Paroline v. Unisys Corp.

Decision Date18 August 1989
Docket NumberNo. 88-1319,88-1319
Citation879 F.2d 100
Parties50 Fair Empl.Prac.Cas. 306, 50 Empl. Prac. Dec. P 39,120, 58 USLW 2055 Elizabeth M. PAROLINE, Plaintiff-Appellant, v. UNISYS CORPORATION; Edgar L. Moore, Defendants-Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Bruce Allan Fredrickson, (Susan L. Brackshaw, Webster & Fredrickson, Victor M. Glasberg, on brief) for plaintiff-appellant.

Thomas R. Bagby (Ronald M. Green, Epstein, Becker & Green, P.C., Donald G. Kaas, Unisys Corp., on brief) for defendants-appellees.

Before ERVIN, Chief Judge, and MURNAGHAN and WILKINSON, Circuit Judges.

MURNAGHAN, Circuit Judge:

We must decide whether the district court erred in granting summary judgment in favor of the Unisys Corporation and Edgar L. Moore on various federal and state law claims arising out of the alleged sexual harassment of Elizabeth M. Paroline, the appellant. Paroline asserted claims of sexual harassment and constructive discharge against Unisys and Moore under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. She claims that Moore, a Unisys employee, made improper sexual advances toward her both on and off the job. Paroline also brought pendent state law claims against both defendants for intentional infliction of emotional distress, a claim against Moore for assault and battery, and a claim against Unisys for negligent failure to warn and reckless endangerment.

The district court granted summary judgment in favor of the defendants on all claims except the one for assault and battery. The parties agreed to a voluntary dismissal of that claim and it is not at issue here. As for the Title VII claims, the district court ruled that Unisys and Moore could not be held liable for sexual harassment or constructive discharge because Unisys took prompt remedial action after Paroline's complaint, and because Paroline quit before giving Unisys' remedy a chance to work. On the two remaining state law claims, the court first ruled that the exclusive remedies of the Virginia Workers' Compensation Act barred Paroline's action for negligent failure to warn and reckless endangerment. The court also held that Paroline could not proceed on her intentional infliction of emotional distress action because she could pursue a full remedy for her injury through her assault and battery claim against Moore. Paroline appealed.

We conclude that the district court erred in granting summary judgment against Paroline on the sexual harassment and constructive discharge claims under Title VII and on the Virginia state law claim for negligent failure to warn and reckless endangerment. However, we affirm the grant of summary judgment on the claims for intentional infliction of emotional distress, but for reasons different than those expressed by the district court.

I. BACKGROUND

Not surprisingly, the parties present different versions of the events that prompted Paroline's lawsuit. However, because this is an appeal from a grant of summary judgment, we will present Paroline's version of the facts wherever the parties' evidence conflicts, at least to the degree that her allegations have support in affidavits Management at Unisys had received complaints well before Paroline started work there that Moore had made sexually suggestive remarks to and had engaged in unwelcome touching of female clerical workers. Such complaints were brought to the attention of Jo Anne Scott, who supervised the clerical and word processing staff, and of Charles Peterson, who had overall responsibility for the Unisys office in Rosslyn, Virginia, where Paroline worked. Other men in the office also allegedly engaged in improper sexual comments and touching of female employees.

depositions or other documentary evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986) (on motion for summary judgment, evidence of nonmovant is to be believed, and all justifiable inferences must be drawn in her favor).

Peterson convened a staff meeting to warn the men not to engage in conduct that could be construed as sexual harassment. He also met privately with Moore to caution him against sexual harassment of female employees.

However, Paroline's evidence casts doubts on the effectiveness and sincerity of the warnings. Other former female employees contend that Moore continued his sexual innuendo and improper touching of women workers (other than Paroline) after the warning from Peterson. Furthermore, there was evidence that after Peterson's warning, a number of men, including Peterson himself, began joking about the women's complaints of sexual harassment.

Paroline entered the scene in the fall of 1986, when she applied for a job as a word processor at Unisys. Moore participated in her job interview. During the interview, Moore asked Paroline what she would do if subjected to sexual harassment in the workplace. Although Peterson, who also interviewed Paroline, found the question inappropriate, he never criticized or reprimanded Moore for asking it. Moore recommended Paroline for the job, and Unisys hired her.

Shortly after Paroline started work in November 1986, Moore directed his attention toward her. He made sexually suggestive remarks to Paroline that she considered offensive. Sometime in December of 1986, Moore approached Paroline as she was working and started rubbing his hands on her back, and continued even though she indicated that he should stop.

The event that sparked the lawsuit, however, did not occur until January 22, 1987, when a severe snowstorm hit Northern Virginia. The Unisys office closed early because of the bad weather, and Paroline had no way home. She accepted a ride with Moore. During the trip, he made remarks which she interpreted as sexually suggestive. He also kissed her and repeatedly tried to hold her hand during the ride. When they reached Paroline's apartment, Moore insisted on coming in despite her objections. After several minutes in the apartment, Moore grabbed Paroline and began kissing her and rubbing his hands up and down her back, despite her demands that he stop. At first, he refused to remove his hands from her body. She eventually persuaded him to leave.

The next day, Paroline informed Peterson of the incident. According to Paroline's deposition testimony, Peterson indicated his awareness of previous complaints of sexual harassment in the office, and promised that it would not happen again.

Unisys launched a formal investigation of Moore's conduct. Afterwards, the company disciplined Moore. Unisys management warned him in writing that "[i]f there are any recurrences or if any form of retaliation occurs ... such will be grounds for immediate termination of your employment with Unisys." Furthermore, Unisys officials instructed Moore to seek counseling and to limit contact with female employees to official company business. Unisys also terminated his access to the company's Sensitive Compartmented Intelligence Facility ("SCIF").

Unisys notified Paroline on January 29, 1987 about the actions taken against Moore. She considered them inadequate. Paroline had since learned of Moore's alleged sexual harassment of other female workers at Unisys and the failure of the Knowing she was upset, company officials offered Paroline two weeks off. Although Unisys officials asked her not to quit, she submitted her resignation on February 15, 1987. Paroline later filed suit against Moore and Unisys.

company's previous warnings to deter Moore from striking again. Paroline also feared that banning Moore from the SCIF area would actually increase her contact with him because she had not yet obtained a security clearance to enter the SCIF, and thus would be forced to remain in the same part of the office where Moore would be working. There is no evidence that Moore made any inappropriate remarks or sexual overtures toward Paroline after she complained to Peterson.

II. MOORE'S STATUS AS "EMPLOYER" UNDER TITLE VII

Paroline may pursue her sexual harassment and constructive discharge claims against Moore only if he was her "employer" within the meaning of Title VII. An "employer" includes "a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such a person...." 42 U.S.C. Sec. 2000e(b) (emphasis added). Unisys clearly falls within the statutory definition of "employer." However, the parties disagree as to whether Moore exercised sufficient supervisory authority over Paroline to qualify as an agent of Unisys within the meaning of Sec. 2000e(b).

An individual qualifies as an "employer" under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment. See York v. Tennessee Crushed Stone Ass'n, 684 F.2d 360, 362 (6th Cir.1982) (dictum); Tafoya v. Adams, 612 F.Supp. 1097, 1104 (D.Colo.1985), aff'd, 816 F.2d 555 (10th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 152, 98 L.Ed.2d 108 (1987); Duva v. Bridgeport Textron, 632 F.Supp. 880, 882 (E.D.Pa.1985). See also, Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir.1986). The supervisory employee need not have ultimate authority to hire or fire to qualify as an employer, as long as he or she has significant input into such personnel decisions. Tafoya, 612 F.Supp. at 1105. Furthermore, an employee may exercise supervisory authority over the plaintiff for Title VII purposes even though the company has formally designated another individual as the plaintiff's supervisor. As long as the company's management approves or acquiesces in the employee's exercise of supervisory control over the plaintiff, that employee will hold "employer" status for Title VII purposes.

Paroline has raised a genuine issue of material fact as to whether Moore exercised sufficient supervisory authority over her to qualify as an...

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