WILSON, Circuit Judge:
Dallas Johnson appeals the district court's grant of summary judgment to defendants-appellees on her sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and its dismissal of her pendent state law assault and battery claims. We affirm the district court's grant of summary judgment on Johnson's retaliation claim, but reverse on her sexual harassment claim. Since the district court
Booker T. Washington Broadcasting Service, Inc. ("BTW") owned the WENN
WENN hired plaintiff-appellant Johnson as co-host of the Morning Show. As a new employee, Johnson received a copy of BTW's employment handbook. The harassment policy contained in the handbook prohibited employees from engaging in:
The policy also instructed employees:
Dave Donnell served as co-host and program director on the new Morning Show. As program director, Donnell supervised Johnson. From the beginning, Johnson and Donnell did not hit it off. For example, Donnell would cut off Johnson's microphone while they were on the air. Johnson claims Donnell did this whenever he did not like her comments. Donnell claims he cut off Johnson's microphone only when she made inappropriate (e.g., sexually charged) comments. The listening audience and internal personnel complained about the hostile interaction between Donnell and Johnson; listeners thought it sounded like Donnell and Johnson were fighting on the air.
The Morning Show ratings continued to decline. In April 1997, WENN transferred Johnson from the morning to the midday air shift. Donnell testified he did not participate in making the decision to move Johnson to the midday shift, although he did inform her of the change. Co-worker Chris Talley likewise testified that station president Kirkwood Balton made all hiring and firing decisions at WENN, and that Donnell merely implemented Balton's directives. Co-worker Rick Owens, however, testified that Donnell "had all Mr. Balton's backing on all programming and personnel decisions. Whatever [Donnell] felt needed to be done, he would take that to Mr. Balton. And [sic] Mr. Balton would back him on it." Owens further testified that Donnell said "that the chemistry wasn't working [between Donnell and Johnson] and that they probably would have to move [Johnson] to either middays or possibly overnights."
On May 12, 1997, WENN again changed Johnson's shift, moving her from middays to late nights. WENN cut Johnson's pay
Believing Johnson had quit, WENN arranged an exit interview for Johnson on June 6, 1997. At the exit interview, Johnson alleged WENN was terminating her in retaliation for her refusal to give in to Donnell's sexual advances. This was the first time Johnson voiced any sexual harassment concerns to any BTW supervisor or officer.
Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") in June 1997, received her right to sue letter in October 1997, and instigated the present suit in December 1997. Johnson's complaint consisted of three counts: first, against WENN
Johnson claims that during her tenure on the Morning Show Donnell sexually harassed her as evidenced by the following incidents:
In a January 4, 1999 order, the district court granted WENN's motion for summary judgment on Johnson's retaliation and sexual harassment claims, and dismissed
We have jurisdiction pursuant to 28 U.S.C. § 1291, as this is an appeal from a final judgment.
A. Retaliation Claims
Under Title VII:
42 U.S.C. § 2000e-3(a) (1982). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.1997) (per curiam).
Johnson engaged in statutorily protected expressions by filing a charge with the EEOC in June 1997 and complaining about Donnell's harassment to Walker and Balton on June 6, 1997. Johnson's employment with WENN ended on May 28, 1997. Thus, Johnson's June 1997 protected expressions occurred after her employment ended in May 1997, and WENN's employment decisions could not have been based on Johnson's protected expressions. Hence Johnson cannot prevail on her retaliation claim, as she failed to satisfy the third Holifield prong: a causal relationship between her complaining about Donnell's harassment and her transfers or termination. We therefore affirm the district court's dismissal of Johnson's retaliation claims.
B. Sexual Harassment Claims
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or
All harassment by co-workers necessarily falls into the first Ellerth class, as co-workers cannot take employment actions against each other. See id. at 762, 118 S.Ct. 2257 ("[O]ne co-worker ... cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor."). Harassment by supervisors, on the other hand, can fall into either category. This distinction is important because if Donnell was a co-worker, rather than Johnson's supervisor, Johnson's claim can only be for hostile environment or non-tangible employment action harassment. If Donnell was a supervisor, Johnson's claim may be for quid pro quo or tangible employment action harassment. This in turn is important because WENN may utilize an affirmative defense if the alleged harassment was without a tangible employment action, but WENN would be strictly liable if the alleged harassment resulted in a tangible employment action.
To demonstrate sexual harassment, Johnson must show: (1) that "she belongs to a protected group;" (2) that she "has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature;" (3) that the harassment was "based on [her] sex ...;" (4) "that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment;" and (5) "a basis for holding the employer liable."
1. Was Johnson subjected to unwelcome sexual harassment, and was the harassment sufficiently severe or pervasive?
The second and fourth factors listed in Mendoza are intertwined, and we
Harassment is severe or pervasive for Title VII purposes only if it is both subjectively and objectively severe and pervasive. Mendoza, 195 F.3d at 1246. Harassment is subjectively severe and pervasive if the complaining employee perceives the harassment as severe and pervasive, and harassment is objectively severe and pervasive if a reasonable person in the plaintiff's position would adjudge the harassment severe and pervasive. See id. When determining whether harassment is objectively severe and pervasive, courts consider "the frequency of the conduct," "the severity of the conduct," "whether the conduct is physically threatening or humiliating, or a mere offensive utterance," and "whether the conduct unreasonably interferes with the employee's job performance." Mendoza, 195 F.3d at 1246.
There is no doubt Johnson subjectively perceived Donnell's behavior as harassing. Turning to the four objective factors: the conduct alleged by Johnson was not infrequent (Johnson points to roughly fifteen separate instances of harassment over the course of four months); the conduct was severe (Donnell's behavior included giving Johnson unwanted massages, standing so close to Johnson that his body parts touched her from behind, and pulling his pants tight to reveal the imprint of his private parts); the conduct was physically threatening and humiliating (same); and the conduct interfered with Johnson's job performance (she could not get along with her on-the-air co-host). This set of facts differs from cases like Mendoza and Gupta v. Florida Bd. of Regents, where there were fewer instances of less objectionable conduct over longer periods of time. See Mendoza 195 F.3d at 1242-43; Gupta v. Florida Bd. of Regents, 212 F.3d 571, 585 (11th Cir.2000). The facts of this case are more akin to the "continuous barrage of sexual harassment" in Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 418 (11th Cir.1999). Since Donnell's alleged conduct towards Johnson was sufficiently severe or pervasive such that it falls within the definition of sexual harassment,
2. Is there a basis for holding WENN liable?
WENN will be strictly liable to Johnson for Donnell's alleged harassment if (1) Donnell was Johnson's supervisor; and (2) Donnell took a tangible employment action against Johnson as a result of the sexual harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Ellerth, 524 U.S. at 762-63, 118 S.Ct. 2257 ("[A] tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability...."); Llampallas v. Mini-Circuits, Lab., Inc., 163 F.3d 1236, 1247 (11th Cir. 1998) ("[A]ny time the harasser makes a tangible employment decision that adversely affects the plaintiff, an inference
WENN may be able to avoid liability if either (1) Donnell was not Johnson's supervisor; or (2) Donnell took no tangible employment action against Johnson. If Donnell was not Johnson's supervisor, WENN is only liable if it "knew (actual notice) or should have known (constructive notice) of the harassment and failed to take remedial action." Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000). If Donnell was Johnson's supervisor, but did not take a tangible employment action against Donnell, a two-part affirmative defense announced in Ellerth and Faragher applies. Under this affirmative defense, WENN is not liable if it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and Johnson "unreasonably failed to take advantage of any preventive or corrective opportunities provided by [WENN] or to avoid harm otherwise." Faragher, 524 U.S. at 807, 118 S.Ct. 2275.
The district court mistakenly applied a McDonnell Douglas-Burdine framework to Johnson's claims.
The district court cited to no cases applying the McDonnell Douglas-Burdine framework in post-Ellerth sexual harassment cases, and nowhere in Ellerth does the Supreme Court suggest applying a
Applying "normal principles of pleading and proof allocation," id., Johnson has presented a triable issue of fact for the jury to resolve. Viewing the evidence in the light most favorable to Johnson, she has presented evidence that she rebuffed Donnell's sexual advances, along with evidence that Donnell participated in the decision to move her to middays, and possibly to the late night shift.
(a) Was Donnell Johnson's supervisor at the time of the adverse employment actions?
As stated above, WENN's potential liability for Donnell's alleged harassment turns in part on whether Donnell was Johnson's supervisor or her co-worker. Thus, the first step in determining whether WENN may be liable is defining the relationship between Johnson and Donnell. The district court believed, "There is no dispute that Donnell was plaintiff's supervisor." Clearly, Donnell supervised Johnson when she worked on the Morning Show. But it is not so clear that Donnell continued to supervise Johnson after Johnson switched from morning to middays and late nights. Johnson alleges in her complaint that, even after she switched to the midday and late night shifts, "Donnell scheduled mandatory meetings for the entire staff of announcers during the plaintiff's `air' time and failed to schedule someone to relieve her so she could attend the meeting. This was done deliberately to retaliate against the plaintiff." This suggests that Donnell still wielded some power over Johnson after she left the Morning Show.
Because the district court did not clearly articulate whether Donnell continued to supervise Johnson after she transferred, and because we cannot make this determination based on the record before us, we remand this portion of Johnson's claim to the district court for its determination.
(b) Did Johnson suffer a tangible employment action?
WENN's potential liability for Donnell's alleged harassment also turns on whether Donnell took a tangible employment action against Johnson. Thus, the next step in
A tangible employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. See also Gupta, 212 F.3d at 587 (quotation omitted) (citation omitted) ("An adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.").
Here, WENN transferred Johnson twice — from morning to middays, and from middays to late nights. The record is silent, however, as to the repercussions of the transfer from morning to midday.
It does not appear that the transfer from morning to midday altered Johnson's compensation or benefits. Whether this transfer otherwise fit within the definition of adverse or tangible employment action within the meaning of Ellerth and Gupta is unclear.
In a similar situation, where the record did not reveal whether a transfer constituted an adverse employment action, we decided:
Doe v. Dekalb County School Dist., 145 F.3d 1441, 1453-54 (11th Cir.1998).
We believe a remand is the appropriate action here as well. On remand, the district court should conduct "such proceedings as it deems necessary for it to enter explicit findings of fact concerning the allegedly adverse nature of" Johnson's transfer, and "clearly explain why it believes that a reasonable person in [Johnson's] position would or would not have found the transfer to have been an adverse employment action." Id. If Johnson's transfers were not tangible employment actions, WENN is entitled to utilize the Ellerth-Faragher affirmative defense. If the transfers were tangible employment actions, Johnson will be entitled to summary judgment if Donnell, as her supervisor, took the employment actions as a result of sexual harassment.
C. Assault and Battery Claims
The district court dismissed Johnson's pendent state law assault and battery claims solely because it granted summary judgment on Johnson's Title VII claims. Since we are reversing the court's grant of summary judgment on Johnson's Title VII sexual harassment claim, the district court will have jurisdiction over a federal claim upon our remand. We therefore reverse the court's dismissal of Johnson's pendent state law claims.
The district court erred in granting summary judgment to appellees. While the court correctly dismissed Johnson's Title VII retaliation claim, Johnson's sexual harassment claim was not ripe for summary judgment. Viewing the evidence in the light most favorable to Johnson, material issues of fact exist as to: whether Donnell was Johnson's supervisor at the times of the transfers; whether Donnell's shift transfers constituted tangible employment actions; whether Donnell participated in the decisions to transfer Johnson; and (assuming Donnell did participate in the decisions to transfer Johnson) whether Donnell transferred Johnson because of her rejection of his sexual advances.
The answers to these questions are critical. If, for example, Donnell as Johnson's supervisor took a tangible employment action against Johnson, WENN would be strictly liable for Donnell's harassment; if, on the other hand, Donnell did not take a tangible employment action against Johnson, WENN would be entitled to utilize the Ellerth-Faragher affirmative defense. At any rate, these questions cannot be answered based on the record before us. We therefore reverse the district court's grant of summary judgment on Johnson's sexual harassment claims. We also reinstate Johnson's pendent state law claims.
AFFIRMED in part, REVERSED in part, and REMANDED.
Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th Cir.1994). The first three Mendoza factors are exactly the same as the first three Virgo factors. The fourth Virgo factor correlates with the fifth Mendoza factor — whether an employer may be held liable depends on whether a tangible employment action resulted from the harassment. The fourth Mendoza factor, whether or not the harassment was severe or pervasive, jibes with the Virgo analysis as well: if a supervisor retaliates against a worker for failing to give in to sexual advances, those advances will rise to the level of "severe or pervasive." Seeing no important distinction between a prima facie case under quid pro quo as opposed to hostile environment claims, we will apply the Mendoza factors to Johnson's claims, irrespective of the terms "quid pro quo" and "hostile environment."
Chapman v. AI Transport, 229 F.3d 1012 (11th Cir.2000) (en banc) (citations omitted).