Cindy Akers v. DONALD ALVEY and KENTUCKY CABINET FOR FAMILIES AND CHILDREN

* The Honorab le David D. Do wd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0256P (6th Cir.)
File Name: 03a0256p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CINDY AKERS,
Plaintiff-Appellant,
v.
DONALD ALVEY and
KENTUCKY CABINET FOR
FAMILIES AND CHILDREN,
Defendants-Appellees.
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No. 02-5037
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 99-00221—John G. Heyburn II, Chief District Judge.
Argued: June 20, 2003
Decided and Filed: July 29, 2003
Before: BOGGS and GILMAN, Circuit Judges; DOWD,
District Judge.*
2 Akers v. Alvey et al. No. 02-5037
_________________
COUNSEL
ARGUED: Kenneth L. Sales, SALES, TILLMAN &
WALLBAUM, Louisville, Kentucky, for Appellant.
Schuyler J. Olt, PEDLEY, ZIELKE & GORDINIER,
Louisville, Kentucky, Edward L. Lasley, CONLIFFE,
SANDMANN & SULLIVAN, Louisville, Kentucky, for
Appellees. ON BRIEF: Kenneth L. Sales, SALES,
TILLMAN & WALLBAUM, Louisville, Kentucky, for
Appellant. Schuyler J. Olt, PEDLEY, ZIELKE &
GORDINIER, Louisville, Kentucky, Edward L. Lasley,
Richard M. Sullivan, CONLIFFE, SANDMANN &
SULLIVAN, Louisville, Kentucky, for Appellees.
GILMAN, J., delivered the opinion of the court, in which
BOGGS, J., joined. DOWD, D. J. (pp. 15-16), delivered a
separate opinion concurring in the judgment.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Cindy Akers, a
former family services worker with the Kentucky Cabinet for
Families and Children, brought suit in federal district court
against the Cabinet and her immediate supervisor, Donald
Alvey, for sexual harassment. Specifically, Akers brought a
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.

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

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

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No. 02-5037 Akers v. Alvey et al. 7
In considering such a motion, the court construes all
reasonable factual inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986).
C. Akers’s tort-of-outrage claim against Alvey
The district court dismissed Akers’s tort-of-outrage claim
against Alvey, concluding that “[w]hile Alvey’s conduct and
that attributable to the Cabinet might be considered crude and
completely inappropriate, it does not rise to a level of conduct
which is ‘atrocious and intolerable’ as required by Kentucky
law.” Under Kentucky law, “[i]n order to recover [for the tort
of outrage], the plaintiff must show that defendant's conduct
was intentional or reckless, that the conduct was so
outrageous and intolerable so as to offend generally accepted
standards of morality and decency, that a causal connection
exists between the conduct complained of and the distress
suffered, and that the resulting emotional stress was severe.”
Brewer v. Hillard, 15 S.W.3d 1, 6 (Ky. Ct. App. 1999).
There is no question in this case that Alvey’s behavior was
intentional, and thus the first element of the tort of outrage is
satisfied. Akers maintains that the district court erred in
holding that Alvey’s conduct did not reach the level of
outrageousness required by the second element. In assessing
this element, we must view the evidence in the light most
favorable to Akers and determine whether this case “is one in
which the recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’” Restatement
(Second) of Torts § 46 cmt. d (1965) (applied by the
Kentucky Court of Appeals in Brewer, 15 S.W.3d at 6). In
our opinion, this is just such a case.
8 Akers v. Alvey et al. No. 02-5037
Alvey’s behavior went far beyond the sexual jokes,
comments, and innuendos that this court has previously found
insufficient to withstand a motion for summary judgment on
a tort-of-outrage claim. Wathen v. General Electric Co., 115
F.3d 400, 407 (6th Cir.1997) (applying Kentucky law). Any
one of the particular incidents complained of, taken in
isolation, might not reach the level of outrageousness required
by Kentucky law to survive summary judgment. But taken
together, Alvey’s pervasive behavior, as alleged by Akers,
was outrageous. At the very least, this is a case where
“reasonable men may differ” and, as such, “it is for the jury,
subject to the control of the court, to determine whether, in
the particular case, the conduct has been sufficiently extreme
and outrageous to result in liability.” Restatement (Second) of
Torts § 46 cmt. h (1965) (§ 46 was adopted by the Kentucky
Supreme Court in Craft v. Rice, 671 S.W.2d 247, 251 (Ky.
1984)).
Alvey argues, as his last line of defense on this claim, that
the distress suffered by Akers, if any, was not caused by
Alvey’s behavior and was not severe. In both her verified
complaint and her deposition testimony, however, Akers
maintains that she suffered severe emotional distress as a
result of Alvey’s outrageous conduct. Akers specifically
testified that she experienced depression and sought
psychological counseling shortly after leaving her job with
the Cabinet. Although the evidence of emotional distress may
be sparse, we believe that it is sufficient to send the issues of
causation and severity to the jury.
In sum, we find that Akers has satisfied all of the elements
of her tort-of-outrage claim against Alvey as set forth in
Brewer, 15 S.W.3d at 6. We therefore reverse the district
court’s grant of summary judgment on this claim.
D. Akers’s tort-of-outrage claim against the Cabinet
The Cabinet argues that Akers’s tort-of-outrage claim
against it was properly dismissed because the Cabinet is

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No. 02-5037 Akers v. Alvey et al. 9
protected from such a claim by the Eleventh Amendment to
the United States Constitution. This issue was not addressed
by the district court, however, because it held that the
Cabinet’s conduct was not outrageous as a matter of law.
Akers cites the case of Gragg v. Kentucky Cabinet for
Workforce Development, 289 F.3d 958, 963 (6th Cir. 2002),
for the proposition that an entity’s defense of sovereign
immunity will be deemed waived absent evidence in the
record of how a state defines the entity, what degree of
control the state has over the entity, and how the entity is
funded. According to Akers, the record in this case is bereft
of such evidence, resulting in a waiver of the Cabinet’s
sovereign immunity defense. In Gragg, however, the
defendants failed to identify the claims to which the sovereign
immunity defense applied, failed to argue immunity before
the district court, and included only a single paragraph
addressing the immunity argument in their appeal. The
Cabinet in the present case, on the other hand, raised the
argument in the district court and has briefed it fully on
appeal. As a result, Gragg is easily distinguishable and
Akers’s waiver argument is without merit. We therefore
affirm the district court’s grant of summary judgment as to
Akers’s tort-of-outrage claim against the Cabinet on the
grounds that such a claim is barred by sovereign immunity.
E. Akers’s retaliation claim against the Cabinet
In order to establish a claim of retaliation, Akers must
prove that (1) she engaged in an activity protected by Title
VII, (2) the exercise of that protected right was known to the
Cabinet, (3) the Cabinet thereafter took an employment action
adverse to Akers, or that Akers was subjected to severe or
pervasive retaliatory harassment by a supervisor, and (4) a
causal connection existed between the protected activity and
the adverse employment action or harassment. Morris v.
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
10 Akers v. Alvey et al. No. 02-5037
she had suffered a materially adverse employment action
under prong (3).
In order to establish an adverse employment action, Akers
must show a significant change in her employment status,
such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, a significant change in
benefits, or other factors unique to her particular situation.
Bowman v. Shawnee State Univ., 220 F.3d 456, 461-62 (6th
Cir. 2000). Akers alleges three employment actions that she
contends are materially adverse: (1) transfer to a different
office, (2) retaliatory harassment by Alvey in the form of
increased criticism, withholding her mail, ignoring her, and
encouraging her coworkers to ostracize her, which resulted in
her “social death” within the office, and (3) the Cabinet’s
refusal to rehire her following a negative recommendation by
Alvey. We will now examine each of these contentions in
turn.
1. Akers’s transfer to the Hardin County office
Even assuming that Akers was involuntarily transferred to
the Hardin County office, as she alleges, she failed to
demonstrate how this transfer was materially adverse to her.
She did not suffer a decrease in pay, her job duties were not
significantly changed, and the transfer actually reduced
Akers’s roundtrip commute from her home by 60 miles per
day. We thus agree with the district court that Akers’s
transfer was not a materially adverse employment action. See
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.
1996) (holding that a plaintiff failed to establish that her
transfer and change in job title was a materially adverse
employment action, reiterating “that reassignments without
salary or work hour changes do not ordinarily constitute
adverse employment decisions in employment discrimination
claims”).

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No. 02-5037 Akers v. Alvey et al. 11
2. Retaliatory harassment by Alvey
Although the district court failed to consider whether
Alvey’s post-complaint harassment was retaliatory, this court
has previously held that “severe or pervasive supervisor
harassment” following a sexual-harassment complaint can
constitute retaliation for the purposes of a Title VII action.
Morris, 201 F.3d at 792. Because the court’s decision in
Morris was an extrapolation of Supreme Court precedent
allowing a Title VII action to be based upon severe or
pervasive supervisory harassment in the sexual-harassment
context, the standard for “severe or pervasive” harassment is
“the same in the retaliation context as in the sexual and racial
discrimination contexts.” Broska v. Henderson, 2003 WL
21518733, *4 (June 30, 2003). Under this standard, the
harassment must be “sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an
abusive working environment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (citation omitted). As this court noted
in Broska, “this test has both an objective and a subjective
component: the conduct must be severe or pervasive enough
to create an environment that a reasonable person would find
hostile or abusive, and the victim must subjectively regard
that environment as hostile or abusive.” Broska, at *4.
The Cabinet responds to Akers’s retaliatory harassment
claim by arguing that Alvey was removed as Akers’s
supervisor immediately following the conclusion of its
investigation of Akers’s complaint to the Cabinet, and that
any harassment that may have occurred following Akers’s
complaint was not severe or pervasive enough to support a
retaliation claim. All of the incidents giving rise to Akers’s
complaint about retaliation occurred during the two-week
period that the Cabinet took to investigate her charges. In
Morris, the supervisor in question engaged in retaliatory
conduct that was much more severe and pervasive than that
alleged in this case, including calling the plaintiff over 30
times for the sole purpose of harassing her, sitting outside her
office staring in her window, and throwing nails onto her
12 Akers v. Alvey et al. No. 02-5037
home driveway on more than one occasion. Id. at 793. The
court in Morris distinguished that case from the “simple
teasing, offhand comments, and isolated incidents that [the
Supreme Court in] Faragher indicated did not amount to
discriminatory changes in the terms and conditions of a
plaintiff's employment.” Id. at 793.
Alvey’s alleged post-complaint conduct (i.e., ignoring
Akers, encouraging her coworkers to do the same, criticizing
her work, and withholding her mail) falls somewhere in
between the egregious conduct in Morris and “simple
teasing” or “offhand comments.” The alleged retaliation was
confined to the two weeks during which the Cabinet was
diligently investigating Akers’s complaint and despite the
Cabinet’s circulation of a memo in the Grayson County office
instructing that no retaliation would be tolerated. Due to the
short duration and relatively mild nature of the post-complaint
harassment, as well as the Cabinet’s directive prohibiting
retaliatory conduct, we do not believe that there is sufficient
evidence for a jury to find that Alvey’s alleged harassment
reached the level of “severe or pervasive” conduct required by
Morris for a retaliation claim.
3. The Cabinet’s refusal to rehire Akers
Akers’s final basis for her retaliation claim is the Cabinet’s
decision not to rehire her for a different position four months
after her resignation. Even assuming that Akers presented a
prima facie case of retaliation based upon Alvey’s alleged
input into the decision, the Cabinet articulated a legitimate,
nondiscriminatory reason for its decision not to rehire Akers;
namely, poor reviews from her coworkers and other
supervisors, including Akers’s supervisor during the few
months that she was employed in the private sector. The
Cabinet thus contends that Alvey’s alleged retaliatory input
was immaterial to its decision not to rehire her. Akers has
failed to rebut this contention. Because Akers has not shown
that this proferred legitimate reason was pretextual, we agree

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No. 02-5037 Akers v. Alvey et al. 13
that the Cabinet’s refusal to rehire Akers does not support her
retaliation claim.
In sum, none of Akers’s allegations are sufficient to
establish a materially adverse employment action by the
Cabinet. The district court therefore did not err in granting
summary judgment as to Akers’s retaliation claim.
F. Akers’s § 1983 claim against Alvey
Finally, Akers brought a § 1983 claim against Alvey in his
individual and official capacities. Section 1983 liability, as
alleged by Akers’s complaint, is premised upon liability
under Title VII. Title VII, in pertinent part, provides that it is
unlawful for an employer to discriminate against an
individual on the basis of sex. 42 U.S.C. § 2000e-2(a)(1).
The district court concluded that for all practical purposes, the
two claims are the same. The Sixth Circuit has held that
where “there is liability under Title VII, there should be
liability under § 1983. Similarly, if there was no
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).
14 Akers v. Alvey et al. No. 02-5037
In Wathen, this court held that despite the express use of the
word “agent” in the statute, Title VII does not create
individual liability for individuals in supervisory positions
such as Alvey’s. Because Wathan is controlling authority, we
affirm the district court’s grant of summary judgment as to
Akers’s § 1983 claim against Alvey. Salmi v. Sec’y of Health
and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A
panel of this Court cannot overrule the decision of another
panel. The prior decision remains controlling authority unless
an inconsistent decision of the United States Supreme Court
requires modification of the decision or this Court sitting en
banc overrules the prior decision.”).
III. CONCLUSION
For all the reasons set forth above, we REVERSE the
judgment of the district court as to Akers’s tort-of-outrage
claim against Alvey, AFFIRM the judgment of the district
court as to Akers’s remaining claims, and REMAND the case
for further proceedings consistent with this opinion.

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No. 02-5037 Akers v. Alvey et al. 15
___________________
CONCURRENCE
___________________
DAVID D. DOWD, JR., District Judge, concurring in the
judgment. Although I reluctantly conclude that the majority
has rightly decided this case in the face of current binding
Sixth Circuit precedent, I write separately to respectfully
voice my view that Morris v. Oldham County Fiscal Court,
201 F.3d 784 (6th Cir. 2000), relied upon to reject Akers’s
retaliation claim, was wrongly decided.
Morris does not, in my view, adequately recognize that
Title VII identifies and prohibits two discrete wrongs:
discrimination and retaliation. In the former category, when
it comes to discrimination based on sex, the Supreme Court
has distinguished between quid pro quo claims and hostile
environment claims, Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 65 (1986), and has clarified that, to be
actionable, hostile environment claims require harassment
that is “severe and pervasive.” Id. Under the guise of
statutory construction, and applying the two relatively recent
Supreme Court decisions in Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca
Raton, 524 U.S. 775 (1998), Morris has incorporated that
“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
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
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
participated in by an individual suddenly becomes a weapon
against the employer when something in the workplace does
not go that individual’s way. The “severe and pervasive”
standard helps to assure at least a little consistency of
interpretation and protects against this kind of abusive
application of the statute.
On the other hand, retaliation is not a matter of perception
or gradation. It is, rather, much like an electric light, which
is either “on” or “off.” One either is or is not retaliating.
Typically, this would be, and should be, a fact call for a jury.
Of course, in the wake of Morris, now, by definition, one “is
retaliating” only if one’s behavior against the Title VII
complainant is “severe and pervasive.” I can perceive no
reason for this interpretation of Title VII. I can see a reason
to require severity and pervasiveness before a working
environment can be found to be truly “hostile;” I cannot see
a reason for applying that standard to retaliation.
Nonetheless, that is, unfortunately, the law in this circuit.
Therefore, I am constrained to concur in the judgment.

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