PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JASEY MIKELS,
Plaintiff-Appellant,

v.                                                                     No. 96-2560

CITY OF DURHAM, North Carolina,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-95-261-1)

Argued: April 8, 1998

Decided: June 29, 1999

Before WILLIAMS, Circuit Judge,
PHILLIPS, Senior Circuit Judge, and
G. ROSS ANDERSON, JR., United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Phillips wrote the opin-
ion, in which Judge Williams and Judge Anderson joined.

_________________________________________________________________

COUNSEL

ARGUED: R. Hayes Hofler, III, HAYES HOFLER & ASSO-
CIATES, P.A., Durham, North Carolina, for Appellant. Reginald B.
Gillespie, Jr., FAISON & GILLESPIE, Durham, North Carolina, for
Appellee. ON BRIEF: Laurel E. Solomon, HAYES HOFLER &
ASSOCIATES, P.A., Durham, North Carolina, for Appellant. Keith
D. Burns, FAISON & GILLESPIE, Durham, North Carolina, for
Appellee.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Jasey Mikels appeals the district court's entry of summary judg-
ment for defendant City of Durham ("City") on her Title VII and
§ 1983 "hostile environment" sexual harassment claims. The district
court dismissed both claims, concluding that once made aware of the
allegedly harassing conduct, the City had taken prompt and adequate
remedial measures to relieve it of liability under Title VII and that the
City did not have a custom or policy which caused the conduct so as
to make it liable for that conduct on the § 1983 claim. We affirm.

I.

The essential facts of the case, either undisputed or, where dis-
puted, recited in the light most favorable to Mikels as nonmovant on
the summary judgment record, are as follows. Mikels began work as
a police officer for the City in May 1988. Around midnight on
March 28-29, 1993, while both were on duty as members of Squad
2D, Corporal Robert Acker grabbed Mikels on each side of her face,
pulled her to him, and kissed her on the mouth. This unwelcome act
was preceded by several seconds of "shadow boxing" in which Acker
repeatedly jabbed at Mikels' face without actually hitting her. Imme-
diately after Acker kissed her, Mikels pushed him away and
demanded that he never touch her again. Mikels expressed her dis-
pleasure in clear and certain terms and Acker immediately apolo-
gized. Mikels did not accept the apology.

This incident occurred in the presence of several other police offi-
cers, including Mikels' and Acker's immediate supervisor, Sergeant
Robert Cox. Cox did not immediately respond, but after a few
moments, he came over, put his hand on Mikels' shoulder, and stated
"he apologizes, she accepts, it's over with." Shortly afterward and

                     2
during that shift, Cox privately issued an oral reprimand and warning
to Acker, advising him that the conduct was inappropriate, would not
be tolerated and if repeated would subject him to more severe punish-
ment. During a follow-up meeting with Mikels in which Cox advised
her of his having reprimanded Acker, Mikels repeated her objection
to the conduct and told Cox of an incident some five months before
in which Acker had made unwelcome sexually suggestive bodily con-
tact with her. This was her first report of the earlier incident. During
the next work shift on March 29-30, Cox reported the March 28-29
kissing incident to his immediate supervisor, Captain Rigsbee, and by
Rigsbee's direction issued a formal reprimand and warning to Acker
in the form of a written memorandum confirming those earlier given
orally. In this memorandum, Cox characterized the incident as "horse-
play" but as conduct violative of departmental rules and regulations
which if repeated would "lead to stricter disciplinary action," and he
incorrectly stated (as later determined on conflicting evidence in an
internal review process) that Mikels had accepted Acker's immediate
apology. Cox also met with the entire 2D squad and warned that
horseplay, practical joking and the like would not be tolerated in the
future, and Cox and Rigsbee met with the four female members of the
squad other than Mikels to discuss the incident and to determine
whether and to what extent they had experienced or observed compa-
rable conduct.

During the March 29-30 shift, Mikels told Cox that she was filing
a formal administrative complaint respecting the kissing incident. Cox
advised her against doing so, suggesting, according to Mikels, that
she would "regret it." Mikels nevertheless filed her complaint with the
Internal Affairs Division of the Department on March 30. And, when
Acker then reported for duty on April 2, he was summoned to Police
Headquarters and placed on administrative leave with pay for two
months. During this period of leave, he was transferred to another
squad effective upon his return from leave.

Following an extensive internal investigation of Mikels' complaint,
the investigating officer prepared a report and recommendation which
was forwarded for action to Police Chief Jackie W. McNeill. Acting
upon the report, Chief McNeill found that Acker's conduct in the
March 28-29 incident violated the City's sexual harassment policy
and constituted conduct unbecoming a police officer in violation of

                    3
Department regulations. McNeill ordered a two-week suspension
without pay, reduction in rank, transfer to another department, and
corrective counseling.

Acker appealed this disciplinary action through employee griev-
ance procedures. A five-member Police Department Board of Inquiry
conducted a new evidentiary hearing. Following its own review, the
Board concurred in Chief McNeill's recommendations, affirming his
findings that Acker had violated the City's sexual harassment policy
and the Department regulations respecting officer conduct.

Acker appealed again, this time exercising his final administrative
option: review by the City Manager's Office. Assistant City Manager
Cecil A. Brown conducted a hearing on Acker's grievance. Following
the hearing and a review of internal affairs reports, on December 20,
1993, Brown, citing various steps in the internal departmental review
process that he asserted were irregular, affirmed the imposition of a
formal reprimand of Acker, but set aside the Board-approved further
sanctions of demotion and pay reduction as unauthorized under
Department procedures. The net effect of this final administrative
action was to let stand the formal reprimand and warning imposed by
Cox and the administratively ordered transfer of Acker to another
squad, but to restore Acker to his pre-incident rank and pay-grade.

Following Cox's oral reprimand and warning of Acker immedi-
ately after the March 28-29 incident, neither Acker nor any other
member of the Department engaged in any form of sexual harassment
of Mikels. Acker and Mikels served together in squad 2D on only one
shift following the March 28-29 incident. Upon Acker's return to
active duty from the two-month's administrative leave that was
imposed following the filing of Mikels' internal complaint, he and
Mikels were in different squads, operating in different areas and on
different work schedules as a result of Acker's administratively
ordered transfer. They saw each other from time to time, but had no
personal contact while on duty.

Mikels' filing of a formal complaint did, however, arouse great
resentment on the part of some of her fellow officers, male and
female, that caused her working conditions to become increasingly
unpleasant. Some fellow officers openly voiced their resentment;

                    4
some belittled the merits of her complaint, suggesting that she had
effectively invited Acker's conduct by her own participation in simi-
lar conduct; some gave her the "silent treatment;" some refused to
answer her calls for assistance. Some of her superiors were similarly
resentful of what they considered her creation of trouble within the
Department; one urged her to transfer from Squad 2D to escape the
unpleasantness she was experiencing in that setting. Eventually, in
December 1994, she did request and obtain a transfer to another squad
where for a time her working conditions improved. This did not last,
however, and she began increasingly to call in sick to escape the
unpleasantness of her working conditions. Finally, because of her
continued distress resulting from the unpleasantness which began
with the March 28-29 kissing incident, she resigned from her employ-
ment in October 1995, claiming psychological problems resulting
from the course of events triggered by the March 28-29, 1993 inci-
dent.

On January 6, 1994, shortly after Brown's final decision reducing
the disciplinary sanctions imposed upon Acker, Mikels filed a charge
of sex discrimination with the Equal Employment Opportunity Com-
mission ("EEOC"). In it, she identified as the only basis of her charge
Acker's March 1993 conduct and Brown's December 1993 decision,
which she characterized as one that "exonerated[Acker] of all wrong-
doing" and that found him "not guilty of sexual harassment."

Following the EEOC's issuance of a right-to-sue letter, Mikels
commenced this action against the City, alleging parallel federal
claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and 42 U.S.C. § 1983, and a number of pendent state-
law tort claims.1 The gravamen of her Title VII claim was that
Acker's March 28-29, 1993, conduct was sexual harassment creating
an "abusive or hostile workplace environment" for which the City was
liable by reason of its failure to take prompt and adequate remedial
measures respecting that conduct.2 The gravamen of the § 1983 claim
_________________________________________________________________
1 These pendent claims, along with a prayer for punitive damages in
relation to all claims, were dropped by Mikels during pre-trial proceed-
ings and are not involved in the appeal.
2 It is important at this point to note the exact scope of the Title VII sex
discrimination claim alleged by Mikels. As fixed by her EEOC charge

                    5
was that Acker's conduct was effectively caused by a City policy or
custom which encouraged or acquiesced in such conduct by its
employees.

In addition to denying essential elements of both federal claims, the
City raised a statute of limitations defense to the Title VII claim,
alleging untimely filing of the predicate EEOC charge.

Following extensive discovery, the district court granted the City's
motion for summary judgment as to both the Title VII and § 1983
claims. Though the court opined that the Title VII claim "may be
barred by the applicable statute of limitations," it declined to dismiss
the claim on that basis, but did so instead on the basis that, under
Fourth Circuit precedent, the City's remedial response to Acker's
March 28-29, 1993, conduct was, as a matter of law, sufficiently
prompt and adequate to relieve it of any potential liability for that
conduct. And, it dismissed the § 1983 claim on the basis that, as a
matter of law on the undisputed facts, the City had no policy or cus-
tom which could be considered the effective cause of Acker's chal-
lenged conduct.

This appeal by Mikels followed.

II.

We review de novo the district court's grant of summary judgment
dismissing both the Title VII and § 1983 claims, see Ballinger v.
_________________________________________________________________
and then alleged in her complaint, it concerned only Acker's conduct on
March 28-29, 1993, (and conceivably the one earlier incident first
reported following that of March 28-29) and the City's remediation
responses to that conduct, culminating in Brown's final administrative
decision concerning the March 28-29 incident. For this reason, Mikels'
proffered evidence of post-incident hostility of fellow-employees and
superiors with resulting emotional distress and eventual resignation could
have relevance to that claim only as it might be probative of compensa-
tory damages traceable to the charged violation. Her complaint does not
allege separate Title VII claims of retaliation or constructive discharge
and, by her own account, any hostility she experienced following the
charged incident was not because of her sex (or"sex" in general) but
because of the resentment of some at her having filed a complaint which
they thought unwarranted.

                     6
North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004 (4th Cir.
1987), and take them in turn.

A.

(1)

Addressing the Title VII claim, we first decline, as did the district
court, to rule on the statute of limitations defense which the City con-
tinues to press on appeal as an alternative basis for affirmance.
Though the district court suggested cogent reasons why the defense
might be a valid one, we believe, as did that court, that the limitations
issues need not, and in prudence should not, be addressed in this case.3
We therefore proceed to the merits of Mikels' claim.
_________________________________________________________________
3 As the district court noted, Mikels' EEOC filing on January 6, 1994,
was untimely under the basic 180-day limitation period of 42 U.S.C.
§ 2000e-5(e)(1) unless the "unlawful employment practice" being
charged was properly considered to be Brown's December 20, 1993,
sanction-reducing decision rather than the March 28-29, 1993, incident,
or unless Mikels properly had invoked the extended 300-day limitation
period available in "deferral states" such as North Carolina. See id. As
to the first possibility, the court apparently assumed it obvious that the
triggering occurrence was the March 28-29, 1993, incident, rather than
Brown's December 20, 1993, sanction-reducing decision. As to the sec-
ond, the court indicated the view that Mikels had not properly invoked
the 300-day period by "initially institut[ing] proceedings with a [proper]
State or local agency," id., because the Police Department's Internal
Affairs Division was not such an agency.

The court then merely noted, without addressing their merits, that
Mikels also sought to avoid the limitations bar of 42 U.S.C. § 2000e-5(e)
by invoking "continuing violation" and "estoppel" tolling principles.

The question raised by Mikels' contention that accrual of a sexual
harassment claim may be deferred by continuing developments in an
employer's remediation response appears to be one of first impression.
The uncertainties and opportunities for manipulation that would be cre-
ated were the contention upheld would seem at first blush to make it a
highly doubtful one. But claim-accrual doctrine, dependent as it is upon
determining when all of a claim's elements have occurred, is sufficiently
arguable in its application to this particular claim to counsel reservation
of the issue for another day when its resolution cannot be avoided--as
it can be here.

                     7
(2)

As earlier noted, the district court dismissed the claim on the basis
that on the undisputed facts of record it failed as a matter of law under
directly controlling circuit precedent. At the time, our most recent
precedent defined the elements of the "hostile or abusive work envi-
ronment" claim recognized in Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986), and Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), as being that "(1) the subject conduct was unwelcome; (2) it
was based on the sex of the plaintiff; (3) it was sufficiently severe or
pervasive to alter the plaintiff's conditions of employment and to
create an abusive work environment; and (4) it was imputable on
some factual basis to the employer." Spicer v. Virginia Dep't of
Corrections, 66 F.3d 705, 710 (4th Cir. 1995). And, our precedents
had long defined the basis for imposing liability under element (4) as
being that after having acquired actual or constructive knowledge of
the allegedly harassing conduct, the employer had taken "no prompt
and adequate remedial action [to correct it]." Id. at 710 (quoting
Swentek v. USAIR, Inc., 830 F.2d 552, 558 (4th Cir. 1987) (quoting
Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983))); Paroline v. Unisys
Corp., 879 F.2d 100, 106 (4th Cir. 1989) (quoting Swentek, 830 F.2d
at 558 (quoting Katz, 709 F.2d at 255)), vacated and remanded on
other grounds, 900 F.2d 552 (4th Cir. 1990). 4
_________________________________________________________________
4 It is now settled that this failure-to-act-after-notice standard is one for
imposing Title VII liability on employers for their direct negligence
rather than on respondeat superior or other"imputed" liability principles.
See Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2267 (1998) (so
characterizing standard as deriving from employer negligence principle
stated in Restatement (Second) of Agency§ 219(2)(b)); Faragher v. City
of Boca Raton, 118 S. Ct. 2275, 2288-89 (1998) (categorically rejecting
respondeat superior as basis for imposing employer liability because
sexual harassment not within scope of employment). To the extent we
have sometimes characterized the standard as one for imposing
respondeat superior liability, see Katz, 700 F.2d at 255 ("some theory of
respondeat superior"), our characterization has been revealed to be an
incorrect one, but no more than that. The mischaracterization has had no
substantive effect on our application of the standard. Cf., Fleenor v.
Hewitt Soap Co., 81 F.3d 48, 49-50 (6th Cir. 1996) (noting and correct-
ing similar mischaracterization of standard in previous decisions).

                  8
Treating element (4) as dispositive, and addressing only it, the dis-
trict court ruled that on the undisputed facts of record, the City had,
as a matter of law, taken prompt and adequate remedial action to cor-
rect the harassing conduct charged by Mikels, and was therefore not
liable for it. Specifically, the court pointed to the actions of Cox in
promptly reprimanding and warning Acker, first orally then formally
in writing for the record, in quickly convening the entire squad to for-
bid further "horseplay" such as Acker's at peril of disciplinary sanc-
tions, and in promptly reporting the conduct to his supervisor,
Rigsbee; to Rigsbee's prompt ordering of an investigation and his
directing Acker's official reprimand; and to Acker's two-months' sus-
pension from duty and reassignment to a different squad upon his
return to duty. And, the court pointed out that"perhaps most impor-
tantly" under our precedents, there had been no reports of any further
harassing conduct by Acker (or anyone else in the Department) fol-
lowing the remedial actions taken by City officials. See Spicer, 66
F.3d at 711 (holding that "when an employer's remedial response
results in the cessation of the complained of conduct, liability must
cease as well"); see also Swentek, 830 F.2d at 558 (treating as proba-
tive of adequacy of remedial response the fact that following repri-
mand no further complaints were made against alleged harasser).

We agree with the district court's ruling that under our precedents
the remedial responses made by City officials to Acker's conduct
were sufficiently "prompt and adequate" to relieve the City of poten-
tial liability for that conduct. In so holding, we agree with the court's
rejection of two principal challenges to its ruling, which Mikels con-
tinues to press on this appeal.

In her principal challenge, she contends that even if the initial
remedial responses were considered "adequate" when made, they later
were completely undercut by Brown's sanction-reducing decision.
Rhetorically characterizing that decision as a "complete exoneration"
of Acker, she argues in effect that by reducing the effectiveness of the
initial response to zero, it made the overall response inadequate as a
matter of law.

In rejecting this contention, the district court noted that Brown's
decision--however motivated and even if legally erroneous--had no
effect upon the official reprimand and warning directed by Rigsbee,

                     9
upon Acker's reassignment to another squad upon his return to duty,
nor upon his two-months' suspension from duty. These"residual
effects," coupled with the critical fact that the conduct ceased, suf-
ficed to demonstrate that the overall response was prompt and ade-
quate.

We agree with that assessment. We have not required that particu-
lar remedial responses be the most certainly effective that could be
devised, see Spicer, 66 F.3d at 710, and have given great weight to
the fact that a particular response was demonstrably adequate to cause
cessation of the conduct in question. See id. at 710-11 (holding that
immediate action taken to prevent posting of sexually offensive mem-
orandum, counseling greater sensitivity by its authors, and warning
that inappropriate sexual remarks would not be tolerated, after which
no further offensive conduct occurred, was adequate remedial
response as a matter of law); Swentek, 830 F.2d at 558 (holding same
as to prompt investigation of charges followed by written reprimand
and warning, after which "no further complaints were lodged").

In a closely related contention, Mikels argues that under our deci-
sion in Paroline, Brown's action in significantly reducing the sanc-
tions sufficed to raise a genuine issue of material fact, precluding
summary judgment, as to whether the overall course of remedial
action taken was but a "sham," hence inadequate. The district court
held that Paroline was distinguishable on the "sham" point, and we
agree.

In Paroline, the evidence as forecast on the summary judgment
record showed that well before Paroline, the Title VII claimant, had
been employed by Unisys, the employer-defendant, Unisys had been
put on notice that Moore, Paroline's eventual supervisor, had been
sexually harassing other female employees. See Paroline, 879 F.2d at
103. At that time, Unisys management did nothing but convene a staff
meeting to instruct male staff members to avoid conduct that might
be considered sexual harassment and privately caution Moore to
desist. See id. Having done that, management officials openly joked
and made light of female employees' sexual harassment complaints
and Moore did not cease his harassing conduct. See id. When Paroline
was later employed, Moore quickly turned his attentions to her,
engaging in overtly offensive sexual harassment. See id. When Paro-

                    10
line as quickly complained to management officials, they acknowl-
edged to her their previous awareness of Moore's behavior and then
gave him a written reprimand and warning, directed him to seek coun-
seling, and advised him to limit his contact with female employees.
See id. Advised of the action taken, Paroline protested its inadequacy.
See id. at 103-04. And, despite entreaties that she not do so, she
resigned from her employment less than a month after she had lodged
her complaint and less than four months after being employed. See id.
at 104.

In these circumstances, we held that there was sufficient evidence
as forecast to create a genuine issue as to whether all of Unisys'
asserted remedial responses--both those before and those after Paro-
line's complaint--had been mere "shams," hence not legally ade-
quate. See id. at 106-08. And, on that basis, we held, notwithstanding
that no more complaints against Moore had been lodged following
Paroline's, that summary judgment for Unisys was not proper. See id.

The critical distinction between the Paroline situation and that in
this case is the fact that in Paroline the employer was already on
notice, before Paroline's complaint, of the harasser's propensities, and
of the demonstrated inadequacy of mere verbal and written repri-
mands and warnings to deter him. From this, we concluded that based
on this prior history, a jury might reasonably find that the employer's
response following Paroline's complaint, like that following earlier
complaints, was equally ineffectual. Here, in contrast, there was no
prior history of demonstrably ineffectual, hence possibly "sham,"
responses to draw in question the adequacy of the overall remedial
response to Mikels' complaint.5 We therefore agree with the district
court's rejection of Mikels' "sham response" contention.
_________________________________________________________________
5 This distinguishing fact also explains why the undisputed fact that
Moore's harassment of Paroline ceased following Unisys' remedial
action did not have the probative significance that cessation was
accorded in Spicer and Swentek. In those cases, causal connection
between response and cessation was considered established as a matter
of law, thereby confirming in the most obvious possible way the "ade-
quacy" or "effectiveness" of the response. See Spicer, 66 F.3d at 710
(noting that evidence of the "effectiveness of the response in eliminating
the problem" was "undisputed"); Swentek , 830 F.2d at 558 (assuming

                    11
(3)

While this appeal was pending, the Supreme Court, in Burlington
Industries v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of
Boca Raton, 118 S. Ct. 2275 (1998), significantly clarified extant law
respecting employer liability under Title VII for sexual harassment by
its employees. Of possible relevance to Mikels' claim, the Court held
that under the aided-by-agency principle expressed in Restatement
(Second) of Agency § 219(2)(d), as "adapt[ed] to the practical objec-
tives of Title VII," Faragher, 118 S. Ct. at 2290 n.3, "an employer is
subject to vicarious liability to a victimized employee for an action-
able hostile environment created by a supervisor with immediate (or
successively higher) authority over the employee," Ellerth, 118 S. Ct.
at 2270; Faragher, 118 S. Ct. at 2292-93. But only "subject to," not
"automatically liable," because not all harassment even by supervi-
sory personnel is necessarily "aided by the agency relation." See
Ellerth, 118 S. Ct. at 2269 (noting that some acts of harassment by
supervisor "might be the same acts a co-employee would commit"
and that "there may be some circumstances where the supervisor's
status makes little difference"). The fundamental determinant of this
form of vicarious liability is not, therefore, the harasser's formal rank
vis-a-vis that of the victim in the particular employment hierarchy,
though that is of critical and sometimes decisive evidentiary impor-
tance, but whether the particular conduct was "aided by the agency
relation." See id. Two bright-line rules define the boundaries of the
root principle. Any harassing conduct that culminates in a "tangible
employment action" against the victim is necessarily conduct "aided
by the agency relation," since it can only be taken by supervisory
employees empowered by their employer's to take such action. See
Ellerth, 118 S. Ct. at 2268-69 (gives "assurance [that] the injury could
not have been inflicted absent the agency relation"). In that circum-
stance, vicarious liability is absolute, without regard to whether the
_________________________________________________________________

causal connection from undisputed fact that no further complaints about
harasser were lodged following remedial response). In Paroline, by con-
trast, such a causal connection could not be considered to be evident as
a matter of law, both because Paroline's resignation came too quickly to
permit the conclusion and because previous remedial responses of the
same kind had proven ineffectual to stop earlier harassment.

                    12
employer knew, or should have known, or approved of the act, or
sought to prevent or stop it. See Faragher, 118 S. Ct. at 2284-85,
2293; see also Ellerth, 118 S. Ct. at 2269. At the other end, "absent
some elaborate scheme," harassment by a fellow-employee having no
authority of any kind over the victim never can be found "aided by
the agency relation"; as to such employees, the agency relation pro-
vides no "aid" for their conduct but workplace proximity, and that
does not suffice for the purpose. See Ellerth , 188 S. Ct. at 2268. For
such "unaided" harassment, by whomever done, employers are liable
only for their own negligence in failing, after actual or constructive
knowledge, to take prompt and adequate action to stop it. See id. at
2267.

Between these extremes, there remains otherwise actionable
harassment that, though it does not culminate in tangible employment
action, is nevertheless "aided by the agency relation," as that may be
demonstrated by other features of the employment relations between
harasser, victim, and employer and the particular circumstances of its
occurrence. Vicarious liability arising in this way is not absolute, but
subject to an affirmative defense that the employer had (1) "exercised
reasonable care to prevent and correct promptly any sexually harass-
ing behavior," and (2) the victim had "unreasonably failed to take
advantage of any preventive or corrective opportunities provided by
the employer or to avoid harm otherwise." See Ellerth, 118 S. Ct. at
2770; Faragher, 118 S. Ct. at 2292-93. And as indicated, it can only
arise from the conduct of an employer having some measure of super-
visory authority over the victim; it cannot arise from the conduct of
a mere co-worker, one with no form of authority.

Which leads to the possible relevance to Mikels' claim of the new
regime announced in these intervening Supreme Court decisions. At
the time Mikels' claim was litigated in the district court and her
appeal briefed and argued in this court, our precedents applied the
failure-to-act-after-notice standard as the sole basis for imposing lia-
bility upon employers for abusive or hostile workplace conditions
whether caused by victims' co-workers or supervisors (at lower than
"alter-ego" levels of management). See, e.g., Andrade v. Mayfair
Management, Inc., 88 F.3d 258, 261-62 (4th Cir. 1996) (applied
where harasser was victim's immediate supervisor); Swentek, 830
F.2d at 557-58 (applied where harasser found not to be supervisor);

                     13
Katz, 700 F.2d at 253-56 (applied where both co-workers and supervi-
sors were involved). In consequence, there was no reason prior to
argument in this court for Mikels to raise any issue as to whether the
City might be subject to vicarious liability under the more stringent
aided-by-agency-relation principle if not directly liable under the
failure-to-act-after-knowledge negligence principle. Though Mikels
has not since submission of the case sought to raise the issue with us,
as she might have by invoking Fed. R. App. P. 28(j) to suggest the
Supreme Court decisions as relevant intervening authority, we think
it proper to address the matter sua sponte in the interest of fairness.
See Ellerth, 118 S. Ct. at 2271 (instructing that on remand, district
court might consider justice of allowing Title VII claimant to re-plead
and supplement discovery in light of newly-announced rule); cf.
Reinhold v. Virginia, 151 F.3d 172, 176 (4th Cir. 1998) (on petition
for rehearing; previous opinion applying pre-Ellerth/Faragher circuit
precedents withdrawn, case remanded for reconsideration in light of
Supreme Court decisions).

Here, we do not believe a vacatur and remand for reconsideration
is warranted. Because Acker's conduct did not result in any tangible
employment action, that means of establishing absolute vicarious lia-
bility would not be available. The only available theory would be that
Acker's conduct was that of one with sufficient supervisory authority
over Mikels that its doing under the circumstances was "aided by the
agency relation." We are satisfied that, as a matter of law, this theory
could not be established in the face of the record. Cf. Faragher, 118
S. Ct. at 2293 (remand for possible raising of newly-announced affir-
mative defense not warranted where "it appear[ed] from the record
that any such avenue is closed").

Faragher and Ellerth, not having the issue directly before them,
attempt no definitive explanation of what conduct short of that culmi-
nating in tangible employment action can be found nevertheless to be
"aided by the agency relation." See Ellerth, 118 S. Ct. at 2269
(describing conduct so qualifying only as "less obvious"). We know
that it cannot be the conduct of a mere co-worker--one having no
form of authority over the victim--and that it therefore can only be
the conduct of one having some measure of supervisory authority.
But, because not all harassment even by "supervisory" employees
necessarily qualifies under the "malleable terminology" of this stan-

                    14
dard, see id., the inquiry may have to run deeper into the details of
relationships and particular circumstances. The touchstone, though
not a prescription, can be found in critical observations by the Ellerth
and Faragher courts respecting the way in which the agency relation
may aid a particular "supervisor" in a particular act of actionable
harassment. The determinant is whether as a practical matter his
employment relation to the victim was such as to constitute a continu-
ing threat to her employment conditions that made her vulnerable to
and defenseless against the particular conduct in ways that compara-
ble conduct by a mere co-worker would not. See Faragher, 118 S. Ct.
at 2291 (because "victim may well be reluctant to accept the risks of
blowing the whistle on a superior . . . [and]"generally cannot check
a supervisor's abusive conduct the same way that she might deal with
abuse from a co-worker"). The most powerful indicator of such a
threat-induced vulnerability deriving from the supervisor's agency
relation lies in his authority, though not exercised in the particular sit-
uation, to take tangible employment actions against the victim, such
as "hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in
benefits." See Ellerth, 118 S. Ct. at 2268-69 (so defining this level of
authority as necessarily derived from the agency relation); Faragher,
118 S. Ct. at 2293 (imposing aided-by-agency vicarious liability
where no tangible employment action taken but one of two harassing
supervisors had authority to hire and fire, both had"virtually
unchecked authority" over subordinates, "directly controlling and
supervising all aspects of [the victim's] day-to-day activities," and
victim and colleagues were "completely isolated from the [employ-
er's] higher management").

Short of that most threatening form of supervisory authority, we
may assume, without deciding here, that lesser forms derived from the
agency relation may aid particular acts of supervisor harassment. In
such less clear circumstances, the victim's response in context may
be highly probative on the issue whether any agency authority pos-
sessed by the harasser has actually aided his conduct by increasing
her sense of vulnerability and defenselessness. This point was antici-
pated, though obliquely, in Faragher. There the Court noted that
"when a fellow-employee harasses, the victim can walk away or tell
the offender where to go, but it may be difficult to offer such
responses to a supervisor `whose power to supervise--[which may be

                     15
to hire and fire], and to set work schedules and pay rates--does not
disappear when he chooses to harass through insults and offensive
gestures rather than directly with threats of firing or promises of pro-
motion.'" Id. at 2291 (quoting Estrich, Sex at Work, 43 Stan. L. Rev.
813, 854 (1991). Which is to suggest that where the level of authority
had by a harasser over a victim--hence her special vulnerability to his
harassment--is ambiguous, the tip-off may well be in her response to
it. Does she feel free to "walk away and tell the offender where to
go," or does she suffer the insufferable longer than she otherwise
might?

In the face of these principles derived from Ellerth and Faragher
and the facts of record, we are satisfied that Mikels would have no
"serious prospect" of proving upon remand that Acker's conduct was
aided by the agency relation in the required way. See Faragher, 118
S. Ct. at 2293 (similarly concluding as to prospect that employer
could establish newly-announced affirmative defense were the case
remanded). From the undisputed facts of record, informed by a modi-
cum of judicial notice, it is evident that any authority possessed by
Acker over Mikels was at best minimal. In the typical paramilitary
structure of the Police Department he was, as Mikels put it, Appel-
lant's Br. 3, only her "superior" in rank, he a corporal, she a private-
level member of the same squad. In that position, Acker's authority
assuredly did not include the power to take tangible employment
actions against Mikels and her rank-peers. At most it would involve
the occasional authority to direct her operational conduct while on
duty. Importantly, the record is clear that in her relationships with
Acker, she was not isolated from the continuing protective power of
higher management in the Department. She operated under the stated
understanding that her direct "supervisor" was her squad-leader ser-
geant, id. at 4, and, as the record plainly indicated, she had immediate
access to him without going through Acker or anyone else to lodge
grievances. Cf. id. (basing conclusion of aided-by-agency vicarious
liability on unchallenged findings that harassing supervisors had "vir-
tually unchecked authority" over "all aspects of [victim's] day-to-day
activities," and that victim was "completely isolated from the
[employer's] higher management").

If these facts did not suffice to foreclose the claim, the clincher lies
in Mikels' demonstrated lack of any sense of special vulnerability or

                     16
defenselessness deriving from whatever authority Acker's corporal
rank conferred. Immediately following Acker's unwelcome conduct,
Mikels, by her own testimony, rebuffed him in an obscenity- and
profanity-laced outburst (see J.A. 67) rejected his immediately prof-
fered apology, and the next day filed a formal grievance against him.
That is not likely the conduct of one "reluctant to accept the risks of
blowing the whistle on a superior," but more naturally the conduct of
one who thinks of her harasser as merely a fellow-employee from
whose unwelcome conduct she is free to walk away or whom she can
"tell where to go." See id. at 2291.

We therefore conclude that a remand to allow attempted proof of
aided-by-agency-relation vicarious liability is not warranted.

B.

Mikels' challenge to the district court's dismissal of her parallel
§ 1983 claim requires little discussion. Her apparent theory--and it is
not too plain--is that Brown's decision in reducing the sanctions
imposed upon Acker violated her Fourteenth Amendment equal pro-
tection rights. Under settled doctrine, the City could only be liable for
this action by Brown--assuming that its effect was to deprive her of
equal protection rights by discriminating against her because of her
sex--if it was effectively caused by a City "policy or custom," Monell
v. Department of Social Servs. of New York, 436 U.S. 658, 694
(1978); Spell v. McDaniel, 824 F.2d 1380, 1385-86 (4th Cir. 1987),
or if in taking the action Brown was acting by express or implied del-
egation of authority from the City, as its "policymaker" in matters of
personnel management. See Spell, 824 F.2d at 1387.

The district court considered both of these possible theories, and
properly rejected both as a matter of law. Mikels'"municipal policy
or custom" contention was based on Brown's having at one point
explained his decision as having been based on "double jeopardy"
concerns which he first erroneously attributed to City personnel regu-
lations, then to his own "sense." Mikels contended in the district court
and repeats the contention here--as we understand it--that if there
was such a City regulation, it embodied the requisite "policy" for
holding it liable for Brown's decision implementing it; that if it was
not, then allowing Brown to act upon his own "sense of double jeop-

                     17
ardy" is indicative of a customary practice which the City condoned
by allowing it to go "unchecked." The lack of any merit in these con-
tentions is patent and the district court properly so held.6

The alternative contention, that in making the administrative deci-
sion, Brown was acting under delegated authority as the City's final
policymaker in matters of personnel management, is equally without
merit. It suffices to say that even if Brown's decision were taken as
"final" action concerning the discipline of Acker, it could only be
considered an episodic exercise of discretion in an operational detail
of municipal government, and not an exercise of delegated authority
to establish and directly implement overall City policy respecting
employee discipline. See id. at 1386 (differentiating policymaking and
execution from discretionary actions, even if "final," that concern
mere "operational details of government"). Brown's decision--even
assuming that it could be found to have caused injury to any
constitutionally-protected right of Mikels--clearly falls on the non-
policymaking side of municipal officials' conduct, and the district
court properly rejected this theory of municipal liability.

AFFIRMED
_________________________________________________________________
6 Mikels sought to support this theory of municipal liability resulting
from Brown's decision with proffered evidence of an ulterior motive for
it. The specific proffer was of circumstantial evidence designed to sup-
port an inference that the decision was induced by a favorable credit
transaction arranged for Brown by a female credit-officer friend of
Acker's. The district court noted the proffer and declined to consider it
on the basis that, because entirely speculative, it could not properly be
considered under Fed. R. Civ. P. 56. We think that ruling was proper on
the more fundamental basis that the proffered showing, even if true, was
irrelevant to the issue whether the decision could be attributed to the City
as one of its policy or condoned custom. As the district court put it, the
"propriety" of Brown's conduct, in the sense suggested by this disturbing
proffer, was not within its "province."




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