1 F.3d 1122 (10th Cir. 1993), 91-4223, Sauers v. Salt Lake County

Docket Nº:91-4223.
Citation:1 F.3d 1122
Party Name:Debra T. SAUERS, Plaintiff-Appellant, v. SALT LAKE COUNTY and Theodore L. Cannon, Defendants-Appellees, David Yocom, Donald Sawaya, Michael Stewart, Sam Dawson, John Does 1-8, Defendants.
Case Date:August 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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1 F.3d 1122 (10th Cir. 1993)

Debra T. SAUERS, Plaintiff-Appellant,


SALT LAKE COUNTY and Theodore L. Cannon, Defendants-Appellees,

David Yocom, Donald Sawaya, Michael Stewart, Sam Dawson,

John Does 1-8, Defendants.

No. 91-4223.

United States Court of Appeals, Tenth Circuit

August 9, 1993

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[Copyrighted Material Omitted]

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Kathryn Collard (Steve Russell, also of Collard & Russell, with her on the briefs), Salt Lake City, UT, for plaintiff-appellant.

Patricia J. Marlowe, Deputy County Atty. (David E. Yocom, Salt Lake County Atty., with her on the brief), Salt Lake City, UT, for defendants-appellees.

Before McKAY, Chief Judge, and LOGAN and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Debra T. Sauers appeals the judgment in favor of defendants Salt Lake County and Theodore L. Cannon on her claims that defendants are liable for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, and for sexual harassment in violation of the Equal Protection Clause, actionable under 42 U.S.C. Sec. 1983. A jury, whose verdict was binding on the Sec. 1983 claims and advisory with respect to the Title VII charges, found for defendants on all counts except one, finding that Cannon had sexually harassed plaintiff in violation of Title VII. The district court, however, found that plaintiff did not consider Cannon's conduct to be sexual harassment, and it therefore rejected the advisory verdict and entered judgment for defendants on all counts. 1

On appeal plaintiff argues that the evidence required findings in her favor on her sexual harassment and retaliation charges, and that the district court erred in rejecting her quid pro quo sexual harassment theory, dismissing her Sec. 1983 claim against the County, and admitting evidence of Cannon's mental illness and a disciplinary letter from plaintiff's personnel file. Defendants argue that plaintiff's Title VII claims were time-barred.


We first consider defendants' argument that the Title VII claim was filed out of time. Plaintiff was terminated as a secretary in the Salt Lake County Attorney's Office in early 1988, and sought relief from the Salt Lake County Career Service Council. The Council denied relief, and plaintiff received a Right to Sue letter from the EEOC dated April 7, 1988, informing her that she had ninety days within which to file a discrimination action in

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federal court. On July 5, the eighty-ninth day, plaintiff filed a pro se complaint naming, inter alia, the Salt Lake County Attorney's Office and Ted Cannon as defendants. Plaintiff subsequently retained counsel, and filed a verified amended complaint on September 29, 1988, naming Salt Lake County and Cannon as defendants, among others.

Relying on Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), in which the Supreme Court adopted a strict reading of Fed.R.Civ.P. 15(c), 2 defendants argue that plaintiff's amended complaint did not relate back to her original complaint, and therefore that her Title VII action is time barred. Salt Lake County was first correctly named in the amended complaint after the ninety-day statute of limitations expired. Even if we were to agree that Schiavone requires a holding that naming the Salt Lake County Attorney's Office is not a suit against Salt Lake County, we still must find that the claim against the County was timely filed.

Cannon, the county attorney, was named as a defendant in the original complaint. Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate. "The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act. We think the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly." Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (citations omitted). Therefore, because the suit against Cannon could proceed only in his official capacity, it operated as a suit against Salt Lake County itself, see Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), and the County was timely named as a defendant.

The County may be liable without necessarily knowing of Cannon's actions. "The term 'employer' means a person engaged in an industry affecting commerce ... and any agent of such a person." 42 U.S.C. Sec. 2000e(b). Unfortunately, "[n]owhere in Title VII is the term 'agent' defined." Barger v. Kansas, 630 F.Supp. 88, 89 (D.Kan.1985). We agree with the Fourth Circuit that "[a]n individual qualifies as an 'employer' under Title VII if he or she serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing or conditions of employment." Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), aff'd in pertinent part, 900 F.2d 27 (4th Cir.1990) (en banc). In such a situation, the individual operates as the alter ego of the employer, and the employer is liable for the unlawful employment practices of the individual without regard to whether the employer knew of the individual's conduct. See 29 C.F.R. Sec. 1604.11(c). 3

In this case, defendant Cannon is a paradigm example of a supervisor with significant control over plaintiff's hiring, firing, or conditions of employment. The parties agree that, as county attorney, Cannon had the ultimate authority over her employment and working conditions. Consequently, plaintiff's claim of a hostile work environment caused by Cannon's conduct is a claim against Salt Lake County itself, and no knowledge or recklessness on the part of the County must be demonstrated.


We next turn to plaintiff's argument that the evidence of Cannon's sexual

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harassment of her was so overwhelming that no reasonable factfinder could fail to find liability. It is undisputed that "a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). "Hostile work environment harassment occurs where [sexual] conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an...

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