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 intimidating, hostile, or offensive work environment." Hirschfeld, 916 F.2d at 575 (internal quotations omitted). "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances." Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). The plaintiff must demonstrate that the offending conduct was unwelcome; however, "the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact." Vinson, 477 U.S. at 68, 106 S.Ct. at 2406. We review the district court's finding of no sexual harassment under a clearly erroneous standard. Cortes v. Maxus Exploration Co., 977 F.2d 195, 198 (5th Cir.1992).

In its findings of fact, the district court concluded that "[t]he work environment at the Investigative Division of the Salt Lake County Attorney Office was that of an unusually rough, sexually explicit and raw atmosphere," and that "[t]his atmosphere was known and accepted or tolerated by all concerned personnel, male and female alike, including plaintiff." I Appellant's App. at 546-47. Although the court found that this was a "hostile work environment," it determined that the environment "did not interfere with the performance of plaintiff's duties and it was not a hostile atmosphere and environment to plaintiff." Id. at 547. Further, the court concluded that "Cannon's conduct was not viewed by plaintiff as unwelcome sexual harassment, but rather it was viewed by plaintiff as disgusting and degrading conduct, likely the product of mental illness." Id. If evidence in the record supports these conclusions, the court's judgment must be affirmed, even if contrary evidence is present. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Sorensen v. City of Aurora, 984 F.2d 349, 351 (10th Cir.1993).

In 1984, plaintiff became a secretary in the Investigations Division of the Salt Lake County Attorney's Office. Defendant Cannon was the Salt Lake County Attorney, plaintiff's highest level supervisor. Plaintiff testified that, although the atmosphere in the division was often coarse, the situation worsened in the spring of 1986 when Cannon chose not to seek re-election as county attorney and began to exhibit bizarre behavior. He came to the office unshaven and unkempt, wearing clothing apparently purchased at a local consignment shop; he once walked around the office without his shoes, and on another occasion placed a flower basket atop his head. Plaintiff alleged that Cannon also began sexually harassing her and Shauna Clark, the other secretary in the division, beyond what they had come to accept as office banter. Cannon admits that during this period he did make comments about plaintiff's breasts and her attire, that on one occasion he asked plaintiff to "swap spit," and that he once commented on a sweater pattern plaintiff was wearing and outlined the pattern with his finger in the air in front of plaintiff's chest.

Plaintiff testified that in September 1986 Cannon attempted to grab her breasts, and that he approached her from behind as she was sitting at her desk and rubbed his groin against her shoulder. Cannon denies these allegations. On September 19, plaintiff was reassigned to a different office, over her objections. That same evening, Shauna Clark decided to file...

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