Akers v. Alvey

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Akers v. Alvey et al. No. 02-5037 ELECTRONIC CITATION: 2003 FED App. 0256P (6th Cir.) File Name: 03a0256p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Kenneth L. Sales, SALES, TILLMAN & FOR THE SIXTH CIRCUIT WALLBAUM, Louisville, Kentucky, for Appellant. _________________ Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER, Louisville, Kentucky, Edward L. Lasley, CONLIFFE, CINDY AKERS, X SANDMANN & SULLIVAN, Louisville, Kentucky, for Plaintiff-Appellant, - Appellees. ON BRIEF: Kenneth L. Sales, SALES, - TILLMAN & WALLBAUM, Louisville, Kentucky, for - No. 02-5037 Appellant. Schuyler J. Olt, PEDLEY, ZIELKE & v. - GORDINIER, Louisville, Kentucky, Edward L. Lasley, > Richard M. Sullivan, CONLIFFE, SANDMANN & , SULLIVAN, Louisville, Kentucky, for Appellees. DONALD ALVEY and - KENTUCKY CABINET FOR - GILMAN, J., delivered the opinion of the court, in which FAMILIES AND CHILDREN, - BOGGS, J., joined. DOWD, D. J. (pp. 15-16), delivered a Defendants-Appellees. - separate opinion concurring in the judgment. - N _________________ Appeal from the United States District Court for the Western District of Kentucky at Louisville. OPINION No. 99-00221—John G. Heyburn II, Chief District Judge. _________________

Argued: June 20, 2003 RONALD LEE GILMAN, Circuit Judge. Cindy Akers, a former family services worker with the Kentucky Cabinet for Decided and Filed: July 29, 2003 Families and Children, brought suit in federal district court against the Cabinet and her immediate supervisor, Donald Before: BOGGS and GILMAN, Circuit Judges; DOWD, Alvey, for sexual harassment. Specifically, Akers brought a District Judge.* claim under 42 U.S.C. § 1983 against Alvey in his official and individual capacities, claims under Title VII against the Cabinet for discrimination, hostile work environment, and retaliation, and a common law claim for the tort of outrage against both Alvey and the Cabinet. Akers alleges that Alvey engaged in pervasive sexual misconduct towards her, that the Cabinet acquiesced in that conduct, and that the Cabinet retaliated against her when she complained. * The Honorab le David D. Do wd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.

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Alvey and the Cabinet both moved for summary judgment. The Cabinet conducted a two-week investigation into The district court dismissed all of the claims against Alvey, Akers’s complaint, interviewed Akers, Alvey, and ten others, as well as Akers’s discrimination, retaliation, and tort-of- and found that her sexual-harassment claims were outrage claims against the Cabinet. Akers’s hostile-work- unsubstantiated. Akers however, was promptly removed from environment claim, however, was permitted to go forward. Alvey’s supervision at the conclusion of the investigation. She alleges that during the time that the Cabinet was Pursuant to an agreed order, the resolution of all of the investigating her complaint, Alvey engaged in retaliatory dismissed claims was deemed final and immediately conduct by refusing to speak to her, instructing other appealable by the district court. On appeal, Akers challenges employees not to associate with her, withholding her mail and the district court’s grant of summary judgment for Alvey and inter-office memoranda, and criticizing the way she handled its partial grant of summary judgment for the Cabinet. For her cases. the reasons set forth below, we REVERSE the judgment of the district court as to Akers’s tort-of-outrage claim against In January of 1999, Akers was transferred to the Hardin Alvey, AFFIRM the judgment of the district court as to County office of the Department for Community Based Akers’s remaining claims, and REMAND the case for further Services to work as a domestic violence and child abuse proceedings consistent with this opinion. investigator. According to Akers, she was never accepted in her new office because of her ongoing complaint against I. BACKGROUND Alvey and, after “six months of antagonism,” she felt that she had no choice but to resign her position. Akers sought The Cabinet hired Akers as a family services worker at the psychological counseling for depression after leaving her job. Grayson County office in July of 1997. On August 1, 1998, Alvey was promoted to be the supervisor of the same office. She reapplied with the Cabinet several months later for a Akers first reported Alvey’s allegedly inappropriate behavior position in the Richmond office, where she would have been to the Cabinet 18 days later. According to Akers’s complaint, supervised by Linda Miller. Although Miller called Akers to Alvey had engaged in pervasive, sexually offensive behavior, inform her that Miller would be recommending Akers for the including the making of lewd gestures with his tongue and job, Miller later changed her mind after receiving negative hand while moaning, commenting daily about Akers’s recommendations from Akers’s former supervisors and physique (such as “nice ass”), getting very close to Akers and coworkers, including Alvey, and upon learning of Akers’s attempting to look down her blouse, questioning Akers lawsuit. extensively about masturbation and her sex-life with her boyfriend, expressing in front of other employees that he II. ANALYSIS would like to have sexual intercourse with Akers, commenting to Akers about her coworkers’ sexual histories A. Jurisdiction and physiques, commandeering Akers’s computer to send sexually explicit e-mail messages, and describing his last The district court had jurisdiction pursuant to 28 U.S.C. episode of oral sex in great detail. Akers alleged that Alvey §§ 1331, 1343(a)(1)(3), and 1367(a). Although a partial grant engaged in over 30 acts of inappropriate behavior in a two- of summary judgment is not ordinarily appealable, the district and-a-half month period. court entered an agreed order under Rule 54(b) of the Federal Rules of Civil Procedure, rendering final and appealable the No. 02-5037 Akers v. Alvey et al. 5 6 Akers v. Alvey et al. No. 02-5037

judgment on all dismissed claims. Rule 54(b) was enacted as the reviewing court might be obliged to consider the “a response to the need created by the liberal joinder same issue a second time; (4) the presence or absence of provisions of the Federal Rules of Civil Procedure to revise a claim or counterclaim which could result in set-off ‘what should be treated as a judicial unit for purposes of against the judgment sought to be made final; appellate jurisdiction.’” Corrosioneering v. Thyssen Envtl. (5) miscellaneous factors such as delay, economic and Sys., 807 F.2d 1279, 1282 (6th Cir. 1986). The Rule solvency considerations, shortening the time of trial, “attempts to strike a balance between the undesirability of frivolity of competing claims, expense, and the like. piecemeal appeals and the need for making review available Depending upon the factors of the particular case, all or at a time that best serves the needs of the parties.” Id. some of the above factors may bear upon the propriety of (internal quotation marks omitted). The determination of the trial court’s discretion in certifying a judgment as whether to allow for an appeal pursuant to Rule 54(b) is a final under Rule 54(b). matter left to the sound discretion of the district court. Id. Corrosioneering, 807 F.2d at 1283 (quoting Allis-Chalmers The Rule itself simply states that the district court must find Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. that there is no just reason for delay of the appeal. Fed. R. 1975)). Civ. P. 54(b). This court, however, has previously indicated that in order to avoid a finding of abuse of discretion in the The district court’s order in this case was in many respects certification of an appeal pursuant to Rule 54(b), the “district the bare-bones certification that this court condemned in court should do more than just recite the Rule 54(b) formula Corrosioneering. No analysis of the above factors was of ‘no just reason for delay.’” Id. As the Supreme Court undertaken, and the only justification stated for declaring that explained: there was “no just reason for delay” was a statement that the parties “hav[e] agreed that the outstanding issues with regard It is essential, however, that a reviewing court have to dismissal of a claim against Alvey and the claims against some basis for distinguishing between well-reasoned the Cabinet would more economically be handled by an conclusions arrived at after a comprehensive appellate decision prior to trial . . . .” Because this case has consideration of all relevant factors, and mere boilerplate already been briefed and argued on appeal, however, the approval phrased in appropriate language but scales of judicial economy are now tipped in favor of unsupported by evaluation of the facts or analysis of the disposing of the appeal on the merits. But if the jurisdictional law. issue had been spotted sooner, we would likely have remanded the case in order for the district court to explicitly Protective Comm. v. Anderson, 390 U.S. 414, 434 (1968). evaluate the Corrosioneering factors. This court, in Corrosioneering, set forth the following B. Standard of review “nonexhaustive list” of factors to consider: We review a district court’s grant of summary judgment de (1) the relationship between the adjudicated and the novo. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th unadjudicated claims; (2) the possibility that the need for Cir. 2002). Summary judgment is proper where there is no review might or might not be mooted by future genuine issue as to any material fact and the moving party is developments in the district court; (3) the possibility that entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). No. 02-5037 Akers v. Alvey et al. 7 8 Akers v. Alvey et al. No. 02-5037

In considering such a motion, the court construes all Alvey’s behavior went far beyond the sexual jokes, reasonable factual inferences in favor of the nonmoving party. comments, and innuendos that this court has previously found Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. insufficient to withstand a motion for summary judgment on 574, 587 (1986). The central issue is “whether the evidence a tort-of-outrage claim. Wathen v. General Electric Co., 115 presents a sufficient disagreement to require submission to a F.3d 400, 407 (6th Cir.1997) (applying Kentucky law). Any jury or whether it is so one-sided that one party must prevail one of the particular incidents complained of, taken in as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 isolation, might not reach the level of outrageousness required U.S. 242, 251-52 (1986). by Kentucky law to survive summary judgment. But taken together, Alvey’s pervasive behavior, as alleged by Akers, C. Akers’s tort-of-outrage claim against Alvey was outrageous. At the very least, this is a case where “reasonable men may differ” and, as such, “it is for the jury, The district court dismissed Akers’s tort-of-outrage claim subject to the control of the court, to determine whether, in against Alvey, concluding that “[w]hile Alvey’s conduct and the particular case, the conduct has been sufficiently extreme that attributable to the Cabinet might be considered crude and and outrageous to result in liability.” Restatement (Second) of completely inappropriate, it does not rise to a level of conduct Torts § 46 cmt. h (1965) (§ 46 was adopted by the Kentucky which is ‘atrocious and intolerable’ as required by Kentucky Supreme Court in Craft v. Rice, 671 S.W.2d 247, 251 (Ky. law.” Under Kentucky law, “[i]n order to recover [for the tort 1984)). of outrage], the plaintiff must show that defendant's conduct was intentional or reckless, that the conduct was so Alvey argues, as his last line of defense on this claim, that outrageous and intolerable so as to offend generally accepted the distress suffered by Akers, if any, was not caused by standards of morality and decency, that a causal connection Alvey’s behavior and was not severe. In both her verified exists between the conduct complained of and the distress complaint and her deposition testimony, however, Akers suffered, and that the resulting emotional stress was severe.” maintains that she suffered severe emotional distress as a Brewer v. Hillard, 15 S.W.3d 1, 6 (Ky. Ct. App. 1999). result of Alvey’s outrageous conduct. Akers specifically testified that she experienced depression and sought There is no question in this case that Alvey’s behavior was psychological counseling shortly after leaving her job with intentional, and thus the first element of the tort of outrage is the Cabinet. Although the evidence of emotional distress may satisfied. Akers maintains that the district court erred in be sparse, we believe that it is sufficient to send the issues of holding that Alvey’s conduct did not reach the level of causation and severity to the jury. outrageousness required by the second element. In assessing this element, we must view the evidence in the light most In sum, we find that Akers has satisfied all of the elements favorable to Akers and determine whether this case “is one in of her tort-of-outrage claim against Alvey as set forth in which the recitation of the facts to an average member of the Brewer, 15 S.W.3d at 6. We therefore reverse the district community would arouse his resentment against the actor, court’s grant of summary judgment on this claim. and lead him to exclaim, ‘Outrageous!’” Restatement (Second) of Torts § 46 cmt. d (1965) (applied by the D. Akers’s tort-of-outrage claim against the Cabinet Kentucky Court of Appeals in Brewer, 15 S.W.3d at 6). In our opinion, this is just such a case. The Cabinet argues that Akers’s tort-of-outrage claim against it was properly dismissed because the Cabinet is No. 02-5037 Akers v. Alvey et al. 9 10 Akers v. Alvey et al. No. 02-5037

protected from such a claim by the Eleventh Amendment to she had suffered a materially adverse employment action the United States Constitution. This issue was not addressed under prong (3). by the district court, however, because it held that the Cabinet’s conduct was not outrageous as a matter of law. In order to establish an adverse employment action, Akers must show a significant change in her employment status, Akers cites the case of Gragg v. Kentucky Cabinet for such as hiring, firing, failing to promote, reassignment with Workforce Development, 289 F.3d 958, 963 (6th Cir. 2002), significantly different responsibilities, a significant change in for the proposition that an entity’s defense of sovereign benefits, or other factors unique to her particular situation. immunity will be deemed waived absent evidence in the Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th record of how a state defines the entity, what degree of Cir. 2000). Akers alleges three employment actions that she control the state has over the entity, and how the entity is contends are materially adverse: (1) transfer to a different funded. According to Akers, the record in this case is bereft office, (2) retaliatory harassment by Alvey in the form of of such evidence, resulting in a waiver of the Cabinet’s increased criticism, withholding her mail, ignoring her, and sovereign immunity defense. In Gragg, however, the encouraging her coworkers to ostracize her, which resulted in defendants failed to identify the claims to which the sovereign her “social death” within the office, and (3) the Cabinet’s immunity defense applied, failed to argue immunity before refusal to rehire her following a negative recommendation by the district court, and included only a single paragraph Alvey. We will now examine each of these contentions in addressing the immunity argument in their appeal. The turn. Cabinet in the present case, on the other hand, raised the argument in the district court and has briefed it fully on 1. Akers’s transfer to the Hardin County office appeal. As a result, Gragg is easily distinguishable and Akers’s waiver argument is without merit. We therefore Even assuming that Akers was involuntarily transferred to affirm the district court’s grant of summary judgment as to the Hardin County office, as she alleges, she failed to Akers’s tort-of-outrage claim against the Cabinet on the demonstrate how this transfer was materially adverse to her. grounds that such a claim is barred by sovereign immunity. She did not suffer a decrease in pay, her job duties were not significantly changed, and the transfer actually reduced E. Akers’s retaliation claim against the Cabinet Akers’s roundtrip commute from her home by 60 miles per day. We thus agree with the district court that Akers’s In order to establish a claim of retaliation, Akers must transfer was not a materially adverse employment action. See prove that (1) she engaged in an activity protected by Title Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. VII, (2) the exercise of that protected right was known to the 1996) (holding that a plaintiff failed to establish that her Cabinet, (3) the Cabinet thereafter took an employment action transfer and change in job title was a materially adverse adverse to Akers, or that Akers was subjected to severe or employment action, reiterating “that reassignments without pervasive retaliatory harassment by a supervisor, and (4) a salary or work hour changes do not ordinarily constitute causal connection existed between the protected activity and adverse employment decisions in employment discrimination the adverse employment action or harassment. Morris v. claims”). Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000). The district court held that although Akers satisfied prongs (1), (2), and (4) of this test, she failed to establish that No. 02-5037 Akers v. Alvey et al. 11 12 Akers v. Alvey et al. No. 02-5037

2. Retaliatory harassment by Alvey home driveway on more than one occasion. Id. at 793. The court in Morris distinguished that case from the “simple Although the district court failed to consider whether teasing, offhand comments, and isolated incidents that [the Alvey’s post-complaint harassment was retaliatory, this court Supreme Court in] Faragher indicated did not amount to has previously held that “severe or pervasive supervisor discriminatory changes in the terms and conditions of a harassment” following a sexual-harassment complaint can plaintiff's employment.” Id. at 793. constitute retaliation for the purposes of a Title VII action. Morris, 201 F.3d at 792. Because the court’s decision in Alvey’s alleged post-complaint conduct (i.e., ignoring Morris was an extrapolation of Supreme Court precedent Akers, encouraging her coworkers to do the same, criticizing allowing a Title VII action to be based upon severe or her work, and withholding her mail) falls somewhere in pervasive supervisory harassment in the sexual-harassment between the egregious conduct in Morris and “simple context, the standard for “severe or pervasive” harassment is teasing” or “offhand comments.” The alleged retaliation was “the same in the retaliation context as in the sexual and racial confined to the two weeks during which the Cabinet was discrimination contexts.” Broska v. Henderson, 2003 WL diligently investigating Akers’s complaint and despite the 21518733, *4 (June 30, 2003). Under this standard, the Cabinet’s circulation of a memo in the Grayson County office harassment must be “sufficiently severe or pervasive to alter instructing that no retaliation would be tolerated. Due to the the conditions of the victim’s employment and create an short duration and relatively mild nature of the post-complaint abusive working environment.” Harris v. Forklift Sys., Inc., harassment, as well as the Cabinet’s directive prohibiting 510 U.S. 17, 21 (1993) (citation omitted). As this court noted retaliatory conduct, we do not believe that there is sufficient in Broska, “this test has both an objective and a subjective evidence for a jury to find that Alvey’s alleged harassment component: the conduct must be severe or pervasive enough reached the level of “severe or pervasive” conduct required by to create an environment that a reasonable person would find Morris for a retaliation claim. hostile or abusive, and the victim must subjectively regard that environment as hostile or abusive.” Broska, at *4. 3. The Cabinet’s refusal to rehire Akers

The Cabinet responds to Akers’s retaliatory harassment Akers’s final basis for her retaliation claim is the Cabinet’s claim by arguing that Alvey was removed as Akers’s decision not to rehire her for a different position four months supervisor immediately following the conclusion of its after her resignation. Even assuming that Akers presented a investigation of Akers’s complaint to the Cabinet, and that prima facie case of retaliation based upon Alvey’s alleged any harassment that may have occurred following Akers’s input into the decision, the Cabinet articulated a legitimate, complaint was not severe or pervasive enough to support a nondiscriminatory reason for its decision not to rehire Akers; retaliation claim. All of the incidents giving rise to Akers’s namely, poor reviews from her coworkers and other complaint about retaliation occurred during the two-week supervisors, including Akers’s supervisor during the few period that the Cabinet took to investigate her charges. In months that she was employed in the private sector. The Morris, the supervisor in question engaged in retaliatory Cabinet thus contends that Alvey’s alleged retaliatory input conduct that was much more severe and pervasive than that was immaterial to its decision not to rehire her. Akers has alleged in this case, including calling the plaintiff over 30 failed to rebut this contention. Because Akers has not shown times for the sole purpose of harassing her, sitting outside her that this proferred legitimate reason was pretextual, we agree office staring in her window, and throwing nails onto her No. 02-5037 Akers v. Alvey et al. 13 14 Akers v. Alvey et al. No. 02-5037

that the Cabinet’s refusal to rehire Akers does not support her In Wathen, this court held that despite the express use of the retaliation claim. word “agent” in the statute, Title VII does not create individual liability for individuals in supervisory positions In sum, none of Akers’s allegations are sufficient to such as Alvey’s. Because Wathan is controlling authority, we establish a materially adverse employment action by the affirm the district court’s grant of summary judgment as to Cabinet. The district court therefore did not err in granting Akers’s § 1983 claim against Alvey. Salmi v. Sec’y of Health summary judgment as to Akers’s retaliation claim. and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another F. Akers’s § 1983 claim against Alvey panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court Finally, Akers brought a § 1983 claim against Alvey in his requires modification of the decision or this Court sitting en individual and official capacities. Section 1983 liability, as banc overrules the prior decision.”). alleged by Akers’s complaint, is premised upon liability under Title VII. Title VII, in pertinent part, provides that it is III. CONCLUSION unlawful for an employer to discriminate against an individual on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). For all the reasons set forth above, we REVERSE the The district court concluded that for all practical purposes, the judgment of the district court as to Akers’s tort-of-outrage two claims are the same. The Sixth Circuit has held that claim against Alvey, AFFIRM the judgment of the district where “there is liability under Title VII, there should be court as to Akers’s remaining claims, and REMAND the case liability under § 1983. Similarly, if there was no for further proceedings consistent with this opinion. discriminatory intent, there cannot be liability under either Title VII, on a disparate treatment theory, or § 1983.” Grano v. Dep’t of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980). Akers’s § 1983 claim was thus analyzed by the district court as a Title VII claim. An employer is defined under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .” 42 U.S.C. § 2000e(b). Akers relies on the “agent” language of this definition and argues that Alvey should be considered an “employer” for Title VII purposes. The district court, however, ruled that Alvey could not be held individually liable under Title VII, relying on this court’s decision in Wathen v. General Electric Co., 115 F.3d 400 (6th Cir. 1997). No. 02-5037 Akers v. Alvey et al. 15 16 Akers v. Alvey et al. No. 02-5037

___________________ harassment has to do with personal perception. Courts would be clogged with lawsuits if every single off-color joke told in CONCURRENCE the presence of a highly sensitive person were actionable ___________________ under Title VII or, as is more often the case, if behavior that has actually been tolerated or even welcomed and/or DAVID D. DOWD, JR., District Judge, concurring in the participated in by an individual suddenly becomes a weapon judgment. Although I reluctantly conclude that the majority against the employer when something in the workplace does has rightly decided this case in the face of current binding not go that individual’s way. The “severe and pervasive” Sixth Circuit precedent, I write separately to respectfully standard helps to assure at least a little consistency of voice my view that Morris v. Oldham County Fiscal Court, interpretation and protects against this kind of abusive 201 F.3d 784 (6th Cir. 2000), relied upon to reject Akers’s application of the statute. retaliation claim, was wrongly decided. On the other hand, retaliation is not a matter of perception Morris does not, in my view, adequately recognize that or gradation. It is, rather, much like an electric light, which Title VII identifies and prohibits two discrete wrongs: is either “on” or “off.” One either is or is not retaliating. discrimination and retaliation. In the former category, when Typically, this would be, and should be, a fact call for a jury. it comes to discrimination based on sex, the Supreme Court Of course, in the wake of Morris, now, by definition, one “is has distinguished between quid pro quo claims and hostile retaliating” only if one’s behavior against the Title VII environment claims, Meritor Savings Bank, FSB v. Vinson, complainant is “severe and pervasive.” I can perceive no 477 U.S. 57, 65 (1986), and has clarified that, to be reason for this interpretation of Title VII. I can see a reason actionable, hostile environment claims require harassment to require severity and pervasiveness before a working that is “severe and pervasive.” Id. Under the guise of environment can be found to be truly “hostile;” I cannot see statutory construction, and applying the two relatively recent a reason for applying that standard to retaliation. Supreme Court decisions in Burlington Industries, Inc. v. Nonetheless, that is, unfortunately, the law in this circuit. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), Morris has incorporated that Therefore, I am constrained to concur in the judgment. “severe and pervasive” standard into retaliation claims. I believe this is wrong. While it is a reasonable interpretation of the statute, in light of people’s varying sensitivities, to require harassment to be severe or pervasive, that concept is inconsistent with the concept of retaliation. With respect to harassment: some people are highly offended by even the slightest off-color behavior in the workplace; others have a much higher tolerance for the very same behavior. In other words, there is significant gradation in the area of harassment and, often, whether there is or is not