Indest v. Freeman Decorating, Inc.

• Decision Date: 19 January 1999
• Docket Number: No. 96-30212,96-30212
• Citation: 164 F.3d 258
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1527, 74 Empl. Prac. Dec. P 45,707 Constance Chaix INDEST, Plaintiff-Appellant, v. FREEMAN DECORATING, INC. and Larry Arnaudet, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 258

164 F.3d 258

78 Fair Empl.Prac.Cas. (BNA) 1527,

74 Empl. Prac. Dec. P 45,707

Constance Chaix INDEST, Plaintiff-Appellant, v. FREEMAN DECORATING, INC. and Larry Arnaudet, Defendants-Appellees.

No. 96-30212.

United States Court of Appeals, Fifth Circuit.

Jan. 19, 1999.

Robert E. Winn, Sharon Cormack Mize, Sessions & Fishman, New Orleans, LA, for Plaintiff-Appellant.

Richard A. Goins, The Goins Law Firm, Brooke Duncan, III, Lisa Lemaire Maher, Adams & Reese, New Orleans, LA, for Defendants-Appellees.

Barbara L. Sloan, Washington, DC, for Equal Employment Opportunity Commission, Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JONES and WIENER, Circuit Judges, and FURGESON ^*, District Judge.

EDITH H. JONES, Circuit Judge:

Constance Chaix Indest sued Freeman Decorating, Inc. and its Vice President of Sales and Administration Larry Arnaudet alleging that she had been sexually harassed in violation of Title VII. The district court granted Arnaudet's motion to dismiss for failure to state a claim against him under Fed.R.Civ.P. 12(b)(6). Later, the district court granted Freeman's motion for judgment as a matter of law. See Fed.R.Civ.P. 56(c). Indest appeals both of these decisions.

As to Arnaudet, the law affords Indest no Title VII claim against a company employee. The more challenging question is whether Freeman is entitled to judgment as a matter of law following this year's Supreme Court decisions concerning employer liability for sexual harassment by a supervisor. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). We hold that, because Freeman promptly and effectively responded to Indest's equally prompt complaint, vicarious liability is inappropriate. The judgment is affirmed. ^**

I. BACKGROUND

Freeman, a subsidiary of The Freeman Companies ("TFC"), provides services to convention sponsors and exhibitors. Arnaudet is a Freeman vice-president responsible for the company's overall sales strategy and related policies, procedures, and systems. Additionally, he serves as the account executive for several major annual trade shows and is in charge of all Freeman employees who work at the trade shows. Appellant Indest was employed by Freeman as an exhibitor services representative at one of its branch offices in New Orleans. As of the time this appeal was argued, Indest continued to work for Freeman.

Indest worked at a convention lasting from September 8 through 14, 1993, where Arnaudet was the Freeman executive in charge. Four times, Arnaudet made crude sexual comments and sexual gestures to Indest while she was alone and in the presence of her immediate supervisor, Angie Richard, and her director, Dawn DiMaggio. ¹ On Friday evening, September 10, Indest was speaking with the director of sales and the national sales manager of the New Orleans office at a cocktail event when Arnaudet joined them and made another sexual comment to her. Indest objected and warned him this was sexual harassment. Arnaudet, incensed, ordered her not to threaten a vice-president, profanely disparaged her abilities as an employee, and said she must prove herself to him by working with him at a convention in Philadelphia. Indest became agitated and started crying. She took off from work the next day with her supervisor's approval. No further incidents of sexual harassment occurred after this episode.

On September 13, Indest reported all of the incidents to Dawn DiMaggio, as well as to the branch office manager, Steve Hagstette. Hagstette informed Dan Camp, TFC's human resources director in its Dallas corporate office. Indest was urged to contact Camp, and she spoke with him by telephone on September 20. Pursuant to Freeman's sexual harassment policy, Camp investigated the complaint, interviewing witnesses to the incidents, Indest's supervisors, and Arnaudet. Camp advised TFC's president and chairman, Don Freeman, of the complaints of Indest and of another incident that had occurred approximately six months earlier involving Arnaudet and another female employee (identified as "Jane Doe").

Freeman issued a verbal and written reprimand to Arnaudet, and Camp informed Indest of this reprimand in a conversation that took place on or about October 11. In that conversation, Camp also informed Indest that Arnaudet would apologize to her (an On October 14, Camp received a letter from Indest, revealing her intention to file an EEOC charge because she feared retaliation. Indest also expressed concern for retaliation when Camp called her to ask about the letter. On November 2, TFC sent Suzanne Bragg, a human resources employee, to reassure Indest that there would be no retaliation. Camp flew to New Orleans to visit Indest a week later. He informed her that Arnaudet would be suspended without pay for seven days and would be prohibited from attending the annual management and sales meeting that he had historically organized and conducted. Camp promised that Indest would never again have to work at any trade shows where Arnaudet was present; he expressly guaranteed that her complaint would neither jeopardize her job nor inhibit her ability to advance within the company; and he told her the company would pay for any counseling she might need.

idea which Indest rejected), and asked Indest for suggestions for how to discipline Arnaudet. Indest said she wished to leave the disciplining of Arnaudet up to the company.

To demonstrate the company's concern about the incident at the highest level, Freeman personally confirmed Arnaudet's disciplinary action in writing on November 15, in a letter that stated in part: "[The company is] particularly concerned that there never be any discriminatory action taken against Connie Indest in retaliation [for] her complaint. It is vitally important that there be no future instances of sexual harassment of our employees by you." Freeman also advised an executive committee, composed of Arnaudet's contemporaries and superiors, of Arnaudet's conduct and resulting punishment.

Indest has received periodic pay raises since the incident, and she concedes that Arnaudet has not further harassed her. She does not allege that Arnaudet has subsequently harassed any other employee.

As a result of the episode, Indest states she has suffered the recurrence of an obsessive-compulsive disorder called trichotillomania (hair-pulling), anxiety, and sleeplessness, and has sought and received counseling. Indest filed an EEOC charge of sex discrimination and harassment. After receiving a right-to-sue letter, she sued Freeman and Arnaudet. The district court dismissed her claims against Arnaudet because he cannot be sued individually or in his official capacity under Title VII. The court granted judgment as a matter of law to Freeman, holding that whether or not Arnaudet was a supervisor and regardless whether his actions could be termed quid pro quo ² or hostile environment ³ sexual harassment, the company took prompt remedial action that absolved it of liability. Indest appealed, and the EEOC has filed an amicus brief.

II. STANDARD OF REVIEW

A district court's ruling on a Fed.R.Civ.P. 12(b)(6) motion to dismiss is reviewed de novo. Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.1990). Additionally, "[w]e must accept all well-pleaded facts as true, and we view them in the light most favorable to the plaintiff. We may not look beyond the pleadings. A dismissal will not be affirmed if the allegations support relief on any possible theory." Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994).

The grant of summary judgment is reviewed de novo, applying the same standards as the district court. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The movant must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the movant does so, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). Evidence is viewed in the light most favorable to the nonmoving party. See Duffy, 44 F.3d at 312.

III. ANALYSIS

A. Individual Liability Under Title VII.

Arnaudet sought dismissal for failure to state a claim against him pursuant to Fed.R.Civ.P. 12(b)(6). The district court applied settled Fifth Circuit law in holding that employees may not be sued for damages in their individual capacities. The court also reasoned that it would be redundant for Indest to sue both Arnaudet in his official capacity and Freeman, because Freeman would bear responsibility for the liability of either party through Title VII's incorporation of the principle of vicarious liability.

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice 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. § 2000e-2(a)(1). While Title VII defines the term employer to include "any agent" of an employer, id. § 2000e(b), this circuit does not interpret the statute as imposing individual liability for such a claim. See Pfau v. Reed, 125 F.3d 927, 935-36 (5th Cir.1997). ⁴ Congress's purpose in extending the definition of an employer to encompass an agent in Section 2000e(b) was simply to incorporate respondeat superior liability into Title VII. Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994); see also Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.1993). Thus, a Title VII suit against...