Klessens v. U.S. Postal Service
| Decision Date | 28 December 1994 |
| Docket Number | No. 93-1823,93-1823 |
| Citation | 42 F.3d 1384 |
| Parties | 66 Fair Empl.Prac.Cas. (BNA) 1630, 65 Empl. Prac. Dec. P 43,426 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Sally KLESSENS, Plaintiff, Appellant, v. UNITED STATES POSTAL SERVICE, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. F. T. Dupree, Jr., * U.S. District Judge]
William J. Royal, Jr. for appellant.
Thomas E. Kanwit, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.
Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Bownes, Senior Circuit Judge.
Plaintiff-appellant Sally W. Klessens appeals from a judgment by the district court denying her claims of sexual harassment and retaliatory discharge brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-16, et seq. She initially attempted to raise a wrongful termination claim. After defendant moved to dismiss for lack of subject matter jurisdiction, the complaint was construed by the district court as stating Title VII claims for sexual harassment and retaliatory discharge.
There are two main issues on appeal: (1) Whether the district court applied the wrong legal standard in finding that plaintiff was not subjected to a hostile and abusive workplace environment and therefore erred in denying plaintiff's sexual harassment claim; (2) Whether the district court's finding that plaintiff's discharge was not retaliatory was clearly erroneous.
We have reviewed the record for clearly erroneous findings of fact and erroneous rulings of law by the district court. We find it appropriate to discuss each issue separately.
Plaintiff's evidence can be summarized as follows. She began work for the Postal Service on January 19, 1988, as a mail handler. Her immediate supervisor was John Russell. A very short time after starting work, a coworker, William Russell, not related to her supervisor, began making sexually explicit remarks to her about her body. Russell persisted in asking for a date despite the fact that his advances were emphatically rebuffed. Russell made explicitly sexual comments to plaintiff, one being, "If I don't get laid I'm going to take hostages." Because of Russell's conduct towards her, plaintiff made it a practice to eat her lunch in her car. At least four times Russell joined her without an invitation by plaintiff. She finally told him he was not wanted and he stopped lunching with her.
Other personnel, only one of whom (Mark Spillane) plaintiff could name, also made sexually lewd statements to her. The most frequent remark was "nice piece of ass." Spillane said to plaintiff that she had "small tits," and "go fuck yourself." He also recounted to her at length his own sexual exploits.
Shortly after starting work, plaintiff complained to her supervisor, John Russell, about William Russell's conduct. According to plaintiff, John Russell showed no sympathy and made jokes in the presence of her and William Russell about "getting laid." These jokes were accompanied by nudges to William Russell. John Russell also put his arm around plaintiff repeatedly. He claimed to view this in the same way as shaking a person's hand.
Plaintiff then reported her harassment to John Russell's supervisor, Mark Persson. According to plaintiff, Persson did not say that he would do anything. Instead, he told her, "OK, Bill [Russell] has done this before, he wrote a letter to another female that worked there, saying that he wanted to slip his tongue so far up her ass...."
Most of this evidence came from plaintiff's trial testimony, and from the EEOC hearing transcript which was admitted as evidence at the trial.
There was evidence that tended to contradict and undercut plaintiff's evidence. John Russell denied the remarks attributed to them by plaintiff. According to the defendant Postal Service, as soon as it became aware of plaintiff's complaints about William Russell, it took steps to investigate the problem. After the investigation, it offered plaintiff a transfer that would take her away from Russell. Plaintiff declined the transfer when it was offered, but later in the summer of 1988, she agreed to a transfer. The Postal Service also ultimately transferred Russell to another post office.
Prior to the transfers, Russell and plaintiff regularly sat together in plaintiff's car during shift breaks when the weather became warm in April or May of 1988. Plaintiff had coffee with Russell at least once after work. On one occasion, she and Russell were together in her car for several hours after work, having a discussion that extended into the early hours of the morning. Defendant stresses that no formal complaints about William Russell were made until after plaintiff was ordered to undergo a fitness for duty examination following her complaint about a workplace back injury.
Both sides agree that, until her back injury, plaintiff performed her work in an exemplary fashion. This was attested to in her evaluations by Mark Persson and John Russell.
The court purportedly followed the teachings of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in deciding plaintiff's sexual harassment claim. It started with the rule that sexual harassment of an employee which creates a hostile working environment violates Title VII. The court ruled that in order to prove a hostile environment claim, a plaintiff must prove four things: (1) membership in a protected class; (2) unwelcome sexual harassment; (3) the harassment was based on sex; "and (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance and creating an intimidating, hostile, or offensive working environment that affected seriously the psychological well- being of the plaintiff."
The court found that plaintiff was unable to prove the fourth element. Prefatory to its specific findings, the court ruled that in order for sexual harassment to be actionable under Title VII, the conduct had to be so severe or pervasive as to alter the condition of the plaintiff's employment and create an abusive working environment. It further ruled:
Furthermore, a court must find both that a reasonable employee's psychological status and work performance would have been seriously undermined by the defendant's conduct and that the plaintiff was actually offended by the conduct as well as injured in some way by the hostile environment.
The court cited to Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), for this proposition.
The court found that plaintiff's proof failed to meet the standard set forth. It found that the evidence presented at trial "did not point to the sort of offensive or abusive environment contemplated by the Supreme Court in Meritor Savings Bank." The court was influenced by the fact that "not only was plaintiff able to do her job ... but was given positive performance evaluations during this period." The court also pointed out that plaintiff let William Russell sit with her in his car on several occasions and at least once she "conversed with him in her car after work." The court found that this conduct, while not evidence that plaintiff welcomed Russell's advances, "cast doubt on her claim that she was subjected to an intolerable work environment by his conduct." The court concluded that "Russell's conduct-while deplorable-did not amount to a hostile or offensive work environment within the meaning of Title VII." The court noted that plaintiff testified that she had never been fondled or touched in a sexual manner by Russell or any other co-worker. In a footnote, the court held that the remarks of Mark Spillane were "isolated" and "also fail to show a hostile abusive work environment."
The court noted the conflict in testimony between plaintiff and John Russell. It pointed out that Russell acknowledged that off-color language was used occasionally in the workplace, and testified that on one occasion plaintiff stated to John Russell she would "cut [his] balls off and nail them to the wall." The court found that it could not say that plaintiff's testimony was more credible than that of John Russell.
The district court's opinion issued on April 23, 1993. As far as we can determine, it was not published. On November 9, 1993, the Supreme Court decided Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993). Certiorari was granted in Harris,
to resolve a conflict among the Circuits on whether conduct, to be actionable as "abusive work environment" harassment (no quid pro quo harassment issue is present here), must "seriously" affect [an employee's] psychological well-being" or lead the plaintiff to "suffe[r] injury."
The Court noted that, in focusing on the employee's psychological well-being, the district court was following Rabidue v. Osceola Refining Co., 805 F.2d 611. Harris, 114 S. Ct. at 370. The district court here also relied on Rabidue in formulating its fourth element of proof. See supra at 6.
The Court held that the standard which it was reaffirming
takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an ... epithet which engenders offensive feelings in a employee," ibid (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment...
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