Sparks v. Pilot Freight Carriers, Inc., 86-8790

• Citation: 830 F.2d 1554
• Decision Date: 20 October 1987
• Docket Number: No. 86-8790,86-8790
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: 45 Fair Empl.Prac.Cas. 160, 44 Empl. Prac. Dec. P 37,493, 56 USLW 2291 Barbara SPARKS, Plaintiff-Appellant, v. PILOT FREIGHT CARRIERS, INC., Defendant-Appellee.

Page 1554

830 F.2d 1554

45 Fair Empl.Prac.Cas. 160,

44 Empl. Prac. Dec. P 37,493, 56 USLW 2291

Barbara SPARKS, Plaintiff-Appellant, v. PILOT FREIGHT CARRIERS, INC., Defendant-Appellee.

No. 86-8790.

United States Court of Appeals, Eleventh Circuit.

Oct. 20, 1987.

David R. Sweat, Jeanne M.L. Player, Athens, Ga., for plaintiff-appellant.

Morgan, Lewis & Bockius, James J. Kelley, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HILL and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Barbara Sparks appeals the district court's grant of summary judgment in Sparks' sexual harassment and sex discrimination action filed against her former employer, Pilot Freight Carriers, Inc. (Pilot Freight), pursuant to Title VII, 42 U.S.C. Sec. 2000e et seq. We reverse the grant of summary judgment and remand.

I. STATEMENT OF FACTS

Appellant Sparks was employed by Pilot Freight as a billing clerk in its Duluth, Georgia trucking terminal from May 1983 until March 1984. In February 1984, Pilot Freight promoted Dennis Long, a former sales manager in the Atlanta terminal, to the position of terminal manager of the Duluth terminal. As terminal manager, Long held the highest position in the Duluth terminal and, according to Sparks, had authority to exercise virtually unfettered discretion over personnel matters, including the hiring and firing of employees. According to Sparks, the only Pilot Freight employees superior to Long were stationed in Pilot Freight's headquarters in North Carolina.

Sparks alleges that shortly after Long arrived in Duluth he began to harass her. One of the earliest instances occurred when Long called her into his office and asked her if she was married or had a boyfriend, and if she could become pregnant. Sparks claims that after she was promoted to general secretary, with Long as her boss, in March 1984, Long's unwelcomed sexual harassment of her continued. This harassment included such acts as: putting his hands on Sparks to rub her shoulders or "fool with" and smell her hair; repeatedly inquiring into Sparks' personal life; on one occasion asking her if he could come to her house with a bottle of wine, and, having been refused, calling out to her over the public address system as she was leaving the office stating that this was her "last chance;" making threatening remarks to Sparks, such as "you'd better be nice to me," "your fate is in my hands," "revenge is the name of the game;" and at least one other remark that the district court concluded was "too sexually explicit" to repeat. Sparks did not notify any of Long's superiors at Pilot Freight that he was harassing her.

In May 1984, Pilot Freight closed its Duluth terminal. Long was transferred to Atlanta where he resumed his former job as sales manager. Sparks and several other employees also were transferred to the Atlanta terminal; other Duluth employees were laid off. The terminal manager of the Atlanta terminal was Carl Connell.

Sparks was given a job as a billing clerk on the night shift where she worked for three days. On the fourth day, Thursday, May 10th, Sparks allegedly called the office and asked Connell's secretary, Hilda Tatum, whether she could change her working hours. Later that day Tatum called Sparks back to tell Sparks that she could not change her hours. Sparks allegedly responded that she could not come in that night because she was sick. Curtis Turner, a male billing clerk, also called in sick that day. The following day, Connell called Sparks at home several hours before her shift was to begin and fired her. Turner was not fired. Sparks was replaced by John Briscoe, a billing clerk who had been laid off when the Duluth terminal was closed.

Sparks filed the instant action against Pilot Freight, alleging three violations of Title VII. Her first claim is that during her tenure at the Duluth terminal she was subject to hostile working environment sexual harassment by her boss, Dennis Long. Her second two claims relate to her discharge the first being that Connell engaged in unlawful disparate treatment because of sex when he discharged her and not Turner; the second is that her discharge resulted from quid pro quo sexual harassment in that Long induced Connell to fire her in retaliation for her refusal to accede to his sexual demands.

The district court granted summary judgment for Pilot Freight on all three claims. We reverse.

II. WORKING ENVIRONMENT SEXUAL HARASSMENT

Title VII of the Civil Rights Act of 1964 makes it unlawful for "an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex ...." 42 U.S.C. Sec. 2000e-2(a)(1).

A.

In Meritor Sav. Bank, FSB v. Vinson, the Supreme Court held that an employee may establish a violation of Title VII by proving that the employee's employer engaged in discrimination based on sex, including sexual harassment, which created a hostile or abusive work environment. ¹ 477 U.S. 57, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986); accord Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982). An employee asserting a claim of hostile working environment sexual harassment by an "employer" must prove the following in order to establish a prima facie case: (1) that the employee belongs to a protected group, Henson, 682 F.2d at 903; (2) that the employee was subject to "unwelcome" sexual harassment, Vinson, 106 S.Ct. at 2406; Henson, 682 F.2d at 903; 29 C.F.R. Sec. 1604.11(a) (1985); (3) that the harassment complained of was based on sex, Henson, 682 F.2d at 903; and (4) that the harassment complained of affected a "term, condition, or privilege" of employment in that it was "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Vinson, 106 S.Ct. at 2406 (brackets in original) (quoting, Henson, 682 F.2d at 903).

The district court concluded that Sparks could survive summary judgment as to these four elements of her prima facie case. The court granted summary judgment for the defendant, however, because it concluded that Sparks failed to establish a necessary fifth element: Pilot Freight's liability for Long's actions under the theory of respondeat superior.

The district court based its decision that respondeat superior theory applies to this action on this court's decision in Henson, supra. There we held that a Title VII plaintiff who seeks to hold her employer liable for sexual harassment by her supervisor or co-workers must demonstrate that the employer is liable for the supervisor or co-worker's conduct under the theory of respondeat superior. Consequently, the plaintiff cannot prevail unless she can show that her employer "knew or should have known of the harassment in question and failed to take prompt remedial action." 682 F.2d at 905. Applying Henson, the district court concluded that Sparks could not prevail because she had not notified any supervisor at Pilot Freight that she was being sexually harassed by Long.

In applying the respondeat superior requirement of Henson, however, the district court overlooked the fact that the Henson court's decision to employ respondeat superior theory rested on its assumption that the plaintiff's alleged harasser was her supervisor but not her "employer." Henson, 682 F.2d at 905, n. 9. Here, in contrast, Sparks alleges that Long was both her supervisor and her "employer," as that term is defined under Title VII.

Under Title VII an "employer" is directly liable for its own sexual harassment of its employees. See 42 U.S.C. Sec. 2000e-2(a)(1), 29 C.F.R. Sec. 1604.11(c). Thus, where the harasser is plaintiff's "employer," respondeat superior theory does not apply and plaintiff need not establish that she gave anyone notice of the harassment. ² Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1422 (7th Cir.1986); Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc., 755 F.2d 599, 604 (7th Cir.1985); see Vinson, 106 S.Ct. 2408-09; Henson, 682 F.2d at 905 n. 9.

The Act defines the term "employer" as a "person engaged in an industry affecting commerce ... and any agent of such a person." ³ 42 U.S.C. Sec. 2000e(b) (emphasis added). Therefore, if Long was acting as an "agent" of Pilot Freight when he sexually harassed Sparks, Pilot Freight is directly liable to Sparks for Long's conduct--provided Sparks can establish the four elements of her prima facie case outlined above. See Vinson, 106 S.Ct. at 2408; Horn, 755 F.2d at 604.

B.

Title VII does not define the term "agent." Rather, in determining whether a supervisor was acting as an "agent" for Title VII purposes, courts must look for guidance to common law agency principles. Vinson, 106 S.Ct. at 2408, citing, 42 U.S.C. Sec. 2000e(b) and Restatement (Second) of Agency Secs. 219-237 (1958).

In the instant case, the district court, concluding incorrectly that this "agency" determination is simply one way of establishing respondeat superior, ⁴ held, also incorrectly, that under common law agency principles Long was not an "agent" of Pilot Freight when he harassed Sparks. Applying the general rule of agency that "[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment," Restatement (Second) of Agency, Sec. 219(1), the district court determined that Pilot Freight was not liable for Long's actions because Long was not acting within the scope of his employment when he harassed Sparks. The district court based this ruling on its determination that Long was not "actuated by some purpose to serve the master" when he harassed Sparks. ⁵ Sparks, No. C85- 2941A, slip op. at 8, citing Restatement (Second) of Agency Secs. 219(1), 228(2).

Although the district court recognized that an employer may be liable under section 219(2) of...