Kelly Carter v. United Parcel Service ( 1997 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FOR PUBLICATION
Filed: October 27, 1997
KELLY CARR, ) United States District Court
) Middle District of Tennessee
PLAINTIFF/RESPONDENT, ) Nashville Division
) No. 3-94-0095
v. )
) Hon. Robert L. Echols
UNITED PARCEL SERVICE, ET AL., ) United States District Judge
)
DEFENDANT/PETITIONERS. ) No. 01S01-9605-FD-00090
FILED
October 27, 1997
Cecil W. Crowson
Appellate Court Clerk
FOR PLAINTIFF: FOR DEFENDANTS:
Deanna C. Bell Charles Hampton White
Nashville Rebecca Wells Demaree
Nashville
FOR AMICUS CURIAE,
TENNESSEE MUNICIPAL FOR AMICUS CURIAE,
LEAGUE RISK MANAGEMENT, JOYCE M. GRIMES:
ET AL.: Joyce M. Grimes
Pamela Lynn Reeves Nashville
Knoxville
HOLDER, J.
OPINION
This case comes to us on a certified question of law. The plaintiff, Kelly
Carr, filed a sexual harassment action in the United States District Court for the
Middle District of Tennessee alleging violations of both Title VII of the Civil Rights
Act of 1964 ("Title VII") and the Tennessee Human Rights Act ("THRA"). She
named as defendants her employer, United Parcel Service ("UPS"), and three
UPS employees, Ron Foster, Martin Sisk, and Andrew Martin. Foster, Sisk, and
Martin filed a motion for judgment on the pleadings arguing that they could not
be held individually liable under either Title VII or the THRA. The district court
entered an order requesting this Court “to resolve the issue of whether a
defendant can be held individually liable under THRA." We accepted
certification of the question. We hold that, under the facts as certified to us, the
THRA does not impose individual liability in this case.
BACKGROUND
Plaintiff alleges that she was physically and verbally sexually harassed by
Foster during her employment with UPS. Plaintiff maintains that on or about
January 29, 1993, Foster rubbed her posterior and stated "I just rubbed Kelly's
ass. I hope she does not file harassment charges." Plaintiff contends that Sisk,
a supervisor, witnessed the January incident and failed to take remedial action.
Plaintiff apparently alleges several other instances of sexually offensive conduct
involving the defendants either directly or indirectly. The allegations are not
specified in the record.1 The record before us is also devoid of specific
allegations of sexual harassment against Martin.
1
The record in this case consists only of the Order Certifying Question to
the Supreme Court of Tennessee.
2
EMPLOYMENT-RELATED DISCRIMINATION
The THRA is a comprehensive anti-discrimination statute that is codified
at Tenn. Code Ann. § 4-21-101 to -905 (Repl. 1991 & Supp. 1996). Tennessee
Code Annotated § 4-21-401 prohibits employment-related discrimination and
provides in pertinent part:
It is a discriminatory practice for an employer to:
(1) Fail or refuse to hire or discharge any person or otherwise to
discriminate against an individual with respect to compensation,
terms, conditions or privileges of employment because of such
individual's race, creed color, religion, sex, age or national origin;
Tenn. Code Ann. 4-21-401(a). The THRA defines "employer" to include:
. . . the state, or any political or civil subdivision thereof, and
persons employing eight (8) or more persons within the state, or
any person acting as an agent of an employer, directly or indirectly;
Tenn. Code Ann. § 4-21-102(4) (Supp. 1996). Our initial inquiry is whether the
legislature intended to impose individual liability by defining employer to include
"any person acting as an agent of an employer."
Although the language of Title VII and the THRA differ slightly, it is clear
that the legislature intended the THRA to be coextensive with federal law.
Bennett v. Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn. 1992)
(citing Tenn. Code Ann. § 4-21-101(a)(1) (1991 Repl.) (stating purpose and
intent of general assembly was to “provide for execution of the policies embodied
in the federal Civil Rights Acts of 1964, 1968 and 1972, . . .”)). We, therefore,
may look to federal interpretation of Title VII for guidance in enforcing our own
anti-discrimination statute. We, however, are neither bound by nor limited by
federal law when interpreting the THRA.
3
Title VII defines employer as including "any agent" of the employer. The
majority of the federal circuits addressing this issue have held that the "any
agent" provision incorporates respondeat superior liability2 and does not impose
individual liability. Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); Tomka
v. Seiler Corp., 66 F.3d 1295, 1312 (2d Cir. 1995); Greenlaw v. Garrett, 59 F.3d
994, 1001 (9th Cir. 1995), cert. denied, 117 S. Ct. 110, 136 L. Ed. 2d 63 (1996);
Gary v. Long, 59 F.3d 1391, 1400 (D.C. Cir. 1995); EEOC v. AIC Security
Investigations, 55 F.3d 1276, 1281 (7th Cir. 1995); Lenhardt v. Basic Inst. of
Tech., 55 F.3d 377, 381 (8th Cir. 1995); Grant v. Lone Star Co., 21 F.3d 649,
652 (5th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.
1993); Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993); Busby v.
City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (per curiam). These circuits
have reasoned that individual liability is inconsistent with Title VII's original
remedy provision and its exemption for small businesses.
The THRA's definition of employer is ambiguous and susceptible to two
reasonable interpretations. Plaintiff urges that every supervisor is an "employer"
for purposes of the THRA. Under this construction, supervisors may be held
individually liable for violations of the THRA. A second construction is that an
2
We note that the federal courts' use of the term respondeat superior has
created considerable confusion. As discussed later in this opinion, derivative
liability principles are applicable only in quid pro quo harassment cases. The
federal courts, however, have held that the "any agent" provision created
respondeat superior liability. Accordingly, the federal courts have continued to
incorrectly employ the term respondeat superior as an element in hostile work
environment cases where the liability is actually based on negligence. See
Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir. 1996) (noting term
respondeat superior "is an incorrect label for co-worker harassment cases").
The federal courts have recognized this fallacy and redefined the term
respondeat superior for purposes of Title VII analysis. To establish respondeat
superior in hostile work environment cases "the plaintiff must prove 'that the
employer, through its agents or supervisory personnel, knew or should have
known of the charged sexual harassment and failed to implement prompt and
appropriate corrective action.'" Kauffman v. Allied Signal, Inc., 970 F.2d 178,
183 (6th Cir. 1992).
4
employer is vicariously liable for its supervisory employees' quid pro quo
violations of the THRA.
We find the vicarious liability construction more compelling for the
following reasons: (1) the construction is consistent with the THRA's exemption
for small businesses; (2) agents are generally not individually liable for acts
undertaken on behalf of a disclosed principal that are within the legitimate scope
of the delegated management authority; 3 and (3) the construction is consistent
with the federal courts' interpretation of Title VII. The slight deviation of the
THRA's definition of employer from Title VII's definition does not warrant an
interpretation that would be inconsistent with Title VII. We agree with the federal
courts' analyses and hold that the THRA's "agent of an employer" language does
not impose individual liability.
Our inquiry, however, does not end with this conclusion as the THRA is
broader than Title VII in terms of who may be held liable for harassment and
discrimination. The THRA is applicable to entities employing fewer employees
than that required by Title VII. See Tenn. Code Ann. § 4-21-102(4) (defining
employer to include persons employing eight or more persons); but see 42
U.S.C. § 2000e(b) (defining employer as person employing fifteen or more
employees). Moreover, the THRA provides that:
[i]t is a discriminatory practice for a person or for two (2) or more
persons to:
...
(2) Aid, abet, incite, compel or command a person to engage in any of
the acts or practices declared discriminatory by this chapter;
3
See generally RESTATEMENT (SECOND) OF TORTS § 320 (1977). See also
Janken v. Hughes, 53 Cal. Rptr. 2d 741 (Cal Ct. App. 1996) (holding supervisors
exercising properly delegated management authority not individually liable even
if decisions were later found to be discriminatory).
5
Tenn. Code Ann. § 4-21-301(2) (1991 Repl.). A "person" is defined as "one (1)
or more individuals, governments, governmental agencies, public authorities,
labor organizations, corporations, legal representatives, partnerships,
associations, . . unincorporated organizations or other organized persons."
Tenn. Code Ann. § 4-21-102(14). Accordingly, we find that an individual who
aids, abets, incites, compels, or commands an employer to engage in
employment-related discrimination has violated the THRA.
Because Tenn. Code Ann. § 4-21-301(a)(2) creates accomplice liability,
we must analyze the elements of accomplice liability to determine how an
individual employee might aid and abet an employer in violating the THRA. The
THRA does not provide a definition of "aiding and abetting." The common law
civil liability theory of aiding and abetting required that:
the defendant knew that his companions' conduct constituted a
breach of duty, and that he gave substantial assistance or
encouragement to them in their acts.
Cecil v. Hardin, 575 S.W.2d 268, 272 (Tenn. 1978) citing Restatement (Second)
of Torts § 876(b) (1965). Accordingly, civil liability for aiding and abetting
requires affirmative conduct. Failure to act or mere presence during the
commission of a tort is insufficient for tort accomplice liability.
We shall now examine the elements of employer or principal liability for
violations of the THRA. There are three general classifications of sexual
harassment: (1) hostile work environment created by non-supervisory
employees or co-workers; (2) quid pro quo harassment; and (3) hostile work
environment created by supervisory employees.
6
CO-WORKER HARASSMENT
An employer's liability for a hostile work environment created by non-
supervisory employees (co-workers) is based on a theory of negligence and not
respondeat superior. To prevail on a claim of co-worker harassment, a plaintiff
must assert and prove:
(1) the employee was a member of a protected class; (2) the
employee was subjected to unwelcomed sexual harassment; (3)
the harassment occurred because of the employee's gender; (4)
the harassment affected a "term, condition or privilege" of
employment; and (5) the employer knew or should have known of
the harassment and failed to respond with prompt and appropriate
corrective action.
Spicer v. Beaman Bottling Co., 937 S.W.2d 884, 888 (Tenn. 1996). An
employer, therefore, is liable for the conduct of non-supervisory employees only
as a by-product of its reaction to the employee's conduct and not as a direct
result of the actual conduct. Accordingly, § 4-21-401 liability under a co-worker
harassment theory is premised on the employer's reaction and not on the co-
worker's harassing conduct.
A non-supervisory employee who engages in discriminatory conduct does
not, merely by that conduct, aid and abet the employer's failure to take remedial
action. A non-supervisor neither has a role in the employer's reaction nor shares
a common intent or purpose with the employer who simply fails to respond to the
discriminatory conduct. Permitting suits against non-supervisors for their
harassing conduct, under an aiding and abetting theory, also serves little
remedial purpose. If an employer responds promptly and appropriately to the
harassment, the THRA has not been violated. If the employer fails to take
appropriate corrective actions, the employer is liable. Accordingly, § 4-21-401
7
does not redress a co-worker's harassing conduct.4 Section 4-21-401 merely
provides a remedy for the employer's failure to take corrective action in a co-
worker harassment case.
Individual accomplice liability under a hostile work environment theory
requires conduct that is distinct from the harassment. To impose individual
accomplice liability on a non-supervisory employee, a court must find:
(1) that a hostile work environment existed;
(2) that the employee acted affirmatively to aid, abet, incite,
compel, or command an employer not to take remedial action to
the hostile work environment; and
(3) that the employer engaged in employment-related
discrimination by failing to take adequate remedial action.
Although a non-supervisor will rarely possess the ability to prevent an employer
from taking remedial action, the non-supervisor should be liable for conduct
which encourages or prevents an employer from taking remedial action.
Plaintiff's claims against Foster are predicated on hostile work
environment. There is no evidence in the record before us that Foster had any
supervisory authority over the plaintiff or encouraged UPS not to take corrective
action. Under the facts as certified, Foster cannot be held individually liable for
aiding and abetting an employer violation of the THRA.
4
A victim's cause of action against individual co-workers for sexually
harassing conduct may lie in other tort theories.
8
SUPERVISOR HARASSMENT
Cases involving co-worker harassment are relatively simple. The more
difficult issues arise when the harasser is a supervisor. There are two general
classifications of supervisor harassment: (1) the "quid pro quo" theory of sexual
harassment; and (2) the hostile work environment created by a supervisor.
Quid Pro Quo
Quid pro quo harassment occurs when a supervisor conditions
employment benefits on "sexual favors." To prevail under a quid pro quo theory,
plaintiff must show:
(1) that the employee was a member of a protected class; (2) that
the employee was subjected to unwelcome sexual harassment in
the form of sexual advances or requests for sexual favors; (3) that
the harassment complained of was based on sex; (4) that the
employee's submission to the unwelcome advances was an
express or implied condition for receiving job benefits or that the
employee's refusal to submit to the supervisor's demands resulted
in a tangible job detriment; and (5) the existence of respondeat
superior liability.
Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir. 1992).
The employer is strictly liable for a supervisor's quid pro quo harassment
under the doctrine of respondeat superior. Strict liability is imposed based on
the theory that: (1) a supervisor is the alter ego of the employer; and (2) a
supervisor has the actual or apparent authority to alter an employee's terms or
conditions of employment. Under this alter ego theory of liability, the supervisor's
acts within the scope of employment are imputed to the employer.
9
The record as certified provides no allegation that either Martin or Sisk
utilized their actual or apparent authority to obtain "sexual favors."5 We find that
the plaintiff's claims against both Martin and Sisk are properly classified as
supervisors failing to prevent the misconduct of a subordinate. The mere failure
to act, however, does not constitute the giving of "substantial assistance or
encouragement." Accordingly, neither Sisk nor Martin can be held individually
liable, as aiders and abetters, on the facts presently before us.
Although the facts as certified do not support a finding of quid pro quo
harassment, we acknowledge that several state anti-discrimination statutes
containing aiding and abetting provisions have been interpreted to impose
individual liability on supervisors for quid pro quo harassment.6 We will reserve
discussion of supervisor liability for quid pro quo discrimination under the THRA
for a case in which the issue is squarely presented.
Supervisor Created Hostile Work Environment
Supervisor created hostile work environment cases differ from quid pro
quo harassment in that the supervisor does not use or attempt to use
supervisory authority to obtain sexual favors from an employee. The supervisor
5
Although not reflected in the record, Ms. Carr's brief does allege that the
"defendants" refused to transfer her "so that she could get away from Mr.
Foster." The record, however, does not allege that the transfer decisions were
continent upon receipt of "sexual favors."
6
See St. Peter v. Ampak-Division of Gatewood Products, Inc., 484
S.E.2d 481 (W. Va. 1997) (permitting individual liability); Schram v. Albertson's,
Inc., 934 P.2d 483 (Or. Ct. App. 1997) (stating supervisors could be individually
liable for aiding and abetting employment discrimination under state statute);
Tyson v. Cigna Corp., 918 F.Supp 836 (D. N.J. 1996) (finding supervisory
employees may be held liable in individual capacity under state statute); Conway
v. City of Hartford, 9 N.D.L.R. P 167 (Conn. Super. Ct. 1997); Johnson v.
Canadian Pacific Ltd., 522 N.W.2d 386 (Minn. Ct. App. 1994) rev'd on other
grounds, 536 N.W.2d 319 (Minn. 1995); Dupus v. Con-test, Inc., 4 Mass. L. Rptr.
165 (Mass. Super. Ct. 1995) (holding members of "upper management" may be
liable as aiders and abettors).
10
merely creates a hostile work environment in the same manner as an employee
with no supervisory authority. Whether the employer is liable for its supervisor's
actions in hostile work environment claims depends on: "(1) whether the
supervisor's harassing actions were foreseeable or fell within the scope of
employment; and (2) even if they were, whether the employer responded
adequately and effectively to negate liability." Pierce v. Commonwealth Life Ins.
Co., 40 F.3d 796, 803 (6th Cir. 1994). Accordingly, the employer's liability is
predicated on its reaction to the discriminatory conduct.
We hold that, for purposes of deciding accomplice liability, a claim of
supervisor created hostile work environment should be subject to the same
analysis as a claim of a co-worker harassment. Generally, the supervisor and
the employer do not share a community of purpose when the employer fails to
respond appropriately to the supervisor's harassing conduct. A supervisor,
however, may be individually liable for encouraging or preventing the employer
from taking corrective action. Absent such allegations, neither Martin nor Sisk
can be held individually liable under a hostile work environment theory.
CONCLUSION
Based on the limited facts certified to this Court, we hold that these
defendants cannot be held individually liable under the Tennessee Human
Rights Act as an employer under Tenn. Code Ann. § 4-21-401 or for aiding and
abetting an employer's violation of § 4-21-401.
11
The clerk will transmit a copy of this opinion in accordance with Tenn. R.
Supr. Ct., Rule 23(8). The costs in this court will be taxed to the plaintiff.
Janice M. Holder, Justice
Concurring:
Anderson, C.J.
Drowota, Reid, and Birch, J.J.
12