Swanson v. Elmhurst Chrysler Plymouth, Inc.

• Decision Date: 16 August 1989
• Docket Number: No. 88-2290,88-2290
• Citation: 882 F.2d 1235
• Parties: 50 Fair Empl.Prac.Cas. 1082, 51 Empl. Prac. Dec. P 39,251, 58 USLW 2138 Patricia D. SWANSON, Plaintiff-Appellee, v. ELMHURST CHRYSLER PLYMOUTH, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1235

882 F.2d 1235

50 Fair Empl.Prac.Cas. 1082,

51 Empl. Prac. Dec. P 39,251, 58 USLW 2138

Patricia D. SWANSON, Plaintiff-Appellee, v. ELMHURST CHRYSLER PLYMOUTH, INC., Defendant-Appellant.

No. 88-2290.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 17, 1989.

Decided Aug. 16, 1989.

Elizabeth Hubbard, Mark Rivera, Chicago, Ill., for plaintiff-appellee.

Stuart D. Gordon, George H. Klumpner, Steven Bloomberg, Moss & Bloomberg, Bolingbrook, Ill., for defendant-appellant.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Plaintiff sued under Title VII of 42 U.S.C. Sec. 2000e et seq. claiming discharge and loss of wages and benefits for refusal to submit to sexual harassment. The district court found that there had been harassment, but that the harassment had not caused plaintiff's discharge. The district court awarded the plaintiff a judgment with nominal damages of $1 plus attorney's fees.

The two questions on appeal are: (1) did the district court clearly err in finding that the sexual harassment here did not cause plaintiff's discharge?; and (2) if the discharge finding was not clearly erroneous, can plaintiff obtain nominal damages and attorney's fees even if she is precluded from Title VII equitable relief? This court answers both in the negative, and reverses the award of nominal damages and attorney fees.

I.

Patricia D. Swanson began working for Elmhurst Chrysler Plymouth, Inc. (Elmhurst) in November, 1983 as an assistant finance manager. Although she had been out of the workforce for a period of time, her husband had been in the auto sales business for many years. When he embarked on a new business she decided to return to work. She interviewed with Roger Meacham, a part-owner and general manager of Elmhurst, and Bob Brietis, Elmhurst's finance manager and a friend of Swanson's husband. As a result of the interview she was hired.

During her first six months at Elmhurst, Swanson worked directly for Brietis, but he was then replaced by Sherry Kullen. This displeased Swanson because she felt she was qualified to replace Brietis.

In late November, 1984, Swanson requested a day off for personal reasons. Kullen denied her request because Swanson had already been absent two days that week. Swanson then went to Meacham, who gave her the day off. Kullen was angry that Swanson went over her head. A few days later, after Swanson missed several more days due to illness, Meacham terminated her, allegedly due to her absenteeism, but more probably in order to placate Kullen.

But Swanson now maintains that her situation involved much more than being absent from the job. She and other witnesses at trial portrayed Meacham as one who frequently confronted her with sexually suggestive remarks, humiliating comments in the presence of other people, and physical contact. Although some of the employees described the employment atmosphere as relaxed and friendly and dismissed Meacham's conduct as harmless teasing, Swanson found the workplace hostile and sexually harassing.

II.

Although the district court recognized that sexual harassment could amount to discrimination under Title VII (following Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)), he concluded that Swanson was an at-will employee and that she had failed to meet her burden of proof under Title VII by showing that she had lost her job for reasons related to sexual harassment. Rather, he found that although Swanson had proved that she had been sexually harassed by Meacham, the harassment was not connected with her discharge. In his initial ruling, the district court recognized that it could not assess damages for noneconomic losses since Title VII remedies offer only equitable relief, including back pay and reinstatement, but not compensatory damages. Since Swanson was no longer an employee, the court could not exercise its equitable powers to enjoin the employer from engaging in unlawful conduct, since injunctions are available only to restrain present or threatened unlawful conduct. ¹

However, upon Swanson's motion the district court reconsidered its decision due to the Eleventh Circuit's subsequent opinion in Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900 (11th Cir.1988). The district court found that Huddleston involved circumstances almost identical to Swanson's, where the plaintiff alleged sexual harassment by her auto dealership employer. The Eleventh Circuit declared that a plaintiff who alleges discrimination by sexual harassment need not demonstrate tangible economic losses to prove a Title VII violation. Although the Huddleston plaintiff did not seek reinstatement, the Eleventh Circuit held that the sexual harassment entitled the plaintiff to recover nominal damages and therefore attorney's fees.

In view of Huddleston, the district court found that Swanson also had stated a Title VII claim for sexual harassment. The district court awarded Swanson nominal damages in the amount of one dollar, plus attorney's fees because she was the prevailing party in a Title VII suit. He still refused to reinstate her, however, because Swanson had lost her employment for reasons other than sex or sexual harassment.

III.

In Title VII sex discrimination cases, discriminatory intent findings are findings of fact entitled to appropriate deference upon appellate review. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 575-76, 105 S.Ct. 1504, 1511, 1512-13, 84 L.Ed.2d 518 (1985) (Title VII). Under Fed.R.Civ.P. 52(a) such findings of fact are not set aside unless clearly erroneous, given the trial court's opportunity to judge witnesses' credibility. Id. at 573, 105 S.Ct. at 1511. If there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. The experience of a trial judge provides him expertise because his major role is the determination of fact. Id. at 574, 105 S.Ct. at 1511-12. The standard of review in a challenge to the verdict in a bench trial is identical with that in a jury trial. IPEC, Inc. v. International Lithographing Corp., 869 F.2d 1080, 1083 (7th Cir.1989), citing United States v. William Thomas, 864 F.2d 188 (D.C.Cir.1988).

Here, we must resolve the questions of whether there was sufficient evidence for the fact-finder to decide without clear error that Swanson had been sexually harassed by Meacham, but that sex was not a determinative factor in her discharge. Doe v. First National Bank of Chicago, 865 F.2d 864, 873-74 (7th Cir.1989). We bear in mind as we review these findings of fact that the trial court based his findings in significant part upon credibility determinations.

Although we may not freely substitute our own beliefs about the facts unless there was a clearly erroneous decision in the district court, we remain free to review errors of law based upon factual findings. Under Rule 52(a) we are obliged to correct errors of law including mixed findings of law and fact, and any finding of fact premised upon a rule of law. Jennings v. Tinley Park Community Consolidated School District No. 146, 864 F.2d 1368, 1373 (7th Cir.1988).

A.

The district court held that Swanson had proven sexual harassment in the work place, even though the harassment did not cause her discharge. Elmhurst, while acknowledging we must give due deference to the factual findings of the district court, claims that the evidence was insufficient to meet the legal standards which constitute sexual harassment. Relying upon Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir.1986), Elmhurst maintains that the plaintiff must show repetitive, pervasive, and psychologically debilitating effects in order to state a claim for sexual harassment.

As did the district court, we recognize that Meritor Savings Bank holds that sexual harassment in the workplace is a form of employment discrimination under Title VII. Cf. Patterson v. McLean Credit Union, --- U.S. ----, ----, 109 S.Ct. 2363, 2374-75, 105 L.Ed.2d 132 (1989). Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir.1986), sets out the five elements necessary for a sexual harassment claim.

1) The employee was a member of a protected class; 2) the employee was subjected to unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; 3) the harassment complained of was based upon sex; 4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile, or offensive working environment that affected seriously the psychological well-being of the plaintiff; and 5) the existence of respondeat superior liability.

As we have said, we will reject the district court's findings as clearly erroneous only when we are of the solid conviction that a mistake has occurred. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Specifically, unless there is clear error, a court of appeals will respect conclusions of sexual harassment or hostile work environment based upon a district court's credibility choice. Henson v. City of Dundee, 682 F.2d 897, 906 (11th Cir.1982). While the evidence presented was conflicting, at least to the extent of how Meacham's activities were perceived by various employees, we do not conclude that the trial court's finding that Swanson was subjected to sexual harassment was clearly erroneous.

In Scott v. Sears, Roebuck & Co., the district court had held that the female plaintiff had failed to meet her burden because the complained-of conduct was not so intimidating, offensive, or hostile as to affect the Title VII terms, conditions, or privileges of her employment. 798 F.2d at 211, 213-14. Here, the trial court specifically found that Swanson had been sexually harassed. The facts support that finding, and we will not disturb it.

But the court...