Griffith v. State of Colo., Div. of Youth Services, 93-1005

• Decision Date: 28 February 1994
• Docket Number: No. 93-1005,93-1005
• Citation: 17 F.3d 1323
• Parties: 64 Fair Empl.Prac.Cas. (BNA) 206 Martha GRIFFITH, Plaintiff-Appellant, v. STATE OF COLORADO, DIVISION OF YOUTH SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1323

17 F.3d 1323

64 Fair Empl.Prac.Cas. (BNA) 206

Martha GRIFFITH, Plaintiff-Appellant, v. STATE OF COLORADO, DIVISION OF YOUTH SERVICES, Defendant-Appellee.

No. 93-1005.

United States Court of Appeals Tenth Circuit.

Feb. 28, 1994.

George C. Price of Miles & Epstein, Denver, Colorado, for appellant.

Simon P. Lipstein (Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Timothy R. Arnold, Deputy Attorney General, Gregg E. Kay, First Assistant Attorney General, with him on the brief), Assistant Attorney General, Denver, Colorado, for appellee.

Before KELLY and BARRETT, Circuit Judges, and ROGERS ^*, District Judge.

BARRETT, Senior Circuit Judge.

This Title VII, 42 U.S.C. Sec. 2000e, et seq., case is before us on appeal from the district court's grant of summary judgment in favor of the defendant, State of Colorado, Division of Youth Services (DYS). The plaintiff-appellant, Martha Griffith, hereinafter referred to as Griffith or plaintiff, claimed that she was subjected to actionable racial and sexual discrimination and harassment and retaliatory actions while employed by DYS. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

The Pleadings

In her complaint, Griffith alleged that she, as a five year white employee of DYS at the Adams County, Colorado, Youth Services Center, was subjected to ongoing and continuous sexual and racial discrimination and harassment by Mr. John Grier, a black, who served as her immediate supervisor and as Assistant Director of the Center. Griffith further alleged that she was the subject of continuing discrimination and retaliatory actions even after Grier was terminated, including denials of promotion. She prayed that judgment be entered in her favor indicating that defendant violated Title VII. (Plaintiff-Appellant's Appendix, pp. 113-15).

In its answer, the DYS alleged, inter alia, that there had been an accord and satisfaction or a settlement and release of Griffith's claims, that Griffith had not been discriminated against by the DYS, that if anyone in the employ of the DYS had engaged in discrimination or harassment toward Griffith, appropriate actions had been taken toward those persons, and that Griffith's complaint should be dismissed with prejudice for failure to state a claim upon which relief can be granted. (Plaintiff-Appellant's Appendix, pp. 124-25).

The Facts

Griffith was employed by DYS for eight years, serving as a Youth Service Worker B, the last five years having been served at the Adams County, Colorado, Youth Services Center. From 1987 until April 3, 1990, Griffith's immediate supervisor was Grier.

On March 5, 1990, Griffith met with Madline Sa Bell, the personnel administrator of DYS, and informed Sa Bell that Grier had sexually harassed her. Sa Bell informed Griffith that she could proceed with either a charge of discrimination or an internal grievance. Griffith informed Sa Bell that she would proceed with an internal grievance after she returned from her vacation. In an affidavit executed by Griffith on August 13, 1990, (Plaintiff-Appellant's Appendix, pp. 116-20), Griffith stated that Grier had: criticized her approach to kids who were having behavior problems and told her to cuff and shackle them, in contradiction to DYS procedures; threatened to write her up; admonished her for hugging the kids and told her that he would write her up if he ever saw her hugging them; hollered at her in the presence of the kids; made statements about her physical appearance as ugly and overweight, and called her a stupid white woman; and cussed and used words such as fucking, God-damn and shit while professing to be a wonderful Christian. Griffith further alleged that when she told Grier that he was intimidating and overbearing, Grier remarked that Griffith would not say that if he were white. Grier talked about helping "his people" and made it plain he was speaking of black people, and he picked on mostly white females. Griffith saw Grier put his arm around a female worker's waist and kiss her on the neck, which she considered obscene; she also had heard rumors that Grier had affairs with others.

On April 3, 1990, following her return from her vacation, Griffith met with Larry Johnson, Director of DYS, and grieved that she had been sexually harassed by Grier. Johnson phoned Sa Bell immediately following his meeting with Griffith and within an hour after the meeting, Johnson suspended Grier from his employment pending an investigation and instructed Grier to leave the workplace. Following an investigation, Grier was terminated.

Immediately after her meeting with Johnson on April 3, 1990, Griffith was placed on administrative leave with full pay through August 8, 1990. Griffith worked part time for three weeks in July, 1990, in DYS's Planning and Evaluation Unit. As part of her worker's compensation claim settlement, Griffith retained all benefits due her while she was on administrative leave, including the shift differential pay rate she would have earned. In addition, DYS paid all costs of her therapy and DYS provided her worker's compensation benefits for her alleged job-related stress. When Griffith indicated that she was ready to return to work on a part-time basis in July, 1990, she was provided work at another facility until August 8, 1990, when she felt she was ready to return to the Adams Youth Services Center.

The District Court Order

The district court granted summary judgment in favor of DYS via a Memorandum Opinion and Order of December 7, 1992, 808 F.Supp. 763. The court found, from undisputed facts, that: Griffith was given administrative leave from April 3, 1990, to August 8, 1990; she suffered no loss of wages, benefits or tenure; and DYS paid all of her therapy bills and provided her with worker's compensation benefits to cover her job-related stress.

The court further found that Title VII permits a court to order such affirmative action as may be appropriate, other than compensatory and punitive damages, including reinstatement or hiring of employees with or without back pay, and that Griffith had been made whole and had not demonstrated any actual damages. As to the award of nominal damages, the court recognized a split among the circuits but ruled that nominal damages are compensatory in nature, and since Title VII provides for equitable, not legal relief, Griffith could not be awarded nominal damages.

As to Griffith's retaliatory discrimination and denial of promotion claim, the court held that Griffith had failed to point to a specific position or promotion she could have succeeded to in view of a state-wide hiring freeze resulting in no promotions or open competitive announcements for DYS counselors since 1990. Noting that Griffith's EEOC charge was filed on April 4, 1990, the court found that it was uncontroverted that no promotions nor open competitive (new positions) for DYS counselors took place after that date. Accordingly, the court held that Griffith was not the victim of retaliation. Concluding that Griffith had not raised a question of material fact, the court granted judgment in favor of DYS.

Contentions on Appeal

On appeal, Griffith contends that the district court erred (1) in refusing to grant nominal damages because nominal damages are an appropriate equitable relief under Title VII and are also necessary to effectuate its purposes, (2) in granting summary judgment because DYS's motion did not address the availability of other equitable relief, and (3) in granting summary judgment on her retaliation/continuing discrimination claim because there remains an unresolved factual dispute.

Standard of Review

"We review the grant or denial of summary judgment de novo. We apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c) ..." Applied Genetics, Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (citation omitted). "Summary Judgment in appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991).

I.

A.

Griffith argues that because her allegations concerning a hostile work environment at DYS have not been challenged, she stated an actionable sexual harassment claim and cause of action under Title VII. She contends that she complained about Grier's abusive conduct to superiors months before the situation came to a head in the spring of 1990 and that the facts enumerated in her affidavit concerning Grier's conduct could hardly have escaped the DYS administration. While acknowledging that Congress did limit the scope of remedies under Title VII, Griffith contends that Congress did not thereby obliterate the cause of action. She states that "At the very least, the courts must fashion remedies to cure violations of the law within the limits set by Congress" and that "... an equitable remedy of some sort was both necessary and appropriate here." (Plaintiff-Appellant's Opening Brief, pp. 11-12). On that predicate, Griffith argues that the district court erred in rejecting the holdings of those courts to the effect that one in Griffith's position is entitled, at least, to nominal damages. Id. at p. 4.

Griffith points to Baker v. Weyerhaeuser Company, 903 F.2d 1342 (10th Cir.1990) and Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986) for the proposition that while no statements in those cases represent holdings that nominal damages are available under Title VII, still "... the language in Derr should be read as a fairly strong indication that this court is likely to find an award of nominal damages appropriate." (Plaintiff-Appellant's Opening Brief, p. 4).

In Baker, we simply affirmed the district court's award of $1.00 nominal damages on the Title VII claim after the jury returned verdicts of $45,000 actual damages and $45,000 punitive damages on a...