Lissau v. Southern Food Service, Inc., No. 96-2672

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WILKINSON, Chief Judge, MICHAEL; WILKINSON; MICHAEL
• Citation: 159 F.3d 177
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 503, 74 Empl. Prac. Dec. P 45,597 Cynthia C. LISSAU, Plaintiff-Appellant, v. SOUTHERN FOOD SERVICE, INCORPORATED; Cesar Castillero, Defendants-Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
• Docket Number: No. 96-2672
• Decision Date: 28 October 1998

Page 177

159 F.3d 177 78 Fair Empl.Prac.Cas. (BNA) 503,
74 Empl. Prac. Dec. P 45,597 Cynthia C. LISSAU, Plaintiff-Appellant,
v.
SOUTHERN FOOD SERVICE, INCORPORATED; Cesar Castillero,
Defendants-Appellees.
Equal Employment Opportunity Commission, Amicus Curiae. No. 96-2672. United States Court of Appeals,
Fourth Circuit. Argued Oct. 3, 1997.
Decided Oct. 28, 1998.

Page 178

ARGUED: Terry N. Grimes, King, Fulghum, Snead, Nixon & Grimes, P.C., Roanoke, VA, for Appellant. Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae. Melissa Robin Davis, Tuggle, Duggins & Meschan, P.A., Greensboro, NC, for Appellee Southern Food Service; William Fain Rutherford, Jr., Flippin, Densmore, Morse, Rutherford & Jessee, Roanoke, VA, for Appellee Castillero. ON BRIEF: C. Gregory Stewart, General Counsel, J. Ray Terry, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae. J. Reed Johnston, Jr., Tuggle, Duggins & Meschan, P.A., Greensboro, NC, for Appellee Southern Food Service.

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge HERLONG joined. Judge MICHAEL wrote an opinion concurring in parts I and II of the majority opinion and concurring in the judgment.

OPINION

WILKINSON, Chief Judge.

Cynthia Lissau appeals the grant of summary judgment on her Title VII claims in favor of defendants Cesar Castillero, her former supervisor, and Southern Food Service, her former employer. She alleges that both defendants are liable for a sexually hostile work environment created by Castillero. Lissau maintains that Castillero is liable in his individual capacity for a Title VII violation. She also argues that Southern, as Castillero's employer, is liable for his misconduct. On the issue of Castillero's liability, we affirm the grant of summary judgment. Employees are not liable in their individual capacities for Title VII violations. On the issue of Southern's liability, we remand for reconsideration in light of Faragher v. City

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of Boca Raton, --- U.S. ----, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Industries, Inc. v. Ellerth, --- U.S. ----, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

I.

Cynthia Lissau worked as a sales representative for Southern, a company engaged in the distribution and sale of food products. Her period of employment lasted from March 9, 1987, through December 2, 1988, and again from July 26, 1993, through July 19, 1994. Southern is headquartered in North Carolina and maintains several branch sales offices. Lissau worked in the company's regional office in Roanoke, Virginia.

During her second period of employment, Lissau reported to Castillero, the manager of the Roanoke office. As a manager, Castillero could hire and fire sales representatives and give them sales leads. Castillero reported to David Heller, Southern's Vice President of Marketing, who worked in North Carolina but periodically visited the regional sales offices, including the one in Roanoke.

Lissau alleges that Castillero spoke and acted inappropriately during her second period of employment. First, Castillero allegedly made several provocative statements about Lissau's appearance and implied a sexual interest in her. These ranged from inquiries about whether Lissau was married to a suggestion that she needed to be "pounded all night long." Second, Castillero allegedly touched Lissau on several occasions, including her thigh when he reached down to pick up some paper on the floor. Third, Castillero allegedly made comments of a sexual nature and behaved inappropriately toward employees other than Lissau.

On Friday June 3, 1994, Castillero called Lissau into his office and inquired whether she was unhappy. Lissau did not voice any concerns at that time. On the following day, Lissau, who was at the office, called Castillero at home. She stated that she was upset by his inappropriate comments and requested his assurances that they would cease. Castillero, however, denied all of Lissau's accusations and replied that Lissau had been the one talking about sex and making comments to him.

Shortly thereafter, Lissau contacted Heller. She told Heller that she had a problem with Castillero and that she had confronted him about it. She did not feel safe elaborating further, and she neither described the problem nor suggested, even as a general matter, that it might involve sexual harassment. In this same conversation, Lissau expressed an interest in becoming a company psychologist, a position that did not exist at Southern, in order to handle problems that she was observing in the Roanoke office. Lissau suggested contacting Mike Nussbaum, a senior executive at Southern, about her appointment as a company psychologist. Heller told Lissau that he would contact Nussbaum to arrange an interview.

On July 19, 1994, Castillero fired Lissau, explaining that he understood she was unhappy as a salesperson and had applied for another job.

Since 1985, Southern has maintained a written policy that prohibits sexual harassment and designates several employees to whom a worker can bring an allegation of harassment. The policy is included in Southern's employee handbook and was distributed to the sales forces in all of Southern's regional offices, including the Roanoke office. Lissau's deposition contains conflicting statements about whether she saw this policy. Additional memoranda sent to the regional offices also discussed Southern's sexual harassment policy. Lissau did not notify any of Southern's designated employees or anyone in management about Castillero's alleged conduct.

Lissau filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in September 1994. According to Southern, it first became aware of Lissau's allegations when the EEOC notified it of her charge. Upon learning of the charge, Nussbaum referred the matter to the company's counsel. Counsel investigated the complaint, and, based on its findings, Nussbaum concluded that Lissau's allegations were without merit.

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Lissau brought Title VII claims against Castillero and Southern and pendent state law claims against Castillero. The district court granted summary judgment to both defendants on the Title VII claims and dismissed the remaining state law claims without prejudice. It held that Castillero was entitled to summary judgment because supervisors are not individually liable under Title VII. The court further held that Southern was entitled to summary judgment because it did not have notice of Castillero's behavior. While not resolving whether the alleged acts were sufficiently severe or pervasive to create an abusive working environment, the district court did note that the alleged conduct "was not of an egregious nature." Lissau now appeals.

II.

We first address Lissau's suit against Castillero. Lissau argues that supervisors are liable in their individual capacities for sexual harassment in violation of Title VII. She contends that Castillero, as her supervisor, was Southern's agent and thereby fell within Title VII's definition of an "employer." We disagree. An analysis of Title VII's language and its remedial scheme leads us to join the other circuit courts and conclude that supervisors are not liable in their individual capacities for Title VII violations.

Title VII provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a). It defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees" and "any agent of such a person." Id. § 2000e(b). The statute does not define the term "agent."

This court recently interpreted a similar statutory definition of employer. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994). In Birkbeck, we addressed whether individual officers and supervisors were liable for violations of the Age Discrimination in Employment Act (ADEA). See 29 U.S.C. § 621. The ADEA defines employer to include certain persons who employ twenty or more workers and "any agent of such a person." Id. § 630(b). We concluded that the inclusion of "agent" did not signal a congressional desire to impose liability on individual supervisors. Instead, it simply represented "an unremarkable expression of respondeat superior--that discriminatory personnel actions taken by an employer's agent may create liability for the employer." Birkbeck, 30 F.3d at 510. We also noted that it would make little sense to hold a single individual liable when Congress had expressly exempted all companies employing fewer than twenty persons from the statute. Id. Accordingly, we rejected the claim of individual liability under the ADEA.

The Title VII definition of employer must be read in the same fashion as the ADEA definition of employer. Title VII defines employer to include certain persons who employ fifteen or more workers and, like the ADEA, "any agent of such a person." Compare 42 U.S.C. § 2000e(b), with 29 U.S.C. § 630(b); see also Wathen v. General Elec. Co., 115 F.3d 400, 404 n. 6 (6th Cir.1997) (noting that Title VII and ADEA "define 'employer' essentially the same way"); EEOC v. AIC Sec. Investig., Ltd., 55 F.3d 1276, 1280 n. 1 (7th Cir.1995) (noting that the two definitions are "essentially identical"). We already have observed that Title VII is the ADEA's "closest statutory kin." Birkbeck, 30 F.3d at 510 (citations omitted). Thus, reading Title VII to...