JOHNSON v. BOOKER T. WASHINGTON BROADCASTING SERV.

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 will have subject matter jurisdiction over a federal claim upon our remand, we also reinstate Johnson's pendent state law claims.

I. BACKGROUND

Booker T. Washington Broadcasting Service, Inc. ("BTW") owned the WENN1 radio station in Birmingham, Alabama. WENN was ranked as the number one or two station in the Birmingham market for some period of years before 1996. During this time period, WENN's highest rated show, The Morning Show with Dave Donnell (the "Morning Show"), generated nearly fifty percent of WENN's overall advertising revenue. When the Morning Show's ratings began to drop in 1996, WENN decided to add a co-host in hopes of boosting ratings.

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 correspondingly. On May 28, 1997, Johnson complained to Balton and station manager Rose Walker about the shift changes and pay cut, but Walker and Balton refused to make any changes. Johnson claimed she had a contract with WENN that guaranteed her a higher salary, but she would not produce the contract. Instead, Johnson left the station on May 28, 1997, after the meeting, and never returned to work.2

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 WENN3 for quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation; second, against Donnell for assault and battery; and third, against Donnell for wrongful interference with Johnson's business and contractual relationship with WENN.4

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 Johnson's pendent assault and battery claims against Donnell. Johnson appeals these rulings.

II. DISCUSSION

We have jurisdiction pursuant to 28 U.S.C. § 1291, as this is an appeal from a final judgment.5 See 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, applying the same legal standards as the district court, and viewing all facts and reasonable inferences drawn therefrom in the light most favorable to Johnson, the non-moving party. See Evans v. McClain of Georgia, Inc., 131 F.3d 957, 961 (11th Cir.1997) (per curiam). We review the district court's dismissal of pendent state law claims for abuse of discretion. See Shahawy v. Harrison, 778 F.2d 636, 644 (11th Cir.1985), amended by 790 F.2d 75 (11th Cir.1986), appealed after remand, 875 F.2d 1529 (11th Cir.1989).

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).6 Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment. See, e.g., Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) ("[T]he protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those, like [appellant], who informally voice complaints to their superiors or who use their employers' internal grievance procedures.").

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 privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment can constitute discrimination based on sex for purposes of Title VII. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1244-45 (11th Cir.1999) (en banc). Generally, sexual harassment comes in two forms: harassment that does not result in a tangible employment action (traditionally referred to as "hostile work environment" harassment), and harassment that does result in a tangible employment action (traditionally referred to as "quid pro quo" harassment). See generally Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760-63, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

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."7 Mendoza, 195 F.3d at 1245. The parties do not dispute that Johnson belongs to a protected group (women) and that Donnell's comments and actions towards Johnson were based on Johnson's sex. The remaining three factors are more difficult to evaluate.

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 will evaluate them together. Title VII "does not prohibit all verbal or physical harassment in the workplace," and "does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Instead, Title VII prohibits only the type of severe or pervasive sexual harassment that "alter[s] the conditions of the victim's employment." Id. at 81, 118 S.Ct. 998 (quotation omitted).

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,8 we turn next to whether WENN may be liable for this 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 arises that there is a causal link between the harasser's discriminatory animus and the employment decision. A Title VII plaintiff, therefore, may establish her entire case simply by showing that she was sexually harassed by a fellow employee, and that the harasser took a tangible employment action against her.").

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.9 The court assumed plaintiff had shown that Donnell's harassment was severe and pervasive, and stated without discussion that Donnell was Johnson's supervisor. The court observed that a material issue of fact existed as to whether Donnell's alleged harassment culminated in her shift transfer (i.e., tangible employment action). The district court then stated that it "reads Ellerth as requiring that a `sexual harassment' case involving a tangible change in the terms and conditions of employment be treated in the same manner as any disparate treatment claim. In other words, a McDonnell Douglas framework of shifting burdens would apply." The court went on to hold that WENN proffered a legitimate, nondiscriminatory reason for Johnson's transfer (ratings had not improved and Johnson and Donnell did not "gel" on air) which Johnson failed to rebut as pretextual. Hence, according to the district court, Johnson failed to demonstrate that her transfers stemmed from Donnell's alleged harassment, and her claim fell into the "no tangible employment action" category. As such, WENN was entitled to utilize the affirmative defense outlined in Ellerth and Faragher.

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 McDonnell Douglas-Burdine burden shifting framework. We are unwilling to read the McDonnell Douglas-Burdine framework into non-retaliation10 sexual harassment cases at this point. These types of cases have evolved quite separately from other Title VII cases, and applying a burden-shifting analysis to them would be a departure from precedent. See Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th Cir.1982) ("We ... see no reason to suggest a specific prima facie case for the hostile environment claim. In trying these cases, the district courts should employ normal principles of pleading and proof allocation.").

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.11 WENN has presented evidence that Balton, rather than Donnell, decided to transfer Johnson, along with evidence that it transferred Johnson because ratings were low and her on-air personality contributed to lower WENN ratings.12 This is a classic dispute of a material fact; it is for the jury, and not the district court, to decide which party's rendition of fact is more credible.

(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 our inquiry is to determine whether Johnson suffered a tangible employment action.13 Johnson claims WENN reassigned her twice and terminated her, as a direct result of Donnell's sexual harassment. The record evidence reveals that Johnson quit, and was never terminated; thus, she has no meritorious claim that her termination constitutes a tangible employment action.14 Her reassignments15 are more troubling. However, it is impossible to glean from the record whether her transfers constituted tangible employment actions.

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.16 The district court did not explicitly determine whether Johnson's transfers constituted tangible employment actions; instead, it basically assumed that they did, but held Johnson failed to demonstrate that WENN transferred her for pretextual reasons. As detailed above, we find no authority for requiring Johnson to prove pretext. Rather, Johnson merely has to present an issue of fact for jury consideration. Whether her transfers stemmed from Donnell's harassment is such a question of fact.

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.17 The transfer from midday to late night resulted in an alleged $8000.00 pay decrease; therefore the transfer to late night was obviously a tangible employment action.

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.

III. CONCLUSION

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.18