RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0032P (6th Cir.) File Name: 00a0032p.06
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________
; JUDY G. MORRIS, Plaintiff-Appellant, No. 98-6117 v. > OLDHAM COUNTY FISCAL COURT; JOHN W. BLACK,
County Judge/Executive;
Defendants-Appellees. BRENT LIKINS, 1 Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 96-00128—Charles R. Simpson, III, Chief District Judge. Argued: August 10, 1999 Decided and Filed: January 20, 2000 Before: KRUPANSKY, BOGGS, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Kenneth S. Handmaker, MIDDLETON & REUTLINGER, Louisville, Kentucky, for Appellant.
1 2 Morris v. Oldham County No. 98-6117 Fiscal Court, et al.
R. Thaddeus Keal, LANDRUM & SHOUSE, Louisville, Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS, ALEXANDER, BUCKAWAY & BLACK, Louisville, Kentucky, for Appellees. ON BRIEF: Kenneth S. Handmaker, MIDDLETON & REUTLINGER, Louisville, Kentucky, Kyle P. Williams, WILDER, LEWIS & WILLIAMS, Jefferson, Indiana, for Appellant. R. Thaddeus Keal, David Whalin, LANDRUM & SHOUSE, Louisville, Kentucky, Stuart E. Alexander, III, TILFORD, DOBBINS, ALEXANDER, BUCKAWAY & BLACK, Louisville, Kentucky, for Appellees. BOGGS, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. CLAY, J. (pp. 21-30), delivered a separate opinion concurring in part and dissenting in part. _________________ OPINION _________________ BOGGS, Circuit Judge. Judy Morris appeals the district court’s grant of summary judgment for defendants, who include the Oldham County (KY) Fiscal Court and Brent Likins, her former supervisor at the Oldham County Road Department. Morris claims that she was subjected to sexual harassment and retaliatory harassment by her supervisor, with the assistance or acquiescence of the county officials . Morris sued the defendants under Title VII, 42 U.S.C. § 1983, and the Kentucky Civil Rights Act (“KCRA”). We hold that the district court properly granted summary judgment on Morris’s Title VII and KCRA sexual harassment claims, as well as all her § 1983 claims. However, we reverse and remand the district court’s grant of summary judgment on Morris’s Title VII retaliation claims against the County and her KCRA retaliation claims against the County and Likins. 30 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 3 Fiscal Court, et al. Fiscal Court, et al.
that the majority improperly held that Plaintiff could not I proceed with her § 1983 claim against Likins and Black; coupled with my belief that the majority misapplies the Plaintiff-appellant Judy Morris has been employed by the standard for the tort of intentional infliction of emotional Oldham County (KY) Road Department since 1984, distress under Kentucky law in concluding that Likins’ essentially providing clerical and secretarial duties to the conduct does not meet the threshold level of outrageousness, Department. In October 1994, defendant-appellee Brent I respectfully dissent. Plaintiff should be allowed to proceed Likins was appointed the new County Road Engineer, and had with these claims along with her claim for retaliatory supervisory authority over plaintiff. According to Morris, harassment where genuine issues of material fact remain for Likins frequently told jokes with sexual overtones, once trial. referred to plaintiff as “Hot Lips,” and several times made comments about Morris’s state of dress. Likins’s first evaluation of Morris’s work performance occurred in November 1994; he gave Morris a rating of “excellent.” In March 1995, Likins rated Morris’s performance as “very good,” stating that she was a “very efficient and courteous employee.” Upon receiving her evaluation, Morris asked Likins, in front of another one of her supervisors, Jim Lentz, why her rating had declined from “excellent” to “very good.” According to Morris, Likins responded by telling her that I could come into his office and then after we were finished he would mark me excellents [sic] and then we would go from there. And I told him if that is what it took, that he could take his paper and he could have the job because I was not going to tolerate it. Morris and Lentz both construed this remark as meaning that if Morris performed sexual favors for Likins, Likins would improve her evaluation rating. Morris complained about these incidents to defendant- appellee County Judge John Black. Black wrote a letter to Likins concerning Likins’s alleged behavior, telling Likins that he hoped the two would “work out any problems and differences in which you have [sic].” After receiving this letter, Likins allegedly began giving Morris the “cold shoulder” and became overly critical of her work. After defense of qualified immunity. further complaints by Morris, Black transferred Likins’s 4 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 29 Fiscal Court, et al. Fiscal Court, et al.
office location from the Road Department to the County unkind words and minor indignities,” inasmuch as the action Courthouse, out of concern “about everyone’s working lies only for conduct which is truly “outrageous and environment.” Black also ordered Likins not to communicate intolerable,” clearly Plaintiff has presented sufficient evidence directly with Morris, and not to be around her without a third to create an issue of fact as to whether this Likins’ conduct person present. rises to the level of “outrageousness.” See Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996). Despite Black’s directive, Likins allegedly visited the Road Department unaccompanied a total of fifteen times, and called In Willgruber, the plaintiff filed a claim for intentional Morris on the telephone over thirty times. Morris believes infliction of emotional distress against his former employer in these calls were made solely for the purpose of harassing her. relation to the plaintiff’s termination. 920 S.W.2d at 62-63. Additionally, Likins allegedly drove to the Road Department The Kentucky Supreme Court found that “the jury had a right on several occasions, and simply sat in his truck outside the to conclude that [the defendant’s actions constituted] a plan Department building, looking in Morris’s window and of attempted fraud, deceit, slander, and interference with making faces at her. He also allegedly followed Morris home contractual rights, all carefully orchestrated in an attempt to from work one day, pulled his vehicle up beside her mailbox, bring Willgruber to his knees. Conduct such as this and gave her “the finger.” Morris also claims that Likins constitutes the very essence of the tort of outrage.” Id. at 67. destroyed the television Morris occasionally watched at the Likewise, in the case at hand, Likins’ actions -- such as Road Department, and threw roofing nails onto her home deliberately harassing Plaintiff so as to interfere with her job driveway on several occasions. This behavior by Likins performance, destroying property which Plaintiff used on the allegedly caused plaintiff to start having anxiety attacks; she job, making an obscene gesture at Plaintiff, and throwing left work on sick leave. Morris later briefly returned to work, roofing nails on her home driveway -- could be construed as but left work again in May 1996. At the time the district intentionally creating an environment so intolerable that court rendered its decision on defendants’ motions for Plaintiff could no longer continue her employment out of summary judgment, the county was continuing to hold her job physical and emotional fear. Therefore, I believe that a jury open for her. has a right to decide whether these actions rise to the level of outrageous behavior so as to allow Plaintiff to recover On February 14, 1996, Morris sued the County, Black, and damages for her alleged resulting severe emotional distress. Likins, alleging (1) unlawful employment discrimination by reason of sex (quid pro quo and hostile environment sexual D. Conclusion harassment) and retaliation, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Because I believe that the majority fails to follow binding Rights Act of 1991, 42 U.S.C. § 1981A et seq., and the precedent from this Circuit in holding that Plaintiff cannot go Kentucky Civil Rights Act, KY. REV. STAT. 344.010 et seq.; forward with her claim against the County for sexual and (2) intentional infliction of emotional distress. On harassment under Title VII2and against the County, Likins, September 9, 1997, Morris amended her complaint by further and Black under the KCRA , and because I therefore believe alleging that defendants Black and Likins had denied Morris her right to equal protection, in violation of 42 U.S.C. § 1983. 2 Unlike Plaintiff’s claim for retaliation brought against Black under the KCRA, because the law regarding sexual harassment was established at the time Plaintiff brought her claim, Black was not entitled to the 28 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 5 Fiscal Court, et al. Fiscal Court, et al.
C. Intentional Infliction of Emotional Distress Claim Defendants moved for summary judgment. On November 13, 1997, the district court granted defendant’s motion for I also disagree with the majority’s holding that Plaintiff summary judgment on all claims except Morris’s § 1983 cannot go forward with her claim for intentional infliction of claims against Black and Likins. The court held, inter alia, emotional distress against Likins under Kentucky law. that because Morris had not been subjected to any adverse Although I agree that Plaintiff’s claims against the County employment action by defendants, her retaliation claim was and Black for this tort fail as a matter of law inasmuch as without merit. It also held that Black and Likins could not be Plaintiff cannot show that the actions of the County and Black held individually liable under the Kentucky Civil Rights Act. rises to the requisite level of extreme and outrageous conduct, Black and Likins each then moved for summary judgment I believe that her claim against Likins presents a different with respect to the outstanding § 1983 claims, and the court scenario. granted summary judgment on these claims for Black on April 30, 1998, and for Likins on July 21, 1998. The majority accurately states that Kentucky recognizes a claim for intentional infliction of emotional distress when Morris now appeals. “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another . . . .” II Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984). However, the majority inaccurately applies this standard to the facts of this The district court granted summary judgment to defendants. case. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together Likins’ conduct against Plaintiff was not only intentional, with the affidavits, if any, show that there is no genuine issue it clearly was outrageous enough to allow Plaintiff’s claim to as to any material fact, and that the moving party is entitled to survive summary judgment. For example, Likins 1) told a judgment as a matter of law.” FED. R. CIV. P. 56(c). In this several “dirty” jokes in Plaintiff’s presence; 2) made a verbal respect, the moving party need not support its motion with advance toward Plaintiff insinuating that she could improve affidavits or other similar materials “negating” the opponent’s her performance evaluation if she had a sexual encounter with claim, but need only show that “there is an absence of him; 3) referred to Plaintiff on one occasion as “hot lips”; 4) evidence to support the non-moving party’s case.” Celotex made comments about Plaintiffs’s state of dress; 5) visited the Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the Road Department unaccompanied a total of fifteen times and moving party has met its burden of production, the called Plaintiff on the telephone over thirty times solely for nonmoving party must by deposition, answers to the purpose of harassing Plaintiff; 6) destroyed the television interrogatories, and admissions on file show specific facts that that Plaintiff occasionally watched at the Road Department; reveal a genuine issue for trial. Id. at 324. “The mere 7) stared at Plaintiff and made faces at her through the existence of a scintilla of evidence in support of the plaintiff’s window where she worked; 8) followed Plaintiff home from position will be insufficient; there must be evidence on which work one day, pulled his vehicle up beside Plaintiff’s the jury could reasonably find for the plaintiff.” Anderson v. mailbox, and gave her “the finger”; and 9) threw roofing nails Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, we onto Plaintiff’s home driveway on several occasions. must consider “whether the evidence presents a sufficient Although it is true that the Kentucky Supreme Court has disagreement to require submission to a jury or whether it is stated that an action for outrage will not lie for “petty insults, 6 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 27 Fiscal Court, et al. Fiscal Court, et al.
so one sided that one party must prevail as a matter of law.” claimed by the majority -- provides an indicia of Id. at 251-52. discriminatory animus “based on sex,” inasmuch as the harassing conduct in question began after Plaintiff refused A. Title VII claims against the County1 Likins’ sexual advance. After the district court rendered its opinion in the instant Accordingly, because I believe that the majority action, the Supreme Court decided Burlington Industries, Inc. impermissibly divorces and segregates Likins’ post-transfer v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998), and conduct from the four alleged acts which are of an explicitly Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. sexual nature so as to prevent Plaintiff from going forward 2275 (1998), which substantially altered the principles to be with her claim for sexual harassment under Title VII, I must applied in sexual harassment cases in which a supervisor is dissent. The majority’s decision rests upon an abdication alleged to be the guilty party. The holding of the companion from the controlling precedent in this Circuit which requires cases is the same: a reviewing court to consider a Title VII plaintiff’s hostile work environment claim under the totality of the An employer is subject to vicarious liability to a circumstances, and expressly provides that in order for victimized employee for an actionable hostile conduct to be considered “because of sex,” the conduct need environment created by a supervisor with immediate (or not be sexual in nature. See Williams, 187 F.3d at 562-65. successively higher) authority over the employee. When no tangible employment action is taken, a defending B. Section 1983 Claim for Violation of Rights employer may raise an affirmative defense to liability or Guaranteed by the Equal Protection Clause of the damages, subject to proof by a preponderance of the Fourteenth Amendment evidence, see FED. R. CIV. PROC. 8(c). The defense comprises two necessary elements: (a) that the employer The majority holds that because Plaintiff’s claim of sexual exercised reasonable care to prevent and correct promptly harassment fails as a matter of law, her § 1983 claim against any sexually harassing behavior, and (b) that the plaintiff Black and Likins for violation of her rights guaranteed under employee unreasonably failed to take advantage of any the equal protection clause of the Fourteenth Amendment preventative or corrective opportunities provided by the fails as well. However, as stated, I believe that the majority employer to avoid harm otherwise. While proof that an erred in holding that Plaintiff could not go forward with her employer had promulgated an anti-harassment policy sexual harassment claim under the KCRA against Likins and with complaint procedure is not necessary in every Black inasmuch as the majority’s conclusion is contrary to instance as a matter of law, the need for a stated policy controlling law in this Circuit. Because I believe that Plaintiff should be allowed to go forward with her claim for sexual harassment against Likins and Black, I therefore believe that 1 she should be allowed to go forward with her § 1983 claim It should be noted that Likins and Black cannot be held individually against these Defendants as well. See Grano v. Department liable under either Title VII of the Civil Rights Act of 1964, 42 U.S.C. of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980). § 2000e et seq., or the Civil Rights Act of 1991, 42 U.S.C. § 1981A et seq. In Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997), we stated, “[A]n individual employee/supervisor, who does not otherwise qualify as an ‘employer,’ may not be held personally liable under Title VII.” 26 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 7 Fiscal Court, et al. Fiscal Court, et al.
motivating force behind his harassing post-transfer conduct. suitable to the employment circumstances may Again, Williams expressly holds that incidents of non-sexual appropriately be addressed in any case when litigating the abuse should be considered in a sex harassment claim where first element of the defense. And while proof that an the motivating factor behind the abuse is sexual. See 187 employee failed to fulfill the corresponding obligation of F.3d at 565-66. The fact that the post-transfer events may reasonable care to avoid harm is not limited to showing also be considered retaliatory in nature is of no moment to the any unreasonable failure to use any complaint procedure fact that Likins’ harassment was motivated by Plaintiff’s provided by the employer, a demonstration of such rejection of Likins’ sexual advance. I believe that this is failure will normally suffice to satisfy the employer’s particularly so at the summary stage of these proceedings burden under the second element of the defense. No where a factual issue remains for the jury as to whether affirmative defense is available, however, when the Likins’ post-transfer conduct against Plaintiff would have supervisor’s harassment culminates in a tangible occurred “but for Plaintiff’s sex.” See Williams, 187 F.3d at employment action, such as discharge, demotion, or 565 (citing Henson v. City of Dundee, 682 F.2d 897, 904 undesirable reassignment. (11th Cir. 1982)). Ellerth, 118 S. Ct. at 2270, see also Faragher, 118 S. Ct. at Furthermore, the case upon which the majority relies in 2293. The Court further explained in Ellerth that for an support of its position was decided pre-Williams and, in any actionable hostile environment created by a supervisor event, is distinguishable. Specifically, the majority relies preceding an “employment decision to be actionable, upon Barnett v. Department of Veterans Affairs, in support of however, the conduct must be severe or pervasive.” 118 S. its position that Likins’ conduct at issue could not be used to Ct. at 2264. support Plaintiff’s claim of sex discrimination inasmuch as the conduct was not “because of Plaintiff’s sex.” However, 1. Did the supervisor’s harassment culminate in a in Barnett, unlike in the case at hand, the only evidence tangible employment action? presented by the plaintiff to support her claim for sexual harassment was that her supervisor had made it known that he Morris first argues that she was subject to a tangible disliked the plaintiff and had used her as the butt of office adverse employment action by refusing Likins’s sexual jokes. See 153 F.3d 338, 342-43 (6th Cir. 1998). Notably, demands,2 in that she received a “very good” evaluation although the Barnett Court found that the plaintiff’s rather than an “excellent” evaluation. “When a plaintiff allegations amounted to personal dislike as opposed to proves that a tangible employment action resulted from a discriminatory animus, the Court specifically qualified its refusal to submit to a supervisor’s sexual demands, he or she holding by stating that “[w]hile, under other circumstances, establishes that the employment decision itself constitutes a proof of personal conflict may provide some indicia of discriminatory animus, such is not the case here.” Id. at 343. Therefore, even the Barnett Court recognized that in order for 2 alleged harassing conduct to be “because of sex” it need not This claim, pre-Ellerth, would have been called a quid pro quo sexual harassment claim by most courts. However, the Supreme Court be sexually explicit, and that incidents of “personal conflict” stated in Ellerth that “[t]he terms quid pro quo and hostile work may be sufficient to create an inference of discrimination. environment are helpful, perhaps, in making a rough demarcation between The facts of the instant case are indicative of those “other cases in which threats are carried out and those where they are not or are circumstances” where proof of “personal conflict” -- as absent altogether, but beyond this are of limited utility.” 118 S. Ct. at 2264. 8 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 25 Fiscal Court, et al. Fiscal Court, et al.
change in the terms and conditions of employment that is Williams, 187 F.3d at 565. actionable under Title VII.” Ellerth, 118 S. Ct. at 2265. It does not necessarily follow that a “downgraded” evaluation Therefore, based upon the state of the law as it exists today, culminates in a tangible employment action, which the Ellerth it is clear that the majority’s analysis falls short when it court defined as “a significant change in employment status, declines to include Likins’ conduct such as his post-transfer such as hiring, firing, failing to promote, reassignment with visits to Plaintiff at the Road Department, phone calls to significantly different responsibilities, or a decision causing Plaintiff, and other allegedly harassing behavior directed at a significant change in benefits.” Id. at 2268. At a minimum, Plaintiff, into the hostile work environment equation. As the plaintiff must point to a tangible employment action that such, the majority’s legal conclusion that to consider the other she alleges she suffered, or is in jeopardy of suffering, acts would be a “mistake” is erroneous. because of the downgraded evaluation. See Smart v. Ball State Univ., 89 F.3d 437, 442-43 (7th Cir. 1996) (holding that Contrary to the majority’s assertions, Plaintiff does claim negative performance evaluations alone cannot constitute an that these alleged post-transfer incidents of harassment were adverse employment action); Parrish v. Ford Motor Co., No. “because of sex” inasmuch as she relates them to the other 89-6290, 1990 WL 109188 at *6 (6th Cir. Aug 2, 1990) four incidents of an explicitly sexual nature -- particularly the (indicating that the evaluation must have an “adverse impact” incident where she declined Likins’ sexual advance; and there on the plaintiff). is sufficient evidence on the record to suggest that Likins’ alleged post-transfer conduct was committed “because of sex” It is clear that, in this case, plaintiff suffered no tangible -- particularly at the summary judgment stage of the employment action as a result of her “very good” proceedings where the acts in question were not committed by recommendation. She does not allege that she was unfairly Likins until after Plaintiff refused his sexual advance and denied a promotion as a result of Likins’s actions. Her job where the record is void of Likins treating any male co- remained open at the time the district court rendered its worker in this fashion. See Williams, 187 F.3d 565-66 decision, and she was, at the time, free to return to it. Morris (holding that “[t]he myriad of instances in which Williams could perhaps argue that the presence of the evaluation in her was ostracized, when others were not, combined with the personnel file3 would constitute a tangible employment gender-specific epithets used, such as ‘slut’ and ‘fucking action, as the Eighth Circuit has held that the “papering” of a women,’ create an inference, sufficient to survive summary personnel file with negative reports can constitute such an judgment, that her gender was the motivating impulse for her employment action. See Kim v. Nash Finch Co., 123 F.3d co-workers’ behavior[,] . . . [and that] non-sexual abuse can 1046, 1060 (8th Cir. 1997). However, Likins’s evaluation of undermine competency as much as explicitly sexual harassing Morris constituted nothing close to the “papering” of her behavior”). personnel file, and, moreover, his evaluation was in no way The majority’s claim that Williams is inapplicable because Likins’ post-transfer acts were “quite distinct, and separated by explicit intimations of retaliation, not sex discrimination,” flies in the face of the holding and spirit of Williams. See Ante at n.7. Simply put, Williams is indistinguishable. Likins’ harassing conduct against Plaintiff began when she 3 The record appears to be silent on the question of whether the “very declined Likins’ sexual advance, thereby providing the good” evaluation remains in Morris’s file. 24 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 9 Fiscal Court, et al. Fiscal Court, et al.
significantly to the hostile environment.” Lipsett v. negative; Morris was rated “very good.”4 It is difficult to University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. believe that Morris stands in danger of being fired, demoted, 1988). To establish that the harm was “based on her or transferred because her supervisor felt she was a “very sex,” Williams “must show that but for the fact of her good” secretary. Thus, as a matter of law, Likins’s sex, she would not have been the object of harassment.” harassment of Morris did not result in a tangible employment Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. action being taken against her. 1982). 2. Was the supervisor’s harassment severe or Thus, harassing behavior that is not sexually explicit pervasive? but is directed at women and motivated by discriminatory animus against women satisfies the “based on sex” Because plaintiff suffered no tangible employment action requirement. See, e.g., Andrews v. City of Philadelphia, as a result of her “very good” evaluation, she must establish 895 F.2d 1469, 1485 (3d Cir. 1990) (“[T]he offensive that she was subjected to 5 severe or pervasive sexually conduct is not necessarily required to include sexual harassing conduct by Likins. The Supreme Court explained overtones in every instance.”); Lipsett, 864 F.2d at 905 in the recent case of Oncale v. Sundowner Offshore Services, (“[verbal attack,] although not explicitly sexual, was Inc., 523 U.S. 75, 118 S. Ct. 998 (1998), that “Title VII does nonetheless charged with anti-female animus, and not prohibit all verbal or physical harassment in the therefore could be found to have contributed significantly workplace; it is directed only at ‘discriminat[ion] . . . because to the hostile environment.”); Hall v. Gus Constr. Co., of . . . sex.’ We have never held that workplace harassment, 842 F.2d 1010, 1014 (8th Cir. 1988) (“Intimidation and even harassment between men and women, is automatically hostility toward women because they are women can discrimination because of sex merely because the words used obviously result from conduct other than sexual have sexual content or connotations.” Id. at 1002. The advances.”); Hicks v. Gates Rubber Co., 833 F.2d 1406, Oncale Court went on to observe that 1451 (10th Cir. 1987) (rejecting narrow definition of sexual harassment that requires predicate acts to be [t]he prohibition of harassment on the basis of sex clearly sexual in nature); McKinney v. Dole, 765 F.2d requires neither asexuality nor androgyny in the 1129, 1138 (D.C. Cir. 1985) (“We have never held that sexual harassment or other unequal treatment of an employee or gourp of employees that occurs because of 4 Morris has introduced no evidence remotely showing that a “very the sex of the employee must, to be illegal under Title good” evaluation was, at the Road Department, a negative evaluation VII, take the form of sexual advances or of other (e.g., everyone else at the Department regularly received “excellent” incidents with clearly sexual overtones. And we decline recommendations). In fact, Likins’s evaluation of Morris indicated that to do so now.”). Cf. Daniels v. Essex Group, Inc., 937 she was a “very efficient and courteous employee.” F.2d 1264, 1273 (7th Cir. 1991) (“Even though the 5 physical threat by Art was not specifically racial in This claim, pre-Ellerth, would have been called a hostile environment sexual harassment claim by most courts. However, the nature, it may be considered as a predicate act in Supreme Court stated in Ellerth that “[t]he terms quid pro quo and hostile establishing racial harassment in a hostile work work environment are helpful, perhaps, in making a rough demarcation environment, because it would have occurred but for the between cases in which threats are carried out and those where they are fact that Daniels was black.”). not or are absent altogether, but beyond this are of limited utility.” 118 S. Ct. at 2264. 10 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 23 Fiscal Court, et al. Fiscal Court, et al.
workplace; it forbids only behavior so objectively Indeed, the litany of severe harassing incidents began when offensive as to alter the “conditions” of the victim’s Plaintiff refused Likins’ sexual advance, and I believe that the employment. “Conduct that is not severe or pervasive jury should be able to decide whether Likins’ conduct after enough to create an objectively hostile or abusive work Plaintiff rejected him sexually was “because of sex;” the environment — an environment that a reasonable person majority’s conclusion otherwise is in complete contravention would find hostile or abusive — is beyond Title VII’s of the state of the law as it exists today. See Williams v. purview.” General Motors Corp., 187 F.3d 553, 564-65 (6th Cir. 1999) (collecting cases). 118 S. Ct. at 1003 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). “‘[S]imple teasing,’ offhand The majority’s decision to view these other acts as comments, and isolated incidents (unless extremely serious) somehow divorced from the four express acts of a sexual will not amount to discriminatory changes in the ‘terms and nature is precisely the type of flawed legal analysis the conditions of employment.’” Faragher, 118 S. Ct. at 2283 Williams Court rejected. Specifically, in Williams, this Court (internal citations omitted). “[W]hether an environment is found that the district court had improperly “disaggregated the ‘hostile’ or ‘abusive’ can be determined only by looking at all [sexual harassment] plaintiff’s claims, contrary to the the circumstances. These may include the frequency of the Supreme Court’s ‘totality of circumstances’ directives, which discriminatory conduct; its severity; whether it is physically robbed the incidents of their cumulative effect . . . [and] threatening or humiliating, or a mere offensive utterance; and improperly concluded that the conduct alleged to have created whether it unreasonably interferes with an employee’s work a hostile work environment must be explicitly sexual.” 187 performance.” Harris, 510 U.S. at 23. F.3d at 561-62 (footnote omitted). The Williams Court further criticized the district court because it “misconstrue[d] We hold that, under these facts, Morris cannot establish that the ‘based on sex’ requirement of a hostile-work-environment she was subjected to a hostile working environment. The sum claim and, in doing so, too narrowly construe[d] what type of total of Likins’s actions that can be considered “because of conduct can constitute sexual harassment.” Id. at 564. The sex” are: (1) several dirty jokes he told in plaintiff’s presence; Court went on to expressly hold “that the conduct underlying (2) his alleged verbal sexual advance related to plaintiff’s a sexual harassment claim need not be overtly sexual in evaluation; (3) his one-time reference to plaintiff as “Hot nature. Any unequal treatment of an employee that would not Lips”; and (4) his isolated comments about plaintiff’s state of occur but for the employee’s gender may, if sufficiently dress. Although Likins’s purported sexual advance was truly severe or pervasive under the Harris standard, constitute a offensive, it was the only advance that Likins allegedly made. hostile environment in violation of Title VII.” Id. at 565; see Most of Likins’s jokes were not aimed at the plaintiff, and Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). that fact can be relied upon as part of a court’s conclusion that a defendant’s conduct was not severe enough to create an The Williams Court opined as follows regarding the proper objectively hostile environment. See Black v. Zaring Homes, analytical approach for a claim of sexual harassment under 104 F.3d 822, 826 (6th Cir.), cert. denied, 118 S. Ct. 172 Title VII, as adopted by our sister circuits: (1997). Likins’s behavior seems to have consisted of the kind of simple teasing, offhand comments, and isolated incidents [T]he law recognizes that non-sexual conduct may be that Faragher made clear did not amount to discriminatory illegally sex-based where it evinces “anti-female animus, and therefore could be found to have contributed 22 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 11 Fiscal Court, et al. Fiscal Court, et al.
Road Department and telephone calls to Plaintiff; sitting in changes in the terms and conditions of a plaintiff’s his truck outside of the Road Department and making faces at employment. Plaintiff; following Plaintiff home, pulling his vehicle up beside her mailbox, and giving Plaintiff “the finger”; Plaintiff argues that we should include Likins’s alleged destroying the televison set that Plaintiff occasionally watched “retaliatory conduct” (i.e., his alleged post-transfer visits at at the Road Department; and throwing roofing nails onto her the Road Department, phone calls to plaintiff, and other home driveway on several occasions -- should be considered allegedly harassing behavior directed at plaintiff) into the as evidence to support her sexual harassment claim. hostile working environment equation. To do so would be a mistake, as Morris does not claim that Likins acted this way The majority maintains that to accept Plaintiff’s contention “because of sex.” There is no evidence in the record to “would be a mistake, as Morris does not claim that Likins suggest that any of Likins’s alleged offensive post-transfer acted this way ‘because of sex.’” The majority equates conduct was committed “because of sex.” Rather, it seems to Likins’ actions with personal animus and belligerence toward have been motivated entirely by his personal displeasure Plaintiff, but not sexual harassment under Title VII, and toward plaintiff and the complaints she made to Black.6 As therefore concludes that the other incidents upon which we recently observed, “[P]ersonal conflict does not equate Plaintiff relies cannot be used to show that she suffered a with discriminatory animus.” Barnett v. Dep’t of Veterans change in the terms or conditions of employment “because of Affairs, 153 F.3d 338, 342-43 (6th Cir. 1998), cert. denied, her sex.” I disagree with the majority’s position which takes 119 S. Ct. 875 (1999) (upholding a district court’s a narrow view of the evidence and applies a literal determination that witness’s statements describing how interpretation of the phrase “because of sex,” in contravention supervisor made it known that “he disliked the plaintiff and to the Supreme Court’s directive that in a claim for sex used her as the butt of office jokes, are consistent with discrimination brought under Title VII, the evidence should personal dislike rather than discriminatory animus”). Morris be “judged from the perspective of a reasonable person in the cannot establish that Likins’s post-transfer conduct was plaintiff’s position, considering ‘all the circumstances.’” See discrimination “because of sex” rather than simple Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 belligerence, see Richmond-Hopes v. City of Cleveland, No. S. Ct. 998, 1003 (1998). As the Supreme Court stated in 97-3595, 1998 WL 808222 at *5 (6th Cir. Nov. 16, 1998), Oncale, “[t]he real social impact of workplace behavior often and therefore this alleged harassing conduct, which was in no depends on a constellation of surrounding circumstances, way7sexual, is not actionable as sexual harassment under Title expectations, and relationships which are not fully captured VII. by a simple recitation of the words used or the physical acts performed.” Id. at 1003. 6 Here, I agree that Likins’ conduct such as placing roofing However, Likins’s conduct may very well constitute retaliatory harassment, an issue we address infra at 12-16. nails on Plaintiff’s driveway; following her home, pulling his vehicle beside her mailbox and giving her “the finger;” and 7 starring at Plaintiff through her window at work while making Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999), adds no support to the claim for sexual discrimination, as opposed to the faces at her, was done in retaliation against Plaintiff. retaliation claim. In Williams, all of the events at issue took place within However, I disagree that Likins was retaliating against the same context of actions by supervisors and co-workers in the Plaintiff solely because she complained to Judge Black. workplace environment, and could appropriately be compared with actions toward workers of a different gender to assess discrimination. See 12 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 21 Fiscal Court, et al. Fiscal Court, et al.
3. Retaliatory harassment ______________________________________________ Morris also argues that she was unlawfully retaliated CONCURRING IN PART, DISSENTING IN PART against for notifying Black of Likins’s alleged harassment. ______________________________________________ This circuit has not definitively answered the question of whether retaliatory harassment by a supervisor can be CLAY, Circuit Judge, concurring in part and dissenting in actionable in a Title VII case. part. I concur in the majority’s decision to reverse the district court’s order granting summary judgment to Plaintiff on her The Second and Tenth Circuits have both recently held that Title VII retaliation claim against the County, as well as her an employer can be liable for co-workers’ retaliatory Kentucky Civil Rights Act (“KCRA”) retaliation claim harassment.8 See Richardson v. New York State Dept. of against the County and Likins. However, because I believe Correctional Service, 180 F.3d 426, 446 (2nd Cir. 1999) (“an that questions of fact remain for trial regarding Plaintiff’s employer [can] be held accountable for allowing retaliatory sexual harassment claim brought under Title VII against the co-worker harassment to occur if it knows about that County; her sexual harassment claim brought under KCRA harassment but fails to act to stop it”); Gunnell v. Utah Valley against the County, Likins, and Black; her § 1983 claim State College, 152 F.3d 1253, 1265 (10th Cir. 1998). See also against Likins and Black for violation of her equal protection Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) rights; as well as her state law claim for intentional infliction (“Nothing indicates why a different form of retaliation — of emotional distress against Likins, I respectfully dissent namely, retaliating against a complainant by permitting her from the majority’s decision to affirm the district court’s grant fellow employees to punish her for invoking her rights under of summary judgment to Defendants on these claims. Title VII — does not fall within the statute.”). However, no circuit court has so far addressed, in the wake of Ellerth and A. Title VII Sexual Harassment Claim Against County1 Faragher, whether retaliatory harassment by a supervisor can be actionable in a Title VII case. We today hold that it can. The majority holds that Plaintiff’s claim for sexual harassment fails as a matter of law inasmuch as Likins’ The basis for our decision lies in a common rule of conduct toward Plaintiff that can be considered “because of statutory construction: namely, that “[a] term appearing in sex” amounted to four incidents -- “(1) several dirty jokes he told in plaintiff’s presence; (2) his alleged verbal sexual advance related to plaintiff’s evaluation; (3) his one-time Williams, 187 F.3d at 558-59. In this case, the incidents alleged after reference to plaintiff as ‘hot lips’; and (4) his isolated Judge Black’s order transferring Likins away from Morris are quite comments about plaintiff’s state of dress[ ]” -- which did not distinct, and are separated by explicit intimations of retaliation, not sex amount to discriminatory changes in the terms and conditions discrimination. In addition, there is no allegation that, for example, Likins of Plaintiff’s employment. In so holding, the majority viewed with equanimity complaints lodged against him by a male, while declines to accept Plaintiff’s contention that Likins’ other acts retaliating savagely in the case of a female complainant. Were such against her -- such as his alleged post-transfer visits at the circumstances to exist, the Williams “aggregation” analysis might appropriately be applied, but there are no such allegations or record support in this case. 1 8 I will consider Plaintiff’s claim for sexual harassment against the We today take no position on whether an employer can be liable for County, Likins and Black brought under the KCRA in tandem with this co-workers’ retaliatory harassment. issue. 20 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 13 Fiscal Court, et al. Fiscal Court, et al.
discovering an obscenity written on his truck windshield, and several places in a statutory text is generally read the same (3) discovering that a picture of his daughter he kept at work way each time it appears.” Ratzlaf v. United States, 510 U.S. was defaced). 135, 143 (1994). The Supreme Court has made it clear that severe or pervasive harassment by a supervisor based on an III individual’s sex can constitute “discrimination” under 42 U.S.C. § 2000e-2(a)(1), which forbids an employer “to The district court’s grant of summary judgment is discriminate against any individual with respect to his AFFIRMED in part, REVERSED in part, and REMANDED compensation, terms, conditions or privileges of employment, for further proceedings consistent with this opinion. because of such individual’s . . . sex.” See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2264 (1998). It naturally follows that, under Ellerth, severe or pervasive supervisor harassment that is engaged in because an individual “has opposed any practice made an unlawful employment practice by” Title VII also can constitute “discrimination” under 42 U.S.C. § 2000e-3(a). Section § 2000e-3(a) forbids an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a) (emphasis added). However, just as an employer has the opportunity to prove an affirmative defense to severe or pervasive sexual harassment by a supervisor, it follows that an employer should also have the opportunity to prove an affirmative defense to severe or pervasive retaliatory harassment by a supervisor. Under agency principles, retaliatory harassment does not, in and of itself, constitute a “tangible employment action.” See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2293 (1998) (“No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.”) 14 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 19 Fiscal Court, et al. Fiscal Court, et al.
(emphasis added). Therefore, an employer is entitled to the did not intend this violation to be the basis of a § 1983 same affirmative defense for retaliatory harassment that it is claim.”). Congress chose to limit Title VII liability to entitled to for sexual harassment, since “when no tangible employers only, and Morris cannot use § 1983 to circumvent employment action is taken, a defending employer may raise Congress’s intention. an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence . . . .” Ellerth, 118 S. Ct. D. Intentional infliction of emotional distress claims at 2270. This defense Lastly, Morris claims that the district court improperly comprises two necessary elements: (a) that the employer granted summary judgment on her state intentional infliction exercised reasonable care to prevent and correct promptly of emotional distress claims. Under Kentucky law, “[o]ne any [] harassing behavior, and (b) that the plaintiff who by extreme and outrageous conduct intentionally or employee unreasonably failed to take advantage of any recklessly causes severe emotional distress to another is preventative or corrective opportunities provided by the subject to liability.” Craft v. Rice, 671 S.W.2d 247, 251 (Ky. employer to avoid harm otherwise. While proof that an 1984). The elements of proof necessary to sustain a claim of employer had promulgated an anti-harassment policy outrageous conduct are: (1) intentional or reckless conduct on with complaint procedure is not necessary in every the part of the wrongdoer; (2) outrageous and intolerable instance as a matter of law, the need for a stated policy conduct in that it offends against the generally accepted suitable to the employment circumstances may standards of decency and morality; (3) a causal connection appropriately be addressed in any case when litigating the between the wrongdoer’s conduct and the emotional distress; first element of the defense. And while proof that an and (4) the emotional distress must be severe. See Humana employee failed to fulfill the corresponding obligation of of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 2-3 (Ky. 1990). reasonable care to avoid harm is not limited to showing Kentucky law requires that the conduct in question must be “a any unreasonable failure to use any complaint procedure deviation from all reasonable bounds of decency and . . . provided by the employer, a demonstration of such utterly intolerable in a civilized community.” Id. at 3 (citation failure will normally suffice to satisfy the employer’s omitted). The conduct of the County and Black clearly did burden under the second element of the defense. not meet this very high threshold. Additionally, although Likins’s alleged conduct was truly offensive, it also did not Ellerth, 118 S. Ct. at 2270. rise to the level of outrageousness necessary for recovery under Kentucky law. See, e.g., Allen v. Clemons, 920 S.W.2d In sum, we today modify our standard for proving a prima 884 (Ky. App. 1996) (threshold level of outrageousness not facie case of Title VII retaliation. A plaintiff must now prove met where defendant erected billboard in his yard stating that: (1) she engaged in activity protected by Title VII; (2) this “Danger—Child Molester in the Community,” after plaintiff exercise of protected rights was known to defendant; (3) was convicted of sexual abuse); Humphress v. United Parcel defendant thereafter took adverse employment action against Service, Inc., No. 97-6409, 1998 WL 869985 (6th Cir. Nov. the plaintiff, or the plaintiff was subjected to severe or 30, 1998), cert. denied, 119 S. Ct. 1576 (1999) (threshold pervasive retaliatory harassment by a supervisor; and (4) level of outrageousness not met where a man, after filing a there was a causal connection between the protected activity labor grievance, was subjected to a “campaign of harassment” and the adverse employment action or harassment. See by his co-workers which included (1) finding grease placed on Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th various parts of his work truck where it did not belong, (2) 18 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 15 Fiscal Court, et al. Fiscal Court, et al.
responding inadequately to Morris’s complaints. See Wu v. Cir.), cert. denied, 498 U.S. 984 (1990) (outlining previous Thomas, 996 F.2d 271, 274 (11th Cir. 1993), cert. denied, 511 standard for prima facie Title VII retaliatory harassment U.S. 1033 (1994) (“a reasonable employer could not have case). If and when a plaintiff has established a prima facie known for certain whether acts short of firing, demoting, or case, the burden of production of evidence shifts to the refusing to hire an employee could violate Title VII”). The employer to “articulate some legitimate, nondiscriminatory language of the KCRA generally tracks the language of Title reason” for its actions. Ibid. (quoting McDonnell Douglas VII and, thus, “should be interpreted consonant with federal Corp. v. Green, 411 U.S. 792, 802 (1973)). The plaintiff, interpretation.” Meyers, 840 S.W.2d at 820. Therefore, who bears the burden of persuasion throughout the entire Black could not have violated clearly established statutory process, then must demonstrate “that the proffered reason was rights under the KCRA, either. Because Black is entitled the not the true reason for the employment decision.” Ibid. defense of qualified immunity under Kentucky law, we affirm (quoting Texas Dept. of Community Affairs v. Burdine, 450 the grant of summary judgment on Morris’s state law U.S. 248, 256 (1981)). The employer may also prove an retaliation claims against Black. affirmative defense to retaliatory harassment by a supervisor by demonstrating: “(a) that the employer exercised reasonable C. § 1983 claims care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably The district court also granted summary judgment to Black failed to take advantage of any preventative or corrective and Likins on Morris’s claims brought under 42 U.S.C. opportunities provided by the employer to avoid harm § 1983. The showing a plaintiff must make to recover on an otherwise.” Ellerth, 118 S. Ct. at 2270. employment discrimination claim under Title VII mirrors that which must be made to recover on an equal protection claim Applying this new standard to the instant case, we first hold under section 1983. See Risinger v. Ohio Bureau of Workers’ that a reasonable juror could conclude that Likins’s behavior Compensation, 883 F.2d 475, 483-84 (6th Cir. 1989). Since after the lodging of Morris’s complaint constituted severe or we have affirmed the dismissal of Morris’s sexual harassment pervasive retaliatory harassment. Assuming plaintiff’s claims under Title VII, her analogous § 1983 sexual version of the facts, Likins (1) visited the Road Department harassment claims were therefore properly dismissed. unaccompanied a total of fifteen times, and called Morris on Additionally, even though we have reversed and remanded the telephone over thirty times, despite Black’s warnings, Morris’s retaliation claims, the district court’s grant of solely for the purpose of harassing Morris; (2) drove to the summary judgment on her analogous § 1983 retaliation claims Road Department on several occasions, and simply sat in his was also proper. Whatever the scope or source of a truck outside the Department building, looking in Morris’s constitutional claim of improper retaliation in other window and making faces at her; (3) followed Morris home circumstances, where the plaintiff asserts that she has been from work one day, pulled his vehicle up beside her mailbox, retaliated against for filing a complaint under Title VII, her and gave her “the finger”; (4) destroyed the television Morris sole federal remedy is the cause of action provided for under occasionally watched at the Road Department; and (5) threw Title VII. See Day v. Wayne County Bd. of Auditors, 749 F.2d roofing nails onto her home driveway on several occasions. 1199, 1204-05 (6th Cir. 1984) (“Here the district court found This behavior clearly constitutes more than simple teasing, that the defendants did not discriminate against the plaintiff. offhand comments, and isolated incidents that Faragher The only wrongful act was their retaliation for the plaintiff’s indicated did not amount to discriminatory changes in the actions, a violation of Title VII. We conclude that Congress terms and conditions of a plaintiff’s employment. Thus, we 16 Morris v. Oldham County No. 98-6117 No. 98-6117 Morris v. Oldham County 17 Fiscal Court, et al. Fiscal Court, et al.
must remand this case to the district court for further (Emphasis added). proceedings. There, the County will have the opportunity to prove the affirmative defense outlined in Ellerth. This court has held that “an individual employee/supervisor, who does not otherwise qualify as an B. State law sexual harassment claims ‘employer,’ may not be held personally liable under . . . KRS Chapter 344,” because the KCRA “mirrors Title VII . . . .” Morris sued the County, Black, and Likins under the See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. Kentucky Civil Rights Act (“KCRA”), KY. REV. STAT. 1997). Though this statement from Wathen is generally true, 344.010 et seq. The language of the KCRA generally tracks it clearly does not apply to retaliation claims brought under the language of Title VII and, thus, “should be interpreted KY. REV. STAT. § 344.280. This section does not “mirror” 42 consonant with federal interpretation.” Meyers v. Chapman U.S.C. § 2000e-3(a), the analogous retaliation provision of Printing Co., Inc., 840 S.W.2d 814, 820 (Ky. 1992). Title VII, which forbids retaliation by “an employer.” Rather, Therefore, since plaintiff’s Title VII sexual harassment claims § 344.280 forbids retaliation by “a person.” The Kentucky against the County were properly dismissed, her state law retaliation statute plainly permits the imposition of liability on sexual harassment claims were properly dismissed as well. individuals. Therefore, the district court’s holding that Black However, since we reverse the grant of summary judgment on and Likins could not be held individually liable under the Morris’s Title VII retaliation claim against the County, we Kentucky Civil Rights Act was incorrect. For this reason, we also reverse the grant of summary judgment on Morris’s state reverse the grant of summary judgment on Morris’s state law law retaliation claim against the County. Since the KCRA retaliation claims against Likins. should be interpreted consonant with federal interpretation, the County will have the opportunity to prove the affirmative However, we affirm the grant of summary judgment for defense outlined in Ellerth to shield it from liability against Black on Morris’s state law retaliation claims against him on the state law retaliation claim as well. qualified immunity grounds. Qualified immunity is a defense that can be invoked under Kentucky law. “[G]overnment The district court granted summary judgment for Black and officials are not subject to damages liability for the Likins on Morris’s state law claims because it believed that performance of their discretionary functions when their Black and Likins could not be held individually liable under conduct does not violate clearly established statutory or the Kentucky Civil Rights Act. Plaintiff argues that KY. REV. constitutional rights of which a reasonable person would have STAT. § 344.280 permits the imposition of individual liability known. In most cases, qualified immunity is sufficient to on Black and Likins. The statute reads: protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous It shall be an unlawful practice for a person, or for two exercise of official authority.” McCollum v. Garrett, 880 (2) or more persons to conspire: S.W.2d 530, 534 (Ky. 1994) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (internal quotation marks omitted)). (1) To retaliate or discriminate in any manner against a Black was performing a discretionary function when person because he has opposed a practice declared responding to Morris’s complaints, and this circuit has never unlawful by this chapter, or because he has made a before said that retaliatory harassment is illegal under Title charge, filed a complaint, testified, assisted, or VII. Because of this, Black could not have violated clearly participated in any manner in any investigation, established statutory rights under Title VII by allegedly proceeding, or hearing under this chapter . . . .