# FILED
January 9, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION AT NASHVILLE DEMETRA LYREE PARKER, ) ) Plaintiff/Appellant, ) Warren Chancery No. 5920 ) VS. ) Appeal No . 01A01-9704-CH- 00175 ) WARREN COUNTY ) UTILITY DISTRICT, ) ) Defendant/Appellee. )
APPEAL FROM

THE CHANCE RY COURT O F WARREN COUNTY AT McMINNVILLE, TENNESSEE THE HONORABLE JOHN W. ROLLINS, CHAN CELLOR

ROBERT S. PETERS SWAFFORD PETERS & PRIEST Winchester, Tennessee Attorney for Appellant

DIANNA BAKER SHEW STEPHEN H. PRICE FARRIS, WARFIELD & KA NADAY, PLC Nashville, Tennessee Attorneys for Appellee

REVERSED AND

REMANDED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J., W.S . DAVID R. FA

RMER, J.2

Plainti ff Demetra Lyree Parker appeals th e trial court’s order granting the motion for summary judgment filed by Defendant/Appellee W arren County Utility District. We reverse the trial court’s judgment based on our conclusion that a genuine issue of m ateri al f act existsas to whether

the Utility Dist rict responded promptly, adequately , and effectively to Parker’s allegations of sexual harassment against the Utility District’s general manager.

I. Factual and Procedur al History

In October 1988, the Utility District ’s general

manager, Da

vid Gris som, hired Parker to work a t the Utilit y District. Someti me in 1991 or 1992, Parker complai ned to her supervisor, Pam Link, that sh e was being sexually harassed by Grissom. According to Parker, Grissom’s actions included touching her breast, attempting

to kiss her followin g a Utility District Christmas party, rubbing his body against hers, rubbing her legs and shoulders, commenting on the way her clothes fit her b ody, an d whis pering

remark s of a sexual nature in her ear whil e she was working at the Uti lity District’ s drive-in win dow. As Parker was leaving work

one day, Grissomallegedly told her that “the solution to [Parker’s] problem was [Grissom]” and that he “was a man” and “could take care of [her].”

Pam Link took Parker’s allegations seriously because of her own experi ences with Grissom. Link testified that Grissom often would “undress” her with his eyes and that, on one occasi on when

Link and

Grisso m were i n Pigeo n Forge for a confe ren ce, Grissom entered Link’s hotel room, pushed her onto the bed, and started “hunching” on her. Link and another employee also heard Grissom tell Parker, upon learning that she had a date, to “keep [her] panties on” and t o “keep her legs togethe r.” In fact, Grissom’s alleged sexual harassmentof Parke r was commonly discussed among the female employees in Link’s office.

In response to Parker’s allegations, Lin k ask ed Parker “what she w anted to do about” the harassment. Parker told Link to do nothing because she feared that s he would lose her job. Believing that Parker’s fear was just ified , Link did not initiate any formal3

complaintprocess or griev ance procedure on Parker’s behalf. Link instead advised Parker to try to avoid Grissom and “[n]ot to dress in a manner that might cause hi m to act the way he acted, that would give him ideas.” After this discussion, Parker continued to complain to Link abo ut inci dents of h arassment by Grissom which,Parker testified, occurr ed on almost a daily basis.
Although Link agreed not to pursue a formal complaint on Parker’s behalf, Link did discuss Parker’s allegations with one member of the Utility Dist rict’s Board of Commissioners, Phillip Vinson. Like Li nk, Vinson asked what Parker wanted t o do about the alleged harassment. Link informed Vinson th at Parker did not “want anything done about it because she’s afraid she’ll lose her job.” According to Link, Vinson agre ed that Parker probably wo uld lose her job if she pursue d the allegations.

In addition to talking to C ommissioner Vinson, Link spoke with Grissom, h er boss,
on an informal basis about his trea tment of Parker. Grissom all egedly responded by saying that Parker had “done ever ything but lay

[sic] down in the floor and take her clothes off in front of [him].” Based on this response, Link decided not to pursue the matter wi th Grissom because she concluded that any further convers ation would not be producti ve. Sometime

in 1992 or 1993, Parker hers elf di scussed the allegations of s exual harassmentwith Commissioner Vi nson . I n discussing the allegations, however, Par ker specifically asked Vinson not “to go to the Board with it because she felt that she would [lose] her job.” Vinson replied that he did not think Parker would lose her

job, but that he had only one vote and did not know how the other four commissioners would vote. Vinson also advised Parker to sue the Utility Districtif she felt “like [she had] a har assment case.” Throughout her

discussions with Li nk and Vinson, Parker insi sted that she did not “want to make an official complaint.” Vinson did not report Parker’s allegations to the rest of the Board of Commissioners, nor di d he discuss the allegati ons with Grissom.

Grissom’s a lleged sexual harassment of Parker continued until April 1994, when Grissom voluntarily resigned from the Utility District. In the fall of 1994, however, the Board1 See T.C.A. §§ 4-21-101 to 4-21-80 6 (1991). 4

of Commissioners considered rehiring Grissom as the Utility Distr ict’s gene ral manager. In an effort to prevent Grissom from r eturning towork at the Utilit yDistrict, Parker br

ought her allegations of sexual har assment before the Board of Commissioner s. Despite Parker’s allegations, the Board v oted to rehire Gri ssom, but the Board also hired outsi de counsel to conduct an independent inves tigation into Pa rker ’s allegations of sexual harassment. As a result of the investigation, the Board suspended Grissom without pay. Grissom did not sexuall y harass Parker after he was rehired.

In October

1994, Parker filed this action against Grissom, the Warren County Utili ty District, and two of

its commissioners. In addi tion to asserting

statutory claims under the Tennessee Human Rights Act, 1 Parker asserted common-law tort claims for negligent and intentional infliction of emotional distres s. Parker

subsequently filed a notice of voluntary dismissal without pre judic e as to the two commissioner s, Bobby Mayfield and Ha rrison Gant. The trial cou rt later entered an agreed order dismissing with prejudice Parker’s action against David

Grissom.

The Utility Distr

ict, the only remaining defendant, filed amotion f or summary judgmentcontending, inter alia , that its “prompt, corrective action in response to [Parker’s] allegations

[was] a complete defense to any ‘hostile environment’ [sexual hara ssme nt] claim.” The Utility

District also moved for summary judgment as to Parker’s common-law tort claims. The trial court granted the Utility District’s moti on, and this appeal followed. On appeal, Parker

challe nges only the trial court’s dismissal of her s exual harassment claim against the Util ity District.

II. Legal Standard fo r Hostile Work Envi ronment Claims

Involving Supervisor Harassment

As a preliminary matter, we find it necessary to address the a p propriate legal standard to be applied in this case. Under the Tennessee Human Rights Act, in order to prevail on a hostile environment claim based on sexual harassment by a co-worker, the2 Inasmuch as the purpose and i ntent of t he Tennessee Human Rights Act is to execute the pol icies

embodied in the federal ci vil rights l aws, our anal ysis of this i ssue is the same under both t he Tennessee Act and T itle VII of the fed eral act. Cam pbe ll , 919 S.W.2d at 31. 5 employee first must establis h the existence of a hostile work

environment by prov

ing the following elements:

(1) the employee is a member of a protected class; (2) the employee was subjected to unwelcomed sexual harassment; (3) the harassment occurred b ecaus e of the employee’s gender; [and] (4) the harassment affected a “term, conditi on, or privilege” of employment; . . . . Campbell v. Florida Steel Cor p. , 919 S.W .2d 26, 31 (Te nn. 1996) (citin g Rabidue v. Osceola Ref. Co. , 805 F.2d 611, 620 (6th Cir. 1986), cert. denied , 481 U.S. 1041 (1987)). Inasmuch as the Tennessee Human Rig hts Act doesnot impose strict liabi lity for hostile environment

claims, in order to rec

over against the em ployer, t he employee additionally must prove that

(5) “theemployer either knew or should have known o f the harassment, and failed to take prompt and appropriate remedia l action.” Campbell , 919 S.W.2d at 32 (emphasis in original). This final element is the focus of this ap peal.

In the proceedings below,both the trial court and the parties reliedon the foregoing “knew or should have known” standard when they addr essed the issueof the Utility District’s liability for Gri ssom’s actions. In adjudic ating analog ous Title VII claims, 2 however, the federal courts have dis tinguished between the st andards to be applied in coworker harassment and supervisor harassment cases:

Under the “hostile environment” theory, there are two types of cases, th ose where the harasser is a co-worker and those where the harasser is

a supervisor. . . .

. . . .

. . . [U]se of the phrase “respondeat supe rior” i s typically associat ed wi th the co-wor ker “knew or should ha ve known”stan da rd. A different but closely related standard of general agency applies in supervisor harassment cases.6

Kauffman v. Allied Signal, Inc. , 970 F.2d 178, 182-84 (6th Cir.), cert. denied , 506 U.S. 1041 (1992).

In an ea r lier decision, the court outlined the agency elements to be applied in supervisor harassment cases:

The essential question in app lying agency pr inciples is whether the act complained of took place in the scope of th e agent’s employment. This determi nat ion requires an exami nation of such factors as when the act took place, wh ere it took place, and whether it was fore s eeable

. See generallyRestatement (Second) of Agency §§ 217--232 (1958) . The Re statement specifically provid es that even though an act is forbidden it maystill be within the

scope o f employment. Restatement (Second) of Agency § 230. Yates v. Avco Corp. , 819 F.2d 630, 636 (6th Cir. 1987) (emphasis in orig inal). In holding the employer liable, the court conducted the following analysis of these agency fact ors:

Here the harassment took place at th e office, during working hours and wa s ca rried out by someone wi th the authority to hire, fire, promote anddiscipline the [employee]. There is no question that it was f oreseeable. Had it not been, [the employer] would not h ave had a policy attempting to deal with it. Yates , 819 F.2d at 636.

In the present case, it was undisputed that the alleged har asser was in a supervisory position over Parker

at the Utility Distr

ict. David Griss

om was the Utility

District’s gener

al manager, and Parker’s supervi sor, Pam Link, reported dir ectly to Grissom w

ho, in turn, reported to the Board of Commissioners. Accordingly, w e c onclude that the “scope of employment”standard for supervisor s applies instead of the

“knew or should have known” standard for co-worker harassment cases. Kauffman , 970 F.2d at 183.

We further conclude that the undisputed evidence wi th regard to the agency factors set forth in Yates supports the imposition of li ability against the Utility Dist rict. The majority, if not all, of the alleged acts of sexual harassment took plac e on Utility Distr

ict premises during working hours. Yates , 819 F.2d at 636. Moreover, the ac ts were carried out b

y someone in a supervisory position who

exercised signific

ant control over Parker’s hiring, firing, or conditions of employment. Kauffman , 970 F.2d at 185. According to Parker’s3 The only signifi cant d ifference between the t wo standards may li e in the bur den of proof. In a coworker harassm ent case, as an elem ent of her prim a facie case, the plaint iff must prove that the employer knew or shou ld hav

e known of

the al legedharass ment and fail ed to t ake “prom pt and ap propriate remedial action.” Cam pbe ll , 919 S.W.2d at 32. I n contrast, in a supervi sor harassment case, once the plaintiff has met her burden of establ ishing employ er lia bility under agency pri nciples, the employer ca n avoid l iabil ity by provi ng that it respond ed prom ptly and effe ctively to elimina te the allege d haras sme nt. Kauffman , 970 F.2d at 184; Graves , 1995 WL 371659, at *3. 7 supervisor, Pam Link, Grissom had the authority “to hire and fire as he saw fit.” Grissom himself testified that he hired Parker and that only he had t he autho rity to recommend raises forParke r and other employees. Although the Board of Commissioners had the
u ltimate authority to deny Gr issom’s raise request

s, Grissom could not rem ember th e Board ever doing so. Finally, in accordance with Yates , there is no question that the acts of sexual harassment were foreseeable.
III. Utility District’s Duty to Respond to Parker’s Allegations and Parker’s Failure to Inv oke Formal Complaint Procedure
Although the “scope of employment” standard for supervisor harassment cases is different from the “knew or should have known” standard for co-worker harassment cases, the standards are similar i n that an employer can avoid li ability for supervi sor harassment byshowing that the empl oyer responded promptly, adequat ely, and effectively to the problem once it had notice of the supervisor’s alleged acts. Kauffman v. Allied Signal, Inc. , 970 F.2d 178, 184 (6th Cir.), cert. denied , 506 U.S. 1041 (1992); cf

. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 32 (Tenn. 1996) (in order to prev ail on co-worker har

assment claim, plaintiff must show that employer knew or should have known o f alleged harassment and failed to take “prompt and appropriate remedi al action”). This defense req uires that,
once the employer has

notice of allegations of sexual harassment, the employer must “act promptly and in a way

which effectively eliminates the harassment.” Graves v. Circuit City Stores , No. 03A01-9501-CH-00012, 1995 WL 371659, at *3 (Tenn. App. June 21, 1995); cf

. Campbell , 919 S.W.2d at 33 (requirement of “prompt and appropriateremedial action” in co-worker harassment cases means that employer must take “steps ‘reasonably calculated’ to terminate the harassment”). 3 In this case, the parties agr ee that t he disposit ive issue is whether the trial court erred i n ruling, as a matter of law, thatthe Utility8

District promptly, adequately, andeffectively responded to Par ker’s allegations of sex ual harassment.

The Utility Distr

ict contend s, and appar ently the trial court agreed, that no duty to tak e correctiv e action arose until Parker complained to the Board of Com missioners in October 1994 becaus e, in making her earlier complaints to Supervisor Pam Link and Commis sioner

Vinson, Parker indicated that she did not want to make an “off icial” complaint and that she did not w ant any action taken on her c omplaint. We disagree.
In making this argument, the Utility Distr ict relies on Hollis v. Fleetguard, Inc. , 668 F. Supp. 631 (M.D. Tenn. 1987), aff’d , 848 F.2d 191 (6th Cir. 1988). The facts of that case
were similar in that, when the plaintiff complained to management, s he urged them neither to confront the alleged harasser nor t o investigate her all egations, and she insisted that “she could handle theproblem.” Hollis , 668 F. Supp. at 637. In the plaintiff’s subsequent sexual harassment action, the court rejected the plain t iff’s claim of liability against the employer: Once a member of management attem pte d to explore the

plaintiff’s claim . . . and was asked not to by the plaintiff, she will not be heard to say that her employer was t hereafter responsible for the hostilit y of her work environment.On the w hole, t he court finds that the procedure followed, albeit meager, was “re asonably responsive to the employee’s complaint,” . . . . Hollis , 668 F. Supp. at 637.

We conclude that the Hollis decis ion does no t control the outcome of the case at bar for several reasons. F irst, Hollis was not decided on appeal from asummary judgment but, rather, was decided in a memorandum opinion issued by the trial court after a bench trial. Thus, unlike th e prese nt case, the trial court w as in the position of weig hing the evidence and deciding whether the employer’s response to the plaintiff’s allegati ons was reasonable. Moreover, in Hollis the court stressed that, even if the ev ents described by the plainti ff were true, these events did not constitute sexual har assment. Hollis , 668 F. Supp. at 637 n.4. In contrast, for purpose s of these summary judgment pro ceedings, the4 See, e.g. , Hartlei p v. McNeilab, Inc. , 83 F.3d 767, 776 (6th Cir. 1996). 9 evidence was undisputed that Parker made specific allegations against G rissom as early
as 1991 or 1992, and that Parker’s supervisor, Pam Link, considered the described behavior to constitute sexual har assment. In this regard, the court in Hollis appears to have limited its ruli ng to the facts of that case. The cour t ruled: Under this set of facts, the court does not find that [the employer’s] management acted irresponsibl y because they were not informed o f any events constituti ng harassment. However, in most cases, a superviso r has a duty to investigate reported instances of sexual harass ment, with or without an employee’s consent

. Hollis , 668 F. Supp. at 637 n.4 (emphasis added).

The Hollis decision and other federal cour t decisions suggest that, while an employee’s conscious decision to forego the employer’s f ormal complaint process may weigh against theemployee ’s claim of employer liability, 4 an employee’s refusal or failure to lodge a formal complaint does not necessarily reli eve the employer of liability for hostile environment

sexual harassment. Hollis , 668 F. Supp. at 637 n.1 4; accord Meritor Sa v. Bank v. Vin son , 477 U.S. 57, 72 (1986) (rej ecting employer’s ar gument that it was insulated fro m l iability by “the mere existence of a grievance procedure and a policy against discrim ina tion, coupled with [the employee’s] failure to invoke that procedure”); Varner v. National Super Mkts. , 94 F.3d 1209, 1213 (8th Cir. 1996) (rejecting employer’s argumentthat it was entitled to judgment as matter of law based on employee’s failure to invoke reporting procedures of employer’s sexual harassment policy), cert. denied , 117 S. Ct. 946 (1997). As pointed out by the court in Hollis , a n employer has some duty to investigate

an employee’s complaint, with or without the employee’s consent. Hollis , 668 F. Supp. at 637 n.4. Other co urts have recognized that employer s have a responsibility to address allegations of sex ual harassment even wher e the employee has declined to lodge a formal complaint. McCoy v. Maco n Water Auth. , 966 F. Supp. 1209, 1219 n.3 (M.D. Ga. 1997). The relevant question is whether the employer had notice of the alleged harassment and “failed to implement pr ompt and appropriatecorrective action.” Varner , 94 F.3d at 1213.10

Rather than reli eving the e mploye r of liability, the employ ee’s failure to invoke an existinggrievance procedure is merely a factor to tak e into consideration when determining the reasonableness of the employer’s response to a llegations of sexual har assment. As explained by one court,

In some situations, particularly when there is some doubt as to the seriousness or th e ve racity of the charge or when the complainant is unwilling to state a f ormal charge , less drastic measures , su ch as warning the accused harasser, or reiteratingthe policy on harassment, will be more appropri ate. McCoy , 966 F. Supp. at 1219 (ruling that informal steps taken by employer constituted sufficientresponse to sexual harassment allegations where plaintiff was unwilling to make formal complaint) (emphasis added).

We conclude that summary judg ment was precludedin this case because a genuine issue of material fact exists as to whether th e Utility Dis trict resp onded pr omptly, adequat ely, and effectively to Parker ’s informal complaints

of sexual harassment. It is undisputed that Parker consistently maintained that she did not “want to mak e an official complaint”because she feared she would be f ired. Nevertheless,Parker’s refusal to pursu e a forma l complaint did not reliev e the Utility Dist rict of its duty to res pond to her allegations. For example, the Utility District could have informally counsel ed Grissom on the subject

of sexu al harassment, or it could have required him and other employees to attend seminars dealing wi th sexual harassment issues and, specifically, with the i ssue of hostile environment sex ual harassment. McCoy , 966 F. Supp. at 1219.

In mentioning these possible resp onses , we do not mean to imply that the Utility District was required to pur sue these specific avenues, no r do we mean to imply that these responses would have been sufficient to relieve the Utility District of liability for Grissom’s actions. Th e reasonableness of an employer’s response to allegations of sexual harassmentwill vary depending on the circumstances o f each case and, thus, must be evaluated on a case-by-case basis. Rabidue v. Osceola Ref. Co

. , 805 F.2d 611, 621 (6th Cir. 1986), cert. denied , 481 U.S. 1041 (1987); Campbell , 919 S.W.2d at 33. W e merely11

hold that, at this stage in the proceedings, the evidenc e reveals a genuine is

sue of material fact as to the reasonableness of the Utility District’s response to Parker’s allegations.

In determining the effect of Parker’s failure to invoke the Uti lity District’ s formal complaintprocedure and, ultimate ly, the Utility Dist rict’s liability for Grissom’s actions, the trial court also should consider Parker’s reasons for refusi ng to follow the procedur e. In this regard, the key inquiry is “whether a compla inant has deliberately bypass ed a procedure that she would know was effective.” Valerio v. Dahlber g , 716 F. Supp. 1031, 1039 (S.D. Ohio 1988) (citing Meritor Sav. Bank , 477 U.S. at 72, 78). Again, we conclude that a factual dispute exists as to this issue.

The deposition witnesses gave conflicting testimon y as to the existence of an established grievance procedure at the Utility Distric t. Pam Link testified that the Uti lity District did have a grievan ce procedure but that, to her k nowledge, the procedure never was explained to any of the Uti lity District’ s employees, including herself. At

one time, Link had a copy of the grievanc e procedure in her desk, but she was not familiar w ith its provisions. Parker

corroborated Link’s testimony, stating that she never was told about the procedure for making such a complain t. When Parker initially complain ed to Commissioner

Vi ns on, rather than instructing Parker to follow an established grievance procedure, Vinson told Parker that she should sue the Utility

District if she felt “like [sh e had] a harassment case.” Gris som, on the other hand, testified that the Utility Distr ict had
no sexual harassment policy in place during the tim e period i n wh ich the alleged acts of harassmentoccurred. According to Griss om, the Utility Dis

trict did not adopt

such a policy until October

1994, after Parker formally c omplained about

Grissom’s actions to the Board.

Even if the Utility

District had an establi shed grievance procedur e or policy on sexual harassment, we conclude that the evidence raisesa question as to Parker’ s knowledge of the effectiveness of

such procedure or policy. When told of Parker’s f ear that she would be fired if she pursued a formal complaint, Link an d Vinson did nothing to re ass ure her. Instead, Vinson stated that he did not know whether Parker would lose her job, that he did12

not “think so,” but that he w as “only one vote” and he did no t know “what the other four [commissioners would] do.” Like Parker, Link believed that

Parker would lose her

job if she lodged a formal complaint. In light of this evidence, we are unabl e to conclude as a matter of law that Parker’s fail ure t o pur sue an official complaint preclude s a finding of liability against the Utility

District. See Valerio , 716 F. Supp. at 1039-40.

The trial court’s judg ment is hereby rever sed, and this cause is remanded for further proceedings consistent with this opinion. Costs of this appeal are taxed to the Utilit y District, for which e xecution may issue i f necess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.