Lissau v. Southern Food Ser , 159 F.3d 177 ( 1998 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CYNTHIA C. LISSAU,
Plaintiff-Appellant,
v.
SOUTHERN FOOD SERVICE,
No. 96-2672
INCORPORATED; CESAR CASTILLERO,
Defendants-Appellees.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-95-487-R)
Argued: October 3, 1997
Decided: October 28, 1998
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 opin-
ion. Chief Judge Wilkinson wrote the opinion, in which Judge Her-
long joined. Judge Michael wrote an opinion concurring in parts I and
II of the majority opinion and concurring in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Terry N. Grimes, KING, FULGHUM, SNEAD, NIXON
& GRIMES, P.C., Roanoke, Virginia, for Appellant. Barbara L.
Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Amicus Curiae. Melissa Robin Davis, TUG-
GLE, DUGGINS & MESCHAN, P.A., Greensboro, North Carolina,
for Appellee Southern Food Service; William Fain Rutherford, Jr.,
FLIPPIN, DENSMORE, MORSE, RUTHERFORD & JESSEE, Roa-
noke, Virginia, 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, D.C., for Amicus
Curiae. J. Reed Johnston, Jr., TUGGLE, DUGGINS & MESCHAN,
P.A., Greensboro, North Carolina, for Appellee Southern Food Ser-
vice.
_________________________________________________________________
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 super-
visor, and Southern Food Service, her former employer. She alleges
that both defendants are liable for a sexually hostile work environ-
ment 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 of Boca Raton, 118
S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118
S. Ct. 2257 (1998).
I.
Cynthia Lissau worked as a sales representative for Southern, a
company engaged in the distribution and sale of food products. Her
2
period of employment lasted from March 9, 1987, through December
2, 1988, and again from July 26, 1993, through July 19, 1994. South-
ern is headquartered in North Carolina and maintains several branch
sales offices. Lissau worked in the company's regional office in Roa-
noke, Virginia.
During her second period of employment, Lissau reported to Cas-
tillero, 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 dur-
ing 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, cal-
led Castillero at home. She stated that she was upset by his inappro-
priate 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
3
was observing in the Roanoke office. Lissau suggested contacting
Mike Nussbaum, a senior executive at Southern, about her appoint-
ment 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 under-
stood 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 any-
one 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, Nuss-
baum referred the matter to the company's counsel. Counsel investi-
gated the complaint, and, based on its findings, Nussbaum concluded
that Lissau's allegations were without merit.
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 con-
duct "was not of an egregious nature." Lissau now appeals.
4
II.
We first address Lissau's suit against Castillero. Lissau argues that
supervisors are liable in their individual capacities for sexual harass-
ment 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 con-
cluded 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 employ-
ing 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 fash-
ion as the ADEA definition of employer. Title VII defines employer
to include certain persons who employ fifteen or more workers and,
5
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) (not-
ing 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 foreclose individual liability represents the only logical extension
of Birkbeck. Like the ADEA, Title VII exempts small employers; it
would be incongruous to hold that Title VII does not apply to the
owner of a five-person company but applies with full force to a per-
son who supervises an identical number of employees in a larger
company. See id. We interpret the inclusion of agent in Title VII's
definition of employer simply to establish a limit on an employer's
liability for its employees' actions. See Birkbeck, 30 F.3d at 510-11;
Miller v. Maxwell's Int'l. Inc., 991 F.2d 583, 587 (9th Cir. 1993).
The 1991 amendments to Title VII further bolster our conclusion
that individuals are not liable under that Act. Prior to 1991, remedies
under Title VII were ordinarily limited to back pay and equitable
relief such as reinstatement that "typically are only obtainable from
an employing entity, not from a mere individual." AIC, 55 F.3d at
1281 (citation omitted); see also Tomka v. Seiler Corp., 66 F.3d 1295,
1314 (2d Cir. 1995). In 1991, Congress added compensatory and
punitive damages to the list of available remedies. See Civil Rights
Act of 1991, § 102, Pub. L. No. 102-166, 105 Stat. 1071, 1072-73
(codified at 42 U.S.C. § 1981a) (CRA). In the CRA's findings, Con-
gress noted that "additional remedies under Federal law are needed to
deter unlawful harassment and intentional discrimination in the work-
place." Id. § 2, 105 Stat. at 1071. Congress tied the amount of avail-
able compensatory and punitive relief to the size of the employer. Id.
§ 102(b)(3), 105 Stat. at 1073 (codified at 42 U.S.C. § 1981a(b)(3)).
For example, companies that employ 200 workers are liable to each
complainant for a maximum of $100,000 in compensatory and puni-
tive damages while companies employing 100 workers are liable for
a maximum of $50,000. Id. § 102(b)(3)(A)-(B), 105 Stat. at 1073
(codified at 42 U.S.C. § 1981a(b)(3)(A)-(B)). This sliding scale of lia-
bility does not stipulate an amount in cases where a plaintiff seeks to
hold an individual supervisor liable.
6
These amendments to the remedial scheme thus suggest that Con-
gress only intended employers to be liable for Title VII violations.
Nowhere does the CRA mention individual liability as an available
remedy. Had Congress felt that individual liability was "needed to
deter unlawful harassment and intentional discrimination," surely it
would have included this remedy in the 1991 Amendments. See
Wathen, 115 F.3d at 406; Tomka, 66 F.3d at 1315; Miller, 991 F.2d
at 588 n.2. Instead, the linkage between the size of the employer and
the amount of available relief clearly indicates a congressional intent
to limit plaintiffs' remedies to suits against employers. To permit
individual liability would improperly expand the remedial scheme
crafted by Congress.
Finally, we note that a large number of circuit courts have held that
individual supervisors are not liable under Title VII. In fact, every cir-
cuit that has confronted this issue since the enactment of the CRA has
rejected claims of individual liability. These circuits have founded
this conclusion on the language of Title VII and the fact that its reme-
dial scheme seems so plainly tied to employer, rather than individual,
liability. See Tomka, 66 F.3d at 1317; Dici v. Pennsylvania, 91 F.3d
542, 552 (3d Cir. 1996); Grant v. Lone Star Co. , 21 F.3d 649, 653
(5th Cir. 1994); Wathen, 115 F.3d at 406; Williams v. Banning, 72
F.3d 552, 554 (7th Cir. 1995); Smith v. St. Bernards Regional Medical
Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994); Miller, 991 F.2d at 588;
Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996); Smith v.
Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995); Gary v. Long, 59 F.3d
1391, 1399 (D.C. Cir. 1995). We join these courts and reiterate that
supervisors are not liable in their individual capacities for Title VII
violations. Accordingly, the district court properly granted summary
judgment to Castillero.
III.
We next address Lissau's claims against Southern. After the parties
had argued this issue, the Supreme Court agreed to decide two cases
addressing when an employer could be liable for a supervisor's sexual
harassment. See Faragher v. City of Boca Raton , 118 S. Ct. 2275;
Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257. We held this
appeal in abeyance pending the Supreme Court's decisions. Now that
the Court has decided those cases and announced new criteria on
7
employer liability, we remand this case to the district court to apply
those criteria to Lissau's claims.
The district court granted summary judgment to Southern on the
ground that Southern lacked notice of Castillero's behavior. The
Supreme Court has since announced a more complete rule governing
an employer's liability for a supervisor's sexual harassment. In both
Faragher and Ellerth, the Supreme Court articulated the following
standard:
An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by
a supervisor with immediate (or successively higher) author-
ity over the employee. When no tangible employment action
is taken, a defending employer may raise an affirmative
defense to liability or damages, subject to proof by a pre-
ponderance of the evidence. The defense comprises two
necessary elements: (a) that the employer exercised reason-
able care to prevent and correct promptly any sexually
harassing behavior, and (b) that the plaintiff employee
unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to
avoid harm otherwise.
Faragher, 118 S. Ct. at 2292-93 (citation omitted); Ellerth, 118 S. Ct.
at 2270 (citation omitted). The Court thus rejected the rule, relied on
by the district court, that an employer is liable only if it has notice of
a supervisor's offensive behavior. It reaffirmed, however, the long-
standing principle that employers are not "always automatically liable
for sexual harassment by their supervisors." Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 72 (1986) (citation omitted); see Faragher,
118 S. Ct. at 2285; Ellerth, 118 S. Ct. at 2270.
The district court did not have the benefit of these decisions when
it granted summary judgment to Southern, and the parties did not con-
duct discovery with these criteria in mind. Indeed, it appears the par-
ties constructed the record primarily around the earlier rule that an
absence of notice afforded absolute immunity to employer liability.
Remand will enable the parties to develop a more complete record,
and the district court should apply the newly announced criteria to
8
those facts. After the facts are developed in light of Faragher and
Ellerth, the district court is free to consider a renewed motion for
summary judgment on remand.*
We express no view, however, on the proper disposition of such a
motion. After Faragher and Ellerth, Southern may be able to inter-
pose an affirmative defense based on its efforts to prevent and correct
harassment in its workplace and Lissau's failure to take advantage of
the opportunities the company afforded her. Faragher and Ellerth
make clear that an employer may advance such a defense where no
discriminatory tangible employment action was taken. See Faragher,
118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. Tangible employment
actions, if not taken for discriminatory reasons, do not vitiate the
affirmative defense. If Lissau's termination did not result from a
refusal to submit to Castillero's sexual harassment, then Southern
may advance this defense. Under the defense, evidence that Southern
_________________________________________________________________
*Our concurring colleague declares that "Faragher and Ellerth signal
. . . that fewer sexual harassment cases will be resolved on summary
judgment." See post at 12. We think this reads too much into Faragher
and Ellerth. Those cases in no way indicate that a variation from the nor-
mal requirements of Rule 56 is appropriate or that grants of summary
judgment will be infrequent. See Faragher, 118 S. Ct. 2283-84 (noting
with approval that the Courts of Appeals have demanded that a supervi-
sor's conduct must be extreme and citing a collection of cases dismissing
claims on summary judgment); id. at 2291-92 (rejecting an alternative to
the adoption of the affirmative defense because under the alternative
"[j]udgment calls would often be close, . . . and the temptation to litigate
would be hard to resist"); id. at 2292 (adopting an affirmative defense
because it "would avoid this particular temptation to litigate"). This con-
cern over the cost of excessive litigation would be inconceivable if the
Supreme Court intended that sexual harassment cases be exempted in
some way from the usual standards of summary judgment. And we can
conceive of no basis in law for simply declaring an exception to Rule 56
for certain categories of cases. See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 524 (1993) (Neither "`trial courts[n]or reviewing courts should
treat discrimination differently from other ultimate questions of fact'"
(quoting United States Postal Bd. of Governors v. Aikens, 460 U.S. 711,
716 (1983))). Many cases involve a reasonable care requirement and a
preponderance burden yet summary judgment standards are not sus-
pended on account of that. Rule 56 is an integral part of the Federal
Rules, not a "shortcut." See post at 12.
9
had disseminated an effective anti-harassment policy provides com-
pelling proof of its efforts to prevent workplace harassment. See
Faragher, 118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270; Meritor,
477 U.S. at 72-73. And any evidence that Lissau failed to utilize
Southern's complaint procedure "will normally suffice to satisfy [its]
burden under the second element of the defense." Faragher, 118
S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. If, however, the district
court finds no effective anti-harassment policy was in place or that
Lissau did avail herself of the policy, then summary judgment would
be inappropriate. See Faragher, 118 S. Ct. at 2293 (sexual harassment
policy generally necessary except for "employer of a small workforce,
who might expect that sufficient care to prevent tortious behavior
could be exercised informally").
Alternatively, the district court may address whether Castillero's
conduct was sufficiently severe and pervasive to constitute discrimi-
nation under Title VII. Title VII does not provide a remedy for every
instance of verbal or physical harassment in the workplace. Oncale v.
Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002 (1998). Relief
is unavailable where the alleged conduct "is not severe or pervasive
enough to create an objectively hostile or abusive work environment"
or where the victim "does not subjectively perceive the environment
to be abusive." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993).
"A recurring point in these opinions is that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of
employment." Faragher, 118 S. Ct. at 2283 (citation and internal quo-
tation marks omitted). Here the district court observed that Castil-
lero's behavior "was not of an egregious nature" but declined to
decide whether his conduct rose to the level of actionable harassment.
If Castillero's conduct was not severe and pervasive enough to create
a hostile work environment or if Lissau did not perceive the environ-
ment to be abusive, summary judgment in favor of Southern would
be appropriate. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d
766, 772-74 (4th Cir. 1997) (granting summary judgment to employer
where conduct not severe and pervasive); see generally 1 Barbara
Lindemann & Paul Grossman, Employment Discrimination Law 805-
07 n.290 (collecting cases). If, on the other hand, the conduct created
a discriminatorily abusive work environment (or there is a genuine
10
issue of material fact thereon), then summary judgment for Southern
would be inappropriate. See Harris, 510 U.S. at 22.
We identify these issues simply to provide some guidance to the
district court on remand. We express no view, however, on whether
summary judgment is appropriate on either ground. Until the parties
have briefed the issue of Southern's liability in light of the Supreme
Court's recent decisions and until the district court has reviewed the
entire record, it would be premature for us to rule.
IV.
We affirm the grant of summary judgment in favor of Castillero.
We reverse the grant of summary judgment in favor of Southern and
remand the case for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
MICHAEL, Circuit Judge, concurring in part and concurring in the
judgment:
I concur in parts I and II of the majority opinion, and I concur in
the judgment because I agree that the case must be remanded for fur-
ther proceedings in light of Faragher v. City of Boca Raton, 118
S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118
S. Ct. 2257 (1998). I cannot join in part III of the opinion because it
is premature to suggest ways in which summary judgment might once
again be granted to Southern, the employer. The prospects for sum-
mary judgment look doubtful to me because the new Faragher-
Ellerth defense depends on facts and because Lissau's allegations, if
proven true, would show that she was subjected to actionable harass-
ment. In addition, it should be made clear that the new defense is not
available to the employer when a supervisor takes a tangible employ-
ment action against the employee as part of his harassment.
I.
A.
I believe that we are ill-advised to encourage the district court to
consider, on summary judgment, whether Southern has established
11
the new Faragher-Ellerth affirmative defense. I say this because the
defense is especially fact intensive. To prove the defense, Southern
must show (a) that it "exercised reasonable care to prevent and correct
promptly any sexually harassing behavior" and (b) that Lissau "unrea-
sonably failed to take advantage of any preventive or corrective
opportunities provided by [Southern] or to avoid harm otherwise."
Ellerth, 118 S. Ct. at 2270. Nowhere does the Supreme Court suggest
summary judgment as a shortcut in dealing with this new defense.
Rather, the Court recognizes the factual nature of the defense by
emphasizing that it is "subject to proof by a preponderance of the evi-
dence." Id. Moreover, by employing terms such as "reasonable care"
and "unreasonably failed," the defense focuses on the reasonableness
of conduct on the part of both the employer and the employee. When
the reasonableness of conduct is in question, summary judgment is
rarely appropriate because juries have "unique competence in apply-
ing the reasonable person standard" to the facts of the case. See 10A
Charles Alan Wright et al., Federal Practice and Procedure § 2729,
at 533 (3d ed. 1998).
The majority recognizes that facts relating to the new defense must
be developed on remand. Until that happens, we cannot know whether
it is possible to keep this case on the summary judgment track. It is
doubtful that we can, given the fact-intensive nature of the Faragher-
Ellerth defense. Whatever that outcome, as of now too many facts are
unknown, and the reasonableness of too much conduct is likely to be
contested, for us to suggest any scenario for summary judgment under
the new defense. If Faragher and Ellerth signal anything, it is that
fewer sexual harassment cases will be resolved on summary judg-
ment.
B.
I also believe that the majority, in its discussion of the potential for
summary judgment, impermissibly expands Southern's opportunity to
assert the Faragher-Ellerth defense. The majority begins by correctly
acknowledging that "Faragher and Ellerth make clear that an
employer may advance the defense where no discriminatory tangible
employment action was taken," ante at 9. But the majority goes on to
say that "[i]f Lissau's termination did not result from a refusal to sub-
mit to Castillero's sexual harassment, then Southern may advance this
12
defense." Id. To the extent the majority is suggesting that the defense
is unavailable to Southern only if Lissau's refusal to submit triggered
her firing, it is incorrect. The defense is unavailable in a broader range
of circumstances. It is not available in a hostile work environment
case when the supervisor takes a tangible employment action against
the employee as part of the harassment. Thus, if Lissau's termination
was connected to Castillero's sexual harassment of her, Southern may
not advance the defense. See Ellerth, 118 S. Ct. 2257 at 2270 ("No
affirmative defense is available . . . when the supervisor's harassment
culminates in a tangible employment action").
II.
The majority also says that "summary judgment in favor of South-
ern would be appropriate" if Castillero's conduct was not severe or
pervasive enough to create a hostile work environment. See ante at
11. This suggestion appears to be prompted in part by the district
court's comment (in dictum) that Castillero's conduct "was not of an
egregious nature." Lissau v. Southern Food Serv., Inc., No. 95-487-R,
slip op. at 8 (W.D.Va. Oct. 10, 1996). This dictum bears serious reex-
amination. If Lissau's allegations are true, a reasonable jury could
find that she was subjected to hostile work environment harassment.
Lissau alleges that Castillero's harassment of her began with their
first contacts and continued throughout her one-year tenure at South-
ern. Castillero's predecessor hired Lissau and gave her some time to
close cases at her old job, where she was a social worker. Shortly
before she was ready to begin work at Southern, Lissau telephoned
the company and was referred to the new manager, Castillero. In this
first conversation Castillero asked Lissau if she was married, and she
replied that she was not. Castillero scheduled a meeting with Lissau,
which occurred within the next day or two. At that initial face-to-face
meeting in July 1993, Castillero was flirtatious. He touched Lissau's
blouse, saying it was "nice silk." Castillero then asked Lissau if she
went away with men on weekends, and Lissau replied that she did
not, noting that she was a single parent.
The next week Lissau went to Southern's office to drop off some
items and to tell Castillero that she was going to the beach for a day
or two before beginning work. Castillero made a comment about Lis-
13
sau's new hairstyle and hinted that she must be going to the beach to
pick up men. Lissau replied that she was going with two of her mar-
ried female friends, who were social workers.
After Lissau started work in late July 1993, Castillero would com-
ment on her legs whenever she wore a skirt, saying, for example,
"Look at those legs." He also made frequent comments about her hair,
such as, "Your hair is so pretty and black." Lissau tried to deflect Cas-
tillero's comments by simply saying "thank you" and moving on. As
time went on, Castillero's comments became more direct. He told Lis-
sau that he was attracted to her and asked her whether she thought
they would ever "be together." At times Castillero intimated that they
should have an affair. Lissau regularly told him that she was unavail-
able and that he was also (Castillero was married).
On October 31, 1993, Castillero called Lissau at home to get her
sales report for the month, which did not meet Lissau's personal goal.
Lissau began to cry, and Castillero said, "You're crying about your
sales -- that makes me want to come and hold you." In late Novem-
ber 1993 Lissau and a co-worker staffed a sales booth at a home show
at the Roanoke Civic Center. After the show Castillero suggested that
she and her co-worker go out to dinner with him. Lissau felt the din-
ner was a command performance because Castillero ostracized
employees who would not socialize with him after work. After they
left the restaurant at the end of the evening, Castillero grabbed Lissau
in the middle of the street and hugged her passionately for several
seconds. A few days later Castillero told Lissau that when he "felt
her" that night, "he felt like he had `made love to [her] before.'"
In December 1993 Castillero learned that Lissau's daughter was
out of town for a few days, and he suggested that the two of them
should go to Lissau's house for a "wild party." Lissau told him that
she was not interested. By this time Castillero was often telling Lissau
that she needed to have sex, and he even asked her when she last had
sex. In March 1994 when Lissau was in a co-worker's office, Castil-
lero walked in. Castillero dropped a piece of paper near where Lissau
was sitting. As he bent over to pick it up, he put his hand on Lissau's
thigh and left it there until she pushed it away. The next week Castil-
lero went into Lissau's office and shut the door. He moved very close
to her and told her that she needed "some good sex" and that she
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"needed to be `pounded all night long.'" Lissau became sick to her
stomach and cannot remember how she responded.
Castillero persisted in this conduct over the course of a year, even
though Lissau repeatedly expressed her discomfort and lack of inter-
est. Lissau became depressed by Castillero's comments and actions,
and she struggled to do her work. Finally, in June 1994 Lissau called
Castillero at home and told him that she was upset with his sexual
comments, that she was upset with his sexual harassment, and that she
wanted assurances that he would stop the harassment and leave her
alone. Castillero denied any harassment and accused Lissau of having
mental problems. About a month later Castillero called Lissau into his
office and fired her, saying that he understood that she was unhappy
in her job.
When these facts are taken as true, as they must be for summary
judgment purposes, Castillero's conduct was severe or pervasive
enough to be actionable under Title VII.
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