The Equal Employment Opportunity Commission contends in this appeal that the district court erred in granting summary judgment to AutoZone for sex-based harassment by its Store Manager, Brice Townsel. This case presents an important question: whether a harasser—who has hiring authority, but did not hire his specific victims, and who possessed the authority to discipline employees and to recommend taking other tangible employment actions against them—is a supervisor for purposes of Title VII vicarious liability under Vance v. Ball State University, 133 S. Ct. 2434 (2013). The Commission believes that oral argument would assist this Court in interpreting and applying Vance to decide this case.

The district court had jurisdiction over this case under 28 U.S.C. § 1331 and sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). On July 13, 2016, the district court granted summary judgment to AutoZone. R.59/Order Granting Mot. S.J. (“Op.”) at 11/PageID#901.[1] The district court entered final judgment the same day. R.60/J./PageID#902. Pursuant to Fed. R. App. P. 4(a)(1)(B)(ii), the EEOC filed a timely notice of appeal on September 8, 2016. R.65/Notice of Appeal/PageID#922. This Court has jurisdiction under 28 U.S.C. § 1291.

statement of THE issue

Did the district court err in finding that Brice Townsel, an AutoZone Store Manager and the alleged harasser, was not a supervisor for purposes of Title VII vicarious liability, even though he had the sole authority to hire, discipline, and evaluate store employees, as well as the power to recommend and influence their terminations, pay raises, job transfers, and demotions?

statement of the case

A. Statement of Facts

According to its website, “AutoZone is the leading retailer and a leading distributor of automotive replacements parts and accessories in the U.S.” http://www.autozoneinc.com/about_us/our_company/ (last visited Dec. 1, 2016). The female claimants in this action, LaKindal Smith, Robyn McEuen, and Cherrelle Willett, worked as hourly employees at AutoZone store 335 in Cordova, Tennessee. R.59/Op. at 1-2/PageID#891-892. In this capacity, they were subject to the daily direction of Store Manager Brice Townsel from May through November of 2012. R.50-17/EEOC Resp. to AutoZone’s Statement of Undisp. Facts/PageID#739. The facts, presented in the light most favorable to the EEOC, the non-moving party below, are as follows.

1. Brice Townsel’s sexual harassment of LaKindal Smith

LaKindal Smith joined AutoZone store 335 as a Parts Sales Manager, an hourly position, in July of 2011. R.49-5/Smith Dep./PageID#390. She was hired by Lorenzo Carmichael, who was then the Store Manager. Id. at PageID#388. About ten months after Smith was hired, in May of 2012, AutoZone promoted Townsel to the position of Store Manager, and transferred him to store 335. R.49-4/Townsel Dep./PageID#344-345; R.50-2/Townsel Dep./PageID#633. As Store Manager, Townsel was the highest-ranking official at the store on a daily basis. R.50-18/EEOC’s Statement of Undisp. Facts/PageID#756. He could hire any new hourly employees for the store. R.49-4/Townsel Dep./PageID#345-346. And he exerted significant, if not decisive, influence over whether employees were transferred to work in other stores. R.54/AutoZone’s Resp. to EEOC’s Statement of Undisp. Facts/PageID#828.

Townsel also directed the labor of approximately twelve existing employees. R.50-2/Townsel Dep./PageID#633. His oversight responsibilities included creating weekly work schedules, issuing discipline, and evaluating employees through oral and written performance appraisals, which determined whether his subordinates received wage increases. Id.; R.50-3/Annual Perf. Appraisal of McEuen/PageID#636; see also R.50-6/Smith Dep./PageID#670. AutoZone’s annual performance appraisal forms for store 335 explicitly identified Townsel as the “supervisor.” R.50-3/Annual Perf. Appraisal of McEuen/PageID#636.

Townsel could not unilaterally “fire, demote, promote, or transfer employees.” R.50-17/EEOC Resp. to Def.’s Statement of Undisp. Facts/PageID#739. But he did have the power to recommend and influence these types of employment actions to higher-ranking off-site officials, such as the District Manager who was assigned to oversee store 335, Ira Graham. R.50-2/Townsel Dep./PageID#632.

In August 2012, a few months after Townsel became Store Manager at store 335, he “began making lewd and obscene comments of a sexual nature to Ms. Smith.” R.10/Am. Compl./PageID#27. This included saying to her “you know I want that pussy”; “when are you gonna let me get that?”; “when I get it Imma beat it up”; “you need to let me get that pussy before I get married.” R.50-8/Smith Journal/PageID#696. Initially, Smith responded to Townsel’s harassment by “laugh[ing] it off” and gently rebuffing him or changing the subject. Id. at PageID#697. But it escalated in seriousness.

For example, later that month, Townsel “grabbed Smith by the waist from behind & pulled [her] into him so [that her] butt would bump into his penis.” Id. The next day, Townsel said to Smith that he would schedule the two of them to work at 5:15 a.m., adding that he would “take [her] in the bathroom & wear that pussy out.” Id. When he asked Smith, “You down?” she said, “no.” Id.

A month after that, Townsel asked Smith “When are you going to stop running & give it to me?” Id. at PageID#698. In that same exchange, he repeated his threat to Smith that he would “beat that pussy up.” Id. The next day, Townsel phoned Smith to “see how everything at the store was going.” Id. When she responded that all was well, he informed her that his parents were out of town and invited her to “come over & give [him] that pussy.” Id. Then, in late September 2012, Townsel approached Smith “in the back of the store” and “grabbed [her] vagina.” Id. at PageID#699. Smith responded by “nudg[ing]”Townsel with her elbow and saying to him “get your ass back.” Id. But Townsel did not relent, saying “you need to stop playing & let me rub on that pussy.” Id. Just days after that, when Townsel apparently believed that he would be transferred to work in another store, he put his hand on Smith’s back and said to her, “I’m not gonna be your boss anymore so I can really get that pussy now.” Id. at PageID#700. Smith said nothing in response, but she later explained that she had “a disgusted look on [her] face.” Id.

Townsel’s verbal harassment persisted into October 2012. For example, he “would constantly” say to Smith throughout that month “let me hit that pussy,” and he repeatedly invited her to his home when “his family would be out of town.” Id. Townsel then asked her if she “want[ed] [him] to stop harassing [her].” Id. at 701. When Smith responded that she did, Townsel replied that he was “not going to stop” because, according to Townsel, Smith “like[d] it.” Id. Also in that month, when Townsel returned from vacation, he criticized Smith for “everything that went wrong while he was gone,” and then asked her “do you think you can do what you want since I asked for that pussy?” Id. at PageID#701. Finally, in early November of 2012, Townsel said to Smith that she should “give [him] that pussy” to help his “blood pressure go down.” Id. at PageID#702.

The record demonstrates that the harassment had a profound effect on Smith’s working environment. Indeed, she testified in her deposition that she “like[d] to come to work” before the harassment began, but once it started, she “hated” going to store 335 and “was stressed out every day at work.” R.50-6/Smith Dep./PageID#656.

2. Townsel’s harassment of other employees

Robyn McEuen joined AutoZone store 335 in early 2010 as a part-time salesperson, and her position later changed to Commercial Driver. R.50-12/McEuen Dep./PageID#720. After Townsel’s arrival at store 335, he began subjecting McEuen to sexually harassing comments and behavior as well. Id. at PageID#721-722. For example, McEuen testified that Townsel approached her in mid-October of 2012, while she was working in an office in the back of the store, and said that “he wanted to lick [her] up one side and down the other,” and then made a “suggestive slurping noise with his tongue.” Id. She also testified that Townsel “[s]how[ed] [her] a video of a woman having sex with a bedknob.” Id. at PageID#721.

In April of 2012, AutoZone hired Cherrelle Willett as a Commercial Driver at store 335. R.49-7/Green Dep./PageID#551.[2] Once Townsel became Store Manager a month later, Willett heard him say that: “he has a big dick and knows how to use it”; he “know[s] how to eat the pussy right”; and “[h]e’s a lover not a fighter unless he’s beating the pussy up.” R.49-7/Exh. to Green Dep./PageID#584. Further, Townsel showed Willett “a video in his phone with some girl having sex with a bed pole.” Id. When that video was over, Townsel proclaimed “I know her pussy is wide open!” Id. Willett responded to the video by shoving Townsel and saying “I don’t want to see that mess.” R.49-7/Green Dep./PageID#567. Undeterred, Townsel laughed and then tried to show Willett another pornographic video of “two girls with [a] cup.” Id. Willett also heard Townsel commenting on female customers’ body parts, saying things like “damn her ass is fat.” R.49-7/Exh. to Green Dep./PageID#584. Willett testified that, because of Townsel’s conduct, she was “uncomfortable” working one-on-one with him, and she asked co-workers not to leave her alone with him in the back of the store. R.50-4/Green Dep./PageID#643.

McEuen and Willett also observed, overheard, and learned of several acts of harassment that Townsel perpetrated on women other than themselves. For example, McEuen heard Townsel say to Smith “on at least two occasions” that “he was going to have the house to himself and she should come over and let him hit it.” R.50-12/McEuen Dep./PageID#722. She also learned that Townsel “grabbed [Smith] in the privates at least once.” Id. And Willett overheard Townsel’s comment to McEuen that “he wished he could taste her body and lick her up and down.” R.50-4/Green Dep./PageID#641.

3. AutoZone’s anti-harassment policy and Smith’s efforts to report Townsel’s harassment

AutoZone has a written policy against sexual harassment. As relevant here, that policy states: “AutoZone does not tolerate sexual harassment or harassment of any nature. . . . AutoZoners who receive a complaint or become aware of any harassment are responsible for reporting it immediately to management, Human Resources or AutoZone Relations at 1-800-510-1033. Management thoroughly investigates each reported allegation as confidentially as possible.” R.49-5/Harass. Pol./PageID#451.

AutoZone asserts that it distributed this policy to employees “through handbooks and that [Smith, McEuen, and Willett] acknowledged receipt of and knew about the policy.” R.49-1/AutoZone’s Mem. in Supp. of S.J./PageID#266. However, Smith and McEuen testified that they did not recall ever receiving a copy of the employee handbook, which contains the harassment policy. R.50-6/Smith Dep./PageID#654; R.50-12/McEuen Dep./PageID#720. And, although AutoZone required its employees to acknowledge electronically that they read the handbook, Smith testified that, in reality, “[n]obody reads them . . . the managers just always say go in and acknowledge, sign off on the policy. They don’t say read them. They just say go in and sign off. And that’s what everybody does.” R.50-6/Smith Dep./PageID#654. Likewise, Willett testified that her “manager told [employees] to log in and click acknowledge and that would be it.” R.53-4/Green Dep./PageID#817.

Smith reported Townsel’s harassment on at least three occasions. She first reported it to Chad Berry, a Commercial Sales Manager working in another AutoZone store, at some point before September 25, 2012.[3] Specifically, Berry testified that Smith “called [him] out of the blue” and reported that Townsel had “grabbed her crotch and said he wanted to have sex with her.” R.50-11/Berry Dep./PageID#716. Berry advised Smith in response that she “shouldn’t let a man touch [her] like that.” Id. However, Berry admitted in his deposition that he failed to convey this information to anyone else at AutoZone, despite AutoZone’s policy requiring him to report any harassment of which he became aware. Id.; see also R.49-5/Harass. Pol./PageID#451 (“AutoZoners who receive a complaint or become aware of any harassment are responsible for reporting it immediately[.]”). As an explanation for his failure to report the harassment, Berry said that he did not interpret Smith’s report as a complaint because she “didn’t seem like she was very concerned about the situation,” adding that “[s]he didn’t seem upset or anything like that.” R.50-11/Berry Dep./PageID#716.

Townsel’s harassment continued after Smith spoke to Berry. So, about a month later, Smith told Ira Graham, the District Manager assigned to store 335 (and Townsel’s direct supervisor), that Townsel “had been sexually harassing [her].” R.50-6/Smith Dep./PageID#677. Graham did not ask Smith any follow-up questions about the harassment, instead simply saying “if that’s going on, we have to do something about it.” Id.

Although Graham was Townsel’s supervisor, he did not confront Townsel with Smith’s allegation of sexual harassment. Instead, in the first week of November of 2012, roughly two weeks after Graham received Smith’s complaint of sexual harassment, he visited the office of Melody Deener, the Human Resources Manager responsible for store 335, and conveyed to Deener that Townsel was “saying stuff in the store.” R.49-3/Deener Dep./PageID#290. Graham did not specify the nature of the “stuff” Townsel was saying in the store and, according to Deener, she had no reason to believe that Graham was trying to report “Townsel’s sexual harassment.” Id. In fact, Deener testified that when she asked Graham “what stuff; what’s being said?” he said, “I don’t know.” Id. at PageID#290-291. She further testified that even after Graham’s report, “it was not [her] intention” to take action because it was not clear to her that Smith’s complaint to Graham involved sex-based harassment. Id. at PageID#293.

Some days later, Smith initiated a phone call to Deener and said “that she did not like her schedule because she was being asked to work some Sundays and was without childcare on Sundays.” R.50-17/EEOC’s Resp. to AutoZone’s Statement of Undisp. Facts/PageID#742. Deener asked Smith to send her something in writing outlining these “operational issues.” Id. Smith complied, sending a three-page fax to Deener, in which she “complained about issues she had with her schedule and accused Townsel of sexual harassment.” R.59/Op. at 3/PageID#893. As relevant here, Smith’s letter to Deener said:

[D]uring the week of October 14-20, I’m not sure which day, but I informed Ira [Graham] of being sexually harassed. Nothing has been done nor has he said anything about [it] but it still continues. Some of my co-workers know about the harassment & I know of one that’s also been harassed by the same person. I have written documentation of days & things that were said & did to me.

R.49-5/Letter/PageID#464-465.

The day after Deener received this letter, she visited store 335 to investigate Smith’s allegation of sexual harassment. R.59/Op. at 3/PageID#893. As part of this investigation, Deener interviewed Smith, McEuen, Willett, and Townsel, and she obtained written statements from all four interviewees. R.50-17/EEOC’s Resp. to AutoZone’s Statement of Undisp. Facts/PageID#749. Three days later, Smith faxed Deener a written journal, which she had referenced in her prior fax to Deener as the “written documentation” of the harassment. Id.; R.49-5/Letter/PageID#464-465. This journal provides contemporaneous descriptions of Townsel’s sexual comments toward Smith and the non-consensual touching of her intimate areas. See generally R.50-8/Smith Journal/PageID#696-702.

Five days after she received the journal, Deener returned to store 335 and told Smith that Townsel would be transferred to another store in four days, on November 18, 2012. R.50-17/EEOC’s Resp. to AutoZone’s Statement of Undisp. Facts/PageID#750. Deener asked Smith if “she had any problems working with Mr. Townsel” for four more days. Id. Smith responded that she did “not have any issues working with [Townsel] until he’s transferred . . . because there will be an additional person scheduled to work on the days that I work with him.” R.49-5/Smith Interview Statement/PageID#475. Deener made good on her promise to remove Townsel from the store on November 18, 2012, and three weeks later AutoZone discharged him for: (1) “acts and conduct detrimental to AutoZone”; (2) “inappropriate comments”; and (3) “loss of confidence.” R.59/Op. at 4/PageID#894 (internal citations and quotations omitted).

B. Course of Proceedings and the District Court’s Decision

The EEOC filed a complaint alleging that Townsel subjected Smith, McEuen, and Willett to a sexually hostile work environment. See generally R.10/Am. Compl./PageID#25-33. After the parties conducted discovery, AutoZone sought summary judgment, arguing that the EEOC could not satisfy its prima facie case of sex discrimination because, according to AutoZone: Townsel’s conduct was not sufficiently severe or pervasive to constitute an actionable hostile work environment, and the EEOC could not “establish a basis for employer liability.” R.49-1/AutoZone’s Mem. in Supp. S.J./PageID#254-269. In the alternative, AutoZone argued that even if the EEOC satisfied its prima facie case, summary judgment was still appropriate because AutoZone “establish[ed] the Faragher/Ellerth affirmative defense . . . as a matter of law.” Id. at PageID#265-268.

The Commission responded that there was a genuine dispute of material fact regarding whether the claimants were subjected to severe or pervasive harassment. R.50/EEOC’s Resp. to Mem. in Supp. S.J./PageID#613-619. The EEOC further argued that “AutoZone is liable for the hostile work environment because Townsel was a supervisor.” Id. at PageID#619-620. The EEOC also disagreed that AutoZone had established the Faragher/Ellerth affirmative defense as a matter of law, arguing that the harassment training AutoZone provided was inadequate, and that AutoZone “did not act reasonably to correct sexual harassment” of which it knew or should have known. Id. at PageID#620-624.

The district court held that the EEOC “failed to adduce evidence such that a reasonable jury could find in its favor on . . . employer liability.” R.59/Op. at 7/PageID#897. Specifically, the court held that “Townsel was not a ‘supervisor’ for purposes of the EEOC’s claim,” because although he could “hire hourly employees,” this authority did not extend to the victims here, who were “already hired” when he became Store Manager and began harassing them. Id. at PageID#897-898 (internal citations omitted).

Having determined that Townsel was not a supervisor, the district court then said that to establish a basis for imposing employer liability based on the actions of a co-worker, the “EEOC must demonstrate that [AutoZone] ‘knew or should have known of the offensive conduct but failed to take appropriate corrective action.’” Id. at PageID#897 (internal citations omitted). The district court found that the EEOC failed to make this showing because, according to the court, AutoZone’s response to Smith’s report of harassment to Graham was “reasonably calculated to end the harassment.” Id. at PageID#899. Thus, the court dismissed the case with prejudice.

summary of argument

The district court erred in granting summary judgment because Townsel was a supervisor for purposes of vicarious liability under Title VII. The Supreme Court held in Vance v. Ball State University, 133 S. Ct. 2434, 2443 (2013), that “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The harasser here possessed hiring authority over all hourly employees at store 335, and hiring is one of the tangible employment actions expressly listed in Vance as sufficient to confer supervisor status. It defies logic to hold, as the district court essentially did, that just because Townsel did not hire the victims of his harassment, he is not a supervisor. Indeed, Townsel directed the labor of approximately twelve employees at any given time, yet under the district court’s rationale, he would only qualify under Title VII as the supervisor of some of those employees—the ones AutoZone hired after he arrived at store 335—even though all were performing the same work under Townsel’s management. Such an absurd result does not comport with Vance.

Moreover, Townsel was the only managerial official to work with Smith, McEuen, and Willett on a daily basis, and he was empowered to evaluate their performance, discipline them, and recommend their terminations and promotions. Therefore, AutoZone in effect delegated to Townsel the power to take tangible actions against the victims, which also qualifies him as a supervisor under Vance. For these reasons, summary judgment was improper and should be reversed.

standard of review

Whether Townsel was a supervisor for purposes of vicarious liability under Title VII is a legal issue subject to de novo review. Vance, 133 S. Ct. at 2450. Moreover, this Court reviews an award of summary judgment de novo. Planned Parenthood SW Ohio Region v. DeWine, 696 F.3d 490, 503 (6thCir. 2012). The Court must consider all evidence and draw all reasonable inferences in favor of the non-moving party, here the EEOC. Id. “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Summary judgment is appropriate only if there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P. 56(a)).

ARGUMENT

Townsel qualifies as a supervisor for purposes of T itle VII vicarious liability under Vance.

The Supreme Court has held that an employer is vicariously liable under Title VII for sexual harassment committed by a supervisor with immediate authority over the victim unless it can prove that (1) it exercised care to prevent and correct promptly any sexually harassing behavior; and (2) the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. See Ellerth, 524 U.S. at 765; Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Supreme Court concluded that a high standard of liability for supervisor harassment was necessary because the ”acts of supervisors have greater power to alter the environment than acts of coemployees generally.” Faragher, 524 U.S. at 805-06.

In this case, there was evidence that Townsel, the Store Manager, harassed his subordinates over a four-month period—from August to November 2012—and that the harassment continued unabated even after Smith first reported it in September and then again, to the District Manager, in October. The district court nonetheless ruled there was no basis for holding AutoZone liable for the harassment. In so ruling, the court never considered whether AutoZone proved the Faragher/Ellerth affirmative defense because, the court held, Townsel was not a supervisor.

In Faragher and Ellerth, the Court defined a supervisor as one “with immediate (or successively higher) authority over the employee,” but did not clarify what sort of “authority” an individual must have to qualify as a supervisor. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. In Vance, the Court decided the “question left open” in its earlier cases, namely, whether an employee must be able to take tangible employment actions to be a supervisor. 133 S. Ct. at 2439. It answered in the affirmative, saying that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim[.]” Id.

Applying this holding to the present case, the district court erred in concluding that Townsel was not a supervisor. Townsel fits the Vance definition of a supervisor because he possessed the ability to make hiring decisions on behalf of AutoZone. He was also a supervisor because, in his capacity as Store Manager and as the highest-ranking official regularly on duty at store 335, Townsel influenced and otherwise affected whether AutoZone took tangible employment actions besides hiring—such as firings, demotions, and promotions—against the victims. Indeed, the reasoning in Vance makes clear that, in these circumstances, Townsel is a supervisor because AutoZone effectively delegated to him the authority to take tangible employment actions.

1. Townsel’s hiring authority qualifies him as a supervisor.

Townsel was a supervisor because he had hiring authority. In Vance, the Supreme Court defined Title VII supervisors as those agents of the employer with the authority to effect a “significant change in employment status, such as hiring[.]” 133 S. Ct. at 2443, 2456 (quoting Ellerth, 524 U.S. at 761); see also id. at 2442 (defining tangible employment actions to also include: “firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits”) (same) (internal quotations omitted). By comparison to Townsel, the harasser in Vance could not take or even influence any type of tangible employment action over the victim or anyone else. See 133 S. Ct. at 2465 (Ginsburg, J. dissenting). Rather, in that case, the plaintiff had only “adduced scant evidence that [the harasser] controlled the conditions of her daily work.” Id. Therefore, the question presented in Vance was simply whether an employee could qualify as a supervisor despite being unable to take tangible employment actions on behalf of the employer, and the Court said no. But the central holding of Vance compels the conclusion that an employee like Townsel, who did have hiring authority, does qualify as a supervisor for purposes of Title VII vicarious liability. See id. at 2443.

The district court deemed Townsel’s hiring authority insufficient to confer supervisor status because the victims of his harassment were “already hired” when he arrived at store 335. R.59/Op. at 7/PageID#897. But the Supreme Court’s definition of supervisor does not depend on whether the harasser in fact carried out tangible employment actions vis-à-vis his victims. The focus is instead on whether he possessed sufficient power to effect such actions. See, e.g., Weyers v. Lear Operations Corp., 359 F.3d 1049, 1057 (8th Cir. 2004) (stating that supervisor status depends on whether the harasser “had the power (not necessarily exercised) to take tangible employment action against the victim”) (emphasis added) (internal citations and quotations omitted). Indeed, as one district court observed, “whether a supervisory employee’s actions should be attributed to the employer is not a question of whether tangible employment action was taken, but whether the offending employee had the ability to effect such actions.” Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904, 916 (E.D. Tenn. 2003).[4]

Here, AutoZone gave Townsel the power to effect hiring decisions over the victims. His hiring authority extended to all hourly employees in store 335, and Smith, McEuen, and Willett were all hired as hourly employees in that store. Moreover, the evidence supports the conclusion that Townsel would have made the hiring decision with respect to his victims had he been Store Manager when they applied. For example, it is undisputed that Smith was hired by Townsel’s predecessor as Store Manager, Lorenzo Carmichael, and there is no reason to believe that the powers of that position diminished when they were transferred from Carmichael to Townsel. Put simply, Townsel had the power to hire, and AutoZone should not escape vicarious liability for the offensive conduct of its Store Manager just because his victims were already hired when he began harassing them.

To be sure, the district court’s conclusion finds some superficial support in the language of Vance, which seemed to define supervisor in terms of the ability to take a tangible employment action “against the victim.” 133 S. Ct. at 2443. Limiting the concept of a Title VII supervisor to those with the power to take tangible employment actions “against the victim” makes sense when the harasser is empowered to, for example, terminate or demote his victims. Indeed, as the Vance Court explained, imposing vicarious liability on an employer for the acts of its harassers is justified when the harasser has the “authority to inflict direct economic injury” on his victims and the “potential use” of this authority “hangs as a threat over the victim.” Vance, 133 S. Ct. at 2448. In other words, Vance’s “against-the-victim” language is rooted in the notion that, from the victim’s perspective, her harasser’s ability to take tangible employment actions over some employees only matters if such authority extends to the victim herself.

But hiring is a unique type of tangible employment action and a strict “against-the-victim” approach does not work in this context. Unlike “firing, failing to promote, reassignment,” or any of the other tangible employment actions listed in Vance, hiring almost invariably comes before the harassment. Therefore, in contrast to—for example—firing authority, the “potential use” of hiring authority could virtually never “hang[ ] as a threat over the victim” in a hostile work environment case. Indeed, a victim in almost every hostile work environment case will be, like the victims here, “already hired.”[5] And given that it is hard to image a situation in which the “threat” of being hired (or not being hired) could ever be wielded against a hostile work environment victim, it follows that when a harasser possesses hiring authority, his status as a supervisor should not depend on the potential use of this authority “against the victim.”

If the facts of this case were identical except that Townsel arrived at store 335 earlier and did hire his victims, there is no doubt that Townsel would qualify as a supervisor under Vance. But the character of his harassment and the nature of his authority over the victims would be no different in any respect material to imposing vicarious liability. Indeed, even if Townsel had hired Smith, McEuen, and Willett, once the harassment began, he would still be unable to “inflict direct economic injury” on them, Vance, 133 S. Ct. at 2448, and the degree of his authority over them would be no different than it was in this case.

In essence, therefore, the district court held that AutoZone’s vicarious liability turns on nothing more than the date of Townsel’s arrival at store 335. Had he arrived before his victims were hired, the district court’s logic goes, he would be a supervisor; but because he arrived after they were already hired, he is not. Neither Vance nor any other court decision suggests that such a serendipitous factor controls whether an employer is vicariously liable for the sexual misconduct of its agents. Thus, Vance’s “against-the-victim” language should not be interpreted as establishing a strict rule, especially under the unique circumstances of a case such as this—where the harasser could hire employees like his victims, but could not unilaterally take other tangible employment actions against them once they were already hired.

This position finds support in other Supreme Court precedent. In Faragher, 524 U.S. at 803-04, for example, the Court identified several “good reasons for [imposing] vicarious liability [on employers] for misuse of supervisory authority.” The Faragher Court said: “When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor[.]” Id. at 803. The Court continued: “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance.” Id. Moreover, in Ellerth, the Supreme Court observed that the power to take tangible employment actions—generally, not just “against the victim”—is what sets supervisors apart from co-workers. See 524 U.S. at 762. Specifically, the Ellerth Court explained that the supervisor is “a distinct class of agent” who “has been empowered by the company . . . to make economic decisions affecting other employees under his or her control.” Id. (emphasis added).

These “good reasons” for imposing vicarious liability on AutoZone apply here. Because Townsel was the highest-ranking store official, not a mere “common worker[],”it was likely more difficult for Smith, McEuen, and Willett “to walk away or tell [him] where to go.”Faragher, 524 U.S. at 803. For the same reason, AutoZone had a greater opportunity and incentive to “guard against [Townsel’s] misconduct,” by screening him, training him, and monitoring his performance. Id. And, given that AutoZone granted Townsel the authority to hire hourly employees, the company plainly empowered him as a “distinct class of agent” who could “make economic decisions affecting other employees under his control.” Ellerth, 524 U.S. at 762. Thus, Townsel’s inability to wield his hiring authority as a threat over the victims does not disqualify him as a supervisor. Rather, he falls into this category based on the other “good reasons” for imposing vicarious liability, as identified by the Supreme Court in Faragher and Ellerth.[6]

2. Townsel’s power to recommend and influence tangible employment actions also renders him a supervisor.

Not only could Townsel make hiring decisions on behalf of AutoZone, he also had substantial influence over other tangible employment actions vis-à-vis his victims. For example, Townsel could “recommend a demotion or promotion.” R.49-4/Townsel Dep./PageID#347. If he believed an employee needed discipline at store 335, Townsel “wr[o]te them up” and “turn[ed] it in to the District Manager,” who would then “talk to [the employee] and meet with HR and [then] decide if that person is fired or not.” Id. at PageID#346. Also, Townsel conducted written performance appraisals of the employees under his supervision, which led to wage increases. R.50-6/Smith Dep./PageID#670.

In other words, Townsel possessed the ability to initiate the disciplinary or promotional process, which could then lead to tangible employment actions such as termination, advancement within the company, or wage increases. This is sufficient to confer upon him supervisor status. See, e.g., Vance, 133 S. Ct. at 2446 n.8 (noting that a harasser in Faragher was properly deemed a supervisor because no employees were “hired without his recommendation[, he] initiated firing and suspending personnel[, and his] evaluations . . . translated into salary increases”) (emphasis added); see also Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 738 (10th Cir. 2014) (“A manager who works closely with his or her subordinates and who has the power to recommend or otherwise substantially influence tangible employment actions, and who can thus indirectly effectuate them, also qualifies as a ‘supervisor’ under Title VII.”) (analyzing Vance, 133 S. Ct. at 2452).

Also, Townsel was the highest-ranking store official and the only decisionmaker at store 335 who worked with Smith, McEuen, and Willett on a daily basis. This is critical because in Vance the Supreme Court said that an employer cannot insulate itself from vicarious liability by “concentrat[ing] all decisionmaking authority in a few individuals.” 133 S. Ct. at 2452. The Court continued: “[i]f an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” Id. (emphasis added) (internal citations omitted). Such reasoning applies here. Townsel was the only managerial official at store 335 to interact regularly with the victims, and he had the power to “recommend or otherwise substantially influence tangible employment actions” taken by AutoZone for or against them.

In observing that “Townsel could give his input regarding promotion decisions,” R.59/Op. at 7/PageID#897, the district court seemed to acknowledge that an individual may count as a supervisor under Vance even if he does not have final decisionmaking authority. But the court nevertheless rejected the EEOC’s argument that Townsel’s influence was sufficient to confer supervisor status because “the District Manager did not have to consider Townsel’s opinions.” Id. (internal alterations omitted).

It is true that Townsel testified that “sometimes [his] input didn’t matter.” R.50-2/Townsel Dep./PageID#632. However, to be a supervisor under Vance, a harasser’s input need not always be decisive. Instead, the Supreme Court said that when an employer structures its business such that the harasser is the person “most familiar with [the victim’s] work—certainly more familiar with it than the off-site . . . Manager,” then he “necessarily must have had substantial input into” the decision to take a tangible employment action. 133 S. Ct. at 2452 (quoting Rhodes v. Ill. Dep’t of Transp., 359 F.3d 498, 509 (7th Cir. 2004) (Rovner, J., concurring in part and concurring in judgment) (internal quotations omitted)).

Likewise, here, AutoZone’s argument that it confined the ability to take tangible employment actions to a small number of individuals, the District Manager and certain Human Resources officials, is unavailing. Townsel was the only decisionmaker who was familiar with the victims’ work. And the others were “off-site managers” with “a limited ability to exercise independent discretion when making decisions” about the victims. Vance, 133 S. Ct. at 2452 (internal citations omitted). In other words, this case closely resembles the hypothetical scenario described in Vance, and AutoZone therefore should “be held to have effectively delegated” to Townsel “the power to take tangible employment actions” against the victims. Id. (citing Ellerth, 524 U.S. at 762).

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment was incorrect. This Court should reverse that decision and remand the case for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

/s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

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/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: December 1, 2016

[1] “R.” refers to the district court docket entry, followed by a description of the document, and the PageID# pursuant to 6th Circuit Local Rule 28(a)(1).

[2] Willett has since taken the last name “Green.” Thus, her deposition is referred to here as the “Green Dep.,” as that is how it appears in the record.

[3] The record does not specify the precise date on which Smith told Berry about Townsel’s harassment. However, in a journal that Smith maintained, there is an entry dated September 25, 2012, in which she stated “I have mentioned what [Townsel] does & says to me to” several persons, including Berry. R.50-8/Smith Journal/PageID#699. Thus, Smith’s conversation with Berry must have occurred before September 25th.

[4] Weyers and Browne remain good law after Vance. In fact, the Vance Court specifically embraced the supervisor standard set forth in Weyers. See 133 S. Ct. at 2453 (citing Weyers for the proposition that “[t]he standard we adopt . . . has been the law for quite some time in the . . . Eighth Circuit”); see also Delozier v. Bradley Cty. Bd. of Educ., 44 F. Supp. 3d 748, 761 (E.D. Tenn. 2014) (observing that “[t]he Browne definition [of supervisor] is consistent with the holding in Vance”).

[5] Some sex harassment cases involve job applicants, such as where an employer conditions the hiring decision on the applicant’s willingness to yield to sexual advances. See, e.g., Alwine v. Buzas, 89 F. App’x 196, 204 (10th Cir. 2004) (case in which plaintiff “refused [the hiring official’s] sexual demands and therefore did not receive a job”). But, if an employer conditions hiring on submission to sexual demands, the Vance definition of supervisor is not at issue because, then, liability is automatic. See, e.g., Faragher, 524 U.S. at 790 (“When a supervisor requires sexual favors as a quid pro quo for job benefits, the supervisor, by definition, acts as the company.”) (internal citation and quotations omitted). Thus, the Vance definition of supervisor would only be relevant where, as here, the victims have already been hired.

[6] At least twice, Townsel invoked his supervisory status while engaging in sexual harassment. Most troubling is the instance when Townsel, believing that he would be transferred to another store, touched Smith’s back and said that because he was no longer going to be her “boss,” he could “really get that pussy now.” R.50-8/Smith Journal/PageID#700. Also, at the same time that Townsel was criticizing Smith for “everything that went wrong while” he was out of town, he asked her “do you think you can do what you want since I asked for that pussy?” Id. at PageID#701. In these instances, Townsel plainly “misuse[d his] supervisory authority,” and imposing vicarious liability is thus appropriate. Faragher, 524 U.S. at 804.