement from the_har-

asser admitting that he had exposed himself to Brooks.

(App. A, p. 3a). Delta Air Lines immediately suspended

the harasser and escorted him off airport premises. (App.

A, p. 3a). Delta Air Lines ordered a mental evaluation

of the harasser, and the physician concluded that the

harasser’s actions were not indicative of any underlying

psychological problems. (App. A, 4a). The report indi-

cated that the harasser could come back to work with

no restrictions. (App. A, 4a).

Delta Air Lines disciplined the harasser as follows:

(1) suspension without pay and benefits for one month;

(2) transfer to the cargo department located in a differ-

ent building some distance from plaintiff’s work site;

and (3) a letter of reprimand placing the harasser on final

8

warning status for one year. (App. A, p. 4a). The har-

asser was only given oral instructions to avoid contact

with Brooks. Additionally, the supervisors to whom

Brooks and the harasser reported were not advised to

avoid assigning them to the same work area. (App. A,

p. 4a).

Two Delta officials recommended termination of the

harasser, but the EEO director decided against it. (App.

A, p. 4a). The EEO director also decided not to transfer

the harasser to another city based partially upon hard-

ship that might occur to the harasser’s family. (App.

A, p. 4a).

Upon the conclusion of the one year probation period,

another letter was issued to the harasser and discussed

with him. The letter, which the harasser signed, stated

“acts of this nature cannot and will not be tolerated.

You are expected to conduct yourself in a professional

manner at all times or further disciplinary action may be

taken.” (App. A, p. 5a).

Brooks and the harasser had no contact until March

16, 1993. (App. A, p. 5a). Asaresult of unusual weather

conditions, Brooks and the harasser were assigned to

work in the same area. (App. A, p. 5a). When the haras-

ser spotted Brooks, he walked up to her and declared

“I want a hug,” and proceeded to embrace her with both

arms. (App. A, p. 6a). The encounter was immediately

reported to Delta Air Lines management, who investi-

gated the incident. (App. A, p. 6a).

Following the March 16, 1993 incident, Delta Air

Lines again counseled the harasser. The harasser was

initially orally counseled and reprimanded, and a letter

memoralized the counseling. (App. A, p. 6a). The let-

ter instructed the harasser to have no contact of any

kind with Brooks. The harasser signed the letter indi-

9

cating that he understood the contents. (App. A, p. 6a).

While Brooks’ harasser was allowed to continue in his

employment, Brooks could not return to work following

the second incident.

At the relevant time, Delta Air Lines had a policy pro-

hibiting sexual harassment. After both incidents of

harassment, Brooks followed the policies and procedures

of her employer and promptly reported the incidents.

(App. A, p. 6a). On or about August 10, 1993, Brooks

filed a charge of discrimination with the Equal Employ-

ment Opportunity Commission alleging sexual harass-

ment. (App. A, p. 6a).

REASON FOR GRANTING THE WRIT

The district court failed to properly apply the law and

the evidence in its analysis of whether an employer’s

remedial action in response to a sexual harassment claim

is adequate to prohibit liability for the employer. Due

to this misapplication of the law and the evidence, the

district court erroneously granted Delta Air Lines’

motion for summary judgment as to Brooks’ Title VII

sexual harassment claim and the Eleventh Circuit per

curiam affirmance of the order.

DID THE ELEVENTH CIRCUIT ERR WHERE IT AF-

FIRMED A DISTRICT COURT’S RULING THAT NO

REASONABLE JUROR COULD FIND THAT AN EM-

PLOYER’S EFFORTS TO PREVENT FURTHER HAR-

ASSMENT OF AN EMPLOYEE WERE INADEQUATE?

Rule 56 (c) mandates the entry of summary judgment

against a party ‘“‘who fails to make a showing sufficient to

establish the existence of an element essential to that

party’s case, and on which the party will bear the burden

10

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). While evidence and factual inferences are to

be viewed in a light most favorable to the non-moving

party, a non-moving party must “go beyond the plead-

ings and. . . designate specific facts showing that there is

a genuine issue for trial.’’ Jd. at 324. A fact is ‘‘material”

if it ‘might affect the outcome of the suit under govern-

ing law...” Anderson v. Liberty Lobby, Inc., 477 US.

242, 248 (1986). A material fact is “genuine” if the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party. Jd. at 258. Thus, to

survive a motion for summary judgment, the non-moving

party must come forward with specific evidence of every

element essential to its case, so as to create a genuine

issue for trial. Jd. at 323.

Brooks was a female Delta Air Lines employee stationed

in Atlanta, Georgia. In 1989, a male co-employee exposed

his genitals to Brooks at the workplace. (App. A, p. 3a).

Brooks promptly reported the incident to management.

The male employee admitted to the conduct, and Delta

Air Lines took disciplinary action against him. The action

included: (1) suspension of the harasser without pay or

benefits for one month; (2) transfer of the harasser to

another location away from Brooks; (3) harasser was

verbally warned to have no further contact with Brooks;

and (4) the harasser was placed on final warning status

for one year. (App. A, p. 4a). Delta Air Lines failed to

instruct either Brooks’ supervisor or the harasser’s super-

visor that the two employees should not be assigned to

the same workplace. (App. A, p. 21a). Brooks and the

harasser had no contact with each other until 1993, when

they were temporarily assigned to the same work station.

Upon seeing Brooks, the harasser approached Brooks

1]

\ and told her to give him a hug and placed his arms around

her. (App. A, p. 5a). Needless to say, Brooks, horrified

by this action, immediately reported the second incident

to her employer. Following the second incident, Delta

Air Lines took the following action: (1) interviewed

Brooks, the harasser, another supervisor, and an eyewit-

ness; (2) forwarded the investigation results to the EEO

officer; (3) orally counseled and reprimanded Ray; (4)

placed a written reprimand in Ray’s file stating that he

was to have no further contact with Brooks of any kind;

and (5) offered to find Brooks another position in its

Atlanta operations. (App. A, p. 6a). Following the 1993

incident, Brooks did not return to work and is on com-

plete disability. (App. A, p. 6a).

Brooks claimed that Delta Air Lines’ actions or lack

of action had created a hostile work environment based

upon the sexual harassment of this co-employee. In

order to state a claim for hostile work environment,

Brooks had to show that (1) she is a member of a pro-

tected group; (2) she was the subject of unwelcome sex-

ual harassment; (3) the harassment occurred because of

her sex; (4) the harassment affected a term, condition,

or privilege of her employment; and (5) the employer

knew or should have known of the harassment and failed

to take remedial action. Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d 900, 904 (11th Cir. 1988).

Based upon the facts of the case, no issue existed as to

whether Brooks met the first three prongs, and the dis-

trict court concluded the fourth prong need not be

addressed. (App. C, p. 41a). The district court’s grant-

ing of Delta Air Lines’ motion for summary judgment

was based upon its dispositive analysis of the fifth prong.

The district court cited Fleming v. Boeing Company for

the proposition that an employer cannot be held directly

12

liable for sexual harassment by a co-worker where the

employer takes immediate and appropriate corrective

action. 120 F.3d 242 (11th Cir. 1997). (App. C, p.

41a). Under this analysis, the district court concluded

that no reasonable jury could find Delta Air Lines liable

for the conduct of the harasser based upon the remedial

actions taken by Delta Air Lines. (App. C, p. 43a). In

order to reach this conclusion, the district court appar-

ently determined that Delta Air Lines’ responses to both

of Brook’s sexual harassment complaints were immedi-

ate and the appropriate corrective action in each case.

The district court apparently isolated the actions taken

and did not review the remedial actions taken after the

1993 incident in the context of the knowledge that

Delta Air Lines had regarding events following the 1989

incident.

The Supreme Court’s ruling in Burlington Indus., Inc.

v. Ellerth requires employers to go beyond immediate

and appropriate corrective action. 118 S.Ct. 2257,

2267 (1988). The Court holds that an employer is liable

for the harassment of an employee by a co-employee

when the employer knows of the harassment or should

have known of the harassment and fails to take action

to stop it. Jd. at 2267. The Court’s holding analogizes

the liability analysis to one used in a negligence theory.

Id. at 2267. Thus, an employer cannot avoid liability

by merely taking immediate and appropriate corrective

action. The appropriate corrective action must be

action that is reasonably calculated to prevent further

harassment of the employee. Sanchez v. City of Miami

Beach, 720 F. Supp. 974, 980 (S.D. Fla 1989); Mikels

v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999);

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

Whether an employer’s action is the appropriate

remedial action is dependent upon the facts of the

13

case — the severity and the persistence of the harass-

ment, and the effectiveness of any remedial steps. Walt-

man v. International Paper Co., 875 F.2d 468, 479

(5th Cir. 1987). Appropriate remedial action should be

based upon all the facts of which an employer has knowl-

edge. This is supported by the Court’s reasoning that

time-barred evidence can be used as relevant background

evidence where the status of a current practice is at

issue. United Air Lines, Inc. v. Evans, 97 S.Ct. 1885,

1889 (1997). To allow an employer to do otherwise

would allow an employer to escape liability by negli-

gently responding to sexual harassment complaints or

to create “sham”’ responses. See Paroline v. Unisys Cor-

poration, 879 F.2d 100 (4th Cir. 1989), partially vacated

on other grounds, 900 F.2d 27 (4th Cir. 1990).

Based upon this analysis, genuine issues of material

fact existed as to whether Delta Air Lines’ 1993 remedial

action was reasonably calculated to stop the harassment

of Brooks. In an isolated context, the 1993 remedial

measures could be considered reasonably calculated to

stop the conduct. But where Delta Air Lines had knowl-

edge of the harasser’s 1989 exposure of his genitals to

the same woman and had knowledge of, as the district

court stated, the harasser’s “decision to ignore Delta

Air Lines’ instructions and embrace”’ Brooks on the first

occasion that he had contact with her, a reasonable

juror could find that Delta Air Lines’ 1993 remedial

actions inadequate to halt this man’s harassment of

Brooks. (App. C, p. 43a).

Courts have held that where an employer has under-

taken to provide some remedial action, the adequacy

of those efforts will normally be an issue which requires

jury resolution. See, e.g., Mills v. Amoco Performance

Products, 872 F. Supp. 975 (S.D. Ga. 1994); Munn v.

14

City of Savannah, 906 F. Supp. 1577 (S.D. Ga. 1995)

(jury issue existed as to the appropriateness of the

defendant’s remedial action even though no further

harassment occurred). Where an employer knows of a

harasser’s prior conduct and has not stopped the con-

duct, fact issues to the adequacy of the remedial actions

are created. Paroline v. Unisys Corporation, 879 F.2d

100 (4th Cir. 1989), partially vacated on other grounds,

900 F.2d 27 (4th Cir. 1990).

In the instant case, in 1989, the harasser exposed his

genitals in the workplace to Brooks. Brooks immed-

iately reported the incident. As a result of this inci-

dent, Delta Air Lines did the following: (1) suspended

the harasser without pay or benefits for one month;

(2) transferred him to another location away from

Brooks; (3) verbally warned him to have no further

contact with Brooks; and (4) placed him on final warn-

ing status for one year. Yet, Delta Air Lines failed to

inform the harasser’s supervisor or Brooks’ supervisor

that the two employees should not be assigned to the

same workplace. Additionally, following the one year

probationary period, Delta Air Lines did not clearly

express to the harasser that he should still refrain from

any contact with Brooks. (App. A, p. 4a). The harasser

was merely warned that Delta Air Lines would not tol-

erate ‘‘acts of this nature,’’ and the harasser was to con-

duct himself in a professional manner at all times. (App.

A, p. 4a). Basically, Delta Air Lines ee the har-

asser to police himself.

In 1993, when the harasser proceeded to touch Brooks

in an unwelcome manner at his first opportunity to have

contact with her, two reasonable and obvious assump-

tions could be made: (1) Delta Air Lines’ prior actions

had not been adequate enough to stop harassment of

15

Brooks by this individual, and (2) Delta Air Lines was

on notice that stronger actions were needed. Yet, Delta

Air Lines actually did little more than reprimand the

harasser and place a letter in his file. As the district

court noted, ‘‘an employer is not expected to be a guar-

antor of its employee’s freedom from further harass-

ment, rather in order to avoid liability, it need only to

take whatever corrective action is reasonably likely to

prevent the misconduct from recurring. Reynolds v.

CSX Transp., Inc., 115 F.3d 860, 867 (11th Cir. 1987).

(App. C, p. 42a). But, an employer is not allowed to

feign ignorance of the facts. Here, a reasonable juror

could find that Delta Air Lines, based upon its prior

knowledge of the harasser and subsequent relevant

events, failed to take the corrective action “reasonably

likely” to prevent further harassment. As a result, the

district court erred in granting Delta Airlines’ motion

for summary judgment and denying Brooks’ right to a

jury trial.

CONCLUSION

For the foregoing reasons, Petitioner respectfully sub-

mits that the petition for writ of certiorari should be

granted.

JAMIE G. MILLER

LAW OFFICE OF

JAMIE G. MILLER

75 Fourteenth Street, NW

~\ Suite 2500

Atlanta, Georgia 30309

(404) 875-5854

Attorney for Petitioner.

la

APPENDIX A

[Filed FEB 18 1998}

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Civil Action No. 1:96-CV-2228-RCF

REBECCA BROOKS,

Plaintiff,

DELTA AIR LINES, INC.,

Defendant.

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATION IN AN

EMPLOYMENT DISCRIMINATION ACTION

Plaintiff Rebecca Brooks filed this action in the

State Court of Fulton County, Georgia, on August 5,

1996, charging that defendant Delta Air Lines, Inc.

(““Delta’’), through the actions of Delta employee J.

B. Ray, subjected her to hostile work environment sexual

harassment in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § §2000e, et seg.

Plaintiff also claims that Delta discriminated against her

because of her disabling condition in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C.

2a

§ § 12101-12117, by failing to accommodate her dis-

ability. Defendant removed the case to this court as a

matter of right on September 3, 1996, and answered

the complaint on September 10, 1996.

Defendant has moved for summary judgment pursuant

to Rule 56(b) of the Federal Rules of Civil Procedure on

all of plaintiff’s claims based upon the pleadings, defend-

ant’s statement of material facts, exhibits, and discovery

materials submitted by the parties [26]. Plaintiff has

fully responded to defendant’s motion for summary judg-

ment. For the reasons that follow, the Magistrate Judge

recommends that defendant’s motion for summary judg-

ment be denied.

BACKGROUND FACTS

When evaluating the merits of a motion for summary

judgment, the court must view the evidence and factual

inferences in a light most favorable to the non-moving

party. Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529

(11th Cir. 1987). Therefore, for summary judgment

purposes only, the following facts are deemed to be

true.

Plaintiff Rebecca L. Brooks is a white female who was

hired by defendant Delta Air Lines in 1969 (Undisputed).

In the 1970’s and early 1980s, Plaintiff spent eight years

of her career in Delta’s Atlanta airport operations, ini-

tially working as a ticketing agent, and later as a passen-

ger service agent or ‘‘Redcoat.” (Undisputed).

While working in Atlanta, plaintiff became acquainted

with, and sometimes worked with, a Delta employee

named J. B. Ray. (Undisputed). Ray was a co-worker

who periodically worked on the same shift with plaintiff.

He was never plaintiff’s supervisor, and he has never had

3a

authority to hire, fire, discipline, or reprimand plaintiff.

(Undisputed). Plaintiff and Ray worked together as pas-

senger service agents for approximately three years.

(Undisputed).

From 1982, to 1989, plaintiff worked for defendant

in Austin, Texas. (Deposition of Rebecca L. Brooks

(“Brooks Dep.’’) at 41-43). She returned to Atlanta on

June 1, 1989, and was assigned to work in local baggage

service beginning in August. Id.

On September 4, 1989, plaintiff was required to leave

her work area and go to the ticketing area at the other

end of the terminal to get some information about a lost

bag. (Undisputed). While plaintiff was in the ticketing

area, J. B. Ray approached her and exposed his penis

organ to her. (Undisputed). Plaintiff returned to her

work area and reported to Steve McCoy that Ray had

exposed himself to her while she was in the audit office

behind the ticket desk. (Undisputed). McCoy immedi-

ately reported the matter to his supervisor, who instructed

McCoy to ask plaintiff for a detailed written statement.

(Undisputed). Plaintiff then provided a written state-

ment documenting the event, and McCoy prepared a writ-

ten statement of what plaintiff had told him. (Undis-

puted).

Delta investigated Plaintiff’s allegation and confronted

Ray the following morning, September 5, 1989. (Undis-

puted). Ray admitted that he had exposed himself to

plaintiff. (Undisputed). Defendant obtained from Ray a

written statement regarding the incident. (Undisputed).

Defendant then immediately suspended Ray, collected

his Delta ID and parking card, and escorted him off the

airport premises. (Undisputed).

Delta sent Ray to be evaluated by Dr. Floyd P. Gar-

rett. (Undisputed). Dr. Garrett examined Ray and

4a

opined that the incident was a one-time event and not

indicative of any underlying psychological problems.

(Undisputed). Dr. Garrett reported to defendant that

Ray could return to work at any time without restric-

tions. (Undisputed).

Delta disciplined Ray as follows: (1) suspension with-

out pay and benefits for one month; (2) transfer to the

cargo department located in a different building some

distance from plaintiff’s work site; and (3) a letter of

reprimand placing Ray on final letter warning status

for one year. (Undisputed). Defendant warned Ray

that “[f]ailure on your part to conduct yourself accord-

ingly will result in further disciplinary action being

taken, including the termination of your employment.”

(Pl.’s ex. 13). Ray was also given an oral instruction to

avoid contact with plaintiff. (Deposition of Richard

Edmond Ealey (‘‘Ealey Dep.”) at 103-04). However,

the supervisors to whom plaintiff and Ray reported were

not advised to avoid assigning them to the same work

area. (Deposition of Wayne Harris (‘Harris Dep.”) at

11-13); (Deposition of Steve McCoy (“McCoy Dep.”)

33-34).

Two Delta officials recommended that Ray be term-

inated. (PI’s ex. 3). However, Richard Ealey, director of

equal opportunity, decided against terminating Ray’s

employment, in part due to the psychiatric evaluation

and in part due to plaintiff’s statement that she did not

want Ray to lose his job. (Ealey Dep. at 34-35, 49, 54-

56); (Brooks Dep. at 179). Ealey also decided against

transferring Ray to another city because it would cause

some hardship to Ray’s family. (Ealey Dep. at 73-76,

95-96).

Upon the conclusion of the one-year probation period,

Delta issued another letter to Ray. (Undisputed). Ray

5a

was advised that ‘acts of this nature[, unspecified con-

duct unbecoming a Delta employee,} cannot and will not

be tolerated. You are expected to conduct yourself in a

professional manner at all times or further disciplinary

action may be taken.” (PI’s ex. 15). This second letter

of warning was discussed with Ray on October 2, 1990,

and he signed it, confirming that he was aware of the

possible consequences of further misconduct. Jd. There-

after, plaintiff and Ray had no contact at all from Sep-

tember 4, 1989, until March 16, 1993. (Undisputed).

Extreme and unusual blizzard conditions in Atlanta on

March 12 and 13, 1993, caused irregular airport oper-

ations and left Delta severely understaffed. (Undis-

puted). Hartsfield Atlanta Airport was closed on March

13 and 14. (Undisputed). As a result of those unusual

weather conditions, plaintiff and Ray both were assigned

to work in the local baggage service area on March 16,

1993. (Undisputed). Ray came to the terminal from

his usual assignment in the international cargo depart-

ment, and plaintiff came to the terminal from her usual

assignment at systems baggage. (Undisputed).

While at the terminal, plaintiff entered a baggage

claim area and saw Ray about twenty feet away. Ray

saw plaintiff and walked up to her, said “I want a hug,”

and embraced her with both arms. (Brooks Dep. at

217-19). Ray was working with another Delta employee,

Les Conway, who observed the encounter between Ray

and plaintiff and gave a written account of his observa-

tion. (Undisputed). That encounter was reported to

Delta management and defendant investigated the situa-

tion and obtained statements from J. B. Ray, Randy

Brady, and Les Conway. (PI’s exs. 2, 17). Within a

couple of days of the incident, plaintiff also spoke dir-

ectly with defendant’s director of equal opportunity,

6a

Richard Ealey, who obtained her account of what had

happened. (Undisputed).

Following the incident on March 16, 1993, defend-

ant counseled Ray against having any contact with plain-

tiff. Ray was warmed that any further contact with plain-

tiff would lead to severe discipline. (Undisputed). This

counseling was then memoralized in a written letter of

reprimand issued to Ray which stated that

due to the recent incident involving you and [plain-

tiff] you are being formally advised that under no

circumstances are you to make contact of any kind

with [plaintiff] .

To clarify our position, we are informing you that

this applies to direct contact, telephone contact

and/or written communication. These stipulations

also apply both on and off the job.

(Pl’s ex. 24). Defendant’s management discussed the con-

tents of the letter with Ray and he signed the letter indi-

cating that he was fully aware of the reprimand. (Undis-

puted).

Plaintiff has not returned to work at Delta since March

16, 1993. (Undisputed). Plaintiff is currently receiving

Long-Term Disability benefits from defendant’s Family

Care Disability and Survivorship Plan, and is receiving

Social Security disability payments based on a finding of

a medical disability beginning on March 16, 1993. (Undis-

puted). To receive such benefits, plaintiff has certified

that, since March 16, 1993, she has been, and remains

completely and totally disabled and is unable to perform

any type of work whatsoever. (Undisputed).

Defendant has a policy prohibiting sexual harassment.

Delta Standard Practice 1000.3 prohibits sexual harass-

ment and expresses defendant’s obligations to make avail-

7a

able equal opportunity to all Delta employees. (Undis-

puted). This policy is also discussed in various employee

orientation and training sessions and in the Standard

Practice manuals available to employees at all times in

their work areas. (Undisputed). Sexual harassment is

considered serious misconduct and violates defendant’s

policy. (Undisputed). Any employee who believes that

he or she has been sexually harassed is strongly encour.

aged to report the matter. (Undisputed). Any employee

who engages in such conduct is subject to disciplinary

action, including possible termination. (Undisputed).

Following both the exposure incident in 1989, and

the hugging incident in 1993, plaintiff promptly reported

Ray’s conduct to defendant pursuant to its policy and

procedures. Plaintiff filed a charge of discrimination

with the Equal Employment Opportunity Commission

(“EEOC”) on or about August 10, 1993, alleging sexual

harassment. (Undisputed).

Prior to 1989, plaintiff had received psychological

treatment and had been hospitalized for depression.

Defendant was informed of this treatment through

plaintiff's applications for leaves of absence for treat-

ment and her discussions with management. With treat-

ment plaintiff was able to manage her psychological

problems and return to work. (Brooks Dep. at 50-52);

(Affidavit of Rebecca L. Brooks (“Brooks Aff.”’) 6).

Following the exposure incident in 1989, plaintiff

required additional psychological treatment. Jd. She

advised defendant’s management that she could not

work anywhere near Ray. (Brooks Aff. § 3).

8a

DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper “if the pleadings, depo-

sitions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no gen-

uine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”’ Fed.

R. Civ. P. 56(c). Rule 569c) mandates the entry of sum-

mary judgment, after adequate time for discovery, against

a party ‘‘who fails to make a showing sufficient to estab-

lish the existence of an element essential to that party’s

case, and on which that party will bear the burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The standard for granting summary judg-

ment mirrors the directed verdict standard under Rule

50(a), which requires the court to grant a directed ver-

dict where there can be but one reasonable conclusion.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). The movant bears the initial burden of assert-

ing the basis of its motion, Celotex, 477 U.S. at 323, and

that burden is a light one. The movant is not required to

negate its opponent’s claim. Jd. Rather, the movant

may discharge this burden merely by “ ‘showing’ — that

is, pointing out to the district court — that there is an

absence of evidence to support the non-moving party’s

case.” 7d. at 325. When this burden is met, the non-

moving party is then required to “go beyond the plead-

ings and . . . designate ‘specific facts showing that there

is a genuine issue for trial.’”’ Jd. at 324.

While the evidence and factual inferences are to be

viewed in a light most favorable to the non-moving

party, Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529

(llth Cir. 1987); Everett v. Napper, 833 F.2d 1507,

9a

1510 (11th Cir. 1987), the non-moving party “must do

more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Electrical

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). The non-moving party must come forward with

specific facts showing there is a genuine issue for trial.

Id. at 587. An issue is not genuine if it is created by

evidence that is “merely colorable” or is “not signifi-

cantly probative.” Anderson, 477 U.S. at 249-50;

Young v. General Foods Corp., 840 F.2d 825, 828

(11th Cir. 1988). Similarly, substantive law will ident-

ify which facts are material. Anderson, 477 U.S. at

248. Thus, to survive a motion for summary judgment,

the non-moving party must come forward with specific

evidence of every element essential to its case, so as to

create a genuine issue for trial. Celotex, 477 U.S. at

323; Rollins, 833 F.2d at 1528.

B. Title VII Sexual Harassment Claim

Plaintiff claims that defendant subjected her to a hos-

tile work environment in violation of Title VII due to

sexual harassment by Delta employee J. B. Ray.

Defendant contends that it is entitled to summary

judgment on plaintiff’s sexual harassment claim because

plaintiff’s allegations concerning events that occurred

before February 11, 1993, are time barred and her

allegations are without merit.

1. Timeliness of Plaintiff's Sex Discrimination

Claim

As an initial matter, prior to addressing the merits of

plaintiff’s claims, the court must consider defendant’s

contention that plaintiff is unable to recover on her

10a

Title VII sexual harassment claim for any events that

occurred before February 11, 1993, because events

prior to that date were not raised in a timely adminis-

trative charge filed with the EEOC. Title VII requires

the filing of a charge with the EEOC within 180 days

“after the alleged unlawful employment practice occur-

red.” 42 U.S.C. §2000c-5(e). While this requirement is

not a jurisdictional prerequisite, it operates in the nature

of a statute of limitations. Thus, it shields a defendant

from liability for any discriminatory action which an

injured party does not raise before the EEOC in a timely

filed charge.

In this case, plaintiff alleges that she was subjected to

hostile environment sexual harassment based on the

conduct of J. B. Ray. She has identified two instances

of conduct by Ray which allegedly demonstrate his

sexual harassment of plaintiff, as well as two acts by

defendant that contributed to the hostile environment.

On September 4, 1989, Ray confronted plaintiff in the

workplace with his penis exposed. (Brooks Dep. at 162

& ex. 9). Plaintiff next encountered Ray on March 16,

1993, when they both were temporarily working in

defendant’s local baggage service area. Plaintiff entered

the baggage claim area and found herself about twenty

feet from Ray. Ray saw plaintiff and walked up to her,

said “I want a hug,” and embraced her with both arms.

(Brooks Dep. at 217-19). Defendant was notified about

the first incident on September 4, 1989, and was given

notice that plaintiff was receiving psychological treat-

ment as a result of that incident and that she had re-

quested to never again be required to work anywhere

near Ray. Sometime in 1991, however, plaintiff was

advised that Ray was to be reassigned to the location

where she worked. Upon receiving that information,

lla

plaintiff told management employee Joel Johnson that

she would not work with Ray and requested and re-

ceived a transfer to systems baggage. (Brooks Dep. at

184-86). Then, on March 16, 1993, defendant required

plaintiff and Ray to report to work in the same area

without advising plaintiff that Ray would be assigned

there.

Plaintiff filed her employment discrimination charge

with the EEOC on August 10, 1993. That charge was

timely filed as to any discriminatory conduct occurring

on or after February 11, 1993. However, some of the

events relied upon by plaintiff to support her harassment

claim occurred prior to February 11, 1993. Plaintiff

does not contend that her failure to bring a claim earlier

is excusable under theories of waiver or estoppel. Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

Instead, plaintiff contends only that the discrimination

which she suffered was of a continuing nature, or, alter-

natively, that the filing period was equitably tolled

because she was harmed by those actions within the

180-day period covered by her EEOC charge; therefore,

her claim was timely filed.

Plaintiff argues that her claim is timely because the

sexual harassment of which she complains constituted a

continuing violation. The Eleventh Circuit has held that

“[w]here an employee charges an employer with con-

tinuously maintaining any illegal employment practice,

[she] may file a valid charge of discrimination based

upon that illegal practice until 180 days after the last

occurrence of an instance of that practice.” Beavers v.

America Cast Iron Pipe Co., 975 F.2d 792, 796 (11th

Cir. 1992) (quoting Gonzalez v. Firestone Tire & Rub-

ber Co., 610 F.2d 241, 249 (5th Cir. 1980)). Thus,

under the continuing violation doctrine, a claim which

12a

would otherwise be precluded because it is based on

conduct which falls outside of the 180-day filing period

may nonetheless be considered timely when there is a

“substantial nexus” between that conduct and conduct

occurring within the filing period. In order to demon-

strate a continuing violation, a plaintiff must show (1)

the occurrence of a specific act of discrimination within

the filing period and (2) a link between this act and the

alleged misconduct outside of the filing period which

forms the basis of plaintiff’s claim. Jd.; Saville v. Hous-

ton County Healthcare Auth., 852 F.Supp. 1512, 1522

(M.D. Ala. 1994).

Since plaintiff’s claim was filed on August 10, 1993,

she must demonstrate that some actionable discrimina-

tory conduct occurred within 180 days of that charge,

that is, between February 11, 1993, and the date of

the charge. Plaintiff shows that defendant required her

to work in the same facility as Ray on March 16, 1993,

and that Ray approached her and embraced her as soon

as she encountered him in the workplace. These facts

establish conduct that occurred within the filing period.

Plaintiff may recover for the 1989, and 1991, events

under a continuing violation theory only if she shows

that the events in March, 1993, were a continuation of

the earlier acts. Considering these incidents in a light

most favorable to plaintiff’s case, the undersigned is com-

pelled to conclude that the 1993 actions do not con-

stitute a continuation of the penis exposure event in

1989, or the alleged decision to transfer Ray to plain-

tiff’s work site in 1991. While the earlier events may

have contributed to plaintiff’s distress from the 1993

events, the exposure and transfer incidents constitute

discrete actions that cannot be construed as a contin-

uing course of conduct. For purposes of plaintiff’s

13a

continuing violation theory, she has not demonstrated

a substantial nexus between those alleged acts and the

allegedly harassing conduct which occurred within the

180-day period preceding her EEOC charge. Thus, she

has failed to show that defendant engaged in a contin-

uing violation of Title VII.

Plaintiff alleges in the alternative that her claim must

be considered timely under the “discovery rule.” The

Eleventh Circuit has explained that equitable tolling

stops the running of the time limit for filing a timely

charge of discrimination “until the facts that would

support a charge of discrimination under Title VII

were apparent or should have been apparent to a person

with a reasonably prudent regard for his rights similarly

situated to plaintiff.” Ross v. Buckeye Cellulose Corp.,

980 f.2d 648, 660 (11th Cir. 1993); accord Sturniolo,

15 F.3d 1023, 1025 (11th Cir. 1994). Plaintiff com-

plains that Ray exposed his penis to her in 1989, and

defendant responded by placing them at different facil-

ities. Then, in 1991, she learned that defendant intended

to transfer Ray to the facility at which plaintiff worked.

She was forced to request a transfer and take a two-week

leave-of-absence until a transfer could be arranged, so

that she could avoid possible contact with Ray. The

March, 1993, incident occurred as a result of defendant’s

decision to assign plaintiff and Ray to the same work

site. Plaintiff was aware of facts which would have

apprised a reasonably prudent person that her rights

may have been violated due to defendant’s failure to

permanently assign plaintiff and Ray to different work

sites no later than 1991, when she received notice that

Ray was to be transferred to her work site and suffered

a change in her work terms and conditions by having

to seek a transfer. Furthermore, plaintiff has pointed

l4a

to no evidence showing that defendant engaged in any

conduct which prevented plaintiff from asserting her

rights in an EEOC charge in 1991. Therefore, plaintiffs

argument that the deadline for filing an administrative

charge concerning the 1989 and 1991 events was equit-

ably tolled until March, 1993, is without merit.

Plaintiff has not shown that defendant’s conduct

established a continuing violation or that the 180-day

filing deadline was equitably tolled. Therefore, plaintiff

can recover only for discriminatory conduct occurring

within the filing period of February 11, 1993, through

August 10, 1993. Plaintiff contends that the events of

March 16, 1993, cannot be considered in a vacuum,

whereas defendant suggests that the events in 1989, and

1991, cannot be considered to support her harassment

claim. A discriminatory act which was not included in

a timely charge ‘‘may constitute relevant background

evidence in a proceeding in which the status of a current

practice is at issue ....” United Air Lines, Inc. v. Evans,

431 U.S. 553, 558 (1977). Thus, the earlier events must

be considered to determine whether plaintiff can with-

stand summary judgment on her sexual harassment

claim.

2. Merits of Sexual Harassment Claim

Plaintiff alleges that defendant discriminated against

her because of her sex in violation of Title VII by sub-

jecting her to hostile work environment sexual harass-

ment. In a disparate treatment action, the plaintiff car-

ries the burden of demonstrating that the defendant has

unlawfully discriminated against her. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248 (1981).

The allocation of burdens and order of presentation and

proof are as follows: (1) plaintiff has the burden of prov-

Pp RE PPS

15a

ing by a preponderance of the evidence a prima facie

case of discrimination; (2) if the plaintiff succeeds in

proving the prima facie case, the burden shifts to the

defendant to articulate some legitimate, non-discrimin-

atory reason for the action taken against the employee;

and (3) should the defendant carry this burden, plain-

tiff must have an opportunity to prove by a prepond-

erance of the evidence that the legitimate reason offered

by defendant was a pretext for discrimination. McDon-

nell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973).

“Although summary judgment should be granted with

caution in employment discrimination cases, there are

occasions when such disposition is appropriate.” Hudson

v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376

(11th Cir. 1988). To survive summary judgment in a

disparate treatment case, plaintiff is not entitled to rest

on her prima facte case when the employer offers strong

evidence of a legitimate, non-discriminatory reason for

the adverse action. Plaintiff must produce significant

evidence to raise a genuine issue of fact as to the pretex-

tual nature of the employer’s stated reason. Grigsby v.

Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.

1987). Plaintiff can either diretctly persuade the court

that a discriminatory reason more likely motivated the

employer or show indirectly that the employer’s prof-

fered explanation is unworthy of credence. Miles v.

M.N.C. Corp., 750 F.2d 867, 870-71 n.4 (11th Cir.

1985). Plaintiff may use comparative evidence, statistical

evidence, or discriminatory statements or admissions.

Id. at 870.

Sexual harassment in the workplace violates the prohi-

bition in Title VII against subjecting an individual to dis-

crimination “with respect to [her] compensation, terms,

16a

conditions, or privileges of employment because of such

individual’s .. . sex... .” 42 U.S.C. §2000e-2(a)(1);

Steele v. Offshore Shipbuilding Inc., 867 F.2d 1311,

1315 (11th Cir. 1989). There are two kinds of sexual

harassment claims: guid pro quo and hostile work envir-

onment. Qutd pro quo sexual harassment occurs when an

employer alters an employee’s job conditions as a result

of the employee’s refusal to submit to sexual demands.

Steele, 867 F.2d at 1315. Hostile work environment

sexual harassment occurs when the employer’s conduct

‘‘ ‘has the purpose or effect of unreasonably interfering

with an individual’s work performance or creating an

intimidating, hostile, or offensive environment.’ ” Jd.

(quoting, Merttor Savings Bank, FSB v. Vinson, 477

U.S. 57, 65 (1986)). Plaintiff alleges that defendant

Delta, through J. B. Ray, has subjected her to hostile

work environment sexual harassment.

Ordinarily, in a hostile environment case, the employ-

er’s liability exists only through respondeat superior;

therefore, a company is liable only where the corporate

defendant knew or should have known of the harassment

and failed to take prompt remedial action against the

harasser. Steele, 867 F.2d at 1316; Sparks v. Pilot

Freight Carners, Inc., 830 F.2d 1554, 1557-58 (11th

Cir. 1987). Plaintiff may show that her employer had

knowledge of harassment by proving that she complained

to higher management of a problem or by demonstrat-

ing that the harassment was so pervasive that an infer-

ence of constructive knowledge arises. Huddleston v.

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

1988). The employer will be liable even in the absence

of notice if “‘the victim in question had no reasonable

availabl. avenue for making his or her complaint known

to appropriate management.” Cross v. State of Ala.,

49 F.3d 1490, 1506 (11th Cir. 1995).

17a

Plaintiff asserts that she experienced hostile work

environment sexual harassment when defendant placed

her in the same work site as Ray and Ray embraced her

with both of his arms around her. A plaintiff may

establish a prima facie case of hostile work environment

sexual harassment by showing that (1) the employee

belongs to a protected group, (2) the employee was sub-

jected to unwelcome sexual harassment, (3) the harass-

ment complained of was based upon sex, (4) the harass-

ment complained of affected a “term, condition, or

privilege” of employment, and (5) either that the harasser

meets the definition of employer or that the employer is

liable through respondead superior. Sparks, 830 F.3d at

1557; Henson v. City of Dundee, 682 F.2d at 903-05

(11th Cir. 1982). “Of course, ... not all work place

conduct that may be defined as ‘harassment’ affects a

‘term, condition, or privilege’ of employment within the

meaning of Title VII. For sexual harassment to be

actionable, it must be sufficiently severe or pervasive ‘to

alter the conditions of [the victim’s] employment and

create an abusive working environment.” Meritor

Savings Bank, FSB v. Vinson, 477 U.S. at 67 (citation

omitted).

The phrase “terms, conditions, or privileges of employ-

ment” as used in Title VII has been held to be rather

extensive.

A discriminatorily abusive work environment, even

one that does not seriously affect employees’

psychological well-being, can and often will detract

from employees’ job performance, discourage

employees from remaining on the job, or keep them

from advancing in their careers. Moreover, even

without regard to these tangible effects, the very

fact that the discriminatory conduct was so severe

18a

or pervasive that itt created a work environment

abusive to employees because of their... gender...

offends Title VII’s broad rule of work place equal-

ity.

So long as the environment would reasonably be

perceived, and is perceived, as hostile or abusive, .. .

there is no need for it also to be psychologically

injurious.

[W]hether an environment is “hostile” or “‘abus-

ive’ can be determined only by looking at all the

circumstances. These may include the frequency

of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere

offensive utteranace; and whether it unreasonably

interferes with an employee’s work performance.

Harris v. Forklift Systems, Inc., 510 U.S. 17, 22-23,

126 L.Ed.2d 295, 302-03 (1993) (emphasis added).

Defendants contend that plaintiff cannot show that

Ray’s action was harassing, that it was based on gender,

or that it affected a term, condition, or privilege of

plaintiff's employment. The evidence shows that plain-

tiff was diagnosed with depression in 1988, and had

advised defendant of her condition and the fact that,

without treatment, it could interfere with her perform-

ance of the essential functions. In 1989, Ray had ap-

proached plaintiff with his penis exposed, causing her

severe emotional trauma for which she required addi-

tional therapy. Defendant was informed of plaintiff's

need for therapy due to that event, as well as plaintiff's

request that she have no contact with Ray. Due to his

egregious behavior, Ray was instructed to avoid all con-

19a

tact with plaintiff. Nonetheless, upon seeing plaintiff

on March 16, 1993, Ray approached her saying he

wanted a hug and embraced her with both arms. This

conduct, especially when considered in light of the

absence of evidence that Ray normally, when approach-

ing male employees, said to male employees, “I want a

hug,” and then physically embraced such employees

with both arms, is sufficient to establish a question of

material fact as to whether Ray’s action was based upon

plaintiff's sex. Plaintiff has provided ample evidence that

she felt harassed by this action and that it affected her

ability to perform her job. Therefore, plaintiff has

established the first, second, and third elements of her

prima jacie case and the subjective portion of the fourth

element. Furthermore, Ray’s physical embrace of plain-

tiff, considered in light of his history of having ap oroached

her with his penis exposed, could be interp eted by a

reasonable person as both severe and threatening. For

these reasons, the Magistrate Judge concludes that a reas-

onable person would perceive the acts as hostile and

abusive.’ Therefore, the Magistrate Judge concludes that

plaintiff has established the fourth element of her prima

facie case of hostile work environment sexual harassment.

Defendant also argues that plaintiff is unable to estab-

lish the final element of her prima facie case, which

' Contrary to defendant’s argument, the number or fre-

quency of the incidents of discriminatory conduct is not dis-

positive on the issue of whether the environment was hostile or

abusive. The Supreme Court has instructed that this element of

a plaintiff's case can be determined only by looking at all the

circumstances, which MAY include any of these factors: the

frequency of the conduct, OR its severity, OR its physically

threatening or humiliating nature, OR its unreasonable inter.

ference with plaintiff’s work performance. Harris v. Forklift

Systems, Inc., 510 U.S. at 22-23.

20a

requires a showing that Delta is liable for Ray’s actions

on March 16, 1993, because Delta took prompt remedial

action once it knew about the incident. The Supreme

Court has ruled that ‘‘absence of notice to an employer

does not necessarily insulate that employer from liabil-

iy.’ Merittor Savings Bank, 477 U.S. at 72. In this case,

Delta will be liable for Ray’s acts if it “knew or should

have known of the harassment and failed to take prompt

action to remedy the violation. “The employee can show

that the employer had knowledge of the harassment by

proving that she complained to higher management of

the problem or by demonstrating that the harassment was

so pervasive that an inference of constructive knowledge

arises.” ”’ Cross v. State of Ala., 49 F.3d 1490, 1507

(11th Cir. 1995) (quoting Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d at 904).?

Plaintiff argues that defendant had adequate notice

because it knew of the severity of the 1989 incident and

had instructed Ray to avoid contact with plaintiff, but

it nonetheless failed to ensure that they were not sched-

uled to work together and allowed plaintiff and Ray to

be placed together on March 16, 1993. Plaintiff has

2 Emplyoyer liability also can be established by showing that

the employer did not provide the plaintiff a reasonable avenue for

making her complaint known to defendant. Where a victim of

sexual harassment “did not have a reasonable avenue for making

his or her complaint known to appropriate management offi-

cials, the employer is not shielded from liability because the com-

plainant did not give notice of the activity.” Cross, 49 F.3d at

1506. In this case, however, the record shows that defendant did

have in place during all relevant times a reasonable avenue for

complaining to defendant about harassment. However, contrary

to Delta’s assertion otherwise, its policy does not shield 'it from

liability where harassment occurs even after the employer has

notice of a hostile environment or the propensity of an employee

to engage in harassing conduct.

2la

presented evidence that, although Delta claims to vigor-

ously enforce its policy against sex discrimination, the

warning to Ray in 1989 to avoid contact with plaintiff

was not reduced to writing and neither of their supervis-

ors was advised to avoid assigning them to the-same work

area. (Ealey Dep. at 103-04); (Harris Dep. at 11-13).

Thus, in light of the fact that Delta allowed plaintiff and

Ray to be placed in the same work site on March 16.

1993, a trier of fact could find Delta liable for the harm

suffered by plaintiff due to Ray’s actions on that date.

Accordingly, the undersigned concludes that defendant

is not entitled to summary judgment as to plaintiff’s

claim of hostile work environment sexual harassment.

C. ADA Claim

Plaintiff argues that she is a disabled person under the

Americans with Disabilities Act (“ADA”) and _ that

defendant failed to accommodate her disability, causing

her to become totally disabled. The ADA, codified at

Chapter 126 of Title 42, United States Code, provides

legal remedies for intentional discrimination on the basis

of a disability. The ADA proscribes discrimination

against ‘‘a qualified individual with a disability because

of the disability of such individual in regard to... dis-

charge of employees, . . . job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C.

§12112(a).

Employment discrimination claims brought pursuant

to the ADA are analyzed under the same principles

applied to claims under Title VII. 42 U.S.C. §12117(a);

e.g., Newman v. GHS Osteopathic, Inc., 60 F.3d 153,

156-57 & n.3 (3rd Cirl 1995) (collecting cases); West v.

Russell Corp., 868 F.Supp. 313, 316-17 (M.D. Ala.

22a

1994). Additionally, the provisions of the ADA are to be

harmonized with the corresponding provisions of the Re-

habilitation Act of 1973, 29 U.S.C. §§701, et seq. ; Sawin-

ski v. Bill Curne Ford, Inc., 866 F.Supp. 1383 (M.D. Fla.

1994); accord Newman, 60 F.3d at 157-58. Thus, to

state a prima facie case of discriminatory treatment in

violation of the ADA, a plaintiff must show (1) that she

suffers from a disability, (2) that she is a “qualified

individual with a disability,” (3) that the employer had

actual or constructive knowledge of her disability, and

(4) that she requested an accommodation and that

there exists a specific accommodation that is reasonable

and available. Willis v. Conoco, 108 F.3d 282, 284-85

(11th Cir. 1997); Gordon v. E.L. Hamm ©& Assoc., Inc.,

100 F.3d 907, 910 (11th Cir. 1996). Where plaintiff

claims the ability to work only with reasonable accom-

modations, she must specifically identify such accom-

modations. E.g., White v. York International Corp.,

45 F.3d 357, 360, 362-63 (10th Cir. 1995); Taylor v.

Principal Financial Group, Inc., 93 F.3d 155, 163-65

(5th Cir. 1996); Cheatwood v. Roanoke Indus., 891

F.Supp. 1528 (N.D. Ala. 1995).

Defendant argues that plaintiff cannot recover under

the ADA for any harm caused by the 1989 incident when

Ray exposed his penis to her because it occurred prior to

the effective date of the ADA, July 26, 1992. However,

plaintiff makes clear in her response to defendant’s

motion for summary judgment that she does not base

her ADA claim on the 1989 event. Rather, she refers

to that event and other actions predating the effective

date of the ADA to show that defendant had knowledge

of plaintiff's disability and the accommodation she

required on and after the effective date of the ADA.

23a

Delta next asserts that plaintiff cannot show that she

suffered a disability within the meaning of the ADA.

To establish a prima facie case of discrimination due to

disability, plaintiff must show initially that she is “dis-

abled” within the meaning of the ADA. A person is

disabled if she:

(a) has a physical or mental impairment that

substantially limits one or more of the major

life activities; [or]

(b) arecord of such impairment; [or]

(c) [is] regarded by [her] employer as having

such impairment.

Fessell v. Georgia Ports Authority, 906 F.Supp. 1561,

1568 (S.D. Ga. 1995) (quoting 42 U.S.C. 12102(2)).

Thus, for purposes of the ADA, there must be an im pair-

ment and a limitation on the individual’s major life

activities due to impairment. Gordon, 100 F.3d at 911.

Major life activities are defined as “ ‘functions such as

caring for oneself, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and work-

ing.’ ” Id. (citing 29 C.F.R. §1630.2(i)). Plaintiff has

provided evidence that she was disabled at all relevant

times because of her depression and fragile psychological

condition diagnosed in 1988, which, without treatment,

interfered with her ability to work. Thus, for summary

judgment purposes, plaintiff has established that she suf-

fered a disability as that term is defined in the ADA.

Defendant further contends that plaintiff cannot

establish a prima facie case under the ADA because

defendant had no knowledge of plaintiff’s disability and

she never requested accommodation. Plaintiff shows

that she was diagnosed with depression in 1988, for which

she received treatment, that the encounter with Ray in

. 24a

1989, exacerbated her psychological condition and

required additional treatment, and that she disclosed her

condition to Delta in order to obtain leaves of absence

for treatment and in discussions with her supervisors.

Plaintiff states that she required an accommodation to

enable her to perform her prior job subsequent to Ray’s

action in 1989 of exposing his penis to her — specifically

that she not be required to work anywhere near Ray

again, and she shows that she requested this accommoda-

tion after the exposure incident in 1989.* There is no

evidence that plaintiff expressly notified defendant that

her psychological impairment would interfere with her

ability to work unless defendant ensured that she never

had any further contact with Ray. However, the evi-

dence that defendant was aware that plaintiff received

treatment for depression and of the effects of Ray’s

exposing himself to her in 1989, and that plaintiff

expressly requested that she never be required to work

near Ray again, is sufficient to create a question of fact

as to whether defendant was aware that plaintiff has a

disability and that her request not to work near Ray

was a request for accommodation of that impairment,

but nonetheless, on March 16, 1993, temporarily assigned

both plaintiff and Ray to the same work station.

Defendant finally contends that plaintiffs ADA

claim cannot survive summary judgment because she

cannot show that defendant failed to make a reason-

3 Plaintiff contends that she renewed this request for accom-

modation in 1991, and September, 1992. However, her depo-

sition testimony shows only that in 1991 she once stated that

she would not work near Ray and requested transfer after receiv-

ing notice that Ray may be transferred to her work site, and that

in September, 1992, she once requested, without explanation,

that she not be transferred. (Brooks Dep. at 184-90). Both

requests were honored by defendant.

25a

able accommodation or that the accommodation she now

Proposes was both possible and reasonable. The latter

argument is based on plaintiff’s contention during her

deposition that deferdant should have taken steps to

assure that she never came in contact with Ray under

any circumstances. However, plaintiff’s evidence shows

that the accommodation she allegedly requested was

only that she “never had to work anywhere near J. B.

Ray again.”” (Brooks Aff. 43). Thus, prior to the en-

counter in March, 1993, plaintiff never asked for the

specific accommodation of protection from any further

contact with Ray under any circumstances.

Defendant claims that it is entitled to summary judg-

ment on plaintiff’s ADA claim because she now argues

that defendant should have accommodated her impair-

ment by preventing her from ever again encountering

Ray under any circumstances, but she admits that Delta -

could not have guaranteed that she would never run into

Ray outside of her work station, such as at a grocery

store or while having lunch. (Brooks Dep. at 172-74).

However, the harm suffered by plaintiff in March, 1993,

was caused by an encounter with Ray in the work place

during plaintiff’s scheduled work time, not some chance

encounter at a time or place over which defendant would

have no control. Thus, the reasonableness and availabil-

ity of this recently asserted accommodation is not rele-

vant to plaintiff’s ADA claim.

The accommodation actually requested by plaintiff,

and relevant to her ADA claim, was that she never have

to work anywhere near Ray. Defendant acted on that

request for accommodation by transferring Ray to

another work station located in a separate building from

the terminal where plaintiff was assigned, (Brooks Dep.

at 163-64), an action that prevented plaintiff from

26a

having any contact with Ray in the work place until

March 16, 1993. Defendant’s actions proved inade-

quate once during a period of three and one-half

years, on March 16, 1993, when plaintiff and a number

of other employees were ordered to report to the bag-

gage area to handle a backlog that had occurred due to

inclement weather. (Ealey Dep. at 90-91). Plaintiff

exited an office through a door that led to the baggage

claim area and saw Ray standing about 20 feet away

from her. He approached her and put his arms around

her. (Brooks Dep. at 217-18). Prior to that encounter,

defendant had not advised Ray’s supervisor to make

sure that Ray did not come in contact with plaintiff

while at work, but instead charged Ray with the duty

to ensure that he had no contact with plaintiff at work.

(Ealey Dep. at 69-70). However, neither Ray nor plain-

tiff had a choice about the temporary assignment to

airport baggage. Id. at 90-91.

Upon consideration of these facts and the record as

a whole, the undersigned concludes that plaintiff has

shown a question of fact as to whether defendant failed

to reasonably accommodate her disability by making sure

that plaintiff would have no contact with Ray in the

work place. Plaintiff has established a prima facte case

of discrimination under the ADA. Therefore, it is recom-

mended that defendant’s motion for summary judgment

be denied as to plaintiff’s ADA claim.

RECOMMENDATION

For the foregoing reasons, the Magistrate Judge recom-

mends that defendant’s motion for summary judgment

[51-1] be denied.

27a

AND IT IS SO RECOMMENDED this 18th day of

February, 1998.

/s/ Richard H. Deane, Jr.

RICHARD H. DEANE, JR.

UNITED STATES MAGISTRATE JUDGE

28a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DIVISION

ATLANTA DIVISION

Civil Action No. 1:96-CV-2228-RCF

REBECCA BROOKS,

Plaintiff,

DELTA AIR LINES, INC.,

Defendant

ORDER FOR SERVICE OF

REPORT AND RECOMMENDATION

Attached is the report and recommendation of the

Unifed States Magistrate Judge in this action in accord-

ance with 28 U.S.C. §636(b)(1) and this Court’s Local

Rules 260 or 500. Let the same be filed and a copy,

together with a copy of this Order, be served upon coun-

sel for the parties.

Pursuant to 28 U.S.C. §636(b)(1), each party may file

written objections, if any, to the report and recommen-

dations within ten (10) days of service of this Order.

Should objections be filed, they shall specify with par-

ticularity the alleged error or errors made (including

reference by page number to the transcript if applica-

ble) and shall be served upon the opposing party. The

party filing objections will be responsible for obtaining

29a

and filing the transcript of any evidentiary hearing for

review by the District Court. If no objections are filed,

the report and recommendation may be adopted as the

opinion and order of the District Court and any appel-

late reivew of factual findings will be limited to a plain

error review. United States v,. Slay, 714 F.2d 1093

(11th Cir. 1983), cert. denied, 464 US. 1050, 104

S.Ct. 729 (1984).

The Clerk is directed to submit the report and recom-

mendation with objections, if any, to the District Court

after expiration of the above time period.

AND IT IS SO ORDERED THIS 18th day of Feb-

ruary, 1998.

/s/ Richard H. Deane, Jr.

RICHARD H. DEANE, JR.

UNITED STATES MAGISTRATE JUDGE

30a

APPENDIX B

[Filed MAR 271998]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

1:96-cv-2228-RCF

REBECCA L. BROOKS

Vs.

DELTA AIR LINES, INC.

ORDER

This action is before the court on Magistrate Judge

Richard H. Deane, Jr.,’s Report and Recommendation

[R&R] |#40-1], which recommends that defendant’s

motion for summary judgment [#26-1] be denied.

Defendant has filed objections to the R&R.!

BACKGROUND

From 1969 to 1993, plaintiff Rebecca L. Brooks was

employed as a customer service agent with defendant

Delta Air Lines, Inc. At certain times during her employ-

ment with defendant, plaintiff worked at the airport in

Atlanta, Georgia. There, she was acquainted with J.B.

1 Defendant has also requested oral argument. The court

does not, however, believe that argument is necessary and thus den-

ies defendant’s request.

3la

Ray, a co-worker.?__ In September, 1989, Ray exposed

his genitals to plaintiff. The incident was immediately

reported, and the next day defendant suspended Ray,

collected his employment identification, and escorted

him off airport property. After receiving the results

of a psychological examination of Ray, defendant sus-

pended him without pay and benefits for one month,

transferred him away from the airport location where

plaintiff worked, and placed him on final warning status

for one year. Defendant also instructed Ray to avoid

contact with plaintiff. Plaintiff, who had previously

been diagnosed with depression, states that she was

deeply traumatized by this incident.

Plaintiff had no further contact with Ray until March

1993, when blizzard conditions left the Atlanta airport

severely understaffed. As a result, plaintiff and Ray were

both assigned to work in the local baggage service area of

the Atlanta airport on March 16, 1993. Although there

is some dispute regarding exactly what occurred, in es-

sence, Ray greeted plaintiff by putting his arms on her

shoulders. Plaintiff immediately reported this encounter,

and defendant warned Ray that any further contact with

plaintiff would lead to severe discipline. Plaintiff states

that she was so traumatized by Ray’s conduct that her

psychiatric condition worsened considerably. Plaintiff

has not worked since this incident and is currently

receiving long-term disability benefits on the basis that

she is completely and totally disabled. On August 10,

1993, plaintiff filed a charge of discrimination with the

EEOC, alleging sexual harassment. Three years later,

plaintiff commenced this suit, alleging: (1) that defend-

ant, through the actions of Ray, subjected her to hostile

2 Ray never served as plaintiff's supervisor and never had any

authority to affect the terms of plaintiff’s employment.

32a

work environment sexual harassment in violation of

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

[Title VII], 42 U.S.C. §20003, et seg.; and (2) that

defendant failed to accommodate her disability in viola-

tion of the Americans with Disabilities Act |ADA],

42 U.S.C. §12101, et seg. In due course, defendant

filed a motion for summary judgment, arguing that plain-

tiff could not prevail on either of her claims. The magis-

trate judge recommends that such motion be denied.

DISCUSSION

A. Summary Judgment Standard

Under Fed. R. Civ. P. 56, the court should grant a

motion for summary judgment where “there is no gen-

uine issue as to any material fact and . . . the moving

party is entitled to judgment as a matter of law.” The

movant carries his or her burden by showing the court

that there is “tan absence of evidence to support the

nonmoving party’s case.” Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986). If the movant satisfies this

burden, then the burden shifts “‘to the non-moving party

to demonstrate that there is indeed a material issue of

fact that precludes summary judgment.” Clark v. Coats

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The

court, resolving all reasonable doubts in favor of the

nonmovant, must determine “whether a fair-minded jury

could return a verdict for the plaintiff on the evidence

presented.”” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

B. Hostile Work Environment Sexual Harassment

With regard to plaintiff's claims under Title VII, the

magistrate judge first determined that plaintiff could

33a

seek recovery only for discriminatory conduct that

occurred after February 11, 1993 — that is, within 180

days of the filing of plaintiff’s EEOC charge. Thus, the

magistrate judge determined that plaintiff could not pur-

sue a cause of action based upon the events occurring

in 1989, she could instead pursue only a claim based on

the 1993 incident.* Nonetheless, in evaluating whether

her claim for the 1993 incident could survive defend-

ant’s summary judgment motion, the magistrate judge

considered evidence regarding what had happened in

1989 to conclude that there existed a question of mater-

ial fact with regard to whether plaintiff could demon-

strate: (1) that the harassment affected a term, condi-

tion, or privilege of her employment, and (2) that

defendant knew of the harassment and failed to take

remedial action.* In its objections to the R&R, defend-

> Defendant seems to believe that the magistrate judge recom-

mends that plaintiff be allowed to proceed with a claim based on

the events of 1989. The court does not read the R&R to make any

such recommendation. Rather, the court reads the R&R as a clear

recommendation to bar any claims based on events occurring prior

to February 1993 and finds this recommendation to be correct in -

both fact and law.

*In order to state a claim for hostile work environment sex-

ual harassment, plaintiff must demonstrate that: (1) she is a mem-

ber of a protected group; (2) she was the subject of unwelcome

sexual harassment; (3) the harassment occurred because of her

sex; (4) the harassment affected a term, condition, or privilege of

her employment; and (5) the employer knew, or should have

known, of the harassment and failed to take remedial action.

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904

(11th Cir. 1988). The court’s discussion focuses on the last two

of these requirements, but defendant also argues that plaintiff

cannot meet the third prong of a prima facie case. The court

rejects defendant’s argument because it believes that a reasonable

juror could conclude that the greeting between plaintiff and Ray

in 1993 occurred because of plaintiff’s sex. The parties do not

dispute that plaintiff meets the first two prongs.

34a

ant argues that consideration of such evidence was

improper. The court cannot agree. Although defend-

ant is correct in its contention that time-barred evidence

may not be used to establish a prima facie case of dis-

crimination, see Turlington v. Atlanta Gas Light Co.,

—_—._ F.3d —_ , 1998 WL 80420, *5 (11th Cir. Feb. 26,

1998), it overlooks the inescapable fact that such evi-

dence may be used as “relevant background evidence”

where ‘‘the status of a current practice is at issue.”

United Air Lines, Inc. v. Evans, 97 S.Ct. 1885, 1889

(1997). See also Stewart v. Rutgers, The State Unt-

versity, 120 F.3d 426, 433 (3d Cir. 1997) (‘‘While the

district court was correct in finding that any discrim-

ination claim based on Stewart’s 1992-93 tenure denial

is time-barred, we reject the notion that the events

surrounding that denial are not relevant evidence which

Stewart could use at trtal.”’) (citing Evans, 97 S.Ct. at

1889). As the Supreme Court has stated, ‘‘[T]he crit-

ical question is whether any present violation exists.”

Evans, 97 S.Ct. at 1889 (emphasis omitted). Despite

defendant’s protestations to the contrary, this court

agrees with the magistrate judge that plaintiff has stated

a prima facie case for a present violation and that, in light

of what happened in 1989, she has met her burden of

demonstrating that a material question of fact exists with

regard to defendant’s liability for the 1993 incident.

Specifically, the court finds that a reasonable juror could

conclude that Ray’s conduct in 1993 was sufficiently

“abusive” so as to create a hostile work environment.°

By this, a juror must find, both objectively and subject-

ively, ‘‘that the harassment was sufficiently severe or pervasive

to alter the conditions of [plaintiff's] employment and create

an abusive working environment.”’ Watkins v. Bowden, 105 F.3d

1344, 1355 (11th Cir. 1997). Although defendant’s arguments

[footnote continued]

acme el en

35a

and that defendant failed to take prompt remedial

action.® Accordingly, defendant is not entitled to sum-

mary judgment on plaintiff’s Title VII claim to the extent

it is based on the events of 1993.

C. ADA Claim

With regard to plaintiff’s claims under the ADA, the

magistrate judge determined that the existence of cer-

tain issues of fact precluded summary judgment. Speci-

fically, the magistrate judge reasoned that plaintiff had

shown a question of fact with regard to whether defend-

ant had failed to reasonably accommodate her disability

by ensuring that plaintiff would have no contact with

Rat at work.’ Defendant contends that the magistrate

judge’s reasoning is incorrect because: (1) plaintiff is

not “disabled” for purposes of the ADA; (2) plaintiff

failed to request an accommodation under the ADA;

and (3) plaintiff's demand that she never encounter Ray

against plaintiff’s ability to make this showing are compelling, the

court agrees with the magistrate judge that this issue cannot be

settled on summary judgment.

Sin order to succeed with this affirmative defense, a juror

must find that defendant’s response made it “reasonably likely”

that the misconduct would not recur. Reynolds v. CSX Trans-

portation, Inc., 115 F.3d 860, 869 (11th Cir, 1997). petition for

cert. filed, 66 U.S.L.W. 3324 (U.S. Oct. 27, 1997 (No. 97-726).

Once again, the court finds defendant’s arguments in this regard

to be strong, but agrees with the magistrate judge that this issue

cannot be settled as a matter of law.

’The ADA prohibits employers from discriminating against

qualified individuals with a disability and imposes a duty upon

employers to ‘provide reasonable accommodations for known

disabilities unless doing so would result in undue hardship upon

the employer.” Stewart v, Happy Herman's Cheshire Bridge,

Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).

36a

again at work is unreasonable. The court does not

agree that the magistrate judge’s reasoning is so flawed.

First, depression, of which plaintiff first began complain-

ing in 1988, is a mental impairment that may render an

individual disabled if it substantially limits a major life

activity, such as working. See Pritchard v. Southern

Company Services, 92 F.3d 1130, 1132 (11th Cir.),

amended on reh’g, 102 F.3d 1118 (11th Cir. 1996),

cert. dented, 117 S.Ct. 2453 (1997). Plaintiff has intro-

duced evidence that she suffers from depression and that

it interferes with her ability to work if left untreated.

As determined by the magistrate judge, such evidence is

sufficient to establish a genuine question regarding

whether plaintiff is disabled. Second, there exists a

genuine question with regard to whether plaintiff can be

said to have requested accommodation of her disability

and whether defendant, by assigning plaintiff to the

same work area as Ray in March 1993, failed to reason-

ably honor that request. Lastly, the court cannot say,

as a matter of law, that plaintiff's request that she never

work near Ray again was unreasonable. Thus, as the

magistrate judge determined, plaintiff may be able to

prove to a jury that she was a qualified individual with ~— -

a disability and that defendant discriminated against her

- by failing to reasonably accommodate that disability.

For summary judgment purposes, plaintiff need show no

more. Accordingly, the court finds that defendant is

not entitled to summary judgment on plaintiff’s ADA

claim.

Sbefendant also argues that plaintiff's claim is barred

because it is based on the 1989 incident; an incident that occurred

prior to the enactment of the ADA. Plaintiff explains, however,

that her cause of action is instead based on the events of 1993;

events that occurred after the ADA went into effect.

<<

37a

CONCLUSION

Magistrate Judge Richard H. Deane, Jr.’s Report and

Recommendation [#40-1] is APPROVED and ADOPT-

ED as the Order of this Court. Defendant’s objections

to the R&R are overruled and rejected, and thus its

motion for summary judgment [#26-1] is DENIED.

Plaintiff's motion to strike [#42-1], which is based on

the length of defendant’s objections, is also DENIED.

Defendant is, however, warned that the court will not

accept any future filings that violate the page limita-

tion unless permission to do so is secured in advance.

SO ORDERED, this 29 day of March, 1998.

/s/ Richard C. Freeman

RICHARD C. FREEMAN

SENIOR UNITED STATES DISTRICT JUDGE

38a

APPENDIX C

[Filed OCT 1 1998]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

1:96-cv-2228-RCF

REBECCA L. BROOKS

VS.

DELTA AIR LINES, INC.

ORDER

This action is before the court on defendant’s motion

for reconsideration [#44-1] and motion in the alterna-

tive for the certification of an interlocutory appeal

(#45-1].!

Background

Defendant Delta Air Lines, Inc. seeks reconsideration

of the court’s March 27, 1998 Order [March Order], in

which the court adopted the Report and Recommenda-

tion of United States Magistrate Judge Richard H. Deane

and denied defendant’s motion for summary judgment.

1 Defendant has also requested oral argument. The court

does not, however, believe that argument is necessary and thus

denies defendant’s request.

7

39a

As summarized in the March Order, the essentially undis-

puted facts of this case are as follows:

From 1969 to 1993, plaintiff Rebecca L. Brooks -

was employed as a customer service agent with

defendant Delta Air Lines, Inc. At certain times

during her employment with defendant, plaintiff

worked at the airport in Atlanta, Georgia. There,

she was acquainted with J. B. Ray, a co-worker.”

In September 1989, Ray exposed his genitals to

plain‘ iff. The incident was immediately reported,

and the next day defendant suspended Ray, collect-

ed his employment identification, and escorted

him off airport property. After receiving the results

of a psychological examination of Ray, defendant

suspended him without pay and benefits for one

month, transferred him away from the airport loca-

tion where plaintiff worked, and placed him on

final warning status for one year. Defendant also

instructed Ray to avoid contact with plaintiff.

Plaintiff, who had previously been diagnosed with

depression, states that she was deeply trauma- :

tized by this incident.

Plaintiff had no further contact with Ray until

March 1993, when blizzard conditions left the

Atlanta airport severely understaffed. As a result,

plaintiff and Ray were both assigned to work in the

local baggage service area of the Atlanta airport on

March 16, 1993. Although there is some dispute

regarding exactly what occurred, in essence, Ray

greeted plaintiff by putting his arms on her should-

ers. Plaintiff immediately reported this encounter,

and defendant warned Ray that any further contact

with plaintiff would lead to severe discipline. Plain-

tiff states that she was so traumatized by Ray’s con-

2 Ray never served as plaintiff’s supervisor and never had any

authority to affect the terms of plaintiff’s employment.

40a

duct that her psychiatric condition worsened consid-

erably. Plaintiff has not worked since this incident

and is currently receiving long-term disability bene-

fits on the basis that she is completely and totally

disabled. On August 10, 1993, plaintiff filed a

charge of discrimination with the EEOC, alleging

sexual harassment. Three years later, plaintiff com-

menced this suit, alleging: (1) that defendant,

through the actions of Ray, subjected her to hos-

tile work environment sexual harassment in viola-

tion of Title VII of the Civil Rights Act of 1964,

as amended [Title VII], 42 U.S.C. §2000e, et

seq.; and (2) that defendant failed to accommodate

her disability in violation of the Americans with

Disabilities Act [ADA], 42 U.S.C. §12101, et seg.

March Order, at 1-2. Defendant contends that the court

erroneously denied summary judgment on plaintiff’s

Title VII sexual harassment and ADA claims. As dis-

cussed below, the court agrees.

Discussion

A. Title VII Claim

In the March Order, the court denied summary judg-

ment on plaintiff’s Title VII claim, finding that a reason-

able juror could conclude that: (1) Ray’s conduct in

1993 was sufficiently abusive so as to create a hostile

work environment; and (2) defendant failed to take

prompt remedial action. Although defendant attacks

both holdings, the court assumes for purposes of dis-

cussion that Ray’s conduct in 1993 — the only con-

duct that is properly before the court in this case? —

is sufficiently severe and pervasive to fall within Title

3 As explained in the March Order, the 1989 exposure inci-

dent was never the subject of an EEOC charge and thus cannot be

the basis for plaintiff’s Title VII claim.

ree ee ee a

4la

VII’s proscription of sexual harassment. However, it

finds summary judgment to be appropriate because there

is no basis on which to impute liability for Ray’s actions

to Delta. ‘An employer can be either directly or indir-

ectly liable for its employee’s sexual harassment of

another employee.” Fleming v. Boeing Co., 120 F.3d

242, 246 (11th Cir. 1997). Plaintiff's allegations of

employer liability are premised on a direct liability

theory because she contends that defendant “knew, or

upon reasonably diligent inquiry should have known, of

the harassment and failed to take immediate and approp-

rate corrective action.’ ” Id. (quoting Faragher v. City

of Boca Raton, 111 F.3d 1530, 1535 (11th Cir. 1997)

(en banc), rev’d, 118 S.Ct. 2275 (1998)).4

It is undisputed that, following the 1993 incident.

defendant: (1) interviewed Ray, plaintiff, another super-

visor, and an eyewitness to Ray’s exchange with plain-

tiff; (2) forwarded the results of this Investigation to

defendant’s EEO officer, who also spoke with plaintiff;

(3) informed Ray that he was being reprimanded and

sent to counseling; (4) placed a letter in Ray’s employ-

ment record stating that he was to have no further

contact with plaintiff of any kind, whether on or off

the job; and (5) offered to help find plaintiff another

* Although the Supreme Court has recently addressed the

issue of an employer’s vicarious liability for sexual harassment that

is carried out by a supervisor of the victim, see Faragher v. City of

Boca Raton, 118 S.Ct. 2275 (1998); Burlington Industries, Inc. v.

Ellerth, 118 S.Ct. 2257 (1998), these cases are inapplicable because

Ray was not plaintiff’s supervisor, but was merely a co-worker of

hers. The court thus believes that the issue of defendant’s liability

continues to be governed by Fleming, which is a co-worker harass-

ment case, and that Fleming’s reliance on the Eleventh Circuit’s

opinion in Faragher is not undermined by the Supreme Court's

subsequent reversal of that case.

42a

position in its Atlanta operations. Plaintiff has offered

no evidence that, despite these efforts at remediation,

she suffered any further harassment by Ray, and the

court therefore finds that defendant took “immediate

and appropriate corrective action” following the 1993

incident. Accord Fleming, 120 F.3d at 247 (granting

summary judgment in employer’s favor where, follow-

ing investigation into co-worker’s harassment of plain-

tiff, co-worker was demoted and plaintiff testified that

she had no further problems with her harasser).

Plaintiff also argues that defendant should be liable

for Ray’s actions because its efforts to discipline Ray in

1989 were ineffective by virtue of the fact that Ray

harassed her again four years later. Although no Title

VII liability may be found based on these allegations

because plaintiff never filed an EEOC charge relating

to Ray’s actions in 1989, even if such a claim could be

asserted, defendant would nonetheless be entitled to

summary judgment. Once an employer becomes aware

of sexual harassment, it is not transformed into a guar-

antor of its employees’ freedom from further harass-

ment; rather, in order to avoid liability, it need only take

whatever corrective action is ‘reasonably likely to pre-

vent the misconduct from recurring.’ ” Reynolds v.

CSX Transp., Inc., 115 F.3d 860, 867 (11th Cir. 1997)

(quoting Ailgore v. Thompson & Brock Management,

Inc., 93 F.3d 752, 754 (11th Cir. 1996)), vacated on

other grounds, 118 S.Ct. 2365 (1998).> When it learned

>The Supreme Court vacated Reynolds, a supervisor harass-

ment case, in light of Faragher. However, as discussed above,

nothing in Faragher alters the law applicable to co-worker harass-

ment cases, and thus defendant may still avoid Title VII liability

if it can show that its corrective action was reasonably likely to

prevent further harassment.

43a

that Ray had exposed his genitals to plaintiff in 1989,

defendant: (1) suspended Ray without pay or benefits

for one month; (2) transferred him to another location

miles away from plaintiff; (3) warned him to have no

further contact with plaintiff whatsoever; and (4) placed

him on final warning status for one year.

In light of these undisputed precautionary measures,

the court does not believe that a reasonable juror could

conclude that Ray’s decision to ignore defendant’s

instructions and embrace plaintiff four years later sub-

jects defendant to liability under Title VII. Although

Ray came into contact with plaintiff after he was assigned

to work at the airport, where plaintiff also worked, he

was there only because an emergency situation required

the majority of defendant’s employees to assist with

problems at the airport regardless of their normal duty

stations. The court agrees that if defendant’s inability

to prevent this chance encounter were to support a sex-

ual harassment claim, defendant would in essence be sub-

jected to strict liability for Ray’s failure to follow the

explicit orders that he had been given in 1989. Because

Title VII does not impose such liability on employers,

the court grants summary judgment in favor of defend-

ant on plaintiff's Title VII sexual harassment claim.

B. ADA Claim

In the March Order, the court agreed with the magis-

trate judge that plaintiff had shown a question of fact

with regard to whether defendant had failed to reason-

ably accommodate her disability by ensuring that plain-

tiff would have no contact with Ray at work. Defend-

ant contends that this result is erroneous because: (1)

plaintiff is not ‘disabled’ under the ADA; (2) plaintiff

failed to request any accommodation under the ADA;

44a

and (3) plaintiff's demand that she never encounter

Ray again at work is unreasonable as a matter of law.

The court agrees with defendant’s third argument.

While the ADA obligates an employer to accommodate

any disability that an employee may have, the employee

is not entitled to the accommodation of [his or] her

choice, but only to a reasonable accommodation.”

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117

F.3d 1278, 1286 (11th Cir. 1997) (internal citations and

quotations omitted). In that regard, the ADA does not

require an employer to ensure that an employee is free

from any contact whatsoever with other employees

whose presence allegedly worsens his or her disability.

See Mears v. Gulfstream Aerospace Corp., 905 F. Supp.

1075 (S.D. Ga. 1995) (holding that employer was not

required to isolate plaintiff to ensure that she never

again encountered a member of her former department),

aff'd, 87 F.3d 1331 (11th Cir. 1996); Gaul v. Lucent

Technologies, Inc., 134 F.3d 576, 581 (3d Cir. 1998)

(finding proposed accommodation that employee be

transferred away from other employees who cause him

stress to be unreasonable as a matter of law). Plaintiff

basically asks defendant to accommodate her alleged

disability by providing her with an ironclad guarantee

that she will never again come into contact with Ray.

The court finds this request to be unreasonable as a mat-

ter of law and thus grants summary judgment on plain-

tiff’s ADA claim.

Conclusion

Accordingly, defendant’s motion for reconsideration

[#44-1] is GRANTED, and the court’s March 27, 1998

Order is hereby VACATED. Defendant’s motion for the

certification of an interlocutory appeal [#45-1] is thus

ea eS a ee ee ee eae

45a

DENIED as MOOT. Magistrate Judge Deane’s Report

and Recommendation [#40-1] is DISAPPROVED and

REJECTED, and defendant’s motion for summary judg-

ment [#26-1] is GRANTED. The Clerk is DIRECTED

to ENTER JUDGMENT in favor of defendant and to

CLOSE this file.

SO ORDERED, this Ist day of Oct, 1998.

/s/ Marvin H. Shoob

RICHARD C. FREEMAN

SENIOR UNITED STATES DISTRICT JUDGE

46a

APPENDIX D

[Filed OCT 23 1998]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Civil Action File No. 1:96-cv-2228-RCF

REBECCA L. BROOKS,

Plaintiff,

DELTA AIR LINES, INC.

Defendant.

NOTICE OF APPEAL

NOW COMES the plaintiff and hereby gives notice of

her appeal from this Court’s Order and Judgment of

October 2, 1998 reconsidering and vacating the Court’s

previous denial of defendant’s motion for summary judg-

ment, granting summary judgment to the defendant, and

entering judgment in favor of the defendant and against

the plaintiff.

This 23rd day of October, 1998.

/s/ Susan M. Garrett

SUSAN M. GARRETT

Georgia State Bar No. 286546

47a

SUSAN M. GARRETT, P.C.

118 East Trinity Place

Decatur, Georgia 30030

(404) 479-4400

Attorney for Plaintiff

[Certificate of Service Omitted in Printing]

0

48a

APPENDIX E

[Filed JAN 26 2000]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-9398

D.C. Docket No. 96-02228-1-CV-RCF

REBECCA L. BROOKS,

Plaintiff-Appellant,

versus

DELTA AIR LINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

(January 26, 2000)

Before CARNES, BARKETT and MARCUS, Circuit

Judges.

PER CURIAM:

AFFIRMED. See 11th Cir. R. 36-1.!

111th Cir. R. 36-1 provides:

When the court determines that any of the following circum-

stances exist:

[footnote continued ]

ee ee wee

49a

(a) judgment of the district court is based on findings of

fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is sufficient:

(c) the order of an administrative agency is supported by

substantial evidence on the record as a whole;

(d) summary judgment, directed verdict, or judgment on

the pleadings is supported by the record;

(e) judgment has been entered without a reversible error of

law; and an opinion would have no precedential value,

the judgment or order may be affirmed or enforced

without opinion.

50a

APPENDIX F

RELEVANT STATUTES

TITLE VII OF

THE CIVIL RIGHTS ACT OF 1964

[42 U.S.C. §2000e, et seq. |

TITLE VII

NONDISCRIMINATION IN EMPLOYMENT

Sec. 2000e. Definitions.

* * *

Sec. 2000e-2. Unlawful Employment Practices.

(a) It shall be an unlawful employment practice for

an employer—

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) limit, segregate, or classify his employees or appli-

cants for employment in any which would deprive or

tend to deprive any individual of employment oppor-

tunities or otherwise adversely affect his status as an

employee, because of such individual’s race, color, relli-

gion, sex, or national origin.

5la

CIVIL RIGHTS ACT OF 199]

[42 U.S.C. §1981A]

SECTION 1. SHORT TITLE.

This Act may be cited as the “Civil Rights Act of

1991”,

SEC. 2. FINDINGS.

The Congress finds that—

(1) additional remedies under Federal law are needec

to deter unlawful harassment and intentional discrimin-

ation in the workplace;

(2) the decision of the Supreme Court in Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989) has weak-

ened the scope and effectiveness of Federal civil rights

protections; and

(3) legislation is necessary to provide additional pro-

tections against unlawful discrimination in employment.

SEC. 3 PURPOSES.

The purposes of this Act are—

(1) to provide appropriate remedies for intentional dis-

crimination and unlawful harassment in the workplace;

(2) to codify the concepts of “business necessity” and

“job related” enunciated by the Supreme Court in

Griggs v. Duke Power Co., 401 U.S. 424 (1971), and in

the other Supreme Court decisions prior to Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989):

(3) to confirm statutory authority and provide statu-

tory guidelines for the adjudication of disparate impact

suits under title VII of the Civil Rights Act of 1964

(42 U.S.C. 2000e et seq.); and

a...

52a

(4) to respond to recent decisions of the Supreme

Court by expanding the scope of relevant civil rights

statutes in order to provide adequate protection to vic-

tims of discrimination.

TITLE I — FEDERAL CIVIL RIGHTS REMEDIES

* * *

SEC. 102. DAMAGES IN CASES OF INTENTIONAL

DISCRIMINATION.

The Revised Statutes are amended by inserting after

section 1977 (42 U.S.C. 1981) the following new sec-

tion:

“SEC. 1977A. DAMAGES IN CASES OF INTEN-

TIONAL DISCRIMINATION IN EMPLOYMENT.

‘(a) Right of Recovery.—

*(1) Civil rights.—In an action brought by a complain-

ing party under section 706 or 717 of the Civil Rights

Act of 1964 (42 U.S.C. 2000e-5) against a respondent

who engaged in unlawful intentional discrimination

(not an employment practice that is unlawful because

of its disparate impact) prohibited under section 703,

704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-

3), and provided that the complaining party cannot

recover under section 1977 of the Revised Statutes (42

U.S.C. 1981), the complaining party may recover com-

pensatory and punitive damages as allowed in subsec-

tion (b), in addition to any relief authorized by section

706(g) of the Civil Rights Act of 1964, from the respond-

ent.

j

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