799 F.2d 1180 (7th Cir. 1986), 85-2751, Bohen v. City of East Chicago, Ind.

• Citation: 799 F.2d 1180
• Party Name: 5 Fed.R.Serv.3d 1321 Hortencia BOHEN, Plaintiff-Appellant, v. CITY OF EAST CHICAGO, INDIANA, et al., Defendants-Appellees.
• Case Date: August 28, 1986
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 1180

799 F.2d 1180 (7th Cir. 1986)

5 Fed.R.Serv.3d 1321

Hortencia BOHEN, Plaintiff-Appellant,

v.

CITY OF EAST CHICAGO, INDIANA, et al., Defendants-Appellees.

No. 85-2751.

United States Court of Appeals, Seventh Circuit

August 28, 1986

Argued May 5, 1986.

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[Copyrighted Material Omitted]

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Ivan E. Bodensteiner, Valparaiso, Ind., for plaintiff-appellant.

Anthony DeBonis, Jr., Murphy McAtee Murphy & Costanza, East Chicago, Ind., for defendants-appellees.

Before BAUER, POSNER, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

Hortencia Bohen, a former employee of the City of East Chicago Fire Department, brought the action below claiming that she was fired on the basis of her national origin or sex or in retaliation for filing discrimination charges with the Equal Employment Opportunity Commission. She also alleged she was the victim of sexual harassment on the job. Her complaint maintained that the discharge and sexual harassment violate Title VII of the Civil Rights Act of 1964 and the equal protection clause of the fourteenth amendment to the United States Constitution. The district court denied Bohen all relief and entered judgment accordingly.

On appeal Bohen alleges four errors by the district court. She maintains that (1) the district court erred in determining that she was not fired on the basis of national origin or sex or in retaliation for filing discrimination charges with the EEOC but rather was fired for just cause, (2) the district court erred in holding that Bohen was not entitled to nominal damages, costs, and attorney's fees under Title VII for sexual harassment that did not result in discharge, (3) the district court erred in denying her leave to amend her complaint, and (4) the district court erred in holding that sexual harassment is not compensable as a violation of the equal protection clause.

We agree with Bohen that the sexual harassment she endured and proved at trial is compensable under the equal protection clause. We, therefore, reverse the district court's contrary holding and remand the case for a determination of damages. In all other respects, however, we disagree with Bohen's arguments and affirm the judgment below.

I.

Hortencia Bohen is a Hispanic woman. She was hired by the City of East Chicago Fire Department as a dispatcher on December 3, 1979. On May 9, 1983, she was discharged.

Throughout the duration of her employment with the City, Bohen was the victim of sexual harassment. On Bohen's first night of work (the 11:00 P.M. to 7:00 A.M. shift), she took a short nap and awoke to find the senior dispatcher's hands pressed against her crotch. Bohen fought the dispatcher off and later complained to an assistant chief. This incident was but the first of many as found by the district court.

The same senior dispatcher (who later became Head Dispatcher and thus Bohen's immediate supervisor) was the source of most of the abuse. He constantly spoke to Bohen in a lewd way, not just using profanity in the course of discussing other subjects, but speaking to her entirely of sexual matters and describing his preferred sexual positions, Bohen's participation, and his expectations for her behavior. He would rub his pelvis against her rear when she stood and would spread his legs so that he was always touching her when she sat. When Bohen used the bathroom, this same dispatcher forced her to leave the door open (although the bathroom was down a hallway

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and not in his plain view if he remained at his work station).

Others at the fire department also enjoyed tormenting Bohen with sexual abuse. She was a continual target for obscene comments by firefighters and other male employees and was forced to listen to their filthy talk and descriptions of their sexual fantasies of which she was the object. On one occasion, a captain in the department informed Bohen (in words of another color) that a forcible rape in some nearby flora would improve her disposition. Bohen's fellow employees were also apparently much amused by implying that Bohen's cool reception to their constant invitations to engage in deviate sexual conduct was evidence of lesbian tendencies.

Although Bohen was a favorite target, she was not the sole victim of sexual harassment by the East Chicago Fire Department. The record shows that other female dispatchers endured similar, and in some instances more egregious, abuse.

While the conditions at the East Chicago fire department were outrageous, Bohen brought problems of her own to the work place. The evidence reveals Bohen was a chronic complainer given to obstreperous conduct, personal grievances, and temperamental outbursts of anger directed towards her fellow employees and superiors. She spread rumors about others. She made frequent unsupported accusations against others, including allegations of violent physical abuse. She even brought unfounded criminal charges against superiors. In short, although Bohen was competent at the fundamentals of her job (relaying information regarding fires and dispatching the proper equipment), she was less than a model employee when it came to getting along with fellow workers, especially her superiors.

In addressing Bohen's claims, the district court sorted through the evidence and made the following key findings. Most importantly, the district court found that, although Bohen undoubtedly endured extreme and ongoing sexual harassment, she was not fired because she is a woman, she was not fired because she is Hispanic, and she was not fired in retaliation for her filing charges of discrimination with the EEOC (which she did in 1982). Rather, the district court specifically found that Bohen was fired for "obstreperous and insubordinate conduct." Bohen, 622 F.Supp. 1234, 1237 (N.D.Ind.1985). The district court therefore held that Bohen was not discharged in violation of Title VII or the equal protection clause. The district court also determined that it was unnecessary to determine whether the sexual harassment that Bohen endured was itself a violation of Title VII since the available remedies under Title VII are limited to back pay, reinstatement, or other equitable relief and thus Bohen could not obtain damages without being discharged in violation of Title VII. Finally, the district court held that sexual harassment does not constitute actionable discrimination on the basis of sex for purposes of the equal protection clause and therefore denied Bohen's Sec. 1983 action for damages for sexual harassment. Bohen now brings this appeal.

II.

Bohen argues the district court incorrectly determined that she was fired for cause and not because of her sex or national origin or in retaliation for filing charges of discrimination with the EEOC. We disagree.

We may only overturn the district court's determination of the motivation for Bohen's discharge if it is clearly erroneous. Batson v. Kentucky, --- U.S. ----, 106 S.Ct. 1712, 1742 n. 21, 90 L.Ed.2d 69 (1986). We find the district court judge carefully and thoroughly weighed the evidence and correctly determined that Bohen's discharge was not discriminatory. The district court judge combed through a mass of conflicting testimony. He evaluated the strength and continuity of each side's case, weighed the relative credibility of the witnesses, and made clear and careful findings of fact. The district court's conclusions were reasonable and consistent. We find nothing to indicate that his finding regarding

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the motivation for Bohen's discharge is clearly erroneous.

III.

We also disagree with Bohen's contention that the district court erred in denying her damages, costs, and attorney's fees under Title VII. The statute clearly provides that under Title VII "the court may ... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement ..., back pay ..., or any other equitable relief as the court deems appropriate." 42 U.S.C. Sec. 2000e-5(g). Since damages are not equitable relief, most courts have held that damages are not available to redress violations of Title VII that do not result in discharge. Muldrew v. Anheuser-Busch, 728 F.2d 989, 992 n. 2 (8th Cir.1984); Bundy v. Jackson, 641 F.2d 934, 946 n. 12 (D.C.Cir.1981); DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir.1980) (collecting cases). See also, Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 375, 99 S.Ct. 2345, 2350, 60 L.Ed.2d 957 (1979) (dicta). This construction is in accord with the long-standing interpretation given similar language in the National Labor Relations Act, 29 U.S.C. Sec. 160(c). Walker v. Ford Motor, 684 F.2d 1355, 1364 (11th Cir.1982).

Several circuits have begun to suggest in dicta that nominal damages could be awarded in situations like these to create a remedy on which to tack an award of costs and attorney's fees. Katz v. Dole, 709 F.2d 251, 253 n. 1 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897, 905-06 & n. 12 (11th Cir.1982); Joshi v. Florida State University, 646 F.2d 981, 991 n. 33 (5th Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2233, 72 L.Ed.2d 845 (1982); T & S Service Associates v. Crenson, 666 F.2d 722, 728 n. 8 (1st Cir.1981). We believe the better view, in accord with the majority of decisions, is that no damages are available under Title VII. If Congress wishes to amend the provisions of Title VII to provide a remedy of damages, it can do so. Until then, this court may only enforce the statute as written, and as currently written Title VII does not contemplate damages.

IV.

We also disagree with Bohen's contention that the district court erred in denying her leave to amend her complaint. Although we feel it is a very close case, we cannot find that the district court abused its discretion in denying Bohen's motion.

Bohen filed her complaint on August 4, 1983. She did not undertake any significant discovery,...