                                   Dallas JOHNSON, Plaintiff-Appellant,

                                                      v.
  BOOKER T. WASHINGTON BROADCASTING SERVICE, INC., d.b.a. WENN Radio, and David
Donnell, Defendants-Appellees.

                                                No. 99-6078.

                                       United States Court of Appeals,
                                               Eleventh Circuit.

                                                Nov. 29, 2000.

Appeal from the United States District Court for the Northern District of Alabama.(No. 97-03215-CV-H-S),
James H. Hancock, Judge.
Before COX, WILSON and GIBSON*, Circuit Judges.

        WILSON, Circuit Judge:

        Dallas Johnson appeals the district court's grant of summary judgment to defendants-appellees on her
sexual harassment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq., and its dismissal of her pendent state law assault and battery claims. We affirm the district court's

grant of summary judgment on Johnson's retaliation claim, but reverse on her sexual harassment claim. Since
the district court will have subject matter jurisdiction over a federal claim upon our remand, we also reinstate

Johnson's pendent state law claims.

                                             I. BACKGROUND
        Booker T. Washington Broadcasting Service, Inc. ("BTW") owned the WENN1 radio station in
Birmingham, Alabama. WENN was ranked as the number one or two station in the Birmingham market for

some period of years before 1996. During this time period, WENN's highest rated show, The Morning Show
with Dave Donnell (the "Morning Show"), generated nearly fifty percent of WENN's overall advertising

revenue. When the Morning Show's ratings began to drop in 1996, WENN decided to add a co-host in hopes

of boosting ratings.

        WENN hired plaintiff-appellant Johnson as co-host of the Morning Show. As a new employee,
Johnson received a copy of BTW's employment handbook. The harassment policy contained in the handbook

prohibited employees from engaging in:


    *
     Honorable John R. Gibson, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
    1
     We refer to WENN and BTW interchangeably throughout this opinion.
        [S]exual flirtations, advances or propositions; continued or repeated verbal abuse of a nature which
        is ... sexual ...; graphic or degrading comments about an individual or his or her appearance; the
        display of sexually suggestive objects or pictures; or any offensive or abusive physical contact.
        Furthermore, no one should imply or threaten that an applicant's or employee's cooperation or refusal
        to participate in sexual involvement or discriminatory activity will have any effect on that individual's
        employment, assignment, compensation, advancement, career development, or any other condition
        of employment.

The policy also instructed employees:

        If an employee experiences a problem with harassment, that employee must immediately notify his
        or her supervisor, or if notification to the supervisor would be inappropriate, another member of
        management.... All complaints will be promptly and thoroughly investigated and corrective action,
        if necessary, will be taken.

        Dave Donnell served as co-host and program director on the new Morning Show. As program
director, Donnell supervised Johnson. From the beginning, Johnson and Donnell did not hit it off. For

example, Donnell would cut off Johnson's microphone while they were on the air. Johnson claims Donnell

did this whenever he did not like her comments. Donnell claims he cut off Johnson's microphone only when
she made inappropriate (e.g., sexually charged) comments. The listening audience and internal personnel
complained about the hostile interaction between Donnell and Johnson; listeners thought it sounded like

Donnell and Johnson were fighting on the air.
        The Morning Show ratings continued to decline. In April 1997, WENN transferred Johnson from
the morning to the midday air shift. Donnell testified he did not participate in making the decision to move

Johnson to the midday shift, although he did inform her of the change. Co-worker Chris Talley likewise
testified that station president Kirkwood Balton made all hiring and firing decisions at WENN, and that
Donnell merely implemented Balton's directives. Co-worker Rick Owens, however, testified that Donnell

"had all Mr. Balton's backing on all programming and personnel decisions. Whatever [Donnell] felt needed
to be done, he would take that to Mr. Balton. And [sic] Mr. Balton would back him on it." Owens further

testified that Donnell said "that the chemistry wasn't working [between Donnell and Johnson] and that they

probably would have to move [Johnson] to either middays or possibly overnights."

        On May 12, 1997, WENN again changed Johnson's shift, moving her from middays to late nights.
WENN cut Johnson's pay correspondingly. On May 28, 1997, Johnson complained to Balton and station

manager Rose Walker about the shift changes and pay cut, but Walker and Balton refused to make any

changes. Johnson claimed she had a contract with WENN that guaranteed her a higher salary, but she would
not produce the contract. Instead, Johnson left the station on May 28, 1997, after the meeting, and never
returned to work.2

         Believing Johnson had quit, WENN arranged an exit interview for Johnson on June 6, 1997. At the

exit interview, Johnson alleged WENN was terminating her in retaliation for her refusal to give in to
Donnell's sexual advances. This was the first time Johnson voiced any sexual harassment concerns to any

BTW supervisor or officer.

         Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission
("EEOC") in June 1997, received her right to sue letter in October 1997, and instigated the present suit in

December 1997. Johnson's complaint consisted of three counts: first, against WENN3 for quid pro quo

sexual harassment, hostile work environment sexual harassment, and retaliation; second, against Donnell for
assault and battery; and third, against Donnell for wrongful interference with Johnson's business and

contractual relationship with WENN.4

         Johnson claims that during her tenure on the Morning Show Donnell sexually harassed her as
evidenced by the following incidents:

1.       Donnell repeatedly commented that Johnson had a sexy voice;
2.       Donnell called out Johnson's name and winked at her;

3.       Donnell called out Johnson's name and pulled his pants up in an obscene manner, revealing an
         imprint of his private parts;
4.       Donnell called out Johnson's name and then looked her "up and down" while staring at her in a sexual
         manner;

5.       Donnell said "Johnson, I like you and as long as I like you you're going to be all right. You don't
         have to worry about your job;"
6.       Donnell repeatedly attempted to massage Johnson's shoulders against her wishes;

7.       Donnell stuck his tongue out at Johnson in an obscene manner;

8.       Donnell inappropriately rubbed his body parts against Johnson;

9.       Donnell asked Johnson why a person with a body like hers always covered it up;



     2
     Johnson concedes her employment ended on May 28, 1997.
     3
      Johnson's complaint also named Booker T. Washington Insurance Company as a defendant. The
district court dismissed Booker T. Washington Insurance Company as a defendant in a January 30, 1998
order, and Johnson does not appeal that decision.
     4
     The district court dismissed the third count (Johnson's claim against Donnell for wrongful
interference ) in a January 30, 1998 order, and plaintiff does not appeal that decision.
10.       Donnell commented that he could "pull [Johnson] up" anytime, a comment Johnson interpreted as
          a sexual reference;
11.       Donnell got close to Johnson's face as if to kiss her;

12.       Donnell commented that Johnson "really knocked him off his feet;"

13.       Donnell stated that "he had to stay on his side of the room;"
14.       Donnell commented inappropriately about sex to Johnson and questioned Johnson about her own sex
          life; and

15.       Donnell asked Johnson if she ever got lonely.

          In a January 4, 1999 order, the district court granted WENN's motion for summary judgment on

Johnson's retaliation and sexual harassment claims, and dismissed Johnson's pendent assault and battery
claims against Donnell. Johnson appeals these rulings.

                                               II. DISCUSSION

          We have jurisdiction pursuant to 28 U.S.C. § 1291, as this is an appeal from a final judgment.5 See

28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, applying the same legal

standards as the district court, and viewing all facts and reasonable inferences drawn therefrom in the light

most favorable to Johnson, the non-moving party. See Evans v. McClain of Georgia, Inc., 131 F.3d 957, 961

(11th Cir.1997) (per curiam). We review the district court's dismissal of pendent state law claims for abuse

of discretion. See Shahawy v. Harrison, 778 F.2d 636, 644 (11th Cir.1985), amended by 790 F.2d 75 (11th

Cir.1986), appealed after remand, 875 F.2d 1529 (11th Cir.1989).

A.        Retaliation Claims
          Under Title VII:
          It shall be an unlawful employment practice for an employer to discriminate against any of his
          employees or applicants for employment ... because [the employee] has opposed any practice made
          an unlawful employment practice by this subchapter, or because he has made a charge, testified,
          assisted, or participated in any manner in an investigation, proceeding, or hearing under this
          subchapter.

42 U.S.C. § 2000e-3(a) (1982). To establish a prima facie case of retaliation, a plaintiff must show that (1)

she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3)

there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th




      5
      The district court dismissed count III in its January 30, 1998 order, and disposed of counts I and II in
its January 4, 1999 order.
Cir.1997) (per curiam).6 Statutorily protected expression includes filing complaints with the EEOC and

complaining to superiors about sexual harassment. See, e.g., Rollins v. State of Fla. Dept. of Law

Enforcement, 868 F.2d 397, 400 (11th Cir.1989) ("[T]he protection afforded by the statute is not limited to

individuals who have filed formal complaints, but extends as well to those, like [appellant], who informally

voice complaints to their superiors or who use their employers' internal grievance procedures.").

         Johnson engaged in statutorily protected expressions by filing a charge with the EEOC in June 1997
and complaining about Donnell's harassment to Walker and Balton on June 6, 1997. Johnson's employment

with WENN ended on May 28, 1997. Thus, Johnson's June 1997 protected expressions occurred after her

employment ended in May 1997, and WENN's employment decisions could not have been based on Johnson's

protected expressions. Hence Johnson cannot prevail on her retaliation claim, as she failed to satisfy the third

Holifield prong: a causal relationship between her complaining about Donnell's harassment and her transfers

or termination. We therefore affirm the district court's dismissal of Johnson's retaliation claims.

B.       Sexual Harassment Claims
         Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating "against any

individual with respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment can

constitute discrimination based on sex for purposes of Title VII. See Mendoza v. Borden, Inc., 195 F.3d 1238,

1244-45 (11th Cir.1999) (en banc). Generally, sexual harassment comes in two forms: harassment that does
not result in a tangible employment action (traditionally referred to as "hostile work environment"

harassment), and harassment that does result in a tangible employment action (traditionally referred to as

"quid pro quo" harassment). See generally Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760-63, 118

S.Ct. 2257, 141 L.Ed.2d 633 (1998).

         All harassment by co-workers necessarily falls into the first Ellerth class, as co-workers cannot take

employment actions against each other. See id. at 762, 118 S.Ct. 2257 ("[O]ne co-worker ... cannot dock

another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special


     6
      Once a plaintiff makes out a prima facie case of retaliation " 'the burden shifts to the defendant to
rebut the presumption of retaliation by producing legitimate reasons for the adverse employment action.'
If the defendant offers legitimate reasons, the presumption of retaliation disappears. The plaintiff must
then show that the employer's proffered reasons for taking the adverse action were actually a pretext for
prohibited retaliatory conduct." Sullivan v. National Railroad Passenger Corp., 170 F.3d 1056, 1059
(11th Cir.1999) (quoting Raney v. Vinson Guard Service, 120 F.3d 1192, 1196 (11th Cir.1997)) (citation
omitted), cert. denied, --- U.S. ----, 120 S.Ct. 402, 145 L.Ed.2d 314 (1999).
province of the supervisor."). Harassment by supervisors, on the other hand, can fall into either category.

This distinction is important because if Donnell was a co-worker, rather than Johnson's supervisor, Johnson's

claim can only be for hostile environment or non-tangible employment action harassment. If Donnell was

a supervisor, Johnson's claim may be for quid pro quo or tangible employment action harassment. This in

turn is important because WENN may utilize an affirmative defense if the alleged harassment was without
a tangible employment action, but WENN would be strictly liable if the alleged harassment resulted in a

tangible employment action.

         To demonstrate sexual harassment, Johnson must show: (1) that "she belongs to a protected group;"

(2) that she "has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual
favors, and other conduct of a sexual nature;" (3) that the harassment was "based on [her] sex ...;" (4) "that

the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and

create a discriminatorily abusive working environment;" and (5) "a basis for holding the employer liable."7

Mendoza, 195 F.3d at 1245. The parties do not dispute that Johnson belongs to a protected group (women)

and that Donnell's comments and actions towards Johnson were based on Johnson's sex. The remaining three
factors are more difficult to evaluate.

1.       Was Johnson subjected to unwelcome sexual harassment, and was the harassment sufficiently severe
         or pervasive?

         The second and fourth factors listed in Mendoza are intertwined, and we will evaluate them together.

Title VII "does not prohibit all verbal or physical harassment in the workplace," and "does not reach genuine


     7
     The Mendoza opinion discusses "hostile environment," rather than "quid pro quo" harassment. The
Supreme Court in Ellerth largely wiped out the usefulness of the terms "hostile environment" and "quid
pro quo." According to precedent in this circuit, a plaintiff's prima facie sexual harassment case is very
similar under either title. We have held:

                 The prima facie elements for [a quid pro quo] cause of action that the plaintiff must prove
                 include: (1) the employee belongs to a protected group; (2) the employee was subject to
                 unwelcome sexual harassment; (3) the harassment complained of was based on sex; and
                 (4) the employee's reaction to the unwelcome behavior affected tangible aspects of the
                 employee's compensation, or terms, conditions or privileges of employment.

         Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th Cir.1994). The first three
         Mendoza factors are exactly the same as the first three Virgo factors. The fourth Virgo factor
         correlates with the fifth Mendoza factor—whether an employer may be held liable depends on
         whether a tangible employment action resulted from the harassment. The fourth Mendoza factor,
         whether or not the harassment was severe or pervasive, jibes with the Virgo analysis as well: if a
         supervisor retaliates against a worker for failing to give in to sexual advances, those advances will
         rise to the level of "severe or pervasive." Seeing no important distinction between a prima facie
         case under quid pro quo as opposed to hostile environment claims, we will apply the Mendoza
         factors to Johnson's claims, irrespective of the terms "quid pro quo" and "hostile environment."
but innocuous differences in the ways men and women routinely interact with members of the same sex and

of the opposite sex." Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 80-81, 118 S.Ct. 998, 140

L.Ed.2d 201 (1998). Instead, Title VII prohibits only the type of severe or pervasive sexual harassment that

"alter[s] the conditions of the victim's employment." Id. at 81, 118 S.Ct. 998 (quotation omitted).

          Harassment is severe or pervasive for Title VII purposes only if it is both subjectively and

objectively severe and pervasive. Mendoza, 195 F.3d at 1246. Harassment is subjectively severe and

pervasive if the complaining employee perceives the harassment as severe and pervasive, and harassment is
objectively severe and pervasive if a reasonable person in the plaintiff's position would adjudge the

harassment severe and pervasive. See id. When determining whether harassment is objectively severe and

pervasive, courts consider "the frequency of the conduct," "the severity of the conduct," "whether the conduct
is physically threatening or humiliating, or a mere offensive utterance," and "whether the conduct

unreasonably interferes with the employee's job performance." Mendoza, 195 F.3d at 1246.

         There is no doubt Johnson subjectively perceived Donnell's behavior as harassing. Turning to the

four objective factors: the conduct alleged by Johnson was not infrequent (Johnson points to roughly fifteen
separate instances of harassment over the course of four months); the conduct was severe (Donnell's behavior
included giving Johnson unwanted massages, standing so close to Johnson that his body parts touched her

from behind, and pulling his pants tight to reveal the imprint of his private parts); the conduct was physically
threatening and humiliating (same); and the conduct interfered with Johnson's job performance (she could

not get along with her on-the-air co-host). This set of facts differs from cases like Mendoza and Gupta v.

Florida Bd. of Regents, where there were fewer instances of less objectionable conduct over longer periods

of time. See Mendoza 195 F.3d at 1242-43; Gupta v. Florida Bd. of Regents, 212 F.3d 571, 585 (11th

Cir.2000). The facts of this case are more akin to the "continuous barrage of sexual harassment" in Dees v.

Johnson Controls World Servs., Inc., 168 F.3d 417, 418 (11th Cir.1999). Since Donnell's alleged conduct

towards Johnson was sufficiently severe or pervasive such that it falls within the definition of sexual

harassment,8 we turn next to whether WENN may be liable for this harassment.

2.       Is there a basis for holding WENN liable?
         WENN will be strictly liable to Johnson for Donnell's alleged harassment if (1) Donnell was


     8
      Of course, we are viewing the evidence in the light most favorable to Johnson as per summary
judgment standard of review. Whether Donnell indeed engaged in the conduct alleged is for the trier of
fact to decide.
Johnson's supervisor; and (2) Donnell took a tangible employment action against Johnson as a result of the

sexual harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662

(1998); Ellerth, 524 U.S. at 762-63, 118 S.Ct. 2257 ("[A] tangible employment action taken by the supervisor

becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the
agency relation standard, its requirements will always be met when a supervisor takes a tangible employment

action against a subordinate. In that instance, it would be implausible to interpret agency principles to allow

an employer to escape liability...."); Llampallas v. Mini-Circuits, Lab., Inc., 163 F.3d 1236, 1247 (11th

Cir.1998) ("[A]ny time the harasser makes a tangible employment decision that adversely affects the plaintiff,

an inference arises that there is a causal link between the harasser's discriminatory animus and the

employment decision. A Title VII plaintiff, therefore, may establish her entire case simply by showing that
she was sexually harassed by a fellow employee, and that the harasser took a tangible employment action
against her.").

         WENN may be able to avoid liability if either (1) Donnell was not Johnson's supervisor; or (2)
Donnell took no tangible employment action against Johnson. If Donnell was not Johnson's supervisor,

WENN is only liable if it "knew (actual notice) or should have known (constructive notice) of the harassment

and failed to take remedial action." Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir.2000). If

Donnell was Johnson's supervisor, but did not take a tangible employment action against Donnell, a two-part

affirmative defense announced in Ellerth and Faragher applies. Under this affirmative defense, WENN is

not liable if it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior,"
and Johnson "unreasonably failed to take advantage of any preventive or corrective opportunities provided

by [WENN] or to avoid harm otherwise." Faragher, 524 U.S. at 807, 118 S.Ct. 2275.

        The district court mistakenly applied a McDonnell Douglas-Burdine framework to Johnson's claims.9


    9
     McDonnell Douglas-Burdine framework refers to McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under this framework:

                  [T]he plaintiff must first establish a prima facie case of discrimination.... Establishment
                  of the prima facie case in effect creates a presumption that the employer unlawfully
                  discriminated against the employee. If the trier of fact believes the plaintiff's evidence,
                  and if the employer is silent in the face of the presumption, the court must enter judgment
                  for the plaintiff because no issue of fact remains in the case. If a plaintiff establishes a
                  prima facie case of discrimination, the defendant employer must articulate a legitimate,
                  nondiscriminatory reason for the challenged employment action.... If the defendant
                  articulates one or more such reasons, the presumption of discrimination is eliminated and
                  the plaintiff has the opportunity to come forward with evidence, including the previously
The court assumed plaintiff had shown that Donnell's harassment was severe and pervasive, and stated

without discussion that Donnell was Johnson's supervisor. The court observed that a material issue of fact

existed as to whether Donnell's alleged harassment culminated in her shift transfer (i.e., tangible employment

action). The district court then stated that it "reads Ellerth as requiring that a 'sexual harassment' case

involving a tangible change in the terms and conditions of employment be treated in the same manner as any

disparate treatment claim. In other words, a McDonnell Douglas framework of shifting burdens would

apply." The court went on to hold that WENN proffered a legitimate, nondiscriminatory reason for Johnson's

transfer (ratings had not improved and Johnson and Donnell did not "gel" on air) which Johnson failed to
rebut as pretextual. Hence, according to the district court, Johnson failed to demonstrate that her transfers

stemmed from Donnell's alleged harassment, and her claim fell into the "no tangible employment action"

category. As such, WENN was entitled to utilize the affirmative defense outlined in Ellerth and Faragher.

         The district court cited to no cases applying the McDonnell Douglas-Burdine framework in

post-Ellerth sexual harassment cases, and nowhere in Ellerth does the Supreme Court suggest applying a

McDonnell Douglas-Burdine burden shifting framework. We are unwilling to read the McDonnell Douglas-

Burdine framework into non-retaliation10 sexual harassment cases at this point. These types of cases have

evolved quite separately from other Title VII cases, and applying a burden-shifting analysis to them would

be a departure from precedent. See Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th Cir.1982) ("We

... see no reason to suggest a specific prima facie case for the hostile environment claim. In trying these cases,
the district courts should employ normal principles of pleading and proof allocation.").

         Applying "normal principles of pleading and proof allocation," id., Johnson has presented a triable

issue of fact for the jury to resolve. Viewing the evidence in the light most favorable to Johnson, she has

presented evidence that she rebuffed Donnell's sexual advances, along with evidence that Donnell participated




                 produced evidence establishing the prima facie case, sufficient to permit a reasonable
                 factfinder to conclude that the reasons given by the employer were not the real reasons
                 for the adverse employment decision. If the plaintiff does not proffer sufficient evidence
                 to create a genuine issue of material fact regarding whether each of the defendant
                 employer's articulated reasons is pretextual, the employer is entitled to summary
                 judgment on the plaintiff's claim.

         Chapman v. AI Transport, 229 F.3d 1012 (11th Cir.2000) (en banc) (citations omitted).
    10
     Retaliation claims do involve burden-shifting as in McDonnell Douglas-Burdine. See, e.g.,
E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir.2000).
in the decision to move her to middays, and possibly to the late night shift.11 WENN has presented evidence

that Balton, rather than Donnell, decided to transfer Johnson, along with evidence that it transferred Johnson
because ratings were low and her on-air personality contributed to lower WENN ratings.12 This is a classic

dispute of a material fact; it is for the jury, and not the district court, to decide which party's rendition of fact
is more credible.

(a)        Was Donnell Johnson's supervisor at the time of the adverse employment actions?

           As stated above, WENN's potential liability for Donnell's alleged harassment turns in part on whether

Donnell was Johnson's supervisor or her co-worker. Thus, the first step in determining whether WENN may
be liable is defining the relationship between Johnson and Donnell. The district court believed, "There is no

dispute that Donnell was plaintiff's supervisor." Clearly, Donnell supervised Johnson when she worked on
the Morning Show. But it is not so clear that Donnell continued to supervise Johnson after Johnson switched
from morning to middays and late nights. Johnson alleges in her complaint that, even after she switched to

the midday and late night shifts, "Donnell scheduled mandatory meetings for the entire staff of announcers
during the plaintiff's 'air' time and failed to schedule someone to relieve her so she could attend the meeting.
This was done deliberately to retaliate against the plaintiff." This suggests that Donnell still wielded some

power over Johnson after she left the Morning Show.
           Because the district court did not clearly articulate whether Donnell continued to supervise Johnson
after she transferred, and because we cannot make this determination based on the record before us, we

remand this portion of Johnson's claim to the district court for its determination.

(b)        Did Johnson suffer a tangible employment action?
           WENN's potential liability for Donnell's alleged harassment also turns on whether Donnell took a
tangible employment action against Johnson. Thus, the next step in our inquiry is to determine whether




      11
       Rick Owens testified that Donnell "had all Mr. Balton's backing on all programming and personnel
decisions. Whatever [Donnell] felt needed to be done, he would take that to Mr. Balton. And [sic] Mr.
Balton would back him on it," and Donnell told Owens that Donnell "felt that the chemistry wasn't
working [between Donnell and Johnson] and that they probably would have to move [Johnson] to either
middays or possibly overnights." This testimony creates a permissible inference that Donnell either made
or influenced the decision to transfer Johnson.
      12
     Donnell and Chris Talley testified that Balton, rather than Donnell, made the decision to move
Johnson to the midday shift.
Johnson suffered a tangible employment action.13 Johnson claims WENN reassigned her twice and

terminated her, as a direct result of Donnell's sexual harassment. The record evidence reveals that Johnson
quit, and was never terminated; thus, she has no meritorious claim that her termination constitutes a tangible

employment action.14 Her reassignments15 are more troubling. However, it is impossible to glean from the
record whether her transfers constituted tangible employment actions.
          A tangible employment action is "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." Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. See also Gupta, 212 F.3d at 587

(quotation omitted) (citation omitted) ("An adverse employment action is an ultimate employment decision,
such as discharge or failure to hire, or other conduct that alters the employee's compensation, terms,

conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely

affects his or her status as an employee.").
          Here, WENN transferred Johnson twice—from morning to middays, and from middays to late nights.
The record is silent, however, as to the repercussions of the transfer from morning to midday.16 The district



     13
      This step in the analysis will only be reached if Donnell was Johnson's supervisor, since "[t]angible
employment actions fall within the special province of the supervisor." Ellerth, 524 U.S. at 762, 118
S.Ct. 2257.
     14
      Johnson does not claim WENN constructively discharged her.
     15
      Again, we are assuming for present purposes that both of Johnson's transfers were made by or
influenced by Donnell in his role as Johnson's supervisor.
     16
     Johnson's own testimony seems to indicate the morning to midday transfer was not adverse. Her
deposition reveals:

A.        I talked to Rose Walker along with Kirkwood Balton on that Wednesday that I was changed from
          middays.

Q.        And what did they say?
A.        Well, they wanted to get my opinion on how I felt about being changed.

Q.        What did you say?

A.        I told them it didn't really matter because they didn't discuss it with me before they made the
          change.

Q.        So it was fine with you?
A.        Well, at that time, yes.
court did not explicitly determine whether Johnson's transfers constituted tangible employment actions;

instead, it basically assumed that they did, but held Johnson failed to demonstrate that WENN transferred her

for pretextual reasons. As detailed above, we find no authority for requiring Johnson to prove pretext.
Rather, Johnson merely has to present an issue of fact for jury consideration. Whether her transfers stemmed

from Donnell's harassment is such a question of fact.
          It does not appear that the transfer from morning to midday altered Johnson's compensation or

benefits. Whether this transfer otherwise fit within the definition of adverse or tangible employment action

within the meaning of Ellerth and Gupta is unclear.17 The transfer from midday to late night resulted in an

alleged $8000.00 pay decrease; therefore the transfer to late night was obviously a tangible employment
action.

          In a similar situation, where the record did not reveal whether a transfer constituted an adverse

employment action, we decided:
          [Appellant] must demonstrate that a reasonable person in his position would have found his transfer
          to be adverse under all the facts and circumstances.... Therefore, we have decided to remand the case
          to the district court for such proceedings as it deems necessary for it to enter explicit findings of fact
          concerning the allegedly adverse nature of [appellant's] transfer. Once having made these explicit
          findings, the district court should clearly explain why it believes that a reasonable person in
          [appellant's] position would or would not have found the transfer to have been an adverse
          employment action.

Doe v. Dekalb County School Dist., 145 F.3d 1441, 1453-54 (11th Cir.1998).

          We believe a remand is the appropriate action here as well. On remand, the district court should

conduct "such proceedings as it deems necessary for it to enter explicit findings of fact concerning the
allegedly adverse nature of" Johnson's transfer, and "clearly explain why it believes that a reasonable person

in [Johnson's] position would or would not have found the transfer to have been an adverse employment

action." Id. If Johnson's transfers were not tangible employment actions, WENN is entitled to utilize the

Ellerth-Faragher affirmative defense. If the transfers were tangible employment actions, Johnson will be

entitled to summary judgment if Donnell, as her supervisor, took the employment actions as a result of sexual
harassment.

C.        Assault and Battery Claims
          The district court dismissed Johnson's pendent state law assault and battery claims solely because it


     17
      For example, the transfer may have constituted a "reassignment with significantly different
responsibilities," Ellerth, 524 U.S. at 761, 118 S.Ct. 2257, or an "ultimate employment decision" that
altered the terms, conditions, or privileges of Johnson's employment, see Gupta, 212 F.3d at 587.
granted summary judgment on Johnson's Title VII claims. Since we are reversing the court's grant of

summary judgment on Johnson's Title VII sexual harassment claim, the district court will have jurisdiction
over a federal claim upon our remand. We therefore reverse the court's dismissal of Johnson's pendent state

law claims.

                                            III. CONCLUSION
         The district court erred in granting summary judgment to appellees. While the court correctly

dismissed Johnson's Title VII retaliation claim, Johnson's sexual harassment claim was not ripe for summary

judgment. Viewing the evidence in the light most favorable to Johnson, material issues of fact exist as to:

whether Donnell was Johnson's supervisor at the times of the transfers; whether Donnell's shift transfers
constituted tangible employment actions; whether Donnell participated in the decisions to transfer Johnson;

and (assuming Donnell did participate in the decisions to transfer Johnson) whether Donnell transferred

Johnson because of her rejection of his sexual advances.
         The answers to these questions are critical. If, for example, Donnell as Johnson's supervisor took a

tangible employment action against Johnson, WENN would be strictly liable for Donnell's harassment; if,
on the other hand, Donnell did not take a tangible employment action against Johnson, WENN would be

entitled to utilize the Ellerth-Faragher affirmative defense. At any rate, these questions cannot be answered

based on the record before us. We therefore reverse the district court's grant of summary judgment on
Johnson's sexual harassment claims. We also reinstate Johnson's pendent state law claims.
         AFFIRMED in part, REVERSED in part, and REMANDED.18




    18
     We grant appellees' motion to strike the portions of appellants' brief referring to the affidavit of
Anita McAlister, because Johnson has not appealed the district court's ruling to strike the affidavit.
