PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CYNTHIA C. LISSAU,

Plaintiff-Appellant,

v.

SOUTHERN FOOD SERVICE,

No. 96-2672

INCORPORATED; CESAR CASTILLERO,

Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-95-487-R)

Argued: October 3, 1997

Decided: October 28, 1998

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge,

and HERLONG, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Herlong joined. Judge Michael wrote an opinion concurring in parts I and

II of the majority opinion and concurring in the judgment.

_________________________________________________________________
COUNSEL

ARGUED: Terry N. Grimes, KING, FULGHUM, SNEAD, NIXON

& GRIMES, P.C., Roanoke, Virginia, for Appellant. Barbara L.

Sloan, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Washington, D.C., for Amicus Curiae. Melissa Robin Davis, TUGGLE, DUGGINS & MESCHAN, P.A., Greensboro, North Carolina,

for Appellee Southern Food Service; William Fain Rutherford, Jr.,

FLIPPIN, DENSMORE, MORSE, RUTHERFORD & JESSEE, Roanoke, Virginia, for Appellee Castillero. ON BRIEF: C. Gregory

Stewart, General Counsel, J. Ray Terry, Jr., Deputy General Counsel,

Gwendolyn Young Reams, Associate General Counsel, Vincent J.

Blackwood, Assistant General Counsel, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C., for Amicus

Curiae. J. Reed Johnston, Jr., TUGGLE, DUGGINS & MESCHAN,

P.A., Greensboro, North Carolina, for Appellee Southern Food Service.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Cynthia Lissau appeals the grant of summary judgment on her Title

VII claims in favor of defendants Cesar Castillero, her former supervisor, and Southern Food Service, her former employer. She alleges

that both defendants are liable for a sexually hostile work environment created by Castillero. Lissau maintains that Castillero is liable

in his individual capacity for a Title VII violation. She also argues

that Southern, as Castillero's employer, is liable for his misconduct.

On the issue of Castillero's liability, we affirm the grant of summary

judgment. Employees are not liable in their individual capacities for

Title VII violations. On the issue of Southern's liability, we remand

for reconsideration in light of Faragher v. City of Boca Raton, 118

S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118

S. Ct. 2257 (1998).

I.

Cynthia Lissau worked as a sales representative for Southern, a

company engaged in the distribution and sale of food products. Her

 2
period of employment lasted from March 9, 1987, through December

2, 1988, and again from July 26, 1993, through July 19, 1994. Southern is headquartered in North Carolina and maintains several branch

sales offices. Lissau worked in the company's regional office in Roanoke, Virginia.

During her second period of employment, Lissau reported to Castillero, the manager of the Roanoke office. As a manager, Castillero

could hire and fire sales representatives and give them sales leads.

Castillero reported to David Heller, Southern's Vice President of

Marketing, who worked in North Carolina but periodically visited the

regional sales offices, including the one in Roanoke.

Lissau alleges that Castillero spoke and acted inappropriately during her second period of employment. First, Castillero allegedly made

several provocative statements about Lissau's appearance and implied

a sexual interest in her. These ranged from inquiries about whether

Lissau was married to a suggestion that she needed to be "pounded

all night long." Second, Castillero allegedly touched Lissau on several

occasions, including her thigh when he reached down to pick up some

paper on the floor. Third, Castillero allegedly made comments of a

sexual nature and behaved inappropriately toward employees other

than Lissau.

On Friday June 3, 1994, Castillero called Lissau into his office and

inquired whether she was unhappy. Lissau did not voice any concerns

at that time. On the following day, Lissau, who was at the office, called Castillero at home. She stated that she was upset by his inappropriate comments and requested his assurances that they would cease.

Castillero, however, denied all of Lissau's accusations and replied

that Lissau had been the one talking about sex and making comments

to him.

Shortly thereafter, Lissau contacted Heller. She told Heller that she

had a problem with Castillero and that she had confronted him about

it. She did not feel safe elaborating further, and she neither described

the problem nor suggested, even as a general matter, that it might

involve sexual harassment. In this same conversation, Lissau

expressed an interest in becoming a company psychologist, a position

that did not exist at Southern, in order to handle problems that she

 3
was observing in the Roanoke office. Lissau suggested contacting

Mike Nussbaum, a senior executive at Southern, about her appointment as a company psychologist. Heller told Lissau that he would

contact Nussbaum to arrange an interview.

On July 19, 1994, Castillero fired Lissau, explaining that he understood she was unhappy as a salesperson and had applied for another

job.

Since 1985, Southern has maintained a written policy that prohibits

sexual harassment and designates several employees to whom a

worker can bring an allegation of harassment. The policy is included

in Southern's employee handbook and was distributed to the sales

forces in all of Southern's regional offices, including the Roanoke

office. Lissau's deposition contains conflicting statements about

whether she saw this policy. Additional memoranda sent to the

regional offices also discussed Southern's sexual harassment policy.

Lissau did not notify any of Southern's designated employees or anyone in management about Castillero's alleged conduct.

Lissau filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC) in September 1994. According to

Southern, it first became aware of Lissau's allegations when the

EEOC notified it of her charge. Upon learning of the charge, Nussbaum referred the matter to the company's counsel. Counsel investigated the complaint, and, based on its findings, Nussbaum concluded

that Lissau's allegations were without merit.

Lissau brought Title VII claims against Castillero and Southern and

pendent state law claims against Castillero. The district court granted

summary judgment to both defendants on the Title VII claims and

dismissed the remaining state law claims without prejudice. It held

that Castillero was entitled to summary judgment because supervisors

are not individually liable under Title VII. The court further held that

Southern was entitled to summary judgment because it did not have

notice of Castillero's behavior. While not resolving whether the

alleged acts were sufficiently severe or pervasive to create an abusive

working environment, the district court did note that the alleged conduct "was not of an egregious nature." Lissau now appeals.

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II.

We first address Lissau's suit against Castillero. Lissau argues that

supervisors are liable in their individual capacities for sexual harassment in violation of Title VII. She contends that Castillero, as her

supervisor, was Southern's agent and thereby fell within Title VII's

definition of an "employer." We disagree. An analysis of Title VII's

language and its remedial scheme leads us to join the other circuit

courts and conclude that supervisors are not liable in their individual

capacities for Title VII violations.

Title VII provides, in relevant part, that "[i]t shall be an unlawful

employment practice for an employer . . . to discriminate against any

individual with respect to his . . . terms, conditions, or privileges of

employment, because of such individual's . . . sex." 42 U.S.C.

§ 2000e-2(a). It defines employer as "a person engaged in an industry

affecting commerce who has fifteen or more employees" and "any

agent of such a person." Id. § 2000e(b). The statute does not define

the term "agent."

This court recently interpreted a similar statutory definition of

employer. See Birkbeck v. Marvel Lighting Corp. , 30 F.3d 507, 510

(4th Cir. 1994). In Birkbeck, we addressed whether individual officers

and supervisors were liable for violations of the Age Discrimination

in Employment Act (ADEA). See 29 U.S.C.§ 621. The ADEA

defines employer to include certain persons who employ twenty or

more workers and "any agent of such a person." Id. § 630(b). We concluded that the inclusion of "agent" did not signal a congressional

desire to impose liability on individual supervisors. Instead, it simply

represented "an unremarkable expression of respondeat superior--

that discriminatory personnel actions taken by an employer's agent

may create liability for the employer." Birkbeck, 30 F.3d at 510. We

also noted that it would make little sense to hold a single individual

liable when Congress had expressly exempted all companies employing fewer than twenty persons from the statute. Id. Accordingly, we

rejected the claim of individual liability under the ADEA.

The Title VII definition of employer must be read in the same fashion as the ADEA definition of employer. Title VII defines employer

to include certain persons who employ fifteen or more workers and,

 5
like the ADEA, "any agent of such a person." Compare 42 U.S.C.

§ 2000e(b), with 29 U.S.C. § 630(b); see also Wathen v. General

Elec. Co., 115 F.3d 400, 404 n.6 (6th Cir. 1997) (noting that Title VII

and ADEA "define `employer' essentially the same way"); EEOC v.

AIC Sec. Investig., Ltd., 55 F.3d 1276, 1280 n.1 (7th Cir. 1995) (noting that the two definitions are "essentially identical"). We already

have observed that Title VII is the ADEA's "closest statutory kin."

Birkbeck, 30 F.3d at 510 (citations omitted). Thus, reading Title VII

to foreclose individual liability represents the only logical extension

of Birkbeck. Like the ADEA, Title VII exempts small employers; it

would be incongruous to hold that Title VII does not apply to the

owner of a five-person company but applies with full force to a person who supervises an identical number of employees in a larger

company. See id. We interpret the inclusion of agent in Title VII's

definition of employer simply to establish a limit on an employer's

liability for its employees' actions. See Birkbeck, 30 F.3d at 510-11;

Miller v. Maxwell's Int'l. Inc., 991 F.2d 583, 587 (9th Cir. 1993).

The 1991 amendments to Title VII further bolster our conclusion

that individuals are not liable under that Act. Prior to 1991, remedies

under Title VII were ordinarily limited to back pay and equitable

relief such as reinstatement that "typically are only obtainable from

an employing entity, not from a mere individual." AIC, 55 F.3d at

1281 (citation omitted); see also Tomka v. Seiler Corp., 66 F.3d 1295,

1314 (2d Cir. 1995). In 1991, Congress added compensatory and

punitive damages to the list of available remedies. See Civil Rights

Act of 1991, § 102, Pub. L. No. 102-166, 105 Stat. 1071, 1072-73

(codified at 42 U.S.C. § 1981a) (CRA). In the CRA's findings, Congress noted that "additional remedies under Federal law are needed to

deter unlawful harassment and intentional discrimination in the workplace." Id. § 2, 105 Stat. at 1071. Congress tied the amount of available compensatory and punitive relief to the size of the employer. Id.

§ 102(b)(3), 105 Stat. at 1073 (codified at 42 U.S.C. § 1981a(b)(3)).

For example, companies that employ 200 workers are liable to each

complainant for a maximum of $100,000 in compensatory and punitive damages while companies employing 100 workers are liable for

a maximum of $50,000. Id. § 102(b)(3)(A)-(B), 105 Stat. at 1073

(codified at 42 U.S.C. § 1981a(b)(3)(A)-(B)). This sliding scale of liability does not stipulate an amount in cases where a plaintiff seeks to

hold an individual supervisor liable.

 6
These amendments to the remedial scheme thus suggest that Congress only intended employers to be liable for Title VII violations.

Nowhere does the CRA mention individual liability as an available

remedy. Had Congress felt that individual liability was "needed to

deter unlawful harassment and intentional discrimination," surely it

would have included this remedy in the 1991 Amendments. See

Wathen, 115 F.3d at 406; Tomka, 66 F.3d at 1315; Miller, 991 F.2d

at 588 n.2. Instead, the linkage between the size of the employer and

the amount of available relief clearly indicates a congressional intent

to limit plaintiffs' remedies to suits against employers. To permit

individual liability would improperly expand the remedial scheme

crafted by Congress.

Finally, we note that a large number of circuit courts have held that

individual supervisors are not liable under Title VII. In fact, every circuit that has confronted this issue since the enactment of the CRA has

rejected claims of individual liability. These circuits have founded

this conclusion on the language of Title VII and the fact that its remedial scheme seems so plainly tied to employer, rather than individual,

liability. See Tomka, 66 F.3d at 1317; Dici v. Pennsylvania, 91 F.3d

542, 552 (3d Cir. 1996); Grant v. Lone Star Co. , 21 F.3d 649, 653

(5th Cir. 1994); Wathen, 115 F.3d at 406; Williams v. Banning, 72

F.3d 552, 554 (7th Cir. 1995); Smith v. St. Bernards Regional Medical

Ctr., 19 F.3d 1254, 1255 (8th Cir. 1994); Miller, 991 F.2d at 588;

Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996); Smith v.

Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995); Gary v. Long, 59 F.3d

1391, 1399 (D.C. Cir. 1995). We join these courts and reiterate that

supervisors are not liable in their individual capacities for Title VII

violations. Accordingly, the district court properly granted summary

judgment to Castillero.

III.

We next address Lissau's claims against Southern. After the parties

had argued this issue, the Supreme Court agreed to decide two cases

addressing when an employer could be liable for a supervisor's sexual

harassment. See Faragher v. City of Boca Raton , 118 S. Ct. 2275;

Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257. We held this

appeal in abeyance pending the Supreme Court's decisions. Now that

the Court has decided those cases and announced new criteria on

 7
employer liability, we remand this case to the district court to apply

those criteria to Lissau's claims.

The district court granted summary judgment to Southern on the

ground that Southern lacked notice of Castillero's behavior. The

Supreme Court has since announced a more complete rule governing

an employer's liability for a supervisor's sexual harassment. In both

Faragher and Ellerth, the Supreme Court articulated the following

standard:

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, a defending employer may raise an affirmative

defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two

necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff employee

unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to

avoid harm otherwise.

Faragher, 118 S. Ct. at 2292-93 (citation omitted); Ellerth, 118 S. Ct.

at 2270 (citation omitted). The Court thus rejected the rule, relied on

by the district court, that an employer is liable only if it has notice of

a supervisor's offensive behavior. It reaffirmed, however, the longstanding principle that employers are not "always automatically liable

for sexual harassment by their supervisors." Meritor Sav. Bank, FSB

v. Vinson, 477 U.S. 57, 72 (1986) (citation omitted); see Faragher,

118 S. Ct. at 2285; Ellerth, 118 S. Ct. at 2270.

The district court did not have the benefit of these decisions when

it granted summary judgment to Southern, and the parties did not conduct discovery with these criteria in mind. Indeed, it appears the parties constructed the record primarily around the earlier rule that an

absence of notice afforded absolute immunity to employer liability.

Remand will enable the parties to develop a more complete record,

and the district court should apply the newly announced criteria to

 8
those facts. After the facts are developed in light of Faragher and

Ellerth, the district court is free to consider a renewed motion for

summary judgment on remand.*

We express no view, however, on the proper disposition of such a

motion. After Faragher and Ellerth, Southern may be able to interpose an affirmative defense based on its efforts to prevent and correct

harassment in its workplace and Lissau's failure to take advantage of

the opportunities the company afforded her. Faragher and Ellerth

make clear that an employer may advance such a defense where no

discriminatory tangible employment action was taken. See Faragher,

118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. Tangible employment

actions, if not taken for discriminatory reasons, do not vitiate the

affirmative defense. If Lissau's termination did not result from a

refusal to submit to Castillero's sexual harassment, then Southern

may advance this defense. Under the defense, evidence that Southern

_________________________________________________________________

*Our concurring colleague declares that "Faragher and Ellerth signal

. . . that fewer sexual harassment cases will be resolved on summary

judgment." See post at 12. We think this reads too much into Faragher

and Ellerth. Those cases in no way indicate that a variation from the normal requirements of Rule 56 is appropriate or that grants of summary

judgment will be infrequent. See Faragher, 118 S. Ct. 2283-84 (noting

with approval that the Courts of Appeals have demanded that a supervisor's conduct must be extreme and citing a collection of cases dismissing

claims on summary judgment); id. at 2291-92 (rejecting an alternative to

the adoption of the affirmative defense because under the alternative

"[j]udgment calls would often be close, . . . and the temptation to litigate

would be hard to resist"); id. at 2292 (adopting an affirmative defense

because it "would avoid this particular temptation to litigate"). This concern over the cost of excessive litigation would be inconceivable if the

Supreme Court intended that sexual harassment cases be exempted in

some way from the usual standards of summary judgment. And we can

conceive of no basis in law for simply declaring an exception to Rule 56

for certain categories of cases. See St. Mary's Honor Ctr. v. Hicks, 509

U.S. 502, 524 (1993) (Neither "`trial courts[n]or reviewing courts should

treat discrimination differently from other ultimate questions of fact'"

(quoting United States Postal Bd. of Governors v. Aikens, 460 U.S. 711,

716 (1983))). Many cases involve a reasonable care requirement and a

preponderance burden yet summary judgment standards are not suspended on account of that. Rule 56 is an integral part of the Federal

Rules, not a "shortcut." See post at 12.

 9
had disseminated an effective anti-harassment policy provides compelling proof of its efforts to prevent workplace harassment. See

Faragher, 118 S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270; Meritor,

477 U.S. at 72-73. And any evidence that Lissau failed to utilize

Southern's complaint procedure "will normally suffice to satisfy [its]

burden under the second element of the defense." Faragher, 118

S. Ct. at 2293; Ellerth, 118 S. Ct. at 2270. If, however, the district

court finds no effective anti-harassment policy was in place or that

Lissau did avail herself of the policy, then summary judgment would

be inappropriate. See Faragher, 118 S. Ct. at 2293 (sexual harassment

policy generally necessary except for "employer of a small workforce,

who might expect that sufficient care to prevent tortious behavior

could be exercised informally").

Alternatively, the district court may address whether Castillero's

conduct was sufficiently severe and pervasive to constitute discrimination under Title VII. Title VII does not provide a remedy for every

instance of verbal or physical harassment in the workplace. Oncale v.

Sundowner Offshore Servs., Inc., 118 S. Ct. 998, 1002 (1998). Relief

is unavailable where the alleged conduct "is not severe or pervasive

enough to create an objectively hostile or abusive work environment"

or where the victim "does not subjectively perceive the environment

to be abusive." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993).

"A recurring point in these opinions is that simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not

amount to discriminatory changes in the terms and conditions of

employment." Faragher, 118 S. Ct. at 2283 (citation and internal quotation marks omitted). Here the district court observed that Castillero's behavior "was not of an egregious nature" but declined to

decide whether his conduct rose to the level of actionable harassment.

If Castillero's conduct was not severe and pervasive enough to create

a hostile work environment or if Lissau did not perceive the environment to be abusive, summary judgment in favor of Southern would

be appropriate. See, e.g., Hartsell v. Duplex Prods., Inc., 123 F.3d

766, 772-74 (4th Cir. 1997) (granting summary judgment to employer

where conduct not severe and pervasive); see generally 1 Barbara

Lindemann & Paul Grossman, Employment Discrimination Law 805-

07 n.290 (collecting cases). If, on the other hand, the conduct created

a discriminatorily abusive work environment (or there is a genuine

 10
issue of material fact thereon), then summary judgment for Southern

would be inappropriate. See Harris, 510 U.S. at 22.

We identify these issues simply to provide some guidance to the

district court on remand. We express no view, however, on whether

summary judgment is appropriate on either ground. Until the parties

have briefed the issue of Southern's liability in light of the Supreme

Court's recent decisions and until the district court has reviewed the

entire record, it would be premature for us to rule.

IV.

We affirm the grant of summary judgment in favor of Castillero.

We reverse the grant of summary judgment in favor of Southern and

remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 

MICHAEL, Circuit Judge, concurring in part and concurring in the

judgment:

I concur in parts I and II of the majority opinion, and I concur in

the judgment because I agree that the case must be remanded for further proceedings in light of Faragher v. City of Boca Raton, 118

S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118

S. Ct. 2257 (1998). I cannot join in part III of the opinion because it

is premature to suggest ways in which summary judgment might once

again be granted to Southern, the employer. The prospects for summary judgment look doubtful to me because the new FaragherEllerth defense depends on facts and because Lissau's allegations, if

proven true, would show that she was subjected to actionable harassment. In addition, it should be made clear that the new defense is not

available to the employer when a supervisor takes a tangible employment action against the employee as part of his harassment.

I.

A.

I believe that we are ill-advised to encourage the district court to

consider, on summary judgment, whether Southern has established

 11
the new Faragher-Ellerth affirmative defense. I say this because the

defense is especially fact intensive. To prove the defense, Southern

must show (a) that it "exercised reasonable care to prevent and correct

promptly any sexually harassing behavior" and (b) that Lissau "unreasonably failed to take advantage of any preventive or corrective

opportunities provided by [Southern] or to avoid harm otherwise."

Ellerth, 118 S. Ct. at 2270. Nowhere does the Supreme Court suggest

summary judgment as a shortcut in dealing with this new defense.

Rather, the Court recognizes the factual nature of the defense by

emphasizing that it is "subject to proof by a preponderance of the evidence." Id. Moreover, by employing terms such as "reasonable care"

and "unreasonably failed," the defense focuses on the reasonableness

of conduct on the part of both the employer and the employee. When

the reasonableness of conduct is in question, summary judgment is

rarely appropriate because juries have "unique competence in applying the reasonable person standard" to the facts of the case. See 10A

Charles Alan Wright et al., Federal Practice and Procedure § 2729,

at 533 (3d ed. 1998).

The majority recognizes that facts relating to the new defense must

be developed on remand. Until that happens, we cannot know whether

it is possible to keep this case on the summary judgment track. It is

doubtful that we can, given the fact-intensive nature of the FaragherEllerth defense. Whatever that outcome, as of now too many facts are

unknown, and the reasonableness of too much conduct is likely to be

contested, for us to suggest any scenario for summary judgment under

the new defense. If Faragher and Ellerth signal anything, it is that

fewer sexual harassment cases will be resolved on summary judgment.

B.

I also believe that the majority, in its discussion of the potential for

summary judgment, impermissibly expands Southern's opportunity to

assert the Faragher-Ellerth defense. The majority begins by correctly

acknowledging that "Faragher and Ellerth make clear that an

employer may advance the defense where no discriminatory tangible

employment action was taken," ante at 9. But the majority goes on to

say that "[i]f Lissau's termination did not result from a refusal to submit to Castillero's sexual harassment, then Southern may advance this

 12
defense." Id. To the extent the majority is suggesting that the defense

is unavailable to Southern only if Lissau's refusal to submit triggered

her firing, it is incorrect. The defense is unavailable in a broader range

of circumstances. It is not available in a hostile work environment

case when the supervisor takes a tangible employment action against

the employee as part of the harassment. Thus, if Lissau's termination

was connected to Castillero's sexual harassment of her, Southern may

not advance the defense. See Ellerth, 118 S. Ct. 2257 at 2270 ("No

affirmative defense is available . . . when the supervisor's harassment

culminates in a tangible employment action").

II.

The majority also says that "summary judgment in favor of Southern would be appropriate" if Castillero's conduct was not severe or

pervasive enough to create a hostile work environment. See ante at

11. This suggestion appears to be prompted in part by the district

court's comment (in dictum) that Castillero's conduct "was not of an

egregious nature." Lissau v. Southern Food Serv., Inc., No. 95-487-R,

slip op. at 8 (W.D.Va. Oct. 10, 1996). This dictum bears serious reexamination. If Lissau's allegations are true, a reasonable jury could

find that she was subjected to hostile work environment harassment.

Lissau alleges that Castillero's harassment of her began with their

first contacts and continued throughout her one-year tenure at Southern. Castillero's predecessor hired Lissau and gave her some time to

close cases at her old job, where she was a social worker. Shortly

before she was ready to begin work at Southern, Lissau telephoned

the company and was referred to the new manager, Castillero. In this

first conversation Castillero asked Lissau if she was married, and she

replied that she was not. Castillero scheduled a meeting with Lissau,

which occurred within the next day or two. At that initial face-to-face

meeting in July 1993, Castillero was flirtatious. He touched Lissau's

blouse, saying it was "nice silk." Castillero then asked Lissau if she

went away with men on weekends, and Lissau replied that she did

not, noting that she was a single parent.

The next week Lissau went to Southern's office to drop off some

items and to tell Castillero that she was going to the beach for a day

or two before beginning work. Castillero made a comment about Lis-

 13
sau's new hairstyle and hinted that she must be going to the beach to

pick up men. Lissau replied that she was going with two of her married female friends, who were social workers.

After Lissau started work in late July 1993, Castillero would comment on her legs whenever she wore a skirt, saying, for example,

"Look at those legs." He also made frequent comments about her hair,

such as, "Your hair is so pretty and black." Lissau tried to deflect Castillero's comments by simply saying "thank you" and moving on. As

time went on, Castillero's comments became more direct. He told Lissau that he was attracted to her and asked her whether she thought

they would ever "be together." At times Castillero intimated that they

should have an affair. Lissau regularly told him that she was unavailable and that he was also (Castillero was married).

On October 31, 1993, Castillero called Lissau at home to get her

sales report for the month, which did not meet Lissau's personal goal.

Lissau began to cry, and Castillero said, "You're crying about your

sales -- that makes me want to come and hold you." In late November 1993 Lissau and a co-worker staffed a sales booth at a home show

at the Roanoke Civic Center. After the show Castillero suggested that

she and her co-worker go out to dinner with him. Lissau felt the dinner was a command performance because Castillero ostracized

employees who would not socialize with him after work. After they

left the restaurant at the end of the evening, Castillero grabbed Lissau

in the middle of the street and hugged her passionately for several

seconds. A few days later Castillero told Lissau that when he "felt

her" that night, "he felt like he had `made love to [her] before.'"

In December 1993 Castillero learned that Lissau's daughter was

out of town for a few days, and he suggested that the two of them

should go to Lissau's house for a "wild party." Lissau told him that

she was not interested. By this time Castillero was often telling Lissau

that she needed to have sex, and he even asked her when she last had

sex. In March 1994 when Lissau was in a co-worker's office, Castillero walked in. Castillero dropped a piece of paper near where Lissau

was sitting. As he bent over to pick it up, he put his hand on Lissau's

thigh and left it there until she pushed it away. The next week Castillero went into Lissau's office and shut the door. He moved very close

to her and told her that she needed "some good sex" and that she

 14
"needed to be `pounded all night long.'" Lissau became sick to her

stomach and cannot remember how she responded.

Castillero persisted in this conduct over the course of a year, even

though Lissau repeatedly expressed her discomfort and lack of interest. Lissau became depressed by Castillero's comments and actions,

and she struggled to do her work. Finally, in June 1994 Lissau called

Castillero at home and told him that she was upset with his sexual

comments, that she was upset with his sexual harassment, and that she

wanted assurances that he would stop the harassment and leave her

alone. Castillero denied any harassment and accused Lissau of having

mental problems. About a month later Castillero called Lissau into his

office and fired her, saying that he understood that she was unhappy

in her job.

When these facts are taken as true, as they must be for summary

judgment purposes, Castillero's conduct was severe or pervasive

enough to be actionable under Title VII.

 15