1. Townsel qualifies as a T itle VII supervisor.

In its opening brief, the EEOC argued that AutoZone’s Store Manager and the harasser in this case, Brice Townsel, was a supervisor for purposes of vicarious liability under Title VII and the Supreme Court’s decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013). The EEOC pointed out that AutoZone granted Townsel the power to hire the victims of his harassment, and the evidence shows that he in fact would have hired them had he been present at store 335 when they applied. AutoZone does not dispute either of these points.[1]

Instead, AutoZone argues that hiring authority alone can never confer supervisor status under Vance. AutoZone’s argument is as follows: “hiring someone does not cause a significant change in someone’s employment status within the company [because] someone does not even possess any employment status within a company until he or she is hired.” AutoZone Br. at 25 (internal quotations omitted). It also observes that “hiring someone is certainly not an action taken ‘against’ anyone[.]” Id.

AutoZone’s position ignores the core holding of Vance. In that case, the Supreme Court was presented with two competing theories of the supervisor concept: those employees who could take tangible employment actions on behalf of the employer, versus “those who, although lacking this power, nevertheless have the ability to direct a co-worker’s labor to some ill-defined degree.” 133 S. Ct. at 2443. The Court held that there was “a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions,” which it defined as anything that “effect[s] 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. (emphasis added) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Thus, the defining characteristic of a supervisor after Vance is the power to take tangible employment actions, which includes the power to hire. Because Townsel possessed this power, he falls into the “unitary category of supervisor[ ]” set forth in Vance. Also, AutoZone is of course incorrect that hiring does not effect a significant change in someone’s employment status. Generally, the act of hiring transforms one’s status from unemployed to employed. No court decision stands for the proposition that hiring is not a tangible employment action which, by definition, confers supervisor status on those empowered to carry it out.

As for its linguistic observation that “hiring someone is certainly not an action taken ‘against’ anyone,” the EEOC does not disagree. However, that point supports the EEOC’s—not AutoZone’s—ultimate argument. Indeed, as a logical matter, Vance’s “against-the-victim” language seems tied to tangible employment actions that impose adverse consequences on employees, such as termination. The language makes little sense where, as here, the tangible employment action at issue is hiring—which confers a benefit on its recipients. It follows that Vance’s “against-the-victim” language should not apply to a case like this—where the harasser has hiring authority over his victims but no authority to unilaterally take other employment actions against them. Indeed, AutoZone’s observation bolsters the very position advanced by the EEOC in its opening brief—that “hiring is a unique type of tangible employment action and a strict ‘against-the-victim’ approach does not work in this context.” EEOC Br. at 27.

AutoZone next asserts that “the EEOC failed to meet its burden to produce evidence that [ ] Townsel was a supervisor vis-à-vis the three women alleged to be victims here” because it is “undisputed that he lacked the authority to fire, demote, fail to promote, reassign an employee to significantly different responsibilities or make any decision that caused a significant change in benefits with respect to any of the claimants.” AutoZone Br. at 26, 27. This argument merely recapitulates the district court’s holding: that Townsel was not a Title VII supervisor because his victims were “already hired” when he joined store 335, and he could not, on his own, take other tangible employment actions against them. It provides no answer to the question presented here, which is whether a harasser, who directs the daily labor of his victims and possesses sufficiently broad power to hire them—and likely would have been responsible for hiring them had he arrived before they did—should count as a supervisor after Vance. As the EEOC explained in its opening brief, the district court adhered to an overly rigid interpretation of Vance which, if affirmed, would lead to the anomalous result that AutoZone is permitted to escape vicarious liability for Townsel’s harassment not because it withheld from him authority to take tangible employment actions, but due to a sheer fluke of timing.

Rather than providing a good rationale for this outcome, AutoZone exaggerates the EEOC’s position, saying “the EEOC’s theory would mean that a ‘supervisor’ in a store in California could somehow be deemed the ‘supervisor’ for an employee in Florida with whom that individual never worked.” AutoZone Br. at 23. This is also incorrect. The EEOC is not taking the position that one may be deemed a Title VII supervisor despite having never worked with his victim. The Commission is instead arguing that a harasser should be treated as a supervisor where, as here, he could hire employees into the positions occupied by his victims, directed the daily labor of his victims, and had the authority to discipline them, evaluate their performance, and recommend taking other tangible employment actions, besides hiring, for or against them.[2]

None of the arguments AutoZone makes in its brief even address, much less rebut, the EEOC’s principal argument; nor do the cases it cites. For example, AutoZone relies on Wierengo v. Akal Security, Inc., 580 F. App’x 364, 371 (6th Cir. 2014), for the proposition that “this Court has held that the burden is on the plaintiff to provide evidence that an individual ‘has the power to take tangible employment action against her.’” AutoZone Br. at 26 (quoting Wierengo) (emphasis in AutoZone’s brief). But Wierengo adds nothing to the analysis. Although that opinion references Vance’s “against-the-victim” language, the Court in Wierengo did not address whether that language represented a categorical rule, as there was no evidence in that case that the alleged harassers could take tangible employment actions against the plaintiff or anyone else. In fact, the district court in Wierengo had concluded that the harassers in that case were co-workers, see Wierengo v. Akal Security, Inc., No. 08-cv-00199, 2013 WL 12092998, at *6 (W.D. Mich. May 31, 2013), and the plaintiff did not challenge the point on appeal. See Brief for Appellee at 32-33 (R.43/PageID#42-43), Wierengo v. Akal Security, Inc., No. 13-1890. In other words, in Wierengo, as in Vance, the “against-the-victim” issue was not before the Court, and in neither case did the courts contemplate the issue presented here. The same is true with respect to the Fifth Circuit decisions AutoZone cites in its brief. See AutoZone Br. at 28 (citing Matherne v. Ruba Mgmt., 624 F. App’x 835, 840 (5th Cir. 2015), and Spencer v. Schmidt Elec. Co., 576 F. App’x 442, 447-48 (5th Cir. 2014)).

It is appropriate to deem Townsel a Title VII supervisor not only based on his hiring authority, but also because he could recommend and influence other tangible employment actions, such as demotions, promotions, and terminations, vis-à-vis the victims. Townsel testified that “he could recommend a demotion or promotion” and that if “an employee needed discipline,” he “wr[o]te them up,” and the District Manager would then decide whether or not the employee was fired. R.49-4/Townsel Dep./PageID#346-347. Also, AutoZone admits that the District Manager, Ira Graham, was present at the store approximately “once a week” and thus did not regularly interact with employees in store 335. AutoZone Br. at 9.

In Vance, the Court explained that “when the individuals vested with actual decisionmaking authority do not interact regularly with the employee, they will ‘have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under these circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendation it relies.’” Kramer v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 738 (10th Cir. 2014) (quoting and analyzing Vance, 133 S. Ct. at 2452). This is precisely the situation here. It follows from Vance that AutoZone effectively delegated supervisory powers to Townsel, as he was the only employee who interacted regularly with the victims and who could recommend taking any tangible actions with respect to their employment.

In an attempt to portray Townsel’s influence within the organization as minimal, AutoZone quotes his testimony that, “at the end of the day, [termination decisions were] up to the District Manager.” See AutoZone Br. at 30 (citing R.50-2/Townsel Dep./PageID#632). But the District Manager did not work with employees at store 335 on a day-to-day basis, so he could not decide whether to terminate those employees based on any personal knowledge of their performance, and thus would need the input of the Store Manager before carrying out such a decision. AutoZone structured its business operations in this manner, and Vance holds that it should not be permitted to insulate itself from vicarious liability by confining final decisionmaking authority to Graham and other off-site managers, who could not use independent discretion when making decisions about the victims’ employment status. See 133 S. Ct. at 2452.

AutoZone derides this argument as “wholly utter speculation” because Townsel “testified that he never recommended anyone be promoted, demoted, or terminated” when he was Store Manager at store 335. AutoZone Br. at 30 (emphasis omitted). But this misses the point. As the EEOC explained in its opening brief, the definition of supervisor does not depend on whether the harasser actually carried out his authority to take (or influence) tangible employment actions. The focus instead is on the scope of the harasser’s potential authority. See, e.g., Kramer, 743 F.3d at 739 (“[W]e have determined there are fact questions as to whether [the alleged harasser] had the power to recommend and influence tangible employment actions against [the plaintiff]. . . [and] we do not consider whether [he] actually took such actions but only whether he may have had the power to do so.”). Thus, whether Townsel ever actually recommended anyone for promotion, demotion, or termination is irrelevant. What matters instead is his testimony that he could make such recommendations.

2. A reasonable jury could find that the harassment endured by the claimants was severe or pervasive and thus actionable.

AutoZone next urges affirmance on a ground not addressed by the district court—that Townsel’s harassment was not an “actionable hostile work environment.” AutoZone Br. at 36. The Court should decline the invitation to affirm on this alternate basis. To begin with, this Court and others have repeatedly held that resolving whether harassment rises to the level of a hostile work environment is rarely appropriate at the summary judgment stage, as it is “quintessentially a question of fact.” Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006) (internal citations and quotations omitted); see also Simmons v. Am. Apartment Mgmt. Co., 1 F. Supp. 3d 838, 854 (E.D. Tenn. 2014) (“Because the inquiry is so fact intensive and contextually specific, . . . [p]laintiff’s allegations certainly meet the threshold of what is required for the case to proceed to trial.”) (citing Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 (11th Cir. 1987)). As it was in those cases, here too it should be the province of the trier of fact at trial, not this Court on appeal, to determine for the first time whether Townsel’s conduct was severe or pervasive enough to constitute a Title VII violation.

Affirmance on this alternate ground would also be wrong on the merits. This Court has consistently held that “sexual comments and harassing acts of a ‘continual’ nature are more likely to be deemed pervasive.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)). It has also made clear that harassment involving an “element of physical invasion” is more severe than harassing comments alone. Hawkins, 517 F.3d at 334 (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999)). Here, Smith endured harassment involving sexual comments of a continual nature and elements of physical invasion.

With respect to offensive comments, Townsel said to Smith: “you know I want that pussy”; “when are you gonna let me get that?”; “when I get it Imma beat it up”; and “you need to let me get that pussy before I get married.” 50-8/Journal/PageID#696. Townsel also threatened to “take Smith in the bathroom & wear that pussy out”; invited her to his home to “come over [and] give me that pussy”; and asked her “when are you going to stop running [and] give it to me?” Id. at PageID#697-698. Smith described this conduct as “constant[ ].” Id. at PageID#700.

Also, Townsel subjected Smith to at least three instances of non-consensual sexual touching: when he “grabbed [her] vagina” and said he wanted to have sex with her; when he grabbed her hips and rubbed his genitals against her buttocks; and when he touched her back and declared that, because he was no longer going to be her boss, he could “really get that pussy now.” Id. at PageID#697, 699, 700. These incidents, taken together, constitute an actionable hostile work environment and are more than sufficient to withstand summary judgment. See, e.g., Williams, 187 F.3d at 562-64 (finding that a hostile work environment could be proven where, over four months, a male supervisor subjected the plaintiff to several sexually provocative statements, stared at her breasts, put his arm around her neck, and came up behind her while she was bending over and told her to back up into him). Indeed, it is telling that AutoZone does not even dispute that Townsel’s harassment of Smith constituted an objectively hostile and abusive work environment. See AutoZone Br. at 37-40.

The harassment endured by Willett and McEuen also satisfies the severe-or-pervasive standard. Particularly troubling was the incident in which Townsel confronted McEuen in a back office and told her “he wanted to lick [her] up one side and down the other,” and then made a “suggestive slurping noise with his tongue.” R.50-12/McEuen Dep./PageID#722. Although this did not involve actual touching, it was tinged with physically threatening overtones and went beyond a mere offensive remark. See Hanley v. Chevy Chaser Magazine, LLC, 199 F. App’x 425, 429 (6th Cir. 2006) (holding that a supervisor’s sexually threatening remarks, “such as his expressed desire to masturbate with [the plaintiff’s] shirt and nibble on her neck” would permit the jury to find a hostile work environment). Also, Townsel showed McEuen a pornographic video of a woman having sex with a bed pole, and she heard him say that he “could eat pussy extremely well.” R.50-12/McEuen Dep./PageID#721, 723.

Similarly, Townsel subjected Willett to lewd and highly graphic remarks, including the statements that “he has a big dick and knows how to use it”; he “know[s] how to eat the pussy right”; and “[h]e’s a lover not a fighter unless he’s beating the pussy up.” R.49-7/Exh. to Green Dep./PageID#584. Townsel also commented on female customers’ body parts in Willett’s presence, saying things like “damn her ass is fat.” Id. And, as he did with McEuen, Townsel forced Willett to watch “a video in his phone with some girl having sex with a bed pole,” proclaiming at the end “I know her pussy is wide open!” Id. When that video was over, Townsel tried to show Willett another pornographic video, even though she had pushed him away and made plain that she was not interested in seeing more. Id. at PageID#567.

Moreover, McEuen and Willett observed, overheard, and learned of several acts of harassment that Townsel perpetrated on Smith and others. In particular, McEuen heard Townsel say to Smith that “he was going to have the house to himself and she should come over and let him hit it.” R.50-12/McEuen Dep./PageID#722. She also learned that Townsel “grabbed [Smith] in the privates at least once.” Id. And, Willett overheard Townsel’s comment to McEuen that “he wished he could taste her body and lick her up and down.” R.50-4/Green Dep./PageID#641. These instances contributed to the hostile work environment experienced by all three claimants because “[t]his [C]ourt’s caselaw . . . makes clear that the factfinder may consider similar acts of harassment of which a [claimant] becomes aware during the course of his or her employment, even if [they] were directed at others[.]” Hawkins, 517 F.3d at 336; see also Betts v. Costco Wholesale Corp., 558 F.3d 461, 469 (6th Cir. 2009) (holding that three women were entitled to “rely on each other’s allegations to bolster their respective . . . claims to the extent that they were aware of the underlying conduct during their employment”).

Citing Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir. 2000), AutoZone contends that the “the EEOC cannot establish that the conduct alleged by Ms. Willett [and] Ms. McEuen created an objectively hostile or abusive work environment.” AutoZone Br. at 37-38. But in Burnett this Court observed that the alleged harassment was not “commonplace, ongoing, or continuing.” 203 F.3d at 984. By contrast, in this case, Willett testified that she heard Townsel say “inappropriate things kind of on a daily basis” and Smith wrote in her journal that Townsel harassed her “constantly.” R.50-4/Green Dep./PageID#644; 50-8/Journal/PageID#700. This is crucial because in Abeita this Court held that although the plaintiff only recalled a single offensive statement made directly to her, she testified that “sexual and gendered statements” at the workplace were “commonplace, ongoing, and continual.” 159 F.3d at 252. Based on that testimony, this Court reversed the district court’s grant of summary judgment, holding that it could not “say that plaintiff is unable to present sufficient evidence of a hostile environment to submit her claim to the fact finder.” Id. In fact, because Smith, McEuen, and Willett recalled many specific, offensive comments from Townsel, this case presents even stronger facts than Abeita did to say, as the Court said there, that the plaintiff may “submit [its hostile-work-environment] claim to the fact finder.” Id.

The evidence also demonstrates that the claimants subjectively perceived the harassment as hostile. To satisfy this standard, a plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment.” Williams, 187 F.3d at 567 (internal quotations, citations, and emphasis omitted). She must prove only that the harassment was unwelcome and “made it more difficult to do the job.”Id. Ample evidence supports such a finding here. Smith, for example, testified that “until the harassment started,” she “did a great job” at AutoZone, but that once the harassment commenced, “she hated coming to work” and felt “stressed out every day[.]” R.50-6/Smith Dep./PageID#656. Willett testified that she was “uncomfortable” working one-on-one with Townsel because of “certain comments,” and she asked co-workers not to leave her alone with him in the store. R.50-4/Green Dep./PageID#643. Also, based on Townsel’s behavior, in September 2012, McEuen contacted her former supervisor, Mary Potkotter, and “requested how to report an issue.” R.53-2/Potkotter Dep./PageID#793. A reasonable jury could find based on this evidence that Townsel’s behavior made the claimants’ jobs more difficult.

In support of its argument that none of the “women subjectively perceived their work environment to be hostile,” AutoZone cites evidence that generally supports the notions that the claimants enjoyed their jobs, that they endeavored (sometimes successfully) to ignore Townsel’s harassment, and that they were not overly sensitive to his vulgar behavior. See AutoZone Br. at 40 n.9. But given the other evidence cited above, which supports the conclusion that the harassment was unwelcome and made the claimants’ jobs more difficult, this evidence, at most, creates a genuine dispute of material fact as to whether they subjectively viewed it as abusive or hostile. Accordingly, a reasonable jury could find that the harassment endured by the claimants was actionable under Title VII.

3. AutoZone did not establish an affirmative defense as a matter of law.

Given that Townsel was a supervisor under Vance and because a jury could find that his harassment rose to the level of unlawful harassment, AutoZone would be presumptively liable under Title VII unless it were to demonstrate, as an affirmative defense, that (1) it exercised reasonable care to prevent and correct any harassing behavior and (2) that the claimants unreasonably failed to take advantage of the preventive or corrective opportunities that it provided, or to avoid harm otherwise. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (delineating the two prongs of what is known as the Faragher/Ellerth affirmative defense); Ellerth, 524 U.S. at 765 (same). Also, because this Court is reviewing whether summary judgment was properly granted, AutoZone must establish that the record reveals no disputed facts as to either of the two elements of this affirmative defense. See Clark v. United Parcel Serv., Inc., 400 F.3d 341, 349 (6th Cir. 2005) (“The employer will lose this defense if it fails either prong.”); Kramer, 743 F.3d at 746 (“To win summary judgment on the Faragher/Ellerth defense, an employer must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.”) (internal quotations, citations, and ellipses omitted). Here, AutoZone has not established this defense as a matter of law, making this an inappropriate alternate ground for summary judgment.

a. A jury question exists as to whether AutoZone exercised reasonable care to prevent and correct any harassing behavior.

AutoZone must first establish that it exercised reasonable care to prevent any harassing behavior. An employer’s adoption of an anti-harassment policy is an important factor in determining whether it met this standard. See Ellerth, 524 U.S. at 765; see also Clark, 400 F.3d at 349 (observing that the employer’s affirmative duty to prevent harassment often requires it to “have some sort of sexual harassment policy in place”). But just having a policy against harassment is not enough. In Clark, this Court said: “While the affirmative duty on the part of the employer will often include the requirement that it have some sort of sexual harassment policy in place, the duty does not end there. Prong one of the affirmative defense requires an inquiry that looks behind the face of a policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior.” Id.

In this case, AutoZone had an anti-harassment policy in place but it failed to show that it implemented that policy in a manner reasonably calculated to prevent harassment. To begin with, there are serious questions about the way in which AutoZone informed employees of the existence of its policy. Neither Smith nor McEuen recalls ever receiving the handbook or receiving any training on the policy. R.50-6/Smith Dep./PageID#654; R.50-12/McEuen Dep./PageID#720. Willett testified that she did not receive a copy of the handbook when she was hired by AutoZone or even “shortly thereafter.” R.49-7/Green Dep./PageID#553-554. And AutoZone has submitted no evidence demonstrating that it spent any time educating its employees on the company’s anti-harassment policy.

Rather, the evidence suggests just the opposite: Smith testified that although store employees were required to acknowledge electronically that they read the handbook, in reality, “[n]obody read[ ]” the policies; they just “sign[ed] off” on them. R.50-6/Smith Dep./PageID#654. Willett echoed this point, testifying that employees were not actually required to read the handbook, explaining that her “manager told [her] to log in and click acknowledge and that would be it.” R.50-4/Green Dep./PageID#817.

The Supreme Court has said that a company’s sexual harassment policy is ineffective if it is not disseminated to employees. See Faragher, 524 U.S. at 808. Courts within this Circuit accordingly have held that facts similar to those presented here are sufficient to defeat prong one of the Faragher/Ellerth defense, at least at the summary judgment stage. See, e.g., Frentz v. City of Elizabethtown, No. 08-cv-621-JBC, 2010 WL 4638768, at *9 (W.D. Ky. Nov. 4, 2010) (“There is evidence that [the employer] posted the City’s policy on a bulletin board, but resolving all disputes in a light most favorable to [the plaintiff], there is evidence that the policy was not widely disseminated or understood.”); Bishop v. Woodbury Clinical Lab., Inc., No. 3:08-cv-1032, 2010 WL 1525922, at *4 (M.D. Tenn. Apr. 15, 2010) (finding affirmative defense lacking because, “[t]hough [the plaintiff] admitted that she had signed an acknowledgement stating that she had been given a copy of the employment handbook and had been directed to read it, she testified that she never read the handbook”). Similarly, the Fifth Circuit, in EEOC v. Boh Brothers Construction Co., L.L.C., 731 F.3d 444, 463-64 (5th Cir. 2013) (en banc), held that the employer did not establish the first prong of the Faragher/Ellerth defense because the victim “testified that he did not recall seeing any documents regarding discrimination at the time he was hired, and other employees indicated that they never read the notices.”

The actions taken by McEuen and Smith in response to Townsel’s harassment also undermine the notion that AutoZone effectively educated its employees on how to report harassment. For example, based on Townsel’s behavior, in September 2012, McEuen contacted her former supervisor, Mary Potkotter, and “requested how to report an issue” of sexual harassment. R.53-2/Potkotter Dep./PageID#793. In response, Potkotter advised McEuen to “follow the chain of command: to report to the store manager, district manager, regional HR, HR corporate.” Id. at PageID#794. It is evident from this exchange that McEuen did not know how to report sexual harassment even though she had by then been working for AutoZone for more than two years. If AutoZone had properly trained McEuen on its policy’s reporting mechanisms, she would not have needed to ask Potkotter how to report harassment. Similarly, Smith first reported Townsel’s harassment to Chad Berry, an employee working in another store, not someone designated by AutoZone’s policy as the proper recipient of a report of sexual harassment. In other words, Smith and McEuen did not know where to turn when they first decided to report Townsel’s behavior, which would permit a jury to find that AutoZone did not train its employees properly or otherwise exercise sufficient care in preventing harassment.

A reasonable jury could also conclude that AutoZone failed to correct Townsel’s harassment promptly once it knew or should have known of its existence. As a matter of law, AutoZone was on notice of Townsel’s sexual harassment when Smith reported to Berry, at some point before September 25, 2012, that Townsel had “grabbed her crotch and said he wanted to have sex with her.” R.50-11/Berry Dep./PageID#716.[3]

Although Berry was not designated by AutoZone’s policy as the proper recipient of a report of sexual harassment, by all accounts that policy required him to report the harassment to higher-ranking officials within the organization. R.49-5/Harass. Pol./PageID#451. And, it is the law of this Circuit that when an employer designates particular employees as “implementors of [its] policy,” and one such employee becomes aware of misconduct, as Berry did here, the employer “has itself answered the question of when it would be deemed to have notice of the harassment sufficient to obligate it . . . to take prompt and appropriate remedial measures.” Clark, 400 F.3d at 350 (citing Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999)); see also EEOC v. Finish Line, Inc., 915 F. Supp. 2d 904, 920 (M.D. Tenn. 2013) (holding that the level of authority possessed by those employees who knew of the harassment was not dispositive because it was “undisputed that all of Defendant’s employees ha[d] an obligation to report any violations of Defendant’s sexual harassment policy”).

Thus, for purposes of the Faragher/Ellerth affirmative defense, a jury could find that AutoZone knew or should have known of Townsel’s harassment by, at the latest, September 25, 2012, when Smith informed Berry that it was ongoing. Yet, in the month that followed, Townsel’s offensive comments continued. For example, throughout October 2012, Townsel “would constantly” say to Smith “let me hit that pussy,” and he repeatedly invited her over to have sex with him when “his family [was] out of town.” R.50-8/Journal/PageID#700. Moreover, as late as November 2012, approximately six weeks after Smith told Berry about the harassment, Townsel said to Smith that she should “give [him] that pussy” to help his “blood pressure go down.” Id. at PageID#702.

Even assuming, however, that Smith’s report of Townsel’s harassment to Berry was not sufficient to impute knowledge to AutoZone, Smith’s subsequent report to Graham, the District Manager and Townsel’s direct supervisor, undoubtedly was.[4] Nor can it be said that Graham’s response to this complaint was adequate. As Townsel’s direct supervisor, Graham could have initiated an investigation of Townsel or suspended him on the spot. Instead, he waited up to two weeks and then gave a cryptic report to Deener that Townsel was “saying stuff in the store” the nature of which he claimed not to know—even though Smith had told him specifically that it involved sexual harassment. Unsurprisingly, Graham’s belated and ambiguous report to Deener permitted the harassment to continue, as demonstrated by Smith’s letter to Deener on November 5, 2012, in which she wrote: “I informed Ira [Graham] of being sexually harassed. Nothing has been done nor has he said anything about it but [the harassment] still continues.” R.49-5/Letter/PageID#464-465.[5]

In fact, Graham’s report to Deener—that Townsel was “saying stuff in the store”—is not even what led to Deener’s ultimate investigation. To the contrary, Deener testified that she did not understand Graham to be conveying an allegation of sexual harassment in that conversation, and she said that she had no intention of taking any action as a result of it. Specifically, Deener testified that, “based on [her] conversation” with Graham, “it was not [her] intention of going any further” until she got Smith’s letter reporting the sexual harassment, and “that’s when [she] got involved.” R.49-3/Deener Dep./PageID#293.

In other words, Deener’s investigation only occurred because Smith reached out to Deener directly and reported the sexual harassment in writing. And although Graham was specifically authorized by AutoZone’s policy to end Townsel’s sexual harassment, and he told Smith he had “to do something about it,” he utterly failed to do so. This precludes summary judgment for AutoZone. See, e.g., Clark, 400 F.3d at 350-51 (reversing grant of summary judgment because there was “a real question” whether the “mid-level supervisors” who became aware of harassment “should have taken the first step towards prevention and correction by reporting” it “to the relevant UPS personnel, as was directed by the UPS policy”).

b. A jury question exists as to the second prong of the Faragher/Ellerth affirmative defense.

AutoZone also failed to establish the second prong of the Faragher/Ellerth defense. As noted above, this portion of the analysis focuses on whether the victims of harassment unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer, or to avoid harm otherwise. See, e.g., Ellerth, 524 U.S. at 765. Because, for the reasons discussed, there are doubts about whether AutoZone effectively disseminated its reporting procedures, it has not established as a matter of law that the claimants unreasonably failed to take advantage of something on which they did not receive adequate training.

Even if an employee fails to use the employer’s preferred complaint process, the employer will be unable to establish the second prong of the affirmative defense if the employee took other reasonable steps to avoid further harassment. See Faragher, 524 U.S. at 778 (holding that the employer not only must show that the employee failed to take advantage of designated reporting mechanisms, but also that she failed to take steps to “avoid harm otherwise”). Here, Smith told Berry that Townsel had “grabbed her crotch and said he wanted to have sex with her.” R.50-11/Berry Dep./PageID#716. A jury could find under the circumstances that this was a reasonable attempt to avoid further harm. See Stricker v. Cessford Constr. Co., 179 F. Supp. 2d 987, 1010-11 (N.D. Iowa 2001) (holding that the plaintiff “generated a genuine issue of material fact as to whether she took reasonable steps ‘to avoid harm otherwise’ by telling a coworker . . . about the harassment, and permitting [him] to convey concerns about [it] to the appropriate company official”).

Moreover, it is not as though Smith never took advantage of the corrective opportunities provided by AutoZone. Rather, after she spoke to Berry about the harassment, she also reported it to Graham, the District Manager. Even then, AutoZone did nothing in response and the harassment continued. The company only took Smith’s complaint seriously after she complained for a third time, directly to Deener, and submitted a journal with contemporaneous descriptions of the harassment. Thus, a reasonable jury could find that Smith acted reasonably in attempting to alert the company or otherwise to avoid harassment.

CONCLUSION

For the foregoing reasons, as well as those in the EEOC’s opening brief, the district court’s grant of summary judgment was incorrect. This Court should reverse that decision and remand the case for a jury trial.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

/s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,008 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and this Court’s local rules.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 14 point.

/s/ Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: January 23, 2017

[1] AutoZone criticizes the EEOC for not distinguishing between “hourly lower-level employees” and “hourly managers.” AutoZone Br. at 24. But it does not explain why making such a distinction is relevant in this case and it stops short of claiming that Townsel lacked the power to hire employees into any of the positions occupied by his victims. Nor does it respond to the EEOC’s analysis of the record—that Smith was hired by Townsel’s predecessor as Store Manager, Lorenzo Carmichael, and there is no evidence to support the finding that the powers of Store Manager diminished or changed in any way when they were transferred from Carmichael to Townsel.

[2] In addition, it is difficult to imagine how an employee in California could subject someone in Florida, with whom he never worked, to severe or pervasive harassment. But even if such a situation could come to pass, it is a far cry from what occurred in this case.

[3] As the EEOC noted in its opening brief, see EEOC Br. at 11 n.3, the record does not specify the date on which Smith told Berry about Townsel’s harassment. However, in a journal that Smith maintained, there is an entry dated September 25, 2012, in which Smith stated “I have mentioned what [Townsel] does & says to me to” several employees, including Berry. R.50-8/Journal/PageID#699. Thus, Smith’s conversation with Berry must have occurred before September 25th.

[4] AutoZone cites Willett’s testimony for the proposition that Smith did not report sexual harassment to Graham, and only said to him that “she needed to ‘speak within him about something that happened in the store involving [Townsel].’” AutoZone Br. at 10 (quoting R.49-7/Green Dep./PageID#563-564). This ignores Smith’s deposition testimony that she “remember[ed] telling” Graham in mid-October 2012 that Townsel “had been sexually harassing” her. R.50-6/Smith Dep./PageID#677. Smith also testified to her specific recollection that Townsel responded by saying, “if that’s going on, we have to do something about it.” Id.

[5] AutoZone asserts that “the EEOC admit[ted] that . . . Graham immediately reached out to Human Resources” after he received Smith’s report of sexual harassment. AutoZone Br. at 34. This is incorrect. Although the EEOC mistakenly wrote “undisputed” in response to this fact on AutoZone’s Statement of Undisputed Facts, it disputed the fact elsewhere in the record. For example, in its brief in opposition to summary judgment, the Commission cited Deener’s testimony to demonstrate that Graham “took no action to address or stop Townsel’s harassment.” R.50/EEOC Mem. in Opp. S.J./PageID#621.