Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BENNETT, Chief Judge. TABLE OF CONTENTS I. BACKGROUND.925 A. Procedural Background.925 B. Factual Background.926 II. LEGAL ANALYSIS.927 A. Standards For Summary Judgment .927 B. The Sexually Hostile Work Environment Claim.928 1. Arguments of the parties.928 2. Sufficiency of the alleged harassment.929 a. Based on sex.929 b. Affecting a term or condition of employment.930 3. Employer liability .931 a. Employer liability for “supervisor” or “co-worker” harassment.931 b. Does this case involve “co-worker” or “supervisor” harassment?.934 i. Who is a “supervisor” within the meaning of Ellerth and Faragher?.934 ii. Was Johnson such a “supervisor”? .941 c. Are there genuine issues of material fact under the appropriate standard for employer liability?.942 i. What constitutes sufficient notice that alleged harassment is “based on sex”?.943 ii. Was sufficient notice given here?.945 C. The Disparate Treatment Claim .946 1. Arguments of the parties.946 2. Joens’s prima facie case.947 3. Joens’s showing of pretext.948 D. Retaliation .949 1. Arguments of the parties.949 2. Joens’s showing in support other retaliation claim.950 III. CONCLUSION. .951 One “burning question” for employer liability for workplace sexual harassment in the wake of the Supreme Court’s landmark decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), is, does a particular case involve “supervisor” or “co-worker” harassment? That question — among others — is squarely presented here, on the employer’s motion for summary judgment, where the employer initially assumed that the plaintiffs allegations involved only “coworker” harassment, but the plaintiff responded that the “thrust” or “core” of her claim was harassment by “a foreman” of the company, which she contended required application of the employer liability standards for “supervisor” harassment. At the court’s behest, the parties have probed more deeply the question of whether this is a “co-worker” or “supervisor” harassment case, and hence, what standard of employer 1 ability is at issue. Another question of equally “burning” significance here, for purposes of either the employer’s Ellerth/Faragher affirmative defense, if this is a “supervisor” harassment case, or the plaintiffs proof that the employer knew or should have known of the harassment, if this is a “co-worker” harassment case, is, what kind of complaint from the plaintiff is sufficient to put an employer on notice that the alleged harassment is “based on sex”? The court’s resolution of these and other issues related to the plaintiffs claims of sexual harassment, disparate treatment based on sex, and retaliation for complaining about harassment and disparate treatment, are herein. J. BACKGROUND A. Procedural Background In this action, filed August 13, 2001, pursuant to Title VII of the Civil Rights Act of 1964, plaintiff LaDonna Joens asserts the following claims against her current employer, defendant John Morrell & Co.: (1) hostile environment sexual harassment; (2) sexual discrimination (disparate treatment) in overtime hours; and (3) retaliation for complaining about sexual harassment and discrimination. This matter is set for trial to begin on March 31, 2003. However, this matter comes before the court pursuant to John Morrell’s November 29, 2002, motion for summary judgment on all of Joens’s claims, which, if granted, would obviate the need for any trial. Joens resisted John Morrell’s motion for summary judgment on January 3, 2003, and John Morrell filed a reply in further support of its motion on January 17, 2003. By order dated January 23, 2003, the court requested that the parties address in their oral arguments certain questions concerning whether this case involves “supervisor” or “co-worker” harassment and what kind of reports of “harassment” would be sufficient to put an employer on notice that such harassment might be “based on sex.” In response to that order, John Morrell filed two supplemental affidavits on January 29, 2003, one from Dennis Reitz, concerning who exercised supervisory authority over the “box shop” where the plaintiff was employed, and one from Steve Joyce, John Morrell’s Director of Human Resources, concerning who exercises the authority to hire and fire employees in the “box shop” and the company generally. The court heard the parties’ unusually-animated and informative oral arguments on John Morrell’s motion for summary judgment on January 30, 2003. At the oral arguments, plaintiff LaDonna Joens was represented by Jay E. Denne of Mun-ger, Reinschmidt & Denne, L.L.P., in Sioux City, Iowa. Defendant John Morrell & Co. was represented by Leslie Robert Stellman of Hodes, Ulman, Pessin & Katz, P.A., in Towsen, Maryland, and Scott C. Folkers of John Morrell & Company. John Morrell’s motion for summary judgment is now fully submitted. B. Factual Background Although whether or not a party is entitled to summary judgment ordinarily turns on whether or not there are genuine issues of material fact for trial, see, e.g., Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996), the court will not attempt here a comprehensive review of the undisputed and disputed facts in the record. Rather, the court will present here only sufficient factual background to put in context the parties’ arguments for and against summary judgment on Joens’s claims. The parties agree that Joens began working for John Morrell, which operates a meat packing plant in Sioux City, Iowa, in 1986. They also agree that, since the early 1990s, Joens has been employed in the “box shop.” At the times pertinent to her complaint, Joens worked the day shift as the operator of a box forming machine, which makes the bottoms of the boxes in which product is placed, while a male employee, Doug Severson, worked at the same job on the evening shift making box tops. Joens’s supervisor was Dennis Reitz, while Doug Severson’s supervisor was Scott Thompson. Joens alleges that she was sexually harassed by male-co-workers, who engaged in conduct including sexually suggestive activities with bananas in the lunchroom, telling “blonde jokes,” and telling other sexual jokes. She also complains that one male employee engaged in at least one incident of improper touching. However, her claim that she was subjected to a sexually hostile work environment relies primarily on her allegations that a “cut floor foreman” named Herman Johnson almost daily subjected her to lengthy complaints about her performance, in abusive — albeit apparently gender-neutral— terms, when he wanted more boxes or did not think that Joens had provided enough boxes before the start of a “kill” shift. Joens contends that Johnson did not subject men in the box shop to the same kind of treatment. In support of both her disparate treatment claim and her retaliation claim. Joens also alleges that her male counterpart on the night shift, Severson, was permitted to work more overtime hours, and that he was allowed to do so not just because of sex, but in retaliation for Joens’s repeated complaints about harassment and the disparity in overtime hours. John Morrell contends that Joens never complained that any harassment by Johnson was based on sex until she filed her administrative charge with the Iowa Civil Rights Commission and that, in any event, such “harassment” was neither because of sex nor sufficiently severe or pervasive to constitute actionable sexual harassment. John Morrell also contends that Severson’s excess overtime hours were not properly authorized, which John Morrell’s Human Resources Manager, Steven Joyce, did not discover until he investigated Joens’s administrative charge of discrimination. Consequently, John Morrell contends, the disparity was not the result of either discriminatory or retaliatory animus, and, indeed, was contrary to a collective bargaining agreement requiring equalization of hours between shifts. John Morrell also contends that, for the year following its corrective actions, which included notifying Severson that he could only work overtime when authorized to do so by a supervisor, Joens actually worked slightly more overtime hours than did Severson. Thus, John Morrell contends that the record does not support either disparate treatment or retaliation, any more than it supports a sexually hostile work environment. II. LEGAL ANALYSIS A. Standards For Summary Judgment As this court has explained on a number of occasions, applying the standards of Rule 56 of the Federal Rules of Civil Procedure providing for summary judgment, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). In reviewing the record, the court must view all the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Quick, 90 F.3d at 1377 (same). Proeedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1107 (8th Cir.1998); Reed v. Woodruff County. Ark., 7 F.3d 808, 810 (8th Cir.1993). When a moving party has carried its burden under Rule 56(c), the party opposing summary judgment is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Rabushka ex. rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, 523 U.S. 1040, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995). An issue of material fact is “genuine” if it has a real basis in the record. Hartnagel, 953 F.2d at 394 (citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment,” i.e., are “material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach, 49 F.3d at 1326; Hartnagel, 953 F.2d at 394. If a party fails to make a sufficient showing of an essential element of a claim with respect to which that party has the burden of proof, then the opposing party is “entitled to judgment as a matter of law.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; In re Temporomandibular Joint (TMJ) Implants Prod. Liab. Litig., 113 F.3d 1484, 1492 (8th Cir.1997). Finally, this court has repeatedly taken note of the rule in this circuit that, because summary judgment often turns on inferences from the record, summary judgment should seldom or rarely be granted in employment discrimination cases. See, e.g., Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994) (citing Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1244 (8th Cir.1991)). The court will apply these standards to John Morrell’s motion for summary judgment on Joens’s claims. B. The Sexually Hostile Work Environment Claim 1. Arguments of the parties In its opening brief in support of its motion for summary judgment, John Mor-rell contended that the behavior upon which Joens’s sexually hostile work environment claim is based, such as abusive comments by Johnson, was not based on her gender; that the incidents about which she complains are not sufficiently severe or pervasive, either individually or in aggregate, to support such a claim; and that John Morrell was either unaware of, or took prompt action to remedy, Joens’s complaints of sexual harassment. However, it is apparent that John Morrell initially addressed Joens’s hostile environment claim on the assumption that it was based on co-worker misconduct, such as the “banana episodes,” jokes, and one incident of improper touching. In her response, however, Joens clarifies that the “banana episodes,” jokes, and touching incident are not the “core” of her claim, although she contends that they support her contention that the working environment at John Morrell was sexually hostile. Rather, she now contends that the “thrust” or “heart” of her hostile work environment claim is the abusive tirades to which she was allegedly subjected by Herman Johnson. She argues, further, that even harassment in gender-neutral terms, like that to which she was subjected by Johnson, can support a sexual harassment claim, if it was meted out only to persons of one gender and was sufficiently severe or pervasive, as she alleges was the case with Johnson’s abusive comments to her. Because Joens characterizes Johnson as a “supervisor,” she contends that John Mor-rell’s liability on her hostile environment claim must be judged according to the Ellerth/Faragher standards, which impose vicarious liability on an employer if a supervisor’s harassment resulted in a tangible employment action, and liability subject to an affirmative defense if it did not. She also argues that John Morrell’s failure to address the proper Ellerth/Faragher standards for employer liability for harassment by a supervisor means that the court need not address the employer liability elements of her harassment claim. However, if the court does so, she contends that the disparity in overtime hours is a tangible employment action subjecting John Morrell to vicarious liability for Johnson’s sexual harassment and that, in the alternative, there are genuine issues of material fact on the elements of John Mor-rell’s Ellerth/Faragher affirmative defense. In its reply in further support of its motion for summary judgment, John Mor-rell challenges the sufficiency of Joens’s sexually hostile environment claim as clari-. fíed or redefined by Joens in her resistance. John Morrell contends that, even conceding that gender-neutral comments may suffice to support a sexual harassment claim, if the comments are nevertheless because of sex, there is nothing in this record but Joens’s uncorroborated testimony that Johnson only subjected Joens, but not men in the box shop, to the allegedly abusive comments. John Morrell presents the contrary affidavit of Herman Johnson himself averring that he also complained to male box shop employees about their performance and disputing the frequency of his complaints to Joens about her performance. John Morrell also reiterates its contention that Joens has not pointed to any evidence of harassment that is sufficiently severe or pervasive to be actionable, even if one assumes that Johnson’s conduct was based on Joens’s sex. Next, John Morrell contends that there is no connection between the purported sexual harassment and the purported tangible employment action upon which Joens relies, so that John Morrell is entitled to invoke the Ellerth/Faragher affirmative defense. On the elements of that defense, John Morrell contends that there are no genuine issues of material fact, and that John Morrell is, instead, entitled to summary judgment. 2. Sufficiency of the alleged harassment Leaving aside, for the moment, the question of whether or not Johnson is a “supervisor,” and the requirements for proof of employer liability that flow from the answer to that question, the court agrees with the parties that the first four elements of Joens’s claim of a sexually hostile work environment are the following: (1) that she is a member of a protected group; (2) that she was subjected to unwelcome sexual harassment; (3) that the harassment was based on sex; and (4) that the harassment affected a term, condition, or privilege of employment. See Beard v. Flying J. Inc., 266 F.3d 792, 797 (8th Cir.2001) (stating these four elements as required “[t]o establish a submissible case of sex discrimination,” without regard to the employer liability elements for harassment by a co-worker or supervisor); and compare Hocevar v. Purdue Frederick Co., 228 F.3d 721, 736 (8th Cir.2000) (citing these four elements in a case involving harassment by a supervisor, citing Phillips v. Taco Bell Corp., 156 F.3d 884, 888 (8th Cir.1998)); with Rheineck v. Hutchinson Technology, Inc., 261 F.3d 751, 755 (8th Cir.2001) (citing these four elements in a co-worker harassment case); Bogren v. Minnesota, 236 F.3d 399, 407 (8th Cir.2000) (same), cert. denied, 534 U.S. 816, 122 S.Ct. 44, 151 L.Ed.2d 16 (2001); Stuart v. General Motors Corp., 217 F.3d 621, 631 (8th Cir.2000) (same). In its motion for summary judgment, John Morrell contends that Joens cannot generate genuine issues of material fact on the “based on sex” element or the “affect on a term or condition of employment” element. a. Based on sex John Morrell contends that if Johnson “harassed” Joens at all, his conduct was not “sexual” harassment, because he meted out such conduct to both men and women. However, the court finds that Joens has designated “specific facts showing that there is a genuine issue for trial,” Fed. R. Civ. P. 56(e), in light of governing law, see Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (“Only disputes over facts that might affect the outcome of the suit under the governing law” are “material.”), on the issue of whether Johnson harassed Joens “based on [her] sex.” See, e.g., Beard, 266 F.3d at 797 (third element of a sexually hostile environment claim). First, in Carter v. Chrysler Corp., 173 F.3d 693 (8th Cir.1999), upon which Joens relies, the Eighth Circuit Court of Appeals recognized that “[a]ll instances of harassment need not be stamped with signs of overt discrimination to be relevant under Title VII if they are part of a course of conduct which is tied to evidence of discriminatory animus. Harassment alleged to be because of sex need not be explicitly sexual in nature.” Carter, 173 F.3d at 700-01 (internal citations omitted). Joens asserts that she was subjected to, and points to evidence of, conduct by Johnson that, while not overtly discriminatory, nevertheless may have been part of a course of conduct which is tied to evidence of discriminatory animus, id., because she points to evidence that only she, not her male counterparts, was subjected to such conduct on a daily basis. Moreover, in Beard v. Flying J. Inc., 266 F.3d 792 (8th Cir.2001), the Eighth Circuit Court of Appeals rejected the defendant’s argument — like John Mor-rell’s argument here — 'that the alleged harassment was not “based on sex,” because the alleged harasser subjected males to the same kind of conduct that was the basis for the female plaintiffs sexual harassment claim. See Beard, 266 F.3d at 798. More specifically, the defendant in that case argued that, because of the harasser’s like conduct toward males, “women were not ‘exposed to disadvantageous terms or conditions of employment to which [males were] not exposed,’ ” as required to show that the conduct was “based on sex.” Id. (quoting Schoffstall v. Henderson, 223 F.3d 818, 826 (8th Cir.2000)). However, the Eighth Circuit Court of Appeals concluded that in a case supposedly involving the same conduct toward men and women, [a] plaintiff ... need not show ... that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment. See Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir.1996). Viewing the evidence in the light most favorable to [the plaintiff] a jury could reasonably find that the vast majority of [the harasser’s] activities of a harassing nature was directed toward female employees, and could thus conclude that the harassment of [the plaintiff] was based on sex. Beard, 266 F.3d at 798. John Morreh’s evidence — such as Johnson’s assertion in his affidavit that he made complaints about job performance without regard to gender and John Morrell’s other evidence that Johnson subjected both men and women to comments similar to those on which Joens bases this claim — is in conflict with Joens’s deposition testimony that Johnson subjected her exclusively or almost exclusively to such conduct. See id- Thus, Joens’s deposition testimony is sufficient to generate a genuine issue of material fact that Joens, as a female employee in the box shop, was the primary target of such “harassment,” such that a reasonable jury could conclude that Johnson’s conduct was “based on sex.” Id. The court cannot simply choose to disbelieve Joens’s deposition testimony at the summary judgment stage of the proceedings, even if it is “uncorroborated,” as John Morrell contends. See, e.g., Quick, 90 F.3d at 1376-77 (the trial judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial). Therefore, John Morrell is not entitled to summary judgment on the ground that Joens cannot establish this element as a matter of law. b. Affecting a term or condition of employment Next, John Morrell contends that, even if Johnson’s treatment of Joens was “based on [her] sex,” it was not sufficient, as a matter of law, to affect a term, condition, or privilege of employment, see Beard, 266 F.3d at 797 (fourth element), in that it was not sufficiently “severe or pervasive.” As the Eighth Circuit Court of Appeals also explained in Beard, with regard to this element of a sexual harassment claim, “Title VII makes actionable only conduct that is ‘severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.’ ” Id. at 798 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). John Morrell relies on cases involving parades of horribles in which the Eighth Circuit Court of Appeals has nevertheless held that the alleged harassment was not sufficiently severe or pervasive as demonstrating that the conduct of Johnson in this case does not constitute actionable harassment. See Duncan v. General Motors Corp., 300 F.3d 928, 931-32 (8th Cir.2002); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 966-67 (8th Cir.1999); Callanan v. Runyun, 75 F.3d 1293, 1296 (8th Cir.1996). In all three cases upon which John Morrell relies, the court explained that pertinent factors to consider in determining whether conduct was sufficiently severe or pervasive include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or merely an offensive utterance; and whether it unreasonably interferes with an employee’s work performance. See Duncan, 300 F.3d at 934; Scusa, 181 F.3d at 967; Callanan, 75 F.3d at 1296. In all three of these cases, the court rejected the sufficiency of the plaintiffs allegations on the ground that the incidents cited were too few and far between. See Duncan, 300 F.3d at 935 (rejecting the claim based on “four categories” of conduct involving nine or ten incidents); Scusa, 181 F.3d at 967 (observing that the plaintiff relied on only nine incidents); Callanan, 75 F.3d at 1296 (agreeing with the district court “that the conduct to which [the plaintiff] was subjected was not ‘frequent, severe, physically threatening, or humiliating’ ”). Here, on the other hand, Joens has designated “specific facts showing that there is a genuine issue for trial” on the issue of severity and pervasiveness, see Fed. R. Civ. P. 56(e) (the non-movant’s burden), by pointing to her deposition testimony that Johnson’s conduct occurred almost daily over several years, and involved lengthy tirades and abusive language each time, thereby identifying evidence of conduct that a jury could reasonably find was frequent, severe, humiliating, and interfered with her work performance. See, e.g. Duncan, 300 F.3d at 934 (listing these factors). Again, the court cannot simply weigh the evidence and determine the truth of the matter, as John Morrell seems to ask the court to do, but must instead determine whether there are genuine issues for trial. Quick, 90 F.3d at 1376-77. Such genuine issues of material fact are present here on this element of Joens’s claim of sexual harassment. 3. Employer liability Finding that Joens has otherwise generated genuine issues of material fact on the elements of her hostile environment claim based on Johnson’s conduct, the court turns, next, to the question of whether she can generate genuine issues of material fact that John Morrell should be held liable for the harassment to which she was allegedly subjected. The answer to that question may depend upon the standard for employer liability, which in turn depends upon the “burning question” of whether or not Johnson was a “co-worker” or “supervisor,” as explained in the Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), and Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). a. Employer liability for “supervisor” or “co-worker” harassment In Ellerth and Faragher, the Supreme Court declared the standards for an employer’s liability for harassment by a supervisor, as follows: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275. Thus, in the wake of Ellerth and Faragher, an employer is subject to vicarious liability for harassment by a supervisor, if that harassment resulted in a “tangible employment action,” but the employer’s liability for harassment by a supervisor is otherwise contingent upon an affirmative defense. On the other hand, even after Ellerth and Faragher, the Eighth Circuit Court of Appeals has reiterated that in order to establish employer liability for harassment by co-workers, a plaintiff must establish that the employer “knew or should have known of the conduct and failed to take proper remedial action.” See, e.g., Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983, 987 (8th Cir.1999) (recognizing that this standard of “direct” liability still applies to co-worker harassment after Ellerth and Faragher); accord Rheineck, 261 F.3d at 755 (elements of a co-worker harassment claim); Bogren, 236 F.3d at 407 (same); Stuart, 217 F.3d at 631 (same). Thus, in “co-worker” harassment cases, the plaintiff must prove an additional “knowledge” element to establish the employer’s liability for the harassment. The court believes that the following “flow chart” may be helpful in determining the standards for an employer’s liability for acts of its employees in sexual harassment cases: b. Does this case involve “co-worker” or “supervisor” harassment? As mentioned above, John Morrell assumed in its opening brief that any liability it might have for harassment of Joens would be based on the “knew or should have known” standard for employer liability for “co-worker” harassment. However, in both Joens’s response and John Mor-rell’s reply, the parties argue the case under the Ellerth/Faragher standards for employer liability for “supervisor” harassment, based on the status of the alleged primary harasser, Herman Johnson, as “a foreman” at John Morrell. Thus, to determine whether or not this is a “co-worker” or “supervisor” harassment case, the court must resolve the following questions: (a) what kind of “supervisory” authority over the plaintiff is required for the application of the Ellerth/Faragher standards for employer liability rather than liability based on a “knew or should have known” standard for “co-worker” harassment; and (b) what evidence is there in the record that Herman Johnson exercised sufficient supervisory authority over Joens to make this a “supervisor” harassment case rather than a “co-worker” harassment case? i. Who is a “supervisor” within the meaning of Ellerth and Faragher? Although the Supreme Court did not answer directly the question of who is a “supervisor” within the meaning of the standards for employer liability established in Ellerth and Faragher, see Mikels v. City of Durham, NC, 183 F.3d 323, 333 (4th Cir.1999) (noting that, in Ellerth and Faragher, the Court did not have directly before it the question of what defines a supervisor, and thus “attempt[ed] no definitive explanation of what conduct short of that culminating in tangible employment action can be found nevertheless to be ‘aided by the agency relation’”), the Court did provide significant guidance concerning (1) what authority defines a “supervisor,” and (2) over whom the supervisor must wield such authority to implicate the ’EAleñh/Faragher standards for employer liability. As to the authority defining a “supervisor,” the Supreme Court reasoned that a “supervisor” is aided by his or her agency relationship with the employer to commit the harassment when the supervisor takes “a tangible employment action” against a subordinate. See Ellerth, 524 U.S. at 760, 118 S.Ct. 2257. More specifically, the Supreme Court explained, When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker’s arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. But one co-worker (absent some elaborate scheme) cannot dock another’s pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. For these reasons, 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. Ellerth, 524 U.S. at 761-63, 118 S.Ct. 2257 (citations omitted). The Court then distinguished the circumstance in which a supervisor engages in harassment that “does not culminate in a tangible employment action,” noting that it was less obvious in such circumstances that the supervisor was aided by the agency relationship in committing the harassment; indeed, where no tangible employment action is involved, the Court concluded that the supervisor commits essentially the same acts that any co-employee could commit. Id. at 763, 118 S.Ct. 2257. On the other hand, the Court noted that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense a supervisor is always aided by the agency relation.” Id. at 763, 118 S.Ct. 2257 (emphasis added). What “power and authority” was the Court referring to as investing the supervisor’s harassment with “a particularly threatening character,” if not the supervisor’s “power and authority” to take “tangible employment action” against the harassed employee? Thus, it appears that it is the supervisor’s power to take tangible employment actions against an employee— whether or not the supervisor actually does take such a tangible employment action against the employee'—that not only defines who is a “supervisor,” for El- lerth/Faragher purposes, but provides the primary justification for treating employer liability for a supervisor’s harassment according to a different standard than employer liability for harassment by a coworker. In the absence of any such power, a nominal supervisor cannot engage in harassment that is any different from harassment by a co-worker, and consequently, no difference in the standard for employer liability is justified. In further attempting to determine the nature of a “supervisor’s” power, that is, the power to take “tangible employment actions,” this court notes that the Supreme Court also explained in Ellerth that “[a] tangible employment action constitutes 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,” see id. at 761, 118 S.Ct. 2257, and that it “in most cases inflicts direct economic harm.” Id. at 762, 118 S.Ct. 2257. As noted above, such actions also “require an official act of the enterprise, a company act”; “in most cases [such an act] is documented in official company records, and may be subject to review by higher level supervisors”; and, to take such action, the supervisor “often must obtain the imprimatur of the enterprise and use its internal processes.” Id. Turning to the issue of over whom the “supervisor” must wield such power, this court notes that, as framed in Ellerth, an employer’s vicarious liability, or liability subject to the Ellerth/Faragher affirmative defense, is applicable only when “a victimized employee [is subjected to] an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Ellerth, 524 U.S. at 765, 118 S.Ct. 2257 (emphasis added); see also Faragher, 524 U.S. at 807, 118 S.Ct. 2275. Similarly, another federal district judge recently explained these principles succinctly, as follows: “[W]here the person who engaged in the unlawful conduct is not the plaintiffs supervisor but rather is one of the plaintiffs co-workers or a supervisor with no authority over the plaintiff, the plaintiff must show under the theory of respondeat superior that the employer ‘knew or should have known of the harassment in question and failed to take prompt remedial action.’ ” Underwood v. Northport Health Services, Inc., 57 F.Supp.2d 1289, 1303-04 (M.D.Ala.1999) (emphasis added); see also McDaniel v. Fulton County School Dist., 233 F.Supp.2d 1364, 1375 (N.D.Ga.2002) (“If the alleged harasser was not the plaintiff’s supervisor, and thus did not have any power to take any tangible, adverse employment action against the plaintiff (such as firing or demoting her for rejecting his sexual advances), then the employer may only be held liable for the co-worker’s conduct if the employer knew or should have known of the harassment and failed to take prompt remedial action.”) (emphasis added). But see Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 411-12 (5th Cir.2002) (finding that the court need not resolve a conflict over the supervisory authority of the alleged harasser, in light of the plaintiffs assertion that the harasser had “authority to direct her daily activities” and the harasser’s assertion of his “low wage-earning compensation and his inability to hire or fire those in [the plaintiffs] position,” where the defendant had made binding admissions that the alleged harasser was the plaintiffs “supervisor”), petition for cert. filed, 71 U.S.L.W. 3366 (Nov. 7, 2002). Thus, it is not simply the supervisor’s power, but his ability to exercise that power over the plaintiff that determines whether or not he or she is a “supervisor” within the meaning of Ellerth and Faragher. These principles are also articulated or demonstrated in additional decisions of the lower federal courts. For example, in Mikels v. City of Durham, NC, 183 F.3d 323 (4th Cir.1999), the Fourth Circuit Court of Appeals concluded that a key factor in determining the proper standard for employer liability is whether the alleged harasser had “sufficient supervisory authority over [the plaintiff],” which the court defined in terms of the alleged harasser’s degree of control over the victim’s conditions of employment: 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 standard, 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 continuing threat to her employment conditions that made her vulnerable to and defenseless against the particular conduct in ways that comparable 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 coworker”). 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 situation, 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 [employer’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 maybe highly probative or the issue whether any agency authority possessed by the harasser has actually aided his conduct by increasing her sense of vulnerability and defenselessness. This point was anticipated, 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 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 promotion.’ ” Id. at 2291 (quoting Est-rich, 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? Mikels, 183 F.3d at 333-34. Thus, like this court, the Fourth Circuit Court of Appeals in Mikels derived its definition of supervisory authority sufficient to invoke the Ellerth/Faragher standards for employer liability from the Supreme Court’s own discussion of what defines the special nature of a supervisor’s authority over the victim. Id. Still more specifically, like this court, the court in Mikels concluded that it is the “authority, though not exercised in the particular situation, to take tangible employment actions against the victim, such as ‘hiring, firing, fading to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits’ ” that defines a “supervisor” for purposes of Ellerth/Faragher liability. In Johnson v. Booker T. Washington Broadcasting Service, Inc., 234 F.3d 501 (11th Cir.2000), the Eleventh Circuit Court of Appeals concluded that the alleged harasser was the plaintiffs supervisor, where the harasser and the plaintiff were co-hosts of a morning radio show, but the alleged harasser was also the “program director” for that show. Johnson, 234 F.3d at 505 & 511. On the other hand, the court concluded that a remand was required to determine whether or not the alleged harasser was still the plaintiffs supervisor after the plaintiff was transferred to a midday show, then a late night show. Id. at 511. The court found that evidence that the alleged harasser scheduled mandatory meetings for the entire staff of announcers during the plaintiffs “air” time, but failed to schedule someone to relieve her so that she could attend those meetings, suggested that the alleged harasser “still wielded some power over [the plaintiff] after she left the Morning Show.” Id. Thus, the court in Johnson considered both the power that the alleged harasser exercised by virtue of his position in the company and whether he was able to wield that power directly over the plaintiff. Still more recently, the Seventh Circuit Court of Appeals made a more extensive analysis of the question of who is a supervisor for Title VII purposes in Hall v. Bodine Electric Company, 276 F.3d 345 (7th Cir.2002), as follows: An employer’s liability for hostile environment sexual harassment hinges on whether the harasser is the victim’s supervisor or merely a co-employee. Parkins [v. Civil Constructors of Ill., Inc.], 163 F.3d [1027,] 1032 [(7th Cir.1998)]. “‘An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.’ ” Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). In Parkins, we held it is manifest that the essence of supervisory status is the authority to affect the terms and conditions of the victim’s employment. This authority primarily consists of the power to hire, fire, demote, promote, transfer, or discipline an employee. Absent an entrustment of at least some of this authority, an employee does not qualify as a supervisor for purposes [of] imputing liability to the employer. Id. at 1034. In this case, Hall argues that her harasser, Lopez, qualifies as a Title VII supervisor because he: (1) possessed the authority to direct her work operations (i.e., which machines she ran); (2) provided input into her performance evaluations, and (3) was charged with training her and other less experienced employees. Accepting these attributes as true, as we are required to do in the summary judgment context, none of them is enough to bring Lopez within the definition of a Title VII supervisor — as there is nothing in the record indicating that Bodine entrusted him with the authority to “hire, fire, demote, promote, transfer, or discipline” Hall. Moreover, the fact that an employer authorizes one employee to oversee aspects of another employee’s job performance does not establish a Title VII supervisory relationship. An individual is not a supervisor unless he possesses the authority to directly affect the terms and conditions of a victim’s employment. See, e.g., Haugerud v. Amery School Dist., 259 F.3d 678, 696-97 (7th Cir.2001) (employer may only be held vicariously liable for the acts of those who can be considered the employer’s proxy — an individual holding a sufficiently high position in the management hierarchy of the company). The type of marginal discretion Lopez had over Hall’s work operations is not sufficient to impute Title VII vicarious liability to an employer. See, e.g., Parkins, 163 F.3d at 1034. Additionally, Hall’s own actions indicate that she never considered Lopez to be her supervisor. Whenever she had a complaint, she spoke with her actual supervisor (i.e., Steve Conn or Brian Kol-ka) or the human resources department, not with Lopez or anyone else in his capacity. Hall, 276 F.3d at 355-56 (footnotes omitted). Although the court in Hall referred to “authority to affect the terms and conditions of the victim’s employment,” rather than to the power to take “tangible employment action” against the victim, as the hallmark of a supervisor’s power, the specific kinds of authority identified by the court — the “power to hire, fire, demote, promote, transfer, or discipline an employee” — are precisely the same actions that the Supreme Court in EUerth identified as examples of “tangible employment actions.” See Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. Moreover, the court in Hall specifically considered the alleged “supervisor’s” power to exercise such authority over the victim of the alleged, harassment. See Hall, 276 F.3d at 355. Other decisions are generally in accord with these principles. See Savino v. C.P. Hall Co., 199 F.3d 925, 932 n. 7 (7th Cir.1999) (holding that “[t]here [wa]s no question that Popper was Savino’s supervisor, as he hired her and apparently had the power to terminate her position”); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir.1998) (holding that a .supervisor is one with “authority ... of substantial magnitude,” such as the power to hire, fire, demote, promote, transfer, or discipline the plaintiff); Dominicak-Brutus v. Urban Property Servs. Co., 217 F.Supp.2d 911, 922 (N.D.Ill.2002) (noting that the Seventh Circuit Court of Appeals “adheres to a strict definition of who qualifies as a supervisor under Title VII,” citing Hall, and holding that the purported alleged harasser’s ability to assign the plaintiff work was not sufficient to establish his “supervisory status”); Pickett v. Colonel of Spearfish, 209 F.Supp.2d 999, 1006 (D.S.D.2001) (holding that the alleged harasser was not a “supervisor” for purposes of employer liability, because he “lacked the authority to hire, fire, promote, or discipline Colonel employees,” but was instead only a “task master”); Olsen v. H.E.B. Pantry Foods, 196 F.Supp.2d 436, 439 (E.D.Tex.2002) (taking the Supreme Court’s statement in Ellerth that “The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his control.” Ellerth, 524 U.S. at 762, 118 S.Ct. 2257, as defining supervisory authority, and assuming for purposes of summary judgment that the alleged harasser had such authority, the Ellerth/Faragher affirmative defense was applicable); Jackson v. T & N Van Serv., 86 F.Supp.2d 497, 500-02 (E.D.Pa.2000) (examining both Parkins and Mikels and holding that the harassers lacked supervisory authority, because they did not assign the plaintiff tasks, the plaintiff felt free to confront them about harassing conduct then report it to another person perceived to be his direct supervisor, and the alleged harassers had no role in substantial employment decisions). But see Dinkins v. Charoen Pokphand USA, Inc., 133 F.Supp.2d 1254, 1266 (M.D.Ala.2001) (rejecting the Parkins formulation of who is a supervisor for Title VII cases as “appealing because it establishes simple rules for complex cases,” but “improperly truncates the Supreme Court’s holdings in Faragher and Ellerth,” which “clearly indicate that an analysis of employment relationships involves multi-factorial analysis rather than simplistic taxonomy,” and instead “find[ing] that an employee is a supervisor or ‘agent’ for purposes of Title VII if he has the actual authority to take tangible employment actions,” see Ellerth, 524 U.S. at 762, 118 S.Ct. 2257, 141 L.Ed.2d 633, or to recommend tangible employment actions if his recommendations are given substantial weight by the final decisionmaker, see id., or to direct another employee’s day-to-day work activities in a manner that may increase the employee’s workload or assign additional or undesirable tasks, see Johnson [v. Booker T. Washington Broadcasting Serv.], 234 F.3d [501,] 513 [ (11th Cir.2000) ].); Homesley v. Freightliner Corp., 122 F.Supp.2d 659, 662-64 (W.D.N.C.2000) (applying the Mikels standard to determine whether the harasser was a “supervisor,” noting that the harasser’s relationship with the plaintiff “lacked the ‘most powerful indicators of ... threat-inducing vulnerability ...,’” because he “had no authority to hire, fire, or discipline any of the other welders”; although he reported to his supervisor regarding their performance, “there was no evidence in the record that he had the power to promote or fail to promote other welders”; and his ability to reassign welders to different tasks did not extend to authority to assign “significantly different responsibilities” or “caus[e] a significant change in benefits,” but the case differed from Mikels, because “lesser forms” of supervisory authority, and the plaintiffs response to the harassment, suggested that the harasser was nevertheless aided by the agency relationship such that there were genuine issues of material fact as to whether he should be treated as a “supervisor”); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953, 970-73 (D.Minn.1998) (noting, in the first instance, that the alleged harasser did not appear to be a “supervisor,” because he lacked the “plenary” power to hire, advance, dismiss, or discipline the plaintiff, but that there were genuine issues of material fact under “a more indulgent line of cases which, prior to Far-agher and Ellerth, maintained that a low-level supervisor, who retained something less than plenary authority over hiring and firing, could be considered a ‘supervisor’ such that an employer would be vicariously liable for his acts of sexual harassment,” because the harasser was the plaintiffs “first line supervisor,” with the authority to control her daily activities and to recommend disciplinary action against her, and he used that authority “to allow him to harass the Plaintiff by sending her to a resident’s room, so as to be isolated from others, in order that he might physically assault her there@”). The court concludes, on the basis of the record presented and applicable law, that Herman Johnson’s status as “a foreman,” standing alone, is insufficient to make the Ellerth/Faragher standards for “supervisor” harassment applicable here. Rather, this court concludes that the alleged harasser must not only be a nominal “supervisor,” but must actually exercise immediate or successively higher supervisory authority over the plaintiff, before the Ellerth/Faragher standards for employer liability for the harasser’s conduct are applicable. The question is, did Johnson exercise such “supervisory authority over [Joens]”? ii. Was Johnson such a “supervisor”? The court cannot find that its attention has been drawn to any evidence that Herman Johnson had such immediate (or successively higher) authority over Joens. Rather, the evidence in the record is that Johnson was “a cut floor foreman” with no direct authority over Joens, whose direct supervisor was instead Denny Reitz, although Johnson apparently had authority to request more boxes as needed for his cut floor. For example, Joens indicated in her deposition that she did not think that Johnson was her supervisor, as follows: Q Is [Herman Johnson] the supervisor of the box shop? A I don’t really know who is. I thought Denny Reitz was, I don’t know. Q What is Herman Johnson’s job? A He’s the foreman down on the cut floor. Defendant’s Appendix at 8 (Deposition of LaDonna Joens at 27, 11. 21-25). Shortly thereafter, Joens testified as follows: Q All right. Herman Johnson is a foreman for Morrell? A Yes, he is. Q Would the box shop be under his area of control so far as you know? A It could be. I don’t know. Id. (Deposition of LaDonna Joens at 28,11. 12-17). On the other hand, in an affidavit submitted in support of John Morrell’s motion for summary judgment, Dennis Reitz avers that “I am responsible for supervision of the box shop, the area where LaDonna Joens works. I am also the supervisor primarily in charge of scheduling and approving her overtime hours.” Id. at 25 (Affidavit of Dennis Reitz at ¶ 3). The court does not believe that Joens’s uncertain deposition testimony is enough to generate a genuine issue of material fact that Johnson was Joens’s direct supervisor or one with successively higher authority over her in the face of Reitz’s apparently unchallenged averment that he is the supervisor of the box shop and was responsible for scheduling and approving Joens’s overtime hours. In other words, the court does not believe that Joens’s deposition testimony is a real basis in the record for the proposition that Johnson was Joens’s supervisor within the meaning of Ellerth and Faragher. Hartnagel, 953 F.2d at 394 (explaining that an issue of material fact is “genuine” if it has a real basis in the record, citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). Joens has not met her burden to generate a genuine issue of material fact on this issue by designating any other evidence that supports such a contention. Fed. R. Civ. P. 56(e) (to defeat a summary judgment motion on a particular issue, the nonmovant must designate “specific facts showing that there is a genuine issue for trial”). In short, nowhere in the record is there any indication that Herman Johnson had the power to inflict “tangible employment action” on the scale of hiring, firing, demoting, promoting, disciplining Joens, or even the authority to “reassign” her to perform significantly different responsibilities, or to cause a significant change in her benefits, even if he could demand that she do more of her ordinary work — making boxes-as needed for his production line. See, e.g., Ellerth, 524 U.S. at 761-63, 118 S.Ct. 2257; Hall, 276 F.3d at 355-56; Johnson, 234 F.3d at 505 & 511; Mikels, 183 F.3d at 333-34. Moreover, even assuming that “lesser forms” of supervisory authority might suffice, under certain circumstances, to justify application of the Ellerth/Faragher standards for employer liability, see, e.g., Dinkins, 133 F.Supp.2d at 1266; Homesley, 122 F.Supp.2d at 662-64; Grozdanich, 25 F.Supp.2d at 970-73, there still is no genuine issue of material fact that the authority exercised by Johnson here is legally sufficient. At most, Joens has pointed to evidence that Johnson could demand that she provide more boxes for his production line and could complain about her performance, to her, and presumably, to other company officials. However, she has pointed to no evidence that he could recommend tangible employment actions, for which his recommendations would be given substantial weight by the final decisionmaker, or to direct her day-to-day work activities in a manner that might increase her workload beyond the norm or assign additional or undesirable tasks; instead, his authority was “minimal.” Compare Dinkins, 133 F.Supp.2d at 1266; Homesley, 122 F.Supp.2d at 664 (the harasser had more than “minimal” authority over the plaintiff where he had control over her work assignments and use of vacation and sick time). Nor has she pointed to any evidence that she felt precluded by Johnson’s authority over her from complaining about his alleged harassment; to the contrary, she points to evidence that she complained often and loudly about the way Johnson treated her to “higher” company officials. Compare Homesley, 122 F.Supp.2d at 664 (considering the extent to which the plaintiff felt free to complain to others, perceived to be her “supervisors,” about the conduct of the alleged harasser as indicative of the harasser’s supervisory authority over her). Nor has she pointed to any evidence that Johnson used whatever supervisory authority he had over Johnson to place her in a situation where he could subject her to physical assaults in isolation. Compare Grozdanich, 25 F.Supp.2d at 970-73. In the absence of any evidence that Johnson exercised the necessary authority over Johnson to invoke the Ellerth/Far-agher standards for employer liability for “supervisor” harassment, the court concludes that the standard for employer liability that is applicable here is the “knew or should have known” standard applicable to “co-worker” harassment. See Underwood, 57 F.Supp.2d at 1303-04; see also Dhyne, 184 F.3d at 987 (recognizing that this standard of “direct” liability still applied to co-worker harassment after El-lerth and Faragher); accord Rheineck, 261 F.3d at 755 (elements of a co-worker harassment claim); Bogren, 236 F.3d at 407 (same); Stuart, 217 F.3d at 631 (same). c. Are there genuine issues of material fact under the appropriate standard for employer liability? In order for a plaintiffs employer to be held liable for harassing conduct of a coworker or, this court concludes, for harassing conduct of a nominal supervisor with no sufficient supervisory authority over the plaintiff, the plaintiff must show that her employer knew or should have known of the conduct and failed to take prompt remedial action. See, e.g., R