           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    Akers v. Alvey et al.                      No. 02-5037
        ELECTRONIC CITATION: 2003 FED App. 0256P (6th Cir.)
                    File Name: 03a0256p.06                                                     _________________
                                                                                                    COUNSEL
UNITED STATES COURT OF APPEALS
                                                                            ARGUED: Kenneth L. Sales, SALES, TILLMAN &
                   FOR THE SIXTH CIRCUIT                                    WALLBAUM, Louisville, Kentucky, for Appellant.
                     _________________                                      Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER,
                                                                            Louisville, Kentucky, Edward L. Lasley, CONLIFFE,
 CINDY AKERS,                     X                                         SANDMANN & SULLIVAN, Louisville, Kentucky, for
          Plaintiff-Appellant,     -                                        Appellees. ON BRIEF: Kenneth L. Sales, SALES,
                                   -                                        TILLMAN & WALLBAUM, Louisville, Kentucky, for
                                   -  No. 02-5037                           Appellant.   Schuyler J. Olt, PEDLEY, ZIELKE &
            v.                     -                                        GORDINIER, Louisville, Kentucky, Edward L. Lasley,
                                    >                                       Richard M. Sullivan, CONLIFFE, SANDMANN &
                                   ,                                        SULLIVAN, Louisville, Kentucky, for Appellees.
 DONALD ALVEY and                  -
 KENTUCKY CABINET FOR              -                                          GILMAN, J., delivered the opinion of the court, in which
 FAMILIES AND CHILDREN,            -                                        BOGGS, J., joined. DOWD, D. J. (pp. 15-16), delivered a
         Defendants-Appellees. -                                            separate opinion concurring in the judgment.
                                   -
                                  N                                                            _________________
       Appeal from the United States District Court
    for the Western District of Kentucky at Louisville.                                            OPINION
 No. 99-00221—John G. Heyburn II, Chief District Judge.                                        _________________

                      Argued: June 20, 2003                                   RONALD LEE GILMAN, Circuit Judge. Cindy Akers, a
                                                                            former family services worker with the Kentucky Cabinet for
               Decided and Filed: July 29, 2003                             Families and Children, brought suit in federal district court
                                                                            against the Cabinet and her immediate supervisor, Donald
 Before: BOGGS and GILMAN, Circuit Judges; DOWD,                            Alvey, for sexual harassment. Specifically, Akers brought a
                  District Judge.*                                          claim under 42 U.S.C. § 1983 against Alvey in his official
                                                                            and individual capacities, claims under Title VII against the
                                                                            Cabinet for discrimination, hostile work environment, and
                                                                            retaliation, and a common law claim for the tort of outrage
                                                                            against both Alvey and the Cabinet. Akers alleges that Alvey
                                                                            engaged in pervasive sexual misconduct towards her, that the
                                                                            Cabinet acquiesced in that conduct, and that the Cabinet
                                                                            retaliated against her when she complained.
    *
     The Honorab le David D. Do wd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.

                                   1
No. 02-5037                        Akers v. Alvey et al.    3    4    Akers v. Alvey et al.                      No. 02-5037

  Alvey and the Cabinet both moved for summary judgment.           The Cabinet conducted a two-week investigation into
The district court dismissed all of the claims against Alvey,    Akers’s complaint, interviewed Akers, Alvey, and ten others,
as well as Akers’s discrimination, retaliation, and tort-of-     and found that her sexual-harassment claims were
outrage claims against the Cabinet. Akers’s hostile-work-        unsubstantiated. Akers however, was promptly removed from
environment claim, however, was permitted to go forward.         Alvey’s supervision at the conclusion of the investigation.
                                                                 She alleges that during the time that the Cabinet was
   Pursuant to an agreed order, the resolution of all of the     investigating her complaint, Alvey engaged in retaliatory
dismissed claims was deemed final and immediately                conduct by refusing to speak to her, instructing other
appealable by the district court. On appeal, Akers challenges    employees not to associate with her, withholding her mail and
the district court’s grant of summary judgment for Alvey and     inter-office memoranda, and criticizing the way she handled
its partial grant of summary judgment for the Cabinet. For       her cases.
the reasons set forth below, we REVERSE the judgment of
the district court as to Akers’s tort-of-outrage claim against     In January of 1999, Akers was transferred to the Hardin
Alvey, AFFIRM the judgment of the district court as to           County office of the Department for Community Based
Akers’s remaining claims, and REMAND the case for further        Services to work as a domestic violence and child abuse
proceedings consistent with this opinion.                        investigator. According to Akers, she was never accepted in
                                                                 her new office because of her ongoing complaint against
                    I. BACKGROUND                                Alvey and, after “six months of antagonism,” she felt that she
                                                                 had no choice but to resign her position. Akers sought
   The Cabinet hired Akers as a family services worker at the    psychological counseling for depression after leaving her job.
Grayson County office in July of 1997. On August 1, 1998,
Alvey was promoted to be the supervisor of the same office.        She reapplied with the Cabinet several months later for a
Akers first reported Alvey’s allegedly inappropriate behavior    position in the Richmond office, where she would have been
to the Cabinet 18 days later. According to Akers’s complaint,    supervised by Linda Miller. Although Miller called Akers to
Alvey had engaged in pervasive, sexually offensive behavior,     inform her that Miller would be recommending Akers for the
including the making of lewd gestures with his tongue and        job, Miller later changed her mind after receiving negative
hand while moaning, commenting daily about Akers’s               recommendations from Akers’s former supervisors and
physique (such as “nice ass”), getting very close to Akers and   coworkers, including Alvey, and upon learning of Akers’s
attempting to look down her blouse, questioning Akers            lawsuit.
extensively about masturbation and her sex-life with her
boyfriend, expressing in front of other employees that he                              II. ANALYSIS
would like to have sexual intercourse with Akers,
commenting to Akers about her coworkers’ sexual histories        A. Jurisdiction
and physiques, commandeering Akers’s computer to send
sexually explicit e-mail messages, and describing his last         The district court had jurisdiction pursuant to 28 U.S.C.
episode of oral sex in great detail. Akers alleged that Alvey    §§ 1331, 1343(a)(1)(3), and 1367(a). Although a partial grant
engaged in over 30 acts of inappropriate behavior in a two-      of summary judgment is not ordinarily appealable, the district
and-a-half month period.                                         court entered an agreed order under Rule 54(b) of the Federal
                                                                 Rules of Civil Procedure, rendering final and appealable the
No. 02-5037                          Akers v. Alvey et al.       5   6      Akers v. Alvey et al.                      No. 02-5037

judgment on all dismissed claims. Rule 54(b) was enacted as              the reviewing court might be obliged to consider the
“a response to the need created by the liberal joinder                   same issue a second time; (4) the presence or absence of
provisions of the Federal Rules of Civil Procedure to revise             a claim or counterclaim which could result in set-off
‘what should be treated as a judicial unit for purposes of               against the judgment sought to be made final;
appellate jurisdiction.’” Corrosioneering v. Thyssen Envtl.              (5) miscellaneous factors such as delay, economic and
Sys., 807 F.2d 1279, 1282 (6th Cir. 1986). The Rule                      solvency considerations, shortening the time of trial,
“attempts to strike a balance between the undesirability of              frivolity of competing claims, expense, and the like.
piecemeal appeals and the need for making review available               Depending upon the factors of the particular case, all or
at a time that best serves the needs of the parties.” Id.                some of the above factors may bear upon the propriety of
(internal quotation marks omitted). The determination of                 the trial court’s discretion in certifying a judgment as
whether to allow for an appeal pursuant to Rule 54(b) is a               final under Rule 54(b).
matter left to the sound discretion of the district court. Id.
                                                                     Corrosioneering, 807 F.2d at 1283 (quoting Allis-Chalmers
  The Rule itself simply states that the district court must find    Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.
that there is no just reason for delay of the appeal. Fed. R.        1975)).
Civ. P. 54(b). This court, however, has previously indicated
that in order to avoid a finding of abuse of discretion in the          The district court’s order in this case was in many respects
certification of an appeal pursuant to Rule 54(b), the “district     the bare-bones certification that this court condemned in
court should do more than just recite the Rule 54(b) formula         Corrosioneering. No analysis of the above factors was
of ‘no just reason for delay.’” Id. As the Supreme Court             undertaken, and the only justification stated for declaring that
explained:                                                           there was “no just reason for delay” was a statement that the
                                                                     parties “hav[e] agreed that the outstanding issues with regard
    It is essential, however, that a reviewing court have            to dismissal of a claim against Alvey and the claims against
  some basis for distinguishing between well-reasoned                the Cabinet would more economically be handled by an
  conclusions arrived at after a comprehensive                       appellate decision prior to trial . . . .” Because this case has
  consideration of all relevant factors, and mere boilerplate        already been briefed and argued on appeal, however, the
  approval phrased in appropriate language but                       scales of judicial economy are now tipped in favor of
  unsupported by evaluation of the facts or analysis of the          disposing of the appeal on the merits. But if the jurisdictional
  law.                                                               issue had been spotted sooner, we would likely have
                                                                     remanded the case in order for the district court to explicitly
Protective Comm. v. Anderson, 390 U.S. 414, 434 (1968).              evaluate the Corrosioneering factors.
  This court, in Corrosioneering, set forth the following            B. Standard of review
“nonexhaustive list” of factors to consider:
                                                                       We review a district court’s grant of summary judgment de
  (1) the relationship between the adjudicated and the               novo. Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 490 (6th
  unadjudicated claims; (2) the possibility that the need for        Cir. 2002). Summary judgment is proper where there is no
  review might or might not be mooted by future                      genuine issue as to any material fact and the moving party is
  developments in the district court; (3) the possibility that       entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
No. 02-5037                          Akers v. Alvey et al.     7    8     Akers v. Alvey et al.                        No. 02-5037

In considering such a motion, the court construes all                  Alvey’s behavior went far beyond the sexual jokes,
reasonable factual inferences in favor of the nonmoving party.      comments, and innuendos that this court has previously found
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.         insufficient to withstand a motion for summary judgment on
574, 587 (1986). The central issue is “whether the evidence         a tort-of-outrage claim. Wathen v. General Electric Co., 115
presents a sufficient disagreement to require submission to a       F.3d 400, 407 (6th Cir.1997) (applying Kentucky law). Any
jury or whether it is so one-sided that one party must prevail      one of the particular incidents complained of, taken in
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477           isolation, might not reach the level of outrageousness required
U.S. 242, 251-52 (1986).                                            by Kentucky law to survive summary judgment. But taken
                                                                    together, Alvey’s pervasive behavior, as alleged by Akers,
C. Akers’s tort-of-outrage claim against Alvey                      was outrageous. At the very least, this is a case where
                                                                    “reasonable men may differ” and, as such, “it is for the jury,
   The district court dismissed Akers’s tort-of-outrage claim       subject to the control of the court, to determine whether, in
against Alvey, concluding that “[w]hile Alvey’s conduct and         the particular case, the conduct has been sufficiently extreme
that attributable to the Cabinet might be considered crude and      and outrageous to result in liability.” Restatement (Second) of
completely inappropriate, it does not rise to a level of conduct    Torts § 46 cmt. h (1965) (§ 46 was adopted by the Kentucky
which is ‘atrocious and intolerable’ as required by Kentucky        Supreme Court in Craft v. Rice, 671 S.W.2d 247, 251 (Ky.
law.” Under Kentucky law, “[i]n order to recover [for the tort      1984)).
of outrage], the plaintiff must show that defendant's conduct
was intentional or reckless, that the conduct was so                  Alvey argues, as his last line of defense on this claim, that
outrageous and intolerable so as to offend generally accepted       the distress suffered by Akers, if any, was not caused by
standards of morality and decency, that a causal connection         Alvey’s behavior and was not severe. In both her verified
exists between the conduct complained of and the distress           complaint and her deposition testimony, however, Akers
suffered, and that the resulting emotional stress was severe.”      maintains that she suffered severe emotional distress as a
Brewer v. Hillard, 15 S.W.3d 1, 6 (Ky. Ct. App. 1999).              result of Alvey’s outrageous conduct. Akers specifically
                                                                    testified that she experienced depression and sought
  There is no question in this case that Alvey’s behavior was       psychological counseling shortly after leaving her job with
intentional, and thus the first element of the tort of outrage is   the Cabinet. Although the evidence of emotional distress may
satisfied. Akers maintains that the district court erred in         be sparse, we believe that it is sufficient to send the issues of
holding that Alvey’s conduct did not reach the level of             causation and severity to the jury.
outrageousness required by the second element. In assessing
this element, we must view the evidence in the light most             In sum, we find that Akers has satisfied all of the elements
favorable to Akers and determine whether this case “is one in       of her tort-of-outrage claim against Alvey as set forth in
which the recitation of the facts to an average member of the       Brewer, 15 S.W.3d at 6. We therefore reverse the district
community would arouse his resentment against the actor,            court’s grant of summary judgment on this claim.
and lead him to exclaim, ‘Outrageous!’” Restatement
(Second) of Torts § 46 cmt. d (1965) (applied by the                D. Akers’s tort-of-outrage claim against the Cabinet
Kentucky Court of Appeals in Brewer, 15 S.W.3d at 6). In
our opinion, this is just such a case.                                The Cabinet argues that Akers’s tort-of-outrage claim
                                                                    against it was properly dismissed because the Cabinet is
No. 02-5037                           Akers v. Alvey et al.      9    10     Akers v. Alvey et al.                       No. 02-5037

protected from such a claim by the Eleventh Amendment to              she had suffered a materially adverse employment action
the United States Constitution. This issue was not addressed          under prong (3).
by the district court, however, because it held that the
Cabinet’s conduct was not outrageous as a matter of law.                In order to establish an adverse employment action, Akers
                                                                      must show a significant change in her employment status,
  Akers cites the case of Gragg v. Kentucky Cabinet for               such as hiring, firing, failing to promote, reassignment with
Workforce Development, 289 F.3d 958, 963 (6th Cir. 2002),             significantly different responsibilities, a significant change in
for the proposition that an entity’s defense of sovereign             benefits, or other factors unique to her particular situation.
immunity will be deemed waived absent evidence in the                 Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th
record of how a state defines the entity, what degree of              Cir. 2000). Akers alleges three employment actions that she
control the state has over the entity, and how the entity is          contends are materially adverse: (1) transfer to a different
funded. According to Akers, the record in this case is bereft         office, (2) retaliatory harassment by Alvey in the form of
of such evidence, resulting in a waiver of the Cabinet’s              increased criticism, withholding her mail, ignoring her, and
sovereign immunity defense. In Gragg, however, the                    encouraging her coworkers to ostracize her, which resulted in
defendants failed to identify the claims to which the sovereign       her “social death” within the office, and (3) the Cabinet’s
immunity defense applied, failed to argue immunity before             refusal to rehire her following a negative recommendation by
the district court, and included only a single paragraph              Alvey. We will now examine each of these contentions in
addressing the immunity argument in their appeal. The                 turn.
Cabinet in the present case, on the other hand, raised the
argument in the district court and has briefed it fully on              1.    Akers’s transfer to the Hardin County office
appeal. As a result, Gragg is easily distinguishable and
Akers’s waiver argument is without merit. We therefore                   Even assuming that Akers was involuntarily transferred to
affirm the district court’s grant of summary judgment as to           the Hardin County office, as she alleges, she failed to
Akers’s tort-of-outrage claim against the Cabinet on the              demonstrate how this transfer was materially adverse to her.
grounds that such a claim is barred by sovereign immunity.            She did not suffer a decrease in pay, her job duties were not
                                                                      significantly changed, and the transfer actually reduced
E. Akers’s retaliation claim against the Cabinet                      Akers’s roundtrip commute from her home by 60 miles per
                                                                      day. We thus agree with the district court that Akers’s
  In order to establish a claim of retaliation, Akers must            transfer was not a materially adverse employment action. See
prove that (1) she engaged in an activity protected by Title          Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.
VII, (2) the exercise of that protected right was known to the        1996) (holding that a plaintiff failed to establish that her
Cabinet, (3) the Cabinet thereafter took an employment action         transfer and change in job title was a materially adverse
adverse to Akers, or that Akers was subjected to severe or            employment action, reiterating “that reassignments without
pervasive retaliatory harassment by a supervisor, and (4) a           salary or work hour changes do not ordinarily constitute
causal connection existed between the protected activity and          adverse employment decisions in employment discrimination
the adverse employment action or harassment. Morris v.                claims”).
Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.
2000). The district court held that although Akers satisfied
prongs (1), (2), and (4) of this test, she failed to establish that
No. 02-5037                         Akers v. Alvey et al.    11    12     Akers v. Alvey et al.                      No. 02-5037

  2.   Retaliatory harassment by Alvey                             home driveway on more than one occasion. Id. at 793. The
                                                                   court in Morris distinguished that case from the “simple
   Although the district court failed to consider whether          teasing, offhand comments, and isolated incidents that [the
Alvey’s post-complaint harassment was retaliatory, this court      Supreme Court in] Faragher indicated did not amount to
has previously held that “severe or pervasive supervisor           discriminatory changes in the terms and conditions of a
harassment” following a sexual-harassment complaint can            plaintiff's employment.” Id. at 793.
constitute retaliation for the purposes of a Title VII action.
Morris, 201 F.3d at 792. Because the court’s decision in             Alvey’s alleged post-complaint conduct (i.e., ignoring
Morris was an extrapolation of Supreme Court precedent             Akers, encouraging her coworkers to do the same, criticizing
allowing a Title VII action to be based upon severe or             her work, and withholding her mail) falls somewhere in
pervasive supervisory harassment in the sexual-harassment          between the egregious conduct in Morris and “simple
context, the standard for “severe or pervasive” harassment is      teasing” or “offhand comments.” The alleged retaliation was
“the same in the retaliation context as in the sexual and racial   confined to the two weeks during which the Cabinet was
discrimination contexts.” Broska v. Henderson, 2003 WL             diligently investigating Akers’s complaint and despite the
21518733, *4 (June 30, 2003). Under this standard, the             Cabinet’s circulation of a memo in the Grayson County office
harassment must be “sufficiently severe or pervasive to alter      instructing that no retaliation would be tolerated. Due to the
the conditions of the victim’s employment and create an            short duration and relatively mild nature of the post-complaint
abusive working environment.” Harris v. Forklift Sys., Inc.,       harassment, as well as the Cabinet’s directive prohibiting
510 U.S. 17, 21 (1993) (citation omitted). As this court noted     retaliatory conduct, we do not believe that there is sufficient
in Broska, “this test has both an objective and a subjective       evidence for a jury to find that Alvey’s alleged harassment
component: the conduct must be severe or pervasive enough          reached the level of “severe or pervasive” conduct required by
to create an environment that a reasonable person would find       Morris for a retaliation claim.
hostile or abusive, and the victim must subjectively regard
that environment as hostile or abusive.” Broska, at *4.              3.    The Cabinet’s refusal to rehire Akers

   The Cabinet responds to Akers’s retaliatory harassment            Akers’s final basis for her retaliation claim is the Cabinet’s
claim by arguing that Alvey was removed as Akers’s                 decision not to rehire her for a different position four months
supervisor immediately following the conclusion of its             after her resignation. Even assuming that Akers presented a
investigation of Akers’s complaint to the Cabinet, and that        prima facie case of retaliation based upon Alvey’s alleged
any harassment that may have occurred following Akers’s            input into the decision, the Cabinet articulated a legitimate,
complaint was not severe or pervasive enough to support a          nondiscriminatory reason for its decision not to rehire Akers;
retaliation claim. All of the incidents giving rise to Akers’s     namely, poor reviews from her coworkers and other
complaint about retaliation occurred during the two-week           supervisors, including Akers’s supervisor during the few
period that the Cabinet took to investigate her charges. In        months that she was employed in the private sector. The
Morris, the supervisor in question engaged in retaliatory          Cabinet thus contends that Alvey’s alleged retaliatory input
conduct that was much more severe and pervasive than that          was immaterial to its decision not to rehire her. Akers has
alleged in this case, including calling the plaintiff over 30      failed to rebut this contention. Because Akers has not shown
times for the sole purpose of harassing her, sitting outside her   that this proferred legitimate reason was pretextual, we agree
office staring in her window, and throwing nails onto her
No. 02-5037                          Akers v. Alvey et al.     13    14   Akers v. Alvey et al.                        No. 02-5037

that the Cabinet’s refusal to rehire Akers does not support her        In Wathen, this court held that despite the express use of the
retaliation claim.                                                   word “agent” in the statute, Title VII does not create
                                                                     individual liability for individuals in supervisory positions
  In sum, none of Akers’s allegations are sufficient to              such as Alvey’s. Because Wathan is controlling authority, we
establish a materially adverse employment action by the              affirm the district court’s grant of summary judgment as to
Cabinet. The district court therefore did not err in granting        Akers’s § 1983 claim against Alvey. Salmi v. Sec’y of Health
summary judgment as to Akers’s retaliation claim.                    and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A
                                                                     panel of this Court cannot overrule the decision of another
F. Akers’s § 1983 claim against Alvey                                panel. The prior decision remains controlling authority unless
                                                                     an inconsistent decision of the United States Supreme Court
   Finally, Akers brought a § 1983 claim against Alvey in his        requires modification of the decision or this Court sitting en
individual and official capacities. Section 1983 liability, as       banc overrules the prior decision.”).
alleged by Akers’s complaint, is premised upon liability
under Title VII. Title VII, in pertinent part, provides that it is                       III. CONCLUSION
unlawful for an employer to discriminate against an
individual on the basis of sex. 42 U.S.C. § 2000e-2(a)(1).             For all the reasons set forth above, we REVERSE the
The district court concluded that for all practical purposes, the    judgment of the district court as to Akers’s tort-of-outrage
two claims are the same. The Sixth Circuit has held that             claim against Alvey, AFFIRM the judgment of the district
where “there is liability under Title VII, there should be           court as to Akers’s remaining claims, and REMAND the case
liability under § 1983. Similarly, if there was no                   for further proceedings consistent with this opinion.
discriminatory intent, there cannot be liability under either
Title VII, on a disparate treatment theory, or § 1983.” Grano
v. Dep’t of Dev., 637 F.2d 1073, 1082 (6th Cir. 1980).
Akers’s § 1983 claim was thus analyzed by the district court
as a Title VII claim.
   An employer is defined under Title VII as “a person
engaged in an industry affecting commerce who has fifteen or
more employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar
year, and any agent of such a person . . . .” 42 U.S.C.
§ 2000e(b). Akers relies on the “agent” language of this
definition and argues that Alvey should be considered an
“employer” for Title VII purposes. The district court,
however, ruled that Alvey could not be held individually
liable under Title VII, relying on this court’s decision in
Wathen v. General Electric Co., 115 F.3d 400 (6th Cir. 1997).
No. 02-5037                          Akers v. Alvey et al.     15    16   Akers v. Alvey et al.                        No. 02-5037

                   ___________________                               harassment has to do with personal perception. Courts would
                                                                     be clogged with lawsuits if every single off-color joke told in
                     CONCURRENCE                                     the presence of a highly sensitive person were actionable
                   ___________________                               under Title VII or, as is more often the case, if behavior that
                                                                     has actually been tolerated or even welcomed and/or
  DAVID D. DOWD, JR., District Judge, concurring in the              participated in by an individual suddenly becomes a weapon
judgment. Although I reluctantly conclude that the majority          against the employer when something in the workplace does
has rightly decided this case in the face of current binding         not go that individual’s way. The “severe and pervasive”
Sixth Circuit precedent, I write separately to respectfully          standard helps to assure at least a little consistency of
voice my view that Morris v. Oldham County Fiscal Court,             interpretation and protects against this kind of abusive
201 F.3d 784 (6th Cir. 2000), relied upon to reject Akers’s          application of the statute.
retaliation claim, was wrongly decided.
                                                                        On the other hand, retaliation is not a matter of perception
   Morris does not, in my view, adequately recognize that            or gradation. It is, rather, much like an electric light, which
Title VII identifies and prohibits two discrete wrongs:              is either “on” or “off.” One either is or is not retaliating.
discrimination and retaliation. In the former category, when         Typically, this would be, and should be, a fact call for a jury.
it comes to discrimination based on sex, the Supreme Court           Of course, in the wake of Morris, now, by definition, one “is
has distinguished between quid pro quo claims and hostile            retaliating” only if one’s behavior against the Title VII
environment claims, Meritor Savings Bank, FSB v. Vinson,             complainant is “severe and pervasive.” I can perceive no
477 U.S. 57, 65 (1986), and has clarified that, to be                reason for this interpretation of Title VII. I can see a reason
actionable, hostile environment claims require harassment            to require severity and pervasiveness before a working
that is “severe and pervasive.” Id. Under the guise of               environment can be found to be truly “hostile;” I cannot see
statutory construction, and applying the two relatively recent       a reason for applying that standard to retaliation.
Supreme Court decisions in Burlington Industries, Inc. v.            Nonetheless, that is, unfortunately, the law in this circuit.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), Morris has incorporated that               Therefore, I am constrained to concur in the judgment.
“severe and pervasive” standard into retaliation claims. I
believe this is wrong.
  While it is a reasonable interpretation of the statute, in light
of people’s varying sensitivities, to require harassment to be
severe or pervasive, that concept is inconsistent with the
concept of retaliation.
   With respect to harassment: some people are highly
offended by even the slightest off-color behavior in the
workplace; others have a much higher tolerance for the very
same behavior. In other words, there is significant gradation
in the area of harassment and, often, whether there is or is not
