Table of Authorities..................................................................................................................... iii

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

Statement of the Issues............................................................................................................... 2

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

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

B. District Court Opinion........................................................................................ 7

Argument........................................................................................................................................ 8

I. Hylko Raised a Triable Issue of Fact on his Same-Sex Harassment Hostile Work Environment Claim.......................................................................................................... 8

A. The District Court Erred in its Understanding of How to Show Harassment “Because of … Sex” Under Oncale................................................................................................. 8

1. Oncale’s three examples are not and were never intended to be exclusive of other ways to show proof of harassment because of sex................................................ 8

2. The harassment at issue in this case is so inextricably linked to sex that comparative analysis is unnecessary......................................................................................... 14

B. Even if Oncale’s Three Examples Are Exclusive, Hylko Presented Sufficient Evidence That Hemphill Treated Him Worse than He Treated Women at the Workplace. 19

II. Hylko Produced Sufficient Evidence Showing Hemphill Was His Supervisor to Survive Summary Judgment.......................................................................................................... 21

A. Hylko Produced Sufficient Evidence to Show Hemphill Was Empowered to Take Tangible Employment Actions Against Him...................................................... 21

B. At a Minimum, Hylko’s Belief That Hemphill Could Take Tangible Employment Actions Against Him Was Reasonable................................................................................. 24

Conclusion...................................................................................................................................... 25

Certificate of Compliance........................................................................................................... 27

Certificate of Service

Addendum: Designation of Documents................................................................................ A-1

Table of Authorities

Page(s)

Cases

Baugham v. Battered Women, Inc.,
211 F. App’x 432 (6th Cir. 2006)................................................................................... 12

Berry v. Chicago Transit Authority,
618 F.3d 688 (7th Cir. 2010)........................................................................................... 18

Bibby v. Philadelphia Coca Cola Bottling Co.,
260 F.3d 257 (3d Cir. 2001)............................................................................................. 10

Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998)..................................................................................................... 21, 25

Doe v. City of Belleville,
119 F.3d 563 (7th Cir. 1997).............................................................................. 15, 16, 18

Dupont Dow Elastomers, LLC v. NLRB,
296 F.3d 495 (6th Cir. 2002)........................................................................................... 14

EEOC v. Boh Brothers Construction Co.,
731 F.3d 444 (5th Cir. 2013) (en banc)........................................................... 10, 11, 14

EEOC v. Harbert-Yeargin, Inc.,
266 F.3d 498 (6th Cir. 2001).............................................................................. 11, 12, 14

Faragher v. Boca Raton,
524 U.S. 775 (1998)..................................................................................................... 21, 24

Ferguson v. Neighborhood Housing Services of Cleveland, Inc.,
780 F.2d 549 (6th Cir. 1986)........................................................................................... 24

Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993)................................................................................................................ 8

Kramer v. Wasatch County Sheriff’s Office,
743 F.3d 726 (10th Cir. 2014)......................................................................................... 25

Medina v. Income Support Division,
413 F.3d 1131 (10th Cir. 2005)....................................................................................... 11

Meyer v. Berkshire Life Insurance Co.,
372 F.3d 261 (4th Cir. 2004)........................................................................................... 24

Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998)....................................................................................................... passim

Pedroza v. Cintas Corp.,
397 F.3d 1063 (8th Cir. 2005)......................................................................................... 10

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)........................................................................................................... 16

Quick v. Donaldson Co.,
90 F.3d 1372 (8th Cir. 1996)........................................................................................... 17

Redd v. N.Y. Division of Parole,
678 F.3d 166 (2d Cir. 2012)............................................................................................. 18

Rene v. MGM Grand Hotel, Inc.,
305 F.3d 1061 (9th Cir. 2002) (en banc)......................................................... 16, 17, 18

Salmi v. Secretary of Health & Human Services,
774 F.2d 685 (6th Cir. 1985)........................................................................................... 13

Shepherd v. Slater Steels Corp.,
168 F.3d 998 (7th Cir. 1999)........................................................................................... 10

Smith v. Rock-Tenn Services, Inc.,
813 F.3d 298 (6th Cir. 2016).............................................................................. 12, 19, 20

Spengler v. Worthington Cylinders,
615 F.3d 481 (6th Cir. 2010)........................................................................................... 13

United States v. Lee,
793 F.3d 680 (6th Cir. 2015)........................................................................................... 13

United States v. Mastromatteo,
538 F.3d 535 (6th Cir. 2008)........................................................................................... 13

Vance v. Ball State University,
133 S. Ct. 2434 (2013)................................................................................................ passim

Vickers v. Fairfield Medical Center,
453 F.3d 757 (6th Cir. 2006).............................................................................. 11, 12, 14

Ward v. Holder,
733 F.3d 601 (6th Cir. 2013)........................................................................................... 13

Wasek v. Arrow Energy Services, Inc.,
682 F.3d 463 (6th Cir. 2012)..................................................................................... 12, 14

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17........ passim

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

42 U.S.C. § 2000e-2(a)(1)............................................................................................. 8, 13

Other Authorities

Fed. R. App. P. 29(a)................................................................................................................. 1

Lindemann & Grossman, Employment Discrimination Law 20.II.B.3 (5th ed. 2015).. 11

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting and enforcing T itle VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Title VII bars employers from discriminating against any employee “because of … sex.” Id. § 2000e-2(a).

The district court in this case held that Plaintiff David Hylko failed to raise an inference of sex discrimination because his evidence did not follow one of the three methods of proof the Supreme Court outlined in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). As explained in Oncale, however, the three methods identified in that case were merely examples, and were not intended as an exhaustive list. Other means are available to show actionable same-sex harassment. In addition, the district court held that Hemphill was not Plaintiff’s supervisor as a matter of law, despite the considerable evidence to the contrary. As such, it represents an overly restrictive reading of the Supreme Court’s test for supervisory authority under Vance v. Ball State University, 133 S. Ct. 2434 (2013).

Because the EEOC has a strong interest in the proper interpretation of the federal anti-discrimination employment laws, it offers its views to the Court. Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES [1]

1. In Oncale, the Supreme Court offered three examples of ways in which a plaintiff could prove the existence of same-sex harassment creating a hostile work environment. 523 U.S. at 80-81. Did the district court err in holding that this is an exclusive list, there are no other potential means of proof, and Plaintiff David Hylko did not provide sufficient evidence under any of the three examples to survive summary judgment?

2. Was the district court correct in finding that Defendant John Hemphill, the harasser, was not Hylko’s supervisor as a matter of law, despite the evidence that he had the power to recommend Plaintiff’s termination and the Defendants’ repeated admissions that Hemphill was Hylko’s supervisor? Even if mistaken, was Hylko’s belief that Hemphill was his supervisor reasonable, and therefore sufficient to treat Hemphill as a supervisor for Title VII purposes?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff David Hylko began working for U.S. Steel in late June 2011. Job offer ltr., R.20-1, Pg.ID#164. He earned a promotion to Shift Manager. Hylko Depo. 99-100, R.24-4, Pg.ID#560. In November 2013, U.S. Steel reassigned Hylko to an area known as the Basic Oxygen Process (BOP), the department that makes steel from pig iron. Hylko Depo. 107-09, R.24-4, Pg.ID#562. The transfer occurred after Defendant John Hemphill, who worked in the BOP, asked his boss to assign someone to help him. Hemphill Depo. 11, R.24-3, Pg.ID#493.

Hylko, Hemphill and U.S. Steel all considered Hemphill, the Process Coordinator, to be Hylko’s supervisor at this point. Hylko Depo. 111-12, R.24-4, Pg.ID#563; Hemphill Depo. 8, 10-11, R.24-3, Pg.ID#492-493; U.S. Steel Ans. ¶ 13, R.10, Pg.ID#62-63; Hemphill Ans. ¶ 13, R.13, Pg.ID#86; Hemphill St. Ct. Ans. Affir. Defense #8, R.24-11, Pg.ID#779; U.S. Steel EEOC position statement, R.24-12, Pg.ID#783. Hemphill did not have the authority to fire Hylko on his own, but he could recommend termination. Hemphill Depo. 37-38, R.24-3, Pg.ID#500; Van Buren Depo. 88, R.24-7, Pg.ID#730. Hylko testified that Hemphill routinely threatened to fire or transfer him if Hylko did not do what Hemphill said. Hylko Depo. 89, 141, R.24-4, Pg.ID#557, 570.

Hemphill began harassing Hylko as soon as Hylko was transferred to the BOP in November 2013. Hylko Depo. 82-83, 170, R.24-4, Pg.ID#556, 578. Much of this activity was of a sexual nature. Hemphill often brought up sexual topics, even when Hylko attempted to ignore him or change the subject, and often talked about the size of his own and his sons’ genitalia. Hylko Depo. 141-43, R.24-4, Pg.ID#570-571.

Hemphill also repeatedly touched Hylko in a sexual manner. He once grabbed Hylko’s penis in an elevator in front of two others and, after they exited the elevator, did it again, saying, “Look, he doesn’t even flinch.” Hylko Depo. 121-25, R.24-4, Pg.ID#565-566. On another occasion he grabbed Hylko by the suit jacket, pulled him closer, said he was “taking [him] down to the riverfront and beating [his] ass,” hit him on the buttocks, and said Hylko had a “nice firm ass,” all in front of other employees. Hylko Depo. 126-29, R.24-4, Pg.ID#567. In a separate incident Hemphill screamed at Hylko while Hylko was talking to two others, grabbed him by the front of the jacket and cocked back his fist “like he was going to punch” Hylko. Hylko Depo. 130-34, R.24-4, Pg.ID#568-569. After releasing Hylko, Hemphill walked over to where other employees were working. When Hylko followed Hemphill to the work location, Hemphill again grabbed Hylko’s buttocks. Hylko Depo. 132-33, R.24-4, Pg.ID#568. Another time Hemphill put a banana through the zipper of his trousers, walked into the office Hylko shared with coworker Bob Hughes, and poked Hughes with the banana. Hylko Depo. 135-37, R.24-4, Pg.ID#569.

Hemphill also frequently belittled Hylko. In front of contractors and other employees Hemphill would make Hylko get his coffee and joke that he had Hylko “well-trained.” Hylko Depo. 139-40, R.24-4, Pg.ID#570; Van Buren mtg. notes, R.24-9, Pg.ID#763; Van Buren email, R.24-10, Pg.ID#775. In front of other employees, he would grab Hylko’s buttocks and say, “This is my bitch.” Gunnell Depo. 30, R.24-2, Pg.ID#467. Hemphill routinely made life unpleasant for Hylko in other ways as well. He made disparaging comments about Hylko’s military service, saying he could not understand how Hylko did not get anyone killed in Afghanistan and calling him “Stripes” and “Lieutenant Dan.” Hylko Depo. 125-26, 145, R.24-4, Pg.ID#566-567, 571; Kovalchik mtg. notes, R.24-8, Pg.ID#751-752; Van Buren mtg. notes, R.24-9, Pg.ID#764; Van Buren email, R.24-10, Pg.ID#775. When a superior asked Hylko if he would like to become an operations supervisor, Hemphill said the superior could take Hylko because he was “worthless.” Hylko Depo. 137-38, R.24-4, Pg.ID#569-570. Hylko also complained to U.S. Steel management that Hemphill had called him stupid and “fucking useless,” and berated him almost daily. Kovalchik Depo. 68, R.24-6, Pg.ID#681; Van Buren mtg. notes, R.24-9, Pg.ID#764; Van Buren email, R.24-10, Pg.ID#775.

On January 15, 2014, Hylko spoke to Division Manager Tom Gunnell to complain that Hemphill was encouraging him to fabricate documentation in connection with a Michigan OSHA investigation of a fatality that had occurred the previous month. During this conversation Hylko broke down crying and described Hemphill’s behavior, including the touching of his buttocks, the degrading way Hemphill forced him to get coffee, and the incident with the banana. Hylko Depo. 146-51, R.24-4, Pg.ID#572-573. During this conversation he said, “I can’t take this anymore, working for John [Hemphill].” Van Buren mtg. notes, R.24-9, Pg.ID#763.

The next day Hylko met with Gunnell, Director of Employee Relations Jim Van Buren, BOP Area Manager Mark Jobin and human resources representative Steven Kovalchik to describe Hemphill’s behavior. Hylko Depo. 152, R.24-4, Pg.ID#573; Gunnell Depo. 41-42, R.24-2, Pg.ID#470. He told them that Hemphill’s abuse of him was daily, regular and pervasive. Kovalchik mtg. notes, R.24-8, Pg.ID#750. When asked why he failed to tell Hemphill to stop the abuse, Hylko said he was frightened of being terminated. Van Buren mtg. notes, R.24-9, Pg.ID#764. Gunnell told Hylko he could work in a different area of the plant. Hylko Depo. 154, R.24-4, Pg.ID#574; Gunnell Depo. 44, R.24-2, Pg.ID#470. Gunnell, Van Buren and Kovalchik then met with Hemphill, who admitted some of Hylko’s allegations but claimed he had merely been joking. Kovalchik mtg. notes, R.24-8, Pg.ID#753-754; Hemphill Depo. 41-42, R.24-3, Pg.ID#501. Hemphill testified he is not attracted to men. Hemphill Depo. 83, R.24-3, Pg.ID#511.

At the conclusion of the investigation Van Buren opted to suspend Hemphill for a week, demote him to shift manager without reducing his pay and require him to attend people skills training. U.S. Steel management also attempted to minimize interactions between Hylko and Hemphill going forward. Van Buren Depo. 69-72, 76-77, R.24-7, Pg.ID#726-728; Van Buren email, R.24-10, Pg.ID#775. Following Hemphill’s suspension he met with Hylko, Gunnell and Van Buren on January 27, 2014. Hylko Depo. 158, R.24-4, Pg.ID#575. Hemphill offered an apology, which Hylko accepted. Hylko Depo. 161, R.24-4, Pg.ID#575. Hylko had no further negative interactions with Hemphill. Hylko Depo. 157-58, R.24-4, Pg.ID#574-575.

In early April 2014 a crane collapsed at the U.S. Steel site where Hylko and Hemphill worked, killing a contractor. Hylko evacuated the area and shut off the oxygen and natural gas lines. Hylko Depo. 166-67, R.24-4, Pg.ID#577. He left U.S. Steel three days later, a decision he attributes to the harassment from Hemphill as well as the stress from the accident and other incidents. Hylko Depo. 168-70, R.24-4, Pg.ID#577-578.

B. District Court Opinion

After the close of discovery, both U.S. Steel and Hemphill filed motions for summary judgment. The district court granted both motions without conducting oral argument. It found that Hylko could not support his sexual harassment claim because he could not show that Hemphill had acted out of sexual desire or that he was motivated by a general hostility to the presence of men in the workplace. Further, because no women worked on Hemphill’s team, the court concluded that Hylko could not present any direct comparative evidence showing that Hemphill treated women better than men. Opinion at 7-8, R.29, Pg.ID#879-880 (citing Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 765 (6th Cir. 2006)). Thus, the court found that, although Hemphill’s behavior was clearly “tinged with offensive sexual connotations,” it did not amount to sexual harassment under Title VII because it did not constitute “discrimina[tion] … because of … sex,” as required under Oncale. Id. (quoting Oncale, 523 U.S. at 81 (emphasis and alterations in original)).

The court also held that U.S. Steel could not be vicariously liable for Hemphill’s behavior because Hemphill was not Hylko’s supervisor. Opinion at 8-10, R.29, Pg.ID#880-882. For a co-worker to qualify as a supervisor, the Supreme Court has held that the employer must have empowered the co-worker to “take tangible employment actions against the victim.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013). The district court found that Hylko had not produced any such evidence regarding Hemphill. Opinion at 9, R.29, Pg.ID#881. The court then applied the negligence standard for employer liability for co-worker harassment and held that, because U.S. Steel took prompt and adequate remedial action once it had notice of the hostile work environment, it could not be held liable. The court declined to exercise jurisdiction over the remaining state law tort claims against Hemphill and dismissed those claims without prejudice. Opinion at 9-10, R.29, Pg.ID#881-882. Hylko appealed.

ARGUMENT

I. Hylko Raised a Triable Issue of Fact on his Same-Sex Harassment Hostile Work Environment Claim.

A. The District Court Erred in its Understanding of How to Show Harassment “Because of … Sex” Under O ncale.

1. Oncale’s three examples are not and were never intended to be exclusive of other ways to show proof of harassment because of sex.

Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). A workplace “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” violates the statute. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted).

In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Supreme Court clarified that Title VII’s prohibition on sexual harassment applies even when both the plaintiff and the harasser are of the same sex. Id. at 79. The Court offered three examples of situations supporting an inference of discrimination based on sex in the same-sex harassment context: when the harasser is homosexual, when the “sex-specific and derogatory terms” of the harassment indicate “general hostility to the presence of [the victim’s sex] in the workplace,” and when comparative evidence is available showing the harasser treated members of one sex worse than members of the other sex in a mixed-sex workplace. Id. at 80-81.

Nothing in the opinion indicates the Court meant to treat these three examples as exclusive, however. Id. at 80 (noting that the three potential forms of proof were simply offered as “example[s]” and emphasizing, “[w]hatever evidentiary route the plaintiff chooses to follow,” the importance of showing discrimination because of sex). Indeed, the facts of Oncale itself do not lend themselves to one of the three suggested potential forms of proof. In that case an oil platform roustabout “was forcibly subjected to sex-related, humiliating actions against him by [supervisors and a co-worker] in the presence of the rest of the crew,” was “physically assaulted … in a sexual manner” and received rape threats. Id. at 77. The evidence did not indicate that the harassers were homosexual, that they were hostile to the presence of men on the oil platform, or that they treated women differently (there were no women on the platform). Nevertheless, the Court reversed the grant of summary judgment and remanded the case to give the plaintiff the opportunity to argue the harassment he suffered constituted discrimination “because of … sex” in light of its severity and the social context in which it occurred. Id. at 81-82.

Nearly every circuit to consider the issue has concluded that Oncale’s three examples are illustrative and not intended to provide an exhaustive list of the ways to prove same-sex harassment. See, e.g., Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (noting, after describing the three Oncale examples, that “[b]ased on the facts of a particular case and the creativity of the parties, other ways in which to prove that harassment occurred because of sex may be available”); EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 455-56 (5th Cir. 2013) (en banc) (“Every circuit to squarely consider the issue has held that the Oncale categories are illustrative, not exhaustive, in nature. Considering that the Court used ‘for example’ and ‘[w]hatever evidentiary route the plaintiff chooses to follow’ in its discussion of those categories, we agree.”); Shepherd v. Slater Steels Corp., 168 F.3d 998, 1009 (7th Cir. 1999) (“[W]e discern nothing in the Supreme Court’s decision indicating that the examples it provided were meant to be exhaustive rather than instructive. The Court’s focus was on what the plaintiff must ultimately prove rather than the methods of doing so. Indeed, the Court has previously made clear that the means of proving discrimination cannot be reduced to rigid formulae.”); Pedroza v. Cintas Corp., 397 F.3d 1063, 1068 (8th Cir. 2005) (“[T]he Supreme Court set forth a non-exhaustive list that included three possible evidentiary routes same-sex harassment plaintiffs may follow to show that harassment was based on sex.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (explaining that Oncale’s three evidentiary routes “are not exhaustive”). The leading treatise on employment discrimination likewise explains that the “evidentiary route[s]” suggested in Oncale are “nonexclusive.” Lindemann & Grossman, Employment Discrimination Law 20.II.B.3 (5th ed. 2015).

This Circuit initially showed a willingness to look beyond the three Oncale examples when assessing a claim of same-sex harassment. In EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001), this Court called the Supreme Court’s description of the three evidentiary paths “an example that sheds some light” on ways to make out a claim of same-sex harassment. Id. at 522; see also id. at 506 (Cole, J., dissenting) (“[T]he [Oncale] Court presented these illustrations as examples, and not as an exhaustive list of all possible situations in which a plaintiff would have an actionable Title VII same-sex harassment claim.”). Nothing in the opinion stated that other methods of proof would not be considered.

Similarly, in Vickers v. Fairfield Medical Center, 453 F.3d 757 (6th Cir. 2006), the plaintiff argued that he had been targeted for harassment because he failed to conform to male stereotypes. Although the Court ultimately rejected the argument on its merits, it engaged with the plaintiff’s argument and did not reject it because it failed to follow one of the three Oncale examples. Vickers, 453 F.3d at 763; see also Boh Bros., 731 F.3d at 455 n.6 (noting that, in Vickers, the Sixth Circuit “acknowledged the availability of an evidentiary route not articulated in Oncale”).

Elsewhere in Vickers this Court also noted the three Oncale examples and explained why the plaintiff’s allegations did not make out a claim for same-sex harassment under any of them. 453 F.3d at 765. In this discussion, the opinion explained that “[t]he Oncale court provided three ways a male plaintiff could establish a hostile work environment claim based on same-sex harassment,” but never explicitly or implicitly contended that these methods were exclusive. Id.; see also Baugham v. Battered Women, Inc., 211 F. App’x 432, 438-39 (6th Cir. 2006) (noting that Oncale discusses three “evidentiary routes under which a plaintiff in a same-sex harassment suit may prove an inference of discrimination because of sex,” but referring to them as examples rather than the only potentially cognizable forms of proof).

Nevertheless, subsequent decisions within this Circuit have begun treating the three examples as exclusive. See, e.g., Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 467-68 (6th Cir. 2012) (“No evidence exists that [the harasser] was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, [the victim] must demonstrate that [the harasser] was homosexual.”); Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307-08 (6th Cir. 2016) (“Following Oncale, this Circuit allows a plaintiff alleging same-sex harassment in hostile work environment cases to establish the inference of discrimination based on sex in three ways.”).

Based on Oncale, Harbert-Yeargin and Vickers, however, it is clear that plaintiffs can pursue other avenues to show that they were subjected to same-sex harassment that was “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). As this Circuit has repeatedly recognized, a panel cannot overrule a prior panel’s holding. See, e.g., Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Thus, when a subsequent panel decision deviates from the holding of a prior case, the prior case controls. For example, in Spengler v. Worthington Cylinders, 615 F.3d 481 (6th Cir. 2010), this Court addressed the issue of how broadly to construe a claimant’s EEOC charge when the claimant is represented by an attorney. A Sixth Circuit case from 2001 had held that EEOC charges should be liberally construed even when the claimant is represented by counsel, but a 2010 case distinguished between represented and unrepresented claimants and implied that only pro se charges were given liberal construction. The Spengler Court held that the 2001 holding controlled because “[i]t is well-established that one panel cannot overrule a pre-existing decision of another panel of this Court.” Id. at 490 n.4. Numerous other cases have come to the same conclusion in similar circumstances. See, e.g., United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015) (applying the standard of review enunciated in a prior case despite a later panel’s use of a different standard); Ward v. Holder, 733 F.3d 601, 607-08 (6th Cir. 2013) (applying standard of proof set out in 2005 case despite contrary Sixth Circuit cases in 2009 and 2012 because, “when a later decision of this court conflicts with one of our prior published decisions, we are still bound by the holding of the earlier case” (internal citation omitted)); United States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008) (noting that a 2001 case established the standard for reviewing a denial of a hearing to determine whether a police officer lied in obtaining a search warrant, and that this interpretation controlled over more recent, contrary cases that “apparently failed to notice” the earlier ruling); Dupont Dow Elastomers, LLC v. NLRB, 296 F.3d 495, 506 (6th Cir. 2002) (“[W]hen a later decision of this court conflicts with the holding of a prior decision, it is the earlier case that controls.”).

To the extent later cases within this Circuit disregarded Harbert-Yeargin and Vickers and treated Oncale’s examples as the only means of proving same-sex harassment (and dismissed a same-sex harassment claim under Title VII on that basis), this Court is not obligated to follow their example and compound the mistake. See Boh Bros., 731 F.3d at 455 n.6 (“[T]he Sixth Circuit follows the rule of orderliness, so Vickers, not Wasek, controls.”). Because the district court erroneously treated Oncale’s examples as exclusive, this Court should reverse.

2. The harassment at issue in this case is so inextricably linked to sex that comparative analysis is unnecessary.

Given the specific abuses at issue in this case, the evidence in the record is sufficient to create a triable issue that Hemphill’s harassment of Hylko was “because of … sex.” Hylko produced evidence that Hemphill harassed him in a variety of sex-specific ways. He grabbed Hylko’s penis and buttocks on multiple occasions when others were around. He talked about Hylko’s “nice firm ass” and about “beating his ass,” and joked that Hylko “doesn’t even flinch” when he grabbed his penis. He repeatedly brought up sexual topics, even when such discussions were unwelcome. He stuck a banana in his zipper and pretended it was a penis. This form of harassment is inherently related to and inseparable from Hylko’s sex, and cannot be analyzed apart from it. See Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir. 1997) (“Frankly, we find it hard to think of a situation in which someone intentionally grabs another’s testicles for reasons entirely unrelated to that person’s gender.”), vacated and remanded for reconsideration in light of Oncale, 523 U.S. 1001 (1998).

As the Seventh Circuit concluded in Doe, some forms of sexual harassment are so clearly based on sex that further proof – including proof that the harasser treated men and women differently – is not necessary: “[W]e must question whether it is appropriate to view sexual harassment as actionable sex discrimination only when the plaintiff is able to show that she was harassed because she was a woman rather than a man, or vice versa. Proof that the harasser was motivated to target (or in practice did target) one gender and not the other may be necessary where the harassment is not on its face sexual … but such proof would seem unnecessary when the harassment itself is imbued with sexual overtones,” because “the conditions of the plaintiff’s work environment have been altered in a way that made the environment hostile to him or her as a man or woman.” Id. at 577-78. In cases where “the harassment has explicit sexual overtones,” the nature of the harassment “in and of itself demonstrates the nexus to the plaintiff’s gender that Title VII requires.” Id. at 576.

Whether such conduct constitutes actionable sexual harassment should not depend on irrelevant issues such as whether the harasser was sexually interested in men, was hostile to all men, or treated women in a similarly noxious way. As the Doe court explained, “We doubt that it would have mattered for [the victim] to know, when his testicles were in [the harasser’s] grasp, that [the harasser] was heterosexual …. The experience was still humiliating in a deeply personal way, as only sexual acts can be.” Id. at 580. Such harassing behavior, the court explained, is inherently “because of sex”: “[W]hen one’s genitals are grabbed, when one is denigrated in gender-specific language, and when one is threatened with sexual assault, it would seem to us impossible to de-link the harassment from the gender of the individual harassed.” Id.

A plurality of the Ninth Circuit en banc court reached the same conclusion in Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), as to the inherently sex-based nature of the type of sexual conduct at issue in Hylko. That case involved “a man who was repeatedly grabbed in the crotch and poked in the anus, and who was singled out from his other male coworkers for this treatment.” Id. at 1067. The plurality concluded that Title VII prohibits “offensive physical conduct of a sexual nature” that is sufficiently severe or pervasive, regardless of the genders of the perpetrator and victim.[2] Id. at 1068. One member of the plurality wrote a separate concurrence to emphasize that “[t]he repeated physical attacks targeted at body parts clearly linked to [the victim’s] gender constituted overwhelming evidence from which a jury could infer that the attacks were based, at least in part, on [the victim’s] sex.” Id. at 1070 (Fisher, J., concurring).

Quick v. Donaldson Co., 90 F.3d 1372 (8th Cir. 1996), though decided before Oncale, also supports a conclusion that the conduct at issue in Hylko is sufficiently sexual and harassing to preclude summary judgment. Quick involved a worker at a mostly (85%) male muffler production plant where “bagging” – hitting another person in the testicles – was prevalent, and the plaintiff himself was “bagged” over 100 times in 1991 and 1992. Id. at 1374. The Eighth Circuit rejected the district court’s conclusion that the harassment could not support a Title VII claim because it stemmed from “personal enmity or hooliganism” and was therefore “not of a genuine sexual nature.” Id. at 1378. Instead, the court concluded that the bagging of testicles by men in a predominantly male workforce was “sufficient to show that the conduct was gender based for purposes of summary judgment” because it constituted “[e]vidence that members of one sex were the primary targets of the harassment.” Id. at 1378; id. at 1379 (concluding that, because only men were the victims of bagging, “a fact-finder could reasonably conclude that the treatment of men at Donaldson was worse than the treatment of women”).

In the same way that these decisions found that singling out a victim for a particular type of sexualized harassment could indicate discrimination because of sex, this Court should conclude that the harassment at issue here presents a triable issue that Hemphill’s conduct violated Title VII. The conduct was clearly sexualized: Hemphill repeatedly touched Hylko’s crotch and buttocks, both privately and in front of other co-workers, talked about his body, and engaged him in unwelcome sexual conversation. Hylko Depo. 121-34, 141-43, R.24-4, Pg.ID#565-571. In addition, Hemphill’s harassment indisputably altered the conditions of Hylko’s employment. Hylko testified that the harassment made him feel sad, powerless and isolated; that he timed his vacation to minimize his exposure to Hemphill; and that he began looking for another job to get away from him. Hylko Depo. 103-04, 106, 155, 159, 162-63, R.24-4, Pg.ID#561-562, 574-576; Kovalchik Depo. 56, R.24-6, Pg.ID#678. When Hylko described the abuse to Division Manager Gunnell and other members of U.S. Steel management, he told them that because of Hemphill’s actions he could not focus or see straight, and he ultimately broke down crying when describing the abuse to Gunnell. Kovalchik Depo. 56, R.24-6, Pg.ID#678; Hylko Depo. 150, R.24-4, Pg.ID#573. The sexual overtones of the conduct itself, particularly insofar as Hemphill targeted Hylko’s genitalia, should be sufficient to show that Hemphill directed the harassment to Hylko as a man, and that the harassment was in that respect “humiliating in a deeply personal way, as only sexual acts can be.” Doe, 119 F.3d at 580; see also Rene, 305 F.3d at 1070 (Fisher, J., concurring); cf. Redd v. N.Y. Div. of Parole, 678 F.3d 166, 180 (2d Cir. 2012) (“Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment ….”); Berry v. Chicago Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (“[I]nstances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment.”).

Taking into account the “constellation of surrounding circumstances, expectations, and relationships,” as required under Oncale, a jury could easily find that Hemphill’s harassment was not “simple teasing or roughhousing among members of the same sex,” but was instead “severely hostile or abusive.” Oncale, 523 U.S. at 82. Rather than dismissing the case on summary judgment, the district court should have allowed a jury to assess the facts using its “[c]ommon sense, and an appropriate sensitivity to social context” to determine whether the conduct violated Title VII. Id. The district court’s failure to do so constitutes reversible error.

B. Even if Oncale’s Three Examples Are Exclusive, Hylko Presented Sufficient Evidence That Hemphill Treated Him Worse than He Treated Women at the Workplace.

Even if this Court treats Oncale’s three examples as exclusive, despite the wealth of material showing they were merely intended to be illustrative of potential ways to prove discrimination in the same-sex harassment context, the district court still erred in dismissing Hylko’s case on summary judgment because the evidence shows that Hemphill did not harass women at the workplace the same way he harassed Hylko. This case is analogous to Smith, in which the employer argued that the plaintiff worked in a gender-segregated workplace and therefore could not show he was discriminatorily subjected to unwanted touching from a co-worker. Smith, 813 F.3d at 308. On appeal, this Court rejected the employer’s argument and upheld a jury verdict in the plaintiff’s favor because he presented evidence that the department in which he worked was 30% female overall, and “men and women encountered one another regularly.” Id.; cf. Oncale, 523 U.S. at 80-81 (“A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”).

Here, similarly, although Hemphill did not have any women working directly under his authority, it is undisputed that the worksite was a mixed-sex workplace. Division Manager Gunnell testified that he had 348 people working under him, of whom roughly 10% were women, who were spread evenly throughout the departments making up the division. Gunnell Depo. 11, 62-63, R.24-2, Pg.ID#462, 475. It is therefore reasonable to infer, absent contrary evidence, that men and women at the worksite encountered each other regularly, as in Smith. In addition, Hemphill testified that touching a woman on her rear the way he touched Hylko would be “inappropriate,” and that he had never done so. Hemphill Depo. 96, R.24-3, Pg.ID#514. The district court’s dismissal of Hylko’s sexual harassment claim merely because no other women worked under Hemphill, when all inferences are to be drawn in the Hylko’s favor and the evidence shows both that other women were present at the job site and that Hemphill did not harass them in a similar manner, was therefore erroneous.

II. Hylko Produced Sufficient Evidence Showing Hemphill Was His Supervisor to Survive Summary Judgment.

A. Hylko Produced Sufficient Evidence to Show Hemphill Was Empowered to Take Tangible Employment Actions Against Him.

The Supreme Court has held that an employer may be vicariously liable for the harassment of a supervisor, but is liable for a co-worker’s harassment “only if it was negligent in controlling working conditions.” Vance, 133 S. Ct. at 2439; see Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The distinction is based on principles of agency: “masters” are not usually liable for the torts of their “servants” committed outside of the scope of the servants’ employment, so ordinary negligence rules apply to coworker harassment. When the servants are “aided in accomplishing the tort by the existence of the agency relation,” however – as is the case when a supervisor leverages his or her supervisory authority to harm another employee – vicarious liability is appropriate. Vance, 133 S. Ct. at 2441-42 (quoting 1 Restatement (Second) of Agency § 219(2), at 481 (1957)). Thus, whether U.S. Steel was vicariously liable for Hemphill’s behavior or, alternatively, was liable only if it had notice of the hostile work environment and failed to take prompt and adequate remedial action turns on whether Hemphill was Hylko’s supervisor.

In Vance, the Supreme Court explained 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.” Vance, 133 S. Ct. at 2439. Tangible employment actions, in turn, are those that “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.’” Id. at 2443 (quoting Ellerth, 524 U.S. at 761). The authority to make such tangible employment decisions confers supervisory status, even if the decisions are subject to approval from higher management. Id. at 2446 n.8 (citing Ellerth, 524 U.S. at 762).

Applying this standard, the district court held that “[t]here is no evidence that Hemphill had the authority to take tangible employment actions against Plaintiff.” Opinion at 9, R.29, Pg.ID#881. This was error. The record before the district court contains ample evidence to raise a triable issue that Hemphill was Hylko’s supervisor. Division Manager Gunnell testified that Hylko directly reported to Hemphill. Gunnell Depo. 20-21, R.24-2, Pg.ID#464-465. Van Buren, who was Director of Employee Relations at the plant where Hylko and Hemphill worked, testified that although Hemphill could not fire Hylko, he could recommend termination. Van Buren Depo. 88, R.24-7, Pg.ID#730. Hemphill routinely told Hylko that he had the power to transfer or fire him, and Hylko believed him. Hylko Depo. 89, 141, R.24-4, Pg.ID#557, 570.

Whether Hemphill had the ultimate authority to terminate Hylko or merely the ability to recommend Hylko’s termination is not a crucial distinction for the purposes of determining supervisory authority in this context. As the Court explained in Vance, when only a small number of individuals have ultimate authority to make tangible employment decisions regarding an employee, these individuals often rely on the recommendations of coworkers who interact directly with the affected employee. In such situations, the employer “may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” Vance, 133 S. Ct. at 2452. Despite Hemphill’s testimony that he did not have the authority to terminate Hylko, the evidence at least creates a triable issue of fact that Hemphill had the authority to recommend Hylko’s termination and that the ultimate decisionmakers would rely on this recommendation. Thus, it is a triable issue of fact whether Hemphill was Hylko’s supervisor for purposes of Title VII liability.

In addition, although the Court in Vance stated that the various colloquial and legal definitions of the term “supervisor” mean that the title alone does not imply actual supervisory authority in the context of Title VII, Vance, 133 S. Ct. at 2446, it is worth noting that the defendants repeatedly identified Hemphill as Hylko’s supervisor in the context of this litigation. U.S. Steel referred to Hemphill as Hylko’s supervisor in court pleadings and in the position statement it submitted to the EEOC, and Hemphill stated in court pleadings that he was Plaintiff’s supervisor. U.S. Steel Ans. ¶ 13, R.10, Pg.ID#62-63 (“U. S. Steel … admits that Defendant Hemphill supervised Plaintiff for a period of time.”); Hemphill Ans. ¶ 13, R.13, Pg.ID#86 (“Hemphill was not plaintiff’s supervisor for the entirety of plaintiff’s employment ….”); Hemphill St. Ct. Ans. Aff. Def. #8, R.24-11, Pg.ID#780 (referring to “[a]n individual supervisor such as defendant”); U.S. Steel EEOC position statement, R.24-12, Pg.ID#783 (referring to Hylko’s “supervisor, John Hemphill”). Hemphill further corroborated these admissions when he testified in his deposition that he was Hylko’s supervisor. Hemphill Depo. 8, 10-11, R.24-3, Pg.ID#492-493. Even if not determinative, these litigation admissions are certainly relevant to the issue whether Hemphill qualified as Hylko’s supervisor. See Vance, 133 S. Ct. at 2447 (noting as significant in Faragher the fact that “the city never disputed Faragher’s characterization of [the two harassers] as her ‘supervisors’”). Having made these litigation admissions, defendants cannot now discount them as irrelevant. See Ferguson v. Neighborhood Hous. Servs. of Cleveland, Inc., 780 F.2d 549, 550-51 (6th Cir. 1986) (holding that employer was bound to its prior admission during the litigation that it was an employer for purposes of the FLSA); Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 265 (4th Cir. 2004) (holding that employer was bound to its prior litigation concession that it was a fiduciary under ERISA).

B. At a Minimum, Hylko’s Belief That Hemphill Could Take Tangible Employment Actions Against Him Was Reasonable.

It is undisputed, moreover, that Hylko reasonably believed Hemphill had the power to take a tangible adverse employment action against him. Hylko testified that he went along with Hemphill’s inappropriate discussions of sex because he thought his continued “employment hinged on [Hemphill’s] approval” of him, and that he believed Hemphill when Hemphill repeatedly threatened him with transfer or termination and told him he had the authority to get Hylko fired. Hylko Depo. 89, 141, R.24-4, Pg.ID#557, 570.

Under Ellerth, in the “unusual case” where the victim incorrectly believes the harasser has the authority to take tangible employment action against him and that “mistaken conclusion [is] a reasonable one,” the harasser is treated as a supervisor for Title VII purposes. Ellerth, 524 U.S. at 759; see also Kramer v. Wasatch Cty. Sheriff’s Ofc., 743 F.3d 726, 741-43 (10th Cir. 2014) (holding that a jury could conclude a victim’s belief that her manager had the power to transfer, discipline, demote or fire her was reasonable, particularly because the harasser repeatedly told the victim he had such powers, precluding summary judgment on the issue of supervisory authority). Where, as here, there is evidence that U.S. Steel, Hylko and Hemphill all referred to Hemphill as Hylko’s supervisor, that Hemphill routinely threatened Hylko that he could get him fired or transferred, that Hylko believed these threats, and that the worksite’s human resources director testified that Hemphill could indeed recommend Hylko’s termination, there is enough evidence to survive summary judgment on the issue. Accordingly, the district court’s conclusion constitutes reversible error.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B). This brief contains 6,400 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2010 word processing program, with 14-point proportionally spaced type for text and footnotes.

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: Jan. 13, 2017

[1] The EEOC takes no position with respect to any other issue presented in this appeal.

[2] The plurality included five judges of the 11-judge en banc court. Another two judges (along with a member of the plurality) concluded that the plaintiff, who was singled out for abuse because of his homosexuality, had stated a viable claim of sexual harassment under a sex stereotyping theory based on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Rene, 305 F.3d at 1068-69 (Pregerson, J., concurring).