PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2646 _____________

MARNIE O’BRIEN, Appellant

v.

THE MIDDLE EAST FORUM; DANIEL PIPES; and GREGG ROMAN;

v.

MATTHEW EBERT _______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-19-cv-06078) District Judge: Honorable John M. Gallagher _______________

Argued June 22, 2022

Before: McKEE, ∗ RESTREPO, and BIBAS Circuit Judges

(Filed: January 5, 2023) _______________

Erica A. Shikunov [ARGUED] Samuel C. Wilson Derek Smith Law Group

∗ Judge McKee assumed senior status on October 21, 2022. 1835 Market Street Suite 2950 Philadelphia, PA 19103 Counsel for Appellant

Jonathan R. Cavalier [ARGUED] Jackson Lewis 1601 Cherry Street Suite 1350 Philadelphia, PA 19102

Margaret M. DiBianca Clark Hill 824 Market Street Suite 710 Wilmington, DE 19801 Counsel for Appellees Middle East Forum; Daniel Pipes; and Gregg Roman

Matthew Ebert 354 Pixley Place Woodbury, NJ 08096 Pro se

Chelsea Sharon [ARGUED] Equal Employment Opportunity Commission Office of General Counsel 131 M. Street, N.E. Washington, DC 20507 Counsel for Amicus Appellant Equal Employment Opportunity Commission

_______________

OPINION OF THE COURT _______________

McKEE, Circuit Judge.

Marnie O’Brien appeals the District Court’s order

denying her motion for a new trial after a jury found in favor

2 of her former employer on her hostile work environment

claims under Title VII of the 1964 Civil Rights Act. 1 In Title

VII cases where no tangible adverse employment action was

taken, an employer may escape liability by raising an

affirmative defense under the Supreme Court decisions in

Faragher v. City of Boca Raton, 2 and Burlington Industries,

Inc. v. Ellerth. 3 The District Court held that O’Brien was not

entitled to a jury instruction that this defense is unavailable

where the harasser functions as the alter ego or proxy of the

employer. Although we agree that this affirmative defense is

not available in that situation, the District Court’s refusal to so

instruct the jury here was harmless because the jury found that

O’Brien was not subjected to sexual harassment. The existence

of an affirmative defense was therefore irrelevant.

Accordingly, we must affirm the District Court’s order denying

O’Brien’s motion for a new trial.

I. FACTUAL BACKGROUND

Marnie O’Brien worked at The Middle East Forum, a

think tank, from 2016 to 2020. She served as its controller and

1 42 U.S.C. § 2000e et seq. 2

(1998). 3

(1998).

3 was responsible for human resources tasks such as payroll and

onboarding staff. In 2019, O’Brien brought this suit against

The Middle East Forum, its President Daniel Pipes, and its

Director Gregg Roman. She alleged a hostile-work

environment under Title VII and the Pennsylvania Human

Relations Act. Defendant Roman asserted a counterclaim for

abuse of process.

The claims were resolved by a jury trial in which the

jury returned a verdict against O’Brien on her Title VII and

PHRA claims. It also rejected Roman’s abuse of process

counterclaim.

A. Trial Testimony

During the trial, O’Brien testified that she had

experienced ongoing sexual harassment at the hands of Gregg

Roman, who was her direct supervisor and the Forum’s

Director, Chief Operating Officer, and Secretary of the Board.

She painted a grim picture of her treatment, testifying that

Roman made repeated sexual advances toward her and some

female co-workers. She told the jury that he used his position

of authority to retaliate against women who rejected his

unwanted sexual advances. Other female employees

corroborated O’Brien’s testimony. They told the jury that

4 Roman also engaged in harassing behavior toward them.

Roman denied all of the allegations.

Testimony during the trial focused on Roman’s role in

the company. According to some employees, he was “the face

of the organization” 4 and the “man in charge.” 5 As the Chief

Operations Officer, not only was Roman responsible “for day-

to-day management, communications, and financial resource

development[,]” 6 he was also the decision-maker at the office.

He created and implemented office policies and was

“responsible for all of the administration oversight with

anybody that worked at the Forum.” 7 Although Pipes served as

President of the Forum, Roman possessed significant decision-

making authority. Pipes even conceded that there was “no

question…[he] delegated…authority [to Roman].” 8 Roman

also wrote articles and made media appearances on behalf of

the Forum. 9 Nevertheless, Roman and Pipes rejected the

, 2486.

.

. 7

.

. 9 There is some debate as to whether Roman made media appearances on behalf of the forum. Pipes testified that Roman did not make media appearances as a representative of the Forum but used his affiliation with the Forum during said appearances.

5 characterization of Roman as the “face of the company.”

Roman characterized his role on the Forum’s Board as “that of

secretary,” 10 and Pipes testified that he, not Roman, was the

face of the Forum. Pipes told the jury that Roman “reported to

[him], not every decision of course, but as in any organization,

key decisions, such as hiring and firing.” 11

The jury also heard considerable testimony about Pipes’

response after O’Brien reported Roman’s alleged sexual

harassment. 12

B. Instructions on the Faragher/Ellerth Defense and Verdict

O’Brien argued that the Forum should be barred from

raising an affirmative defense to the hostile work environment

claim under Faragher v. City of Boca Raton and Burlington

Industries, Inc. v. Ellerth because Roman was a proxy of the

employer-organization. In cases where no tangible

employment action has been taken, 13 the Faragher/Ellerth

defense allows an employer to escape vicarious liability if: (1)

the employer exercised reasonable care to prevent and correct

-79.

.

-93, 2977. 13 Examples of a tangible employment action include “discharge, demotion, or undesirable reassignment.” Faragher,

.

6 any harassing behavior; and (2) the plaintiff unreasonably

failed to take advantage of the preventative or corrective

opportunities provided. 14

In her pretrial memorandum, O’Brien argued that

Defendants were precluded from raising this affirmative

defense because Roman was her employer’s proxy. At the

charging conference, O’Brien reiterated this point. She asked

the Court to instruct the jury that, “if Mr. Roman is found to be

a proxy or alter ego [of the company],…the inquiry ends there.

The liability is automatic. [The defendants] do not get the

Faragher-Ellerth defense.” 15 However, the Court refused to

deviate from our model jury instructions and declined a proxy-

liability instruction over O’Brien’s objection.

The Court instructed the jury as follows:

I will now instruct you more fully on the issues you must address in this case. . . . As I just mentioned, Ms. O’Brien claims that she was subjected to harassment by Mr. Roman and that this harassment was motivated by her gender. The Middle East Forum, Dr. Pipes, and Mr. Roman are liable for the actions of Mr. Roman in Ms. O’Brien’s claim of harassment if Ms. O’Brien proves all of the

14

; Ellerth,

.

(alterations added).

7 following elements by a preponderance of the evidence. One, Ms. O’Brien was subjected to sexual harassment by Mr. Roman. Two, Mr. Roman’s conduct was not welcomed by Ms. O’Brien. Three, Mr. Roman’s conduct was motivated by the fact that Ms. O’Brien is a female. Four, the conduct was so severe or pervasive that a reasonable person in Ms. O’Brien’s position would find Ms. O’Brien’s work environment to be hostile or abusive… And, five, Ms. O’Brien believed her work environment to be hostile or abusive as a result of Mr. Roman’s conduct. If any of the above elements have not been proven by a preponderance of the evidence, your verdict must be for the Defendants, and you need not proceed further in considering this claim. 16

The Court added that if the jury found that the above

elements had been proven by a preponderance of the evidence,

then the jury should consider both whether: (1) Roman was

O’Brien’s supervisor; and (2) whether O’Brien was

constructively discharged. The Court further instructed that if

these two elements were proven, the verdict must be for

Plaintiff, however, if the two elements were not proven, the

jury must consider Defendants’ affirmative defense.

16 App. 3110–11.

8 The Court then informed the jury about the elements of

the Faragher/Ellerth affirmative defense. It instructed that

Pipes and the Forum could not be liable if: (1) Pipes and the

Forum exercised reasonable care to prevent the harassment and

promptly corrected any harassment that did occur; and (2)

“O’Brien unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the

Defendants.” 17 Despite O’Brien’s objection, the Court neither

instructed the jury to consider whether Roman was in a

sufficiently high position within the organization to qualify as

the Forum’s proxy, nor that if he did qualify as the proxy, the

affirmative defense under Faragher/Ellerth would be

unavailable.

The Court submitted the case to the jury with a general

verdict form which asked, “Has the Plaintiff, Marnie O’Brien,

proven by a preponderance of the evidence that she was

subjected to sexual harassment by the Defendant, Gregg

17 App. 3112–14.

9 Roman, and that this harassment was motivated by her

gender?” 18 After deliberations, the jury responded: “No.” 19

This appeal followed. 20

II. DISCUSSION

Although O’Brien raises three issues on appeal, we need

only discuss whether the District Court erred in refusing to

instruct the jury on proxy liability pursuant to Faragher and

Ellerth. 21

. The same question was listed with respect to O’Brien’s claim under Title VII and the Pennsylvania Human Relations Act.

, 3141. The jury also found that Roman had not proven his abuse of process claim against O’Brien. 20 We have jurisdiction under

. 21 We have reviewed O’Brien’s claims that she was prejudiced by having to defend against Roman’s abuse of process counterclaim and that the District Court abused its discretion in precluding the testimony of a non-party witness about sleeping with a knife under her pillow during a business trip because of her fear of Roman. Neither claim has merit. The argument that O’Brien was prejudiced by having to defend against Roman’s abuse of process counterclaim is waived because O’Brien failed to object to the jury instruction regarding appellee Roman’s counterclaim in accordance with Fed. R. Civ. P. 51(c)(1) and failed to seek exclusion of evidence in support of Roman’s counterclaim in her motions in limine. See Lesende v. Borrero,

(3d Cir. 2014) (reasoning that Fed. R. Civ. P. 51(c)(1) requires that a party objecting to a jury instruction or the lack thereof must raise an objection on the record or else that issue will be waived on appeal). The District Court did not abuse its discretion in precluding the testimony of a non-party witness about sleeping with a knife under her pillow during a business trip

10 A. Jury Instructions

because of her fear of Roman. “[S]o-called ‘me too’ evidence in an employment discrimination case is neither per se admissible nor per se inadmissible.” Mandel v. M & Q Packaging Corp.,

(3d. Cir. 2013) (citing Sprint/United Mgmt. Co. v. Mendelsohn,

(2008)). Moreover, “[w]e ‘afford broad discretion to a district court’s evidentiary rulings.’”

at 167-68 (quoting Sprint/United Mgmt. Co.,

). Given that the District Court did not apply a per se rule excluding the evidence, which would have been an abuse of discretion, see Sprint/United Mgmt. Co.,

, but instead engaged in a balancing test under Fed. R. Evid. 403, the District Court’s ruling was proper, especially given that it did not deem any other testimony from the witness inadmissible prior to trial. Nonetheless, we note that in Mandel,

, the case upon which the District Court relied, the “me too” evidence that was excluded was partially excluded because the deposition testimony was that of two employees who were employed not by defendant employer but by defendant employer’s parent corporation, whereas here, the witness was employed by the same company: the Forum. Moreover, in its opinion denying O’Brien’s request for a new trial, the District Court reasoned, “Given that Ms. Barbounis was not a party to this case, that this alleged event occurred outside of Plaintiff’s workplace (in another country), and because the inflammatory nature of this allegation constituted unfair prejudice which substantially outweighed any probative value with regards to Ms. O’Brien’s case, the Court ruled that this testimony was inadmissible.” O’Brien v. Middle E. F., No. 2:19-CV-06078-JMG,

, at *5 (E.D. Pa. Sept. 10, 2021). The District Court’s reliance on the fact that Ms. Barbounis was in another country appears misguided considering that multiple employees, including O’Brien, testified that trips to Israel were part of their work responsibilities. Still, the District Court did not abuse its discretion.

11 While we generally review a court’s refusal to give a

requested jury instruction for abuse of discretion, “where, as

here, the question is whether the jury instructions stated the

proper legal standard, our review is plenary.” 22 This standard

applies regardless of whether the Court’s instruction is

consistent with our Model Civil Jury Instructions. 23 Those

“instructions are designed to help litigants and trial courts, not

to replace their shared obligation to distill the law correctly

when drafting proposed jury instructions.” 24

O’Brien argues that the District Court erred in failing to

instruct the jury that if it found Roman to be a proxy or alter-

ego of the employer, the Faragher/Ellerth defense would be

unavailable. We agree.

A review of the Supreme Court’s reasoning in Faragher

and Ellerth makes clear that the Supreme Court did not intend

for the Faragher/Ellerth defense to be available where the

22 United States v. Coyle,

(3d Cir. 1995) see also Franklin Prescriptions, Inc. v. New York Times Co.,

(3d Cir. 2005) (“Where a party properly objects to a jury instruction under Fed. R. Civ. P. 51, we exercise plenary review to determine whether the instruction misstated the applicable law.”). 23 United States v. Maury,

(3d Cir. 2012). 24 Robinson v. First State Cmty. Action Agency,

(3d Cir. 2019).

12 supervisor responsible for harassment was a proxy for the

organization-employer. In Faragher, the Supreme Court

reviewed its prior case law on employer liability and drew a

distinction between vicarious liability and proxy/alter ego

liability. 25 The Court cited with approval its earlier decision in

Harris v. Forklift Systems, Inc., where it examined a

corporation’s liability for harassment by its president,

reasoning that it was not “exceptional that standards for

binding the employer were not in issue in Harris . . .[as] the

individual charged with creating the abusive atmosphere was

the president of the corporate employer who was indisputably

within that class of an employer organization’s officials who

may be treated as the organization’s proxy.” 26 The Court also

favorably cited cases in which courts reasoned that where

harassment was perpetrated by a supervisor in a significant

position of authority, liability would be automatically imputed

to the employer. 27

25 Faragher,

. 26

at 789 (citing Harris v. Forklift Systems, Inc.,

(1993)). 27

at 789-90 (citing Burns v. McGregor Elec. Indus., Inc.,

(8th Cir. 1992) (employer-company liable where harassment was perpetrated by its owner); Torres v. Pisano,

, 634 n.11 (2d Cir. 1997) (a supervisor may have a sufficiently high position “in the

13 Similarly, the Court in Ellerth outlined employer

liability under agency principles. 28 The Court’s analysis

supported “indirect liability. . . where the agent’s high rank . .

. makes him or her the employer’s alter ego.” 29 However, the

Court explained that it was not faced with such a situation in

Ellerth because the harasser in question did not hold a high

ranked position within the company. 30 Although the Court

noted that “[n]one of the parties contend[ed] [that the alleged

harasser’s] rank imputes liability under this principle [of proxy

liability],” it nonetheless acknowledged that liability could be

imputed under this principle. 31

In rejecting O’Brien’s request for a charge that the

affirmative defense did not apply if Roman was a proxy or

alter-ego of the employer, the District Court reasoned that

O’Brien “appears to conflate prior dicta discussing various

agency theories, including the ‘proxy theory,’ with binding

management hierarchy of the company for his actions to be imputed automatically to the employer.”); Katz v. Dole,

(4th Cir. 1983) (“Except in situations where a proprietor, partner, or corporate officer participates personally in the harassing behavior,” an employee must “demonstrat[e] the propriety of holding the employer liable[.]”)). 28 Ellerth,

. 29

. 30

31

14 precedent establishing how employers may be held [liable]

under Title VII.” 32 However, that analysis ignores that, as the

Court of Appeals for the Second Circuit astutely pointed out,

Faragher and Ellerth “did not intend to depart from these well-

established theories of employer liability in sexual harassment

cases.” 33 In fact, Faragher and Ellerth looked to the Supreme

Court’s prior decision in Meritor Savings Bank, FSB v.

Vinson 34 as the foundation for determining employer

liability. 35 The Faragher Court affirmed the relevance of the

“basic agency principles” discussed in Meritor to establish

employer liability. The Court explained that “Meritor’s

statement of the law is the foundation on which we build

today.” 36 Similarly, in Ellerth, the Court reasoned that the

“principles of agency law” established in Meritor were a useful

32 O’Brien,

, at *3. 33 Townsend v. Benjamin Enters., Inc.,

(2d Cir. 2012). 34

(1986). 35 Faragher, 524 U.S. at 791 (explaining that the “soundness” of lower-court decisions “in light of basic agency principles … was confirmed by this Court’s only discussion to date of standards of employer liability, in Meritor”); Ellerth,

(“As Meritor acknowledged, the Restatement (Second) of Agency . . . is a useful beginning point for a discussion of general agency principles.”). 36 Faragher,

.

15 beginning point in a Title VII case. 37 As the Court of Appeals

for the Second Circuit correctly concluded,

“the Faragher/Ellerth affirmative defense builds upon rather

than repudiates the theory of proxy/alter ego liability

articulated in the Court’s prior cases.” 38

This is made especially clear by the Court’s effort to

distinguish between Subsection 219(2)(a) of the Restatement

(Second) of Agency, which addresses direct and indirect

liability where the agent’s position in the company makes him

the employer’s alter ego, from Section 219(2)(d) of the

Restatement, which “concerns vicarious liability for

intentional torts committed by an employee.” 39 As the EEOC

notes in the helpful amicus brief filed in this case, proxy

liability does not stem from the aided-by-agency-relation

principle of § 219(2)(d). That principle applies to situations

where the servant independently “cause[s] harm because of his

position as [an] agent[.]” 40 Instead, proxy liability under Title

VII is rooted in § 219(2)(a), which addresses situations where

37 Ellerth,

. 38 Townsend,

. 39 Ellerth,

. 40 EEOC Amicus Br. at 19 (quoting Restatement (Second) of Agency (1958) § 219, cmt. e.).

16 “the master” itself “intended the conduct or the

consequences[.]” 41

Thus, the District Court’s focus on supervisory

liability—instead of liability arising from the supervisor’s

status as “the master”—is misguided. The District Court relied

upon the reasoning in Vance v. Ball State University that “it

would go too far . . . to make employers strictly liable whenever

a supervisor engages in harassment that does not result in a

tangible employment action.” 42 The District Court reasoned

that, “[a]bsent a constructive discharge, or some other official

act, ‘the extent to which the supervisor’s [mis]conduct has

been aided by the agency relation ... is less certain’ and justifies

affording the employer an opportunity to establish an

affirmative defense.” 43 However, the Supreme Court has made

it clear that there is no such uncertainty if the alleged harasser

is in such a position of authority that he “speak[s] for the

41 Id. at 19 (quoting Restatement (Second) of Agency (1958) § 219(2)(a)). 42 O’Brien,

, at *3 (quoting Vance v. Ball State Univ.,

(2013)). 43

(quoting Pennsylvania State Police v. Suders,

, 148–49 (2004)).

17 corporate employer,” 44 and thereby merges with the employer-

organization.

Following Faragher and Ellerth, every Circuit Court of

Appeals that has addressed this issue has recognized the proxy-

liability theory, holding the Faragher/Ellerth affirmative

defense unavailable when the supervisor in question is the

employer’s proxy or alter ego. 45 These decisions comport with

the EEOC’s Enforcement Guidance, which recognizes that

“[a]n employer is liable for unlawful harassment whenever the

harasser . . . fall[s] ‘within that class . . . who may be treated as

44 Ackel v. Nat'l Commc'ns, Inc.,

(5th Cir. 2003). 45 Townsend,

(“[T]here was no error in the district court’s conclusion that the Faragher/Ellerth defense is unavailable when the alleged harasser is the employer’s proxy or alter ego . . . .”); Ackel,

(“[T]he employer is vicariously liable for its employees [sic] activities in two types of situations: (1) there is a tangible employment action or (2) the harassing employee is a proxy for the employer.”); Johnson v. West,

(7th Cir. 2000) (“Vicarious liability automatically applies when the harassing supervisor is . . .‘indisputably within that class of an employer organization's officials who may be treated as the organization's proxy . . . .’”); Passantino v. Johnson & Johnson Consumer Prod., Inc.,

, 517 (9th Cir. 2000) (“[T]he Burlington defense remains inapplicable as a defense to punitive damages when the corporate officers who engage in illegal conduct are sufficiently senior to be considered proxies for the company.”).

18 the organization’s proxy.’” 46 In that situation, the “unlawful

harassment is imputed automatically to the employer” and “the

employer cannot raise the [Faragher/Ellerth] affirmative

defense, even if the harassment did not result in a tangible

employment action.” 47 We find convincing our Court’s prior

reasoning that this Enforcement Guidance “constitute[s] a

body of experience and informed judgment to which [this

Court] . . . may properly resort for guidance.” 48

Moreover, although we have not yet held that the proxy-

liability theory automatically imputes liability to an employer,

we have twice acknowledged the viability of that principle. In

Durham Life Insurance Company v. Evans, we reasoned that

the company at issue was not entitled to the Faragher/Ellerth

defense because “the defense is only available in the absence

of tangible adverse employment action” and the victim had

46 EEOC Amicus Br. 14 (quoting EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors,

, at *18 (June 18, 1999) (quoting Faragher,

)). 47

at 14–15. 48 Sheridan v. E.I. DuPont de Nemours & Co.,

(3d Cir. 1996) (en banc) (quoting Meritor,

); see also Townsend,

(finding persuasive the EEOC’s interpretation that the Faragher/Ellerth defense is unavailable where the harasser is the employer’s proxy).

19 suffered such an adverse action. 49 Nonetheless, we noted that

there were “other bases for liability that are not relevant to our

decision today [including] cases in which the harasser’s high

rank makes him the employer’s alter ego.” 50 Similarly, in

Suders v. Easton, we acknowledged a possible basis for

liability that was not relevant to the facts at issue there. We

referred to: “cases in which the position of the harasser makes

him an alter ego of the employer.” 51 In light of this case law,

we now join our sister Circuit Courts of Appeals and hold that

the Faragher/Ellerth defense is unavailable when the alleged

harasser is the employer’s proxy or alter ego. 52

49

(3d Cir. 1999). 50

at 152 n.8. 51

, 448 n.10 (3d Cir. 2003) vacated on other grounds sub nom. Pennsylvania State Police v. Suders,

(2004). The District Court reasoned that Durham and Suders do not support O’Brien’s proposition that a proxy liability instruction should be provided. O’Brien,

, at *2 n.2. Specifically, the Court noted that with respect to Durham, “this authority does not support the notion that the ‘proxy theory’ of liability, if proven, automatically precludes an employer from asserting an affirmative defense in Title VII cases” and in Easton, the Third Circuit “explicitly declined to further explore the proxy theory of liability within the Title VII context.”

However, the District Court’s analysis overlooks the fact that in both of these cases, the Third Circuit only declined to explore the proxy theory of liability because it was not relevant to the facts at issue. In contrast, proxy liability is relevant to the facts at issue here. 52 As noted by O’Brien and the EEOC, district courts in this circuit have found the Faragher/Ellerth defense to be

20 B. Evidence that Roman was the Forum’s Proxy or Alter

Ego

We conclude that the evidence in this case could support

a finding that Roman was the Forum’s proxy or alter ego.

Accordingly, the District Court erred in overruling O’Brien’s

objection to instructing the jury on the availability of an

affirmative defense under Faragher/Ellerth. We agree with the

District Court’s conclusion that merely serving as a supervisor

with some amount of control over a subordinate does not

establish proxy status. 53 However, as other Circuit Courts of

unavailable where the harasser qualifies as the employer’s proxy. EEOC Amicus Br. at 16-17 citing EEOC v. Donohue, No. 2:09-CV-280,

, at *21 (W.D. Pa. Sept. 30, 2011) (citing Durham and other cases for proposition that where alleged harasser is “an ‘alter-ego’ of the employer, liability is automatic and the Faragher/Ellerth defense is unavailable”); Strauser v. Jay Fulkroad & Sons, Inc., No. 4:03-CV-2017,

, at *8 (M.D. Pa. July 28, 2005) (reading Durham as having “recogniz[ed] [the] existence of [the] alter-ego theory of liability[,]” which if proven “would prevent defendant from relying on the Ellerth/Faragher affirmative defense”); see also Lidwell v. Univ. Park Nursing Care Ctr.,

(M.D. Pa. 2000) (finding that “an employer’s liability is rather straightforward” where alleged harasser qualifies as employer’s proxy); Griffin v. Allegheny Answering Serv., Inc., No. 04-1484,

, at *8 (W.D. Pa. Nov. 1, 2005) report and recommendation adopted,

(W.D. Pa. Dec. 9, 2005) (if alleged harasser were proxy, “no affirmative defense would be available”)). 53 See Townsend,

(“[A]n individual’s mere status as a supervisor with power to hire or fire is not

21 Appeals have explained, where “an official… [is] high enough

in the management hierarchy that his actions ‘speak’ for the

employer…he may be considered the employer’s alter ego.’” 54

We recognize, of course, that “only individuals with

exceptional authority and control within an organization can

meet” this standard. 55 In Townsend, for example, the Court of

Appeals for the Second Circuit found that the defendant served

as his company’s alter ego where, in the role of corporate vice

president, he was “elevated in the corporate hierarchy,” second

in command only to the president, and “exercised managerial

responsibility for day-to-day operations.” 56

Although the extent of Roman’s authority was disputed

at trial, a reasonable jury could find that Roman served as the

Forum’s alter ego or proxy. Roman served as the Chief

Operating Officer, Director, and Secretary of the Board. The

sufficient to render that individual an alter ego of an employer.”). 54 Helm v. Kansas,

(10th Cir. 2011). Accord Ackel, 339 F.3d at 383–84. See also Johnson,

(looking to whether harasser’s “actions ‘spoke’ for the [employer]”). 55 Helm,

. 56 Townsend,

. See also Mallinson-Montague v. Pocrnick,

(10th Cir. 2000) (reasoning that alter ego instruction was warranted where harasser answered only to company president and was “the ultimate supervisor of all employees in the department. . . .”).

22 jury heard testimony that—as in Townsend—he was second in

command at the Forum, and was poised to “be the successor to

become president of the organization.” 57 There was testimony

that his job was to “run[] the administration” of the

organization; he was the “man in charge” of dictating policies

for the day-to-day governance of the Forum’s main

Philadelphia office, and he was “responsible for all of the

administration oversight with anybody that worked at the

Forum.” 58 The jury also heard testimony about his public-

facing role which included making media appearances on

behalf of the Forum. In light of the considerable evidence

presented from which a jury could have found Roman to be a

proxy for the Forum, the District Court erred in failing to

instruct the jury that the Faragher/Ellerth defense would be

unavailable if it found that Roman was a proxy for the Forum.

C. Harmless Error

Given the District Court’s erroneous jury instruction, a

new trial is required unless “there is a high probability that the

[erroneous instruction] did not affect the outcome of the

.

, 2886, 2941.

23 case.” 59 As we noted at the outset, the failure to instruct on

proxy liability was harmless here because the jury did not find

that O’Brien had been sexually harassed by Roman.

Accordingly, the affirmative defense under Faragher/Ellerth

was irrelevant even though O’Brien was legally entitled to the

charge she requested informing the jury that the defense did

not apply if her harasser was the alter ego or proxy of her

employer.

Here, the jury was first instructed to determine whether

“Ms. O’Brien was subjected to harassment by Mr. Roman” and

if it found that she was not, it “need not proceed further in

considering this claim.” The verdict form establishes that when

asked whether O’Brien was subjected to sexual harassment by

Roman, the jury responded “No.” We assume that jurors “for

the most part understand and faithfully follow [jury]

instructions.” 60 Therefore, we can only conclude that the jury

determined that it need not consider any affirmative defenses

because O’Brien had not established that she was subjected to

59 Woodson v. Scott Paper Co.,

(3d. Cir. 1997). 60 Gov’t of V.I. v. Rosa,

(3d Cir. 2005) (citations omitted).

24 sexual harassment by Roman. 61 Accordingly, on this record,

the failure to provide a proxy liability instruction was harmless.

III. CONCLUSION

For the above reasons, we will affirm the District

Court’s order denying O’Brien’s motion for a new trial.

61 The verdict sheet refers solely to Defendant Roman and not to Defendants Middle East Forum and President Pipes. This was error given that O’Brien brought a lawsuit against all three Defendants. Nevertheless, O’Brien did not object to the verdict sheet, and we assume that the jury followed its directive to consider whether O’Brien was sexually harassed by Roman before proceeding further.

25