Table of Contents

Table of Authorities.............................................................................. i

Statement of Interest…………………………………………………….1

Statement of the Issue......................................................................... 2

Statement of the Case.......................................................................... 2

A. Statement of Facts................................................................. 2

B. District Court Decision......................................................... 7

Argument.............................................................................................. 9

The district court erred in granting summary

judgment on Davenport’s claim of “quid pro quo”

harassment…………………………………………..…………….……9

A. A supervisor’s repeated requests that a

subordinate date a potential customer in

exchange for a bonus constitute “quid pro quo”

harassment……………………………….…………………10

B. A jury could find that Davenport was denied

a significant bonus due to her refusal to submit

to her supervisor’s requests, which constitutes

a tangible employment action………….…….………....13

Conclusion……………………………………………….…………....…18

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases Page(s)

Alaniz v. Zamora-Quezada,

591 F.3d 761 (5th Cir. 2009)…………………………….......8, 12

Baker v. Boeing Helicopters,

2004 WL 1490358 (E.D. Pa. June 30, 2004)………………….17

Burlington Indus., Inc. v. Ellerth,

524 U.S. 742 (1998)……………………………….……....9-10, 14

Hylind v. Xerox Corp.,

380 F. Supp. 2d 705 (D. Md. 2005)……………......….............11

Jones v. Norm’s Minit Marts,

2001 WL 1018823 (W.D.N.C. July 27, 2001)……..….....…...14

Robinson v. City of Pittsburgh,

120 F.3d 1286 (3d Cir. 1997)……………...…………………....17

Rodriguez-Hernandez v. Miranda-Velez,

132 F.3d 848 (1st Cir. 1998).………………….…………… 10-11

Russell v. Principi,

257 F.3d 815 (D.C. Cir. 2001) ……………………….....………14

Temores v. Cowen,

289 F. Supp. 2d 996 (N.D. Ill. 2003)……….….....…..….…… 14

Vance v. Ball State Univ.,

570 U.S. __, 133 S. Ct. 2434 (2013) ………..…….….………..14

Statutes

42 U.S.C. § 2000e-2(a)(1) …………………………………………….…1

Other Authority

EEOC, Enforcement Guidance on Vicarious Employer

Liability for Unlawful Harassment by Supervisors,

No. 915.002, § IV.B.3 (June 18, 1999), (https://www.eeoc.gov/policy/docs/harassment.html)............14

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This case raises important issues under Title VII involving the standard by which a jury can find unlawful sexual harassment. Specifically, this case raises the issue of whether a supervisor’s request that an employee date a customer in exchange for a bonus constitutes “quid pro quo” harassment and whether the denial of a significant bonus is a tangible employment action, leading to vicarious liability with no affirmative defense. Given the importance of these issues to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issue[1]

Whether the district court erred in concluding that a supervisor’s requests for a subordinate to date a potential customer in exchange for a bonus does not constitute “quid pro quo” harassment and in suggesting that a bonus is not a tangible employment action.

Statement of the Case

A. Statement of Facts

Plaintiff TyAnne Davenport worked for the investment firm Edward Jones as a branch office administrator from October 2014 until October 2015. ROA.216, 359. Her supervisor was financial advisor Brendan Coyne. ROA.308, 361. In general, only Coyne and Davenport worked in the office. ROA.363.

Davenport testified that Coyne yelled at her about once a week, stating that her work was not good enough, despite the fact that he rated her performance as “Exceeds Expectations” on her evaluations. ROA.298, 368, 398. In December 2014, Coyne informed her that he didn’t want to give her work, calling her a “fuckup.” ROA.194, 199-200. Davenport believed that this offensive behavior was based on her sex: she testified that if Coyne “would have said it to a man, a man would have punched him, you know? So it is almost like I was defenseless because I was a female. . . . [I]t was degrading and it was repulsive.” ROA.278-79.

Following this incident, Coyne’s spouse visited Davenport at the office. ROA.373-74. As Davenport struggled to maintain her composure, Coyne’s spouse asked if she was “okay” and said, “I know my husband can be an ass.” Id. She also asked whether Davenport planned to report Coyne to human resources. ROA.374.

On May 5, 2015, Coyne yelled at Davenport over a minor incident and told her not to ever make him look like a “dick” to a customer. ROA.209-210, 292. Davenport testified that Coyne made her feel “low” and “disrespected,” and that she “couldn’t function.” ROA.193, 213. Davenport also found Coyne to be physically intimidating; she testified, “My fear was that it’s just him and I in that office, and he’s a big man. He is 6-foot 7, so what’s to stop him?” ROA.237.

At some point, Coyne urged Davenport to date Harry Fisher, the brother of a current customer, Mike Fisher, to obtain his lucrative account. ROA.227, 231. After Mike Fisher once suggested that Davenport should date his brother, Davenport testified that Coyne “was the one that was always pushing” for Davenport to date Harry Fisher. ROA.227. Coyne said that Fisher “was loaded with money and he had an airplane.” ROA.228. Coyne told her that if she dated Fisher, “you’ll get some big bonuses.” Id. Davenport understood that Coyne had the authority to award her a bonus, as he gave her a bonus of $400 in April 2015 for her work performance. ROA.343, 398, 467. Although Davenport could not recall the specific dates, she testified that Coyne repeated his request for Davenport to date Fisher about three or four times over a 30-day period.[2] ROA.228. Davenport told Coyne that she had a boyfriend and was not interested. ROA.229. Davenport later testified that she understood this to be a violation of company policy, because “[y]ou can’t ask someone to go date someone so he can get an account.” Id.

On October 27, 2015, Harry Fisher went to Coyne’s branch office to deposit a check. ROA.299. When Davenport told Fisher that he should open an account with Coyne’s office, Coyne told Fisher that Davenport “can break out the nudie pictures to help you make up your mind.” ROA.225, 228. Coyne made this statement in the presence of Davenport, Fisher, and Fisher’s cousin. ROA.241. Davenport was offended. ROA.299. The following day, when Davenport informed Coyne she could not change the agent on an annuity, Coyne called Davenport “incompetent” and told her that he would have to “clean up [her] mess.” ROA.225. Coyne stated he was sorry that he had rated her highly on her last evaluation and that the rating should have been “below expectations.” Id. Coyne then left the office, asking Davenport, “Do you think you can handle this?” and “Try not to burn the place down.” ROA.226.

On October 29, 2015, Davenport followed Edward Jones’s sexual harassment policy by reporting the harassment to an associate relations senior resolution specialist, Susan Miller. ROA.271-72, 280-83, 414-15. Davenport told Miller about Coyne’s harassment and provided specific information about the incidents. ROA.271, 414-15. Davenport stated that she did not want to return to work at Coyne’s branch and asked to be transferred to a different office. Id. Miller told Davenport that she could not transfer because each financial advisor picks his or her own branch office administrator. ROA.468. Miller informed Davenport that the company would begin investigating her complaints. ROA.414-415.

Davenport did not return to work. Instead, she used vacation and sick days until she was approved for a leave of absence, which began on November 6, 2015. ROA.152, 386-87. About the same time, Davenport filed a charge of discrimination alleging sexual harassment. ROA.148.

In December 2015, Edward Jones received a note from Camella Grau, a licensed therapist, requesting that Davenport be moved to another branch to minimize further stress. ROA.417-18. Davenport had been evaluated by Grau for “stress headaches, hair loss, insomnia, back aches, stomach ailments, depression, and anxiety.” Id. Grau’s note stated that Davenport was “unable to return to work due to hostility in the workplace and explosive tensions created by boss.” ROA.417.

Miller requested that Davenport return to work from her leave of absence to complete the investigation into her allegations of harassment and discuss job options for Davenport.[3] ROA.420. Davenport declined, because she did not want to return to Coyne’s branch office. ROA.245. On January 19, 2016, Davenport emailed a resignation letter, explaining that she was sorry that Edward Jones “could not find a suitable position” for her. ROA.303, 390. During the next two weeks, Davenport received two letters from Edward Jones providing her with options to return to work, which Davenport rejected because she did not want to accept part-time work or to return to Coyne’s office. ROA.154, 259.

Davenport later filed suit, asserting claims of “quid pro quo” and hostile environment harassment based on sex and constructive discharge under Title VII as well as state law claims. ROA.8, 10. Edward Jones filed a motion for summary judgment. ROA.141.

B. District Court Decision

The district court granted summary judgment for Edward Jones on all claims. ROA.486. The court rejected the “quid pro quo” claim because Coyne “provoked the plaintiff to engage in a relationship with a potential customer,” rather than with Coyne himself. ROA.475. The court stated, “Fifth Circuit precedent implies that the sexual advances related to the alleged tangible employment action must relate to advances with the supervisor.” Id. (citing Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir. 2009)).

The court also concluded that Davenport “suffered no tangible employment action.” ROA.476. The court noted that she received positive reviews, bonuses, and raises. Id. As for the bonus Coyne promised if Davenport dated Fisher, the court said that it was unclear what Coyne meant or who would provide the bonus (Coyne, Edward Jones, or Fisher). ROA.475-76. The court concluded that Davenport failed to establish a “concrete belief” that the bonus existed and ruled that she could not show “the alleged bonus is a tangible employment action.” Id. The court added that “she did not date Mr. Fisher, but received bonuses,” evidently referring to previous bonuses that Davenport received. Id. The court also suggested in a footnote that it is unclear in the Fifth Circuit that the denial of a bonus would be considered a tangible employment action. ROA.476 at n.2. (noting that “the plaintiff relies on non-binding legal precedent to support her position that a bonus is a tangible employment action”). The court also rejected Davenport’s hostile work environment, constructive discharge, and state law claims.

Argument

The district court erred in granting summary judgment on Davenport’s claim of “quid pro quo” harassment.

A jury could conclude that Coyne’s repeated unwelcome requests that Davenport date a potential client to obtain a lucrative account resulted in a tangible employment action. A plaintiff can state a claim for “quid pro quo” harassment when a supervisor makes unwelcome requests regarding a potential customer, rather than the supervisor himself. [4] Additionally, the denial of a bonus based on a subordinate’s refusal to submit to her supervisor’s harassing requests constitutes a tangible employment action, and a jury could find that this occurred here.

A. A supervisor’s repeated requests that a subordinate date a potential customer in exchange for a bonus constitute “quid pro quo” harassment.

As the Supreme Court noted in Ellerth,

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken [as a result of the harassment], a defending employer may raise an affirmative defense to liability or damages . . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action . . . .

524 U.S. at 765. The pertinent question is whether the supervisor created a hostile environment that culminated in a tangible employment action, not whether the supervisor made sexual requests for a customer, rather than himself.

Courts have recognized that employers may be liable under a “quid pro quo” theory for harassment involving a third party. In Rodriguez-Hernandez v. Miranda-Velez, the First Circuit found that “employers can be liable for a customer’s unwanted sexual advances, if the employer ratifies or acquiesces in the customer’s demands” under both a theory of quid pro quo and hostile work environment sexual harassment. 132 F.3d 848, 854-55 (1st Cir. 1998). The court affirmed a verdict for the plaintiff where the employee complained about sexual advances made by an important customer, and the employer “not only acquiesced in the customer’s demands, but explicitly told her to give in to those demands and satisfy the customer.” Id. at 854. The court concluded, “Under the quid pro quo theory, [the plaintiff’s] continued employment was conditioned on coerced sex, a condition that was inherently linked to her gender.” Id.

In Hylind v. Xerox Corp., a salesperson alleged that her employer assigned her to a customer because she was a woman and because her supervisor determined the customer was attracted to her. 380 F. Supp. 2d 705, 714 (D. Md. 2005). The plaintiff objected, telling her supervisor that she did not want to be “pimped out.” Id. at 715. The court found that a trier of fact could conclude that the employer engaged in illegal discrimination on the basis of sex. Id. at 718. The court held that an employer can be liable for a customer’s unwarranted sexual advances if the employer ratifies or acquiesces in the customer’s demands. Id. at 716. The court found that liability for sexual harassment by customers can be premised on either of two theories—quid pro quo or hostile work environment. Id. at 717.

Here, the court cited Alaniz, 591 F.3d at 772, for the proposition that “Fifth Circuit precedent implies that the sexual advances related to the alleged tangible employment action must relate to advances with the supervisor.” ROA.475. The court erred. In fact, the issue of quid pro quo harassment involving a customer was not presented in Alaniz. Based on the facts presented in the case, i.e., a supervisor who made unwelcome sexual advances relating to the supervisor himself, the court merely stated, “To establish a Title VII quid pro quo claim, a plaintiff must show that the acceptance or rejection of a supervisor’s alleged sexual harassment resulted in a ‘tangible employment action.’”Id. This language from Alaniz does not imply that the sexual advances must relate to the supervisor, rather than a customer, as the court did not opine on harassment involving a third party.

Thus, the district court misread Alaniz. The court did not cite any other authority for its conclusion that “quid pro quo” claims relate only to sexual advances vis-à-vis supervisors. This Court should therefore hold, consistent with Ellerth and other courts, that an employer is vicariously liable when an employer takes a tangible employment action against an employee who rejects (or acquiesces to) a supervisor’s requests to date a potential customer.

B. A jury could find that Davenport was denied a significant bonus due to her refusal to submit to her supervisor’s requests, which constitutes a tangible employment action.

The district court also erred in concluding as a matter of law that Davenport did not establish “a concrete belief that the bonus even existed” and that “Davenport cannot support a finding that the alleged bonus is a tangible employment action.” ROA.476. A jury could find that Coyne’s repeated statements that Davenport would receive “big bonuses” for dating a potential customer, along with the fact that Coyne gave Davenport a $400 performance bonus, established a concrete belief that such a bonus existed and that Coyne had the authority to award such a bonus. ROA.343, 398, 467. A jury also could find that the denial of the promised bonus because Davenport refused to submit to Coyne’s requests constituted a tangible employment action.

The Supreme Court has stated that a tangible employment action effects 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.” Vance v. Ball State Univ., 570 U.S. __, 133 S. Ct. 2434, 2443 (2013) (citing Ellerth, 524 U.S. at 761). Consistent with Ellerth, courts have long recognized that the denial or receipt of a bonus can qualify as a tangible employment action. See Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001) (a “bonus is a tangible, quantifiable award . . . analogous to one’s salary or to a benefit of one’s employment”); Temores v. Cowen, 289 F. Supp. 2d 996, 1001 (N.D. Ill. 2003) (“[A] supervisor . . . commits a tangible employment action when he conditions receipt of a benefit—such as a substantial bonus—on submitting to his sexual advances.”); Jones v. Norm’s Minit Marts, 2001 WL 1018823, at *1 (W.D.N.C. July 27, 2001) (holding that a supervisor’s offer of a bonus for the plaintiff to take off her shirt in the back room, among other incidents, constituted tangible employment actions).

Similarly, EEOC’s guidance provides that “[e]xamples of tangible employment actions include . . . compensation decisions.” EEOC, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, No. 915.002, § IV.B.3 (June 18, 1999), available at https://www.eeoc.gov/policy/docs/harassment.html. Because the denial of a bonus is by definition a compensation decision, it represents a tangible employment action. The district court thus erred to the extent it suggested that a bonus is not a tangible employment action. ROA.476 at n.2 (stating that Davenport relied on “non-binding legal precedent to support her position that a bonus is not a tangible employment action”).

The fact that Davenport did not submit to her supervisor’s request and therefore did not receive the bonus does not change the analysis. EEOC guidance makes clear that “[i]f a supervisor undertakes or recommends a tangible job action based on a subordinate’s response to unwelcome sexual demands, the employer is liable and cannot raise the affirmative defense. The result is the same whether the employee rejects the demands and is subjected to an adverse tangible employment action or submits to the demands and consequently obtains a tangible job benefit. In both those situations the supervisor undertakes a tangible employment action on a discriminatory basis.” Id. (emphasis added).

The district court further erred in concluding that because Davenport previously received a bonus relating to her work performance, she cannot challenge the denial of a separate bonus conditioned on her dating a potential customer. The court took note of the fact that “the plaintiff received positive work evaluations, which resulted in bonuses and salary increases.” ROA.474. The court also stated that “she did not date Mr. Fisher, but received bonuses.” ROA.476. However, the fact that she received a bonus in April 2015 and a salary increase in October 2015 for favorable performance reviews does not change the fact that she did not receive additional “big bonuses,” which Coyne promised her if she dated Fisher and lured his account. ROA.231.

Finally, the court erred in concluding as a matter of law that Davenport did not establish “a concrete belief that the bonus even existed.” ROA.476. In fact, evidence that Coyne gave Davenport a significant bonus in April 2015 could help to persuade a jury that Coyne’s repeated statements that Davenport would get “big bonuses” for dating Fisher were sufficient to establish a concrete belief that she would receive an additional bonus for dating Fisher; a jury could also find that because she refused to date Fisher, she was denied an additional bonus. A jury could find that Davenport reasonably believed that Coyne had the authority to give her a “big bonus” since he gave her the $400 performance bonus in April 2015. ROA.343, 398, 467. Regardless of whether Coyne had actual or apparent authority to award such a bonus, his promises of bonuses in return for Davenport’s dating a potential customer constitute quid pro quo harassment. See Baker v. Boeing Helicopters, 2004 WL 1490358, at *19 (E.D. Pa. 2004) (“quid pro quo harassment requires that the supervisor making the threat has actual or apparent authority to carry it out”) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997)).

Conclusion

For the foregoing reasons, the Commission respectfully requests that the Court vacate the judgment of the district court and remand the matter for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN Associate General Counsel

ANNE NOEL OCCHIALINO

Senior Appellate Attorney

s/ Sarah C. Crawford

SARAH C. CRAWFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, D.C. 20507

(202) 663-4039

Sarah.Crawford@EEOC.gov

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] Although it is not clear from the record when these comments were made, Plaintiff’s brief on appeal indicates that the comments were made in October 2015. Pltf-Br. p. 18.

[3] It is unclear from the record why Edward Jones would need Davenport to return to work to complete the investigation.

[4] This brief refers to “quid pro quo” harassment because the complaint and the district court’s opinion utilize the term to refer to Davenport’s claims of harassment culminating in a tangible employment action. However, in Burlington Industries, Inc. v. Ellerth, the Supreme Court clarified that “[t]he terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.” 524 U.S. 742, 751 (1998).