Ball v. Renner, 94-8064

• Decision Date: 10 May 1995
• Docket Number: No. 94-8064,94-8064
• Citation: 54 F.3d 664
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1739, 66 Empl. Prac. Dec. P 43,668 Sharon H. BALL, formerly known as Sharon H. Kanzler, Plaintiff-Appellant, v. David RENNER, in his individual and official capacities, Defendant-Appellee, City of Cheyenne, Wyoming, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 664

54 F.3d 664

67 Fair Empl.Prac.Cas. (BNA) 1739,

66 Empl. Prac. Dec. P 43,668

Sharon H. BALL, formerly known as Sharon H. Kanzler, Plaintiff-Appellant, v. David RENNER, in his individual and official capacities,

Defendant-Appellee,

City of Cheyenne, Wyoming, Defendant.

No. 94-8064.

United States Court of Appeals, Tenth Circuit.

May 10, 1995.

Terry L. Armitage, Sr. Asst. Atty. Gen., Cheyenne, WY, for defendant-appellee.

Jane Villemez of Graves & Villemez, P.C., Cheyenne, WY, for plaintiff-appellant.

Before SEYMOUR, Chief Judge and ANDERSON, Circuit Judge and SHADUR, Senior District Judge. ^*

SHADUR, Senior District Judge.

Sharon Ball ("Ball") initially sued her former employer City of Cheyenne ("Cheyenne") and its then Sergeant David Renner ("Renner"). Because Ball has not appealed the district court's entry of summary judgment in Cheyenne's favor on the claims that she had advanced against it, we deal only with the action as between Ball and Renner.

In that respect Ball asserted two claims against Renner: one charging sexual harassment, actionable under Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. Secs. 2000e to 2000e-17 ¹), and the other a Wyoming state law claim for intentional infliction of emotional distress. After reviewing the parties submissions on Renner's motion for summary judgment under Fed.R.Civ.P. ("Rule") 56, the district court granted that motion:

1. on Ball's Title VII claim on the grounds (a) that she had failed to name Renner in her Equal Employment Opportunity Commission ("EEOC") charge and (b) that Renner was not an "employer" within the meaning of Title VII; and

2. on Ball's state law claim on the ground that Renner's alleged conduct was not sufficiently outrageous.

We affirm the first of those rulings and reverse the second, instead ordering the dismissal of the state law claim without prejudice to its reassertion before a state tribunal.

Background

On July 2, 1982 Ball began work as a dispatcher for the Cheyenne Police Department, where Renner was a police officer. Over time Ball and Renner developed a relationship that was pleasant enough until March 1991, when Renner's behavior toward Ball changed drastically. Although the record evidence tendered by Ball is more graphic and more extensive, for current purposes we need not elaborate on the capsule description contained in the Intake Questionnaire that Ball filed with the Wyoming Fair Employment Practices Commission:

Over 2 (two) month period of time Sgt. Dave Renner followed me home numerous times from work at 4:00 am. Continually tried to put his arm around me. Once grabbed me and attempted to dance. Finally came into dark closet with me, shut the door, twice, even after I pushed him away the first time, then came back after I had gotten out of closet and placed his crotch on my right leg just below the knee. Sgt Renner was told almost every time to either "quit," "knock it off," or "leave me alone," after each physical contact. As a result of him following me home I was forced to take alternate routes home and run inside my house with him sometimes waiting outside for me.

That dark-closet incident occurred on May 1, 1991. Ball stopped working five days later, complaining of depression and post-traumatic stress, and resigned officially as of August 14, 1991.

Standard of Review

We review the grant of summary judgment de novo, applying the same standard used by the district court (Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1356 (10th Cir.1994)). Under Rule 56(c) summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Familiar Rule 56 principles impose on Renner as movant the initial burden of establishing the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). In making that determination we, like the district court, are required to draw all reasonable inferences in the light most favorable to nonmovant Ball (Considine, 43 F.3d at 1356).

Once Renner has satisfied that initial burden, Ball cannot stave off summary judgment merely by stating that some "genuine" and "material" factual issue is in dispute. Instead the burden shifts to her to demonstrate the existence of a material issue by identifying specific facts in the record sufficient to create the possibility that a reasonable factfinder might adopt her view (id.). Finally, "[w]e may affirm the grant of summary judgment for reasons other than those used by the district court so long as they are adequately supported by the record" (Bolden v. PRC Inc., 43 F.3d 545, 548 (10th Cir.1994)).

Supervisor Liability

Who may be sued under Title VII? Ball claims that Renner harassed her sexually. ² May she recover against him individually or was her only potential avenue of relief against Cheyenne? That question has proved surprisingly difficult for the courts to resolve. For an understanding of the status of the issue in this Circuit, it is useful first to provide a brief canvass of the relevant statutory provisions and the decided case law elsewhere.

Section 2000e-2(a) provides (emphasis supplied):

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin....

Section 2000e-5(b) provides that the victim of any such discrimination may bring administrative charges against the "employer" involved, and Section 2000e-5(f) permits legal action to be brought against the respondent to those charges after the necessary administrative steps have been taken. Finally Section 2000e(b) defines "employer" to mean (emphasis supplied):

a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person....

"Agent" is not defined in Section 2000e(b) or elsewhere in the statute. Perhaps more importantly, nothing is said in the statute about why an "agent" should be listed as an "employer"--a principal--to begin with.

Given that statutory silence, courts have interpreted the inclusion of "agent" in the Section 2000e(b) definition of "employer" in two distinct ways:

1. as deepening the pool of potential defendants under Title VII to include supervisory and management personnel who discriminate in the workplace, or

2. as merely broadening the circumstances in which corporations and other organizational employers that otherwise meet the 15-employee threshold and the industry-affecting-commerce requirement may be liable, by ensuring that the discriminatory acts of individuals are imputed to the employing entity.

According to the first approach, the agency phrase imposes liability not only against the "employer" in the traditional common-law sense but also downstream against individuals who are directly responsible for the discriminatory conduct. According to the second, the phrase serves only to assure that respondeat superior liability operates properly against the actual employer. Outside of this Circuit the decisions are widely divergent (what follows is of course exemplary rather than exhaustive):

1. Some Courts of Appeals have lined up on one side or the other--compare the decisions in the Fourth Circuit (Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989)) and Sixth Circuit (Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986)), holding individuals liable, with those in the Ninth Circuit (Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir.1993)), holding that individual defendants cannot be liable under Title VII.

2. Some Courts of Appeals appear to have sent somewhat mixed or evolving signals--in the Fifth Circuit, contrast Hamilton v. Rodgers, 791 F.2d 439, 442-43 (5th Cir.1986) (holding supervisors in charge of staffing and assignments liable) with the later decisions in Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir.1990) (holding that a municipal supervisor could be sued in official capacity only) and Grant v. Lone Star Co., 21 F.3d 649, 651-52 (5th Cir.1994) (extending that principle to the branch manager of a private employer); and in the Eleventh Circuit, contrast Cross v. Alabama, No. 92-7005, 1994 WL 424303, 1994 U.S.App. LEXIS 23673, at * 36 (11th Cir. Aug. 30), petition for rehearing en banc pending (imposing individual liability) with Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (per curiam) (holding a superior officer not individually liable); and see also Quillen v. American Tobacco Co., 874 F.Supp. 1285, 1296 (M.D.Ala.1995) (suggesting that Cross "made a sharp departure from past precedent").

3. Where Courts of Appeals have not ruled directly, ³ district courts have reflected intracircuit splits--in the Second Circuit, see Donato v. Rockefeller Fin. Servs., 93 Civ. 4663 (LLS), 1994 WL 695690, 1994 U.S.Dist. LEXIS 17709, at * 5-* 11 (S.D.N.Y. Dec. 12) (stating that weight of authority in Circuit favors individual liability) and Whitaker v. Port Auth. of New York & New Jersey, 88 CIV 4395 (SS), 1993 WL 410169, 1993 U.S.Dist. LEXIS 14477, at * 18 n. 11 (S.D.N.Y. Oct. 14) (describing the district court split); and in the Seventh Circuit, see Jendusa v. Cancer Treatment Centers of America, Inc., 868 F.Supp. 1006, 1008-09 (N.D.Ill.1994) (canvassing district court cases). ⁴

All courts that give a downstream interpretation to the "agent" phrase distinguish between co-workers and supervisors/managers in order to limit liability to those who wield employer-like...