Chamberlin v. 101 Realty, Inc.

• Citation: 915 F.2d 777
• Decision Date: 04 April 1990
• Docket Number: No. 89-1876,89-1876
• Parties: 54 Fair Empl.Prac.Cas. 101, 54 Empl. Prac. Dec. P 40,282 Katherine M. CHAMBERLIN, Plaintiff, Appellee, v. 101 REALTY, INC., et al., Defendants, Appellants. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 777

915 F.2d 777

54 Fair Empl.Prac.Cas. 101,

54 Empl. Prac. Dec. P 40,282

Katherine M. CHAMBERLIN, Plaintiff, Appellee, v. 101 REALTY, INC., et al., Defendants, Appellants.

No. 89-1876.

United States Court of Appeals First Circuit.

Heard April 4, 1990.

Decided Oct. 3, 1990.

Rehearing and Rehearing En Banc Denied Nov. 1, 1990.

Kevin G. Powers, Boston, Mass., with whom Jack S. White, Welts & White, Nashua, N.H. and Richard J. Shea, Boston, Mass. were on brief, for defendants, appellants.

Gary B. Richardson with whom Bridget C. Ferns and Upton, Sanders, & Smith, Concord, N.H. were on brief, for plaintiff, appellee.

Before TORRUELLA, SELYA and CYR, Circuit Judges.

CYR, Circuit Judge.

Katherine Chamberlin embarked on her career as an architectural designer in February, 1983, when she accepted an offer from defendant 101 Realty, a New Hampshire building and development firm. Before fall came to New England, however, Chamberlin was terminated from her employment by defendant Matthew Zsofka, president of 101 Realty, which prompted the commencement of the present Title VII action, with pendent state law claims. After a four-day bench trial, the United States District Court for the District of New Hampshire found for Chamberlin under Title VII and on her wrongful discharge claim under New Hampshire law. The court found for defendants on the state law claim for intentional infliction of emotional distress. ¹

I BACKGROUND

After graduation from the University of Idaho in 1979 with a bachelor's degree in architecture, Chamberlin moved to New Hampshire. Before beginning work with 101 Realty, she was employed from July 1981 to July 1982 by the Governor's Council on Energy. For the next eight months Chamberlin worked as a self-employed architectural consultant. She married Thomas Chamberlin on March 21, 1981. Defendant Zsofka, who was also married, hired her in February 1983, anticipating that she would one day supervise the custom homes division at 101 Realty.

At first Zsofka seemed to be pleased with Chamberlin's work; in his words, "[s]he did a fabulous job on all the promotional work." Even though she had no architectural design experience, which Zsofka knew before hiring her, Chamberlin demonstrated enthusiasm for her work and volunteered for various projects. She considered her new job a once in a lifetime opportunity to apply her solar energy expertise on a large scale.

The district court found that defendant Matthew Zsofka made sexual advances to Chamberlin on five occasions during the course of Chamberlin's employment. We examine these five incidents with a view to determining whether the court's findings are clearly erroneous. ² See Anderson v (i) While Chamberlin was riding with Zsofka in his Chevrolet Blazer truck during the second week of May 1983, Zsofka told Chamberlin, with a "little half smile and very lustily," that she had a "good body." He added, "If you worked out, you'd have a great body." Chamberlin felt very uncomfortable, made no response, and changed the subject of conversation. ³

City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).

(ii) Two weeks later, while visiting a construction site, Zsofka "stepped up real close to me, like within a foot, almost to where we were touching shoulders, and he looked at me, started at my head and he looked all the way down to my toes and back up again, and then he said, almost in a whisper, he said, 'You look good in tight jeans. It shows off your butt.' " Chamberlin "turned around and walked away to the other side of the building. [She] just had to get away."

(iii) On a later visit to another construction site, Zsofka said, "You look good in tight jeans." Chamberlin pretended that she did not hear the comment, hoping that he would stop.

(iv) While having lunch at a local restaurant, Zsofka took Chamberlin's hands, looked at her and said, "I like my women with good looks and brains." Chamberlin immediately removed her hands, and after a brief silence, began to discuss business matters.

(v) At another luncheon occasion, while Zsofka was discussing a recent trip to Hungary, he described how men treated women there. Chamberlin expressed distaste for the treatment Zsofka described. Zsofka then took Chamberlin's hand and said, "My women are special. I like to put them on a pedestal." Chamberlin removed her hand, sat back in her chair, and changed the subject.

The foregoing instances of sexually-motivated conduct by Zsofka occurred during a four or five week period, between mid-May and mid-June, 1983. The district court found that these five incidents occurred as Chamberlin related and that each was sexually motivated.

The district court further found that during July "Zsofka began to find fault with plaintiff's work." Zsofka's complaints related to three projects.

He complained that the Enrights had chosen a more expensive brick walkway than called for, that plaintiff had improperly allowed them to install oak rather than pine railings without a proper change order and that plaintiff had not corrected the staircase design. ⁴

With respect to the Duschatkos, they had ordered custom cabinets. The manufacturer had advised Realty by telephone that the cabinets would be delivered a week earlier than scheduled. Afraid that the manufacturer would not keep this commitment, Zsofka directed plaintiff not to advise the Duschatkos of this communication. She did so, in direct contravention of his instructions. ⁵

The office/warehouse of Realty, construction of which plaintiff was supervisor, Before leaving for a vacation in August 1983, Zsofka gave Chamberlin what the district court considered a "substantial work load" and directed the comptroller to keep track of Chamberlin's hours. Chamberlin failed to complete the assigned work by the time Zsofka returned, though she worked long hours in a good faith effort to do so. On September 1, 1983, soon after he returned from vacation, Zsofka fired Chamberlin. Chamberlin testified that Zsofka's stated reason for firing her was that she "wasn't getting anything done, that [she] never accomplished any tasks and that [she] didn't have any dedication to the job." At trial, Zsofka testified as follows:

was to have a steel roof, the original pitch of which was unsatisfactory to Zsofka. At a meeting one week before erection of the roof, Zsofka told plaintiff that a different pitch would be required and instructed plaintiff to so advise the roof erector. Plaintiff failed to communicate with the erector. ⁶

During the process of employment it became very obvious that Mrs. Chamberlin did not have the experience to do the job that I had put her into. It also became very evident that attempts on my part to guide her or to correct her were taken very badly. Everything went great until she was criticized. Mrs. Chamberlin could not accept criticism. She could not follow training. She had felt that she knew more than anybody else around and when somebody is that intelligent there's nothing you can teach them. She started to ignore direct orders. She started to countermand orders. She started to make herself look good at our expense with customers by doing things without charging for them. It became very obvious to me towards the end that she had lost all interest in her job. She became totally useless to us. I could not trust her to even follow out my orders. I could see of absolutely no possible reason to keep her employed.

II DISCUSSION

We review the district court's findings of fact under a "clearly erroneous" standard. Fed.R.Civ.P. 52(a). Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 ("a finding of intentional discrimination is a finding of fact"); Hall v. Gus Const. Co., Inc., 842 F.2d 1010, 1013 (8th Cir.1988) ("clearly erroneous" standard used where trial court made finding that female traffic controllers at road construction site were subjected to sexual harassment). We reverse only if we are " 'left with the definite and firm conviction that a mistake has been committed.' " United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We are not left with a firm conviction that the district court erred.

Title VII Claims

Under Title VII it is "an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex...." 42 U.S.C. Sec. 2000e-2(a)(1). The EEOC interprets Title VII as proscribing sexual harassment. See 29 C.F.R. Sec. 1604.11(a) (1983) (EEOC guidelines) ("Harassment on the basis of sex is a violation ... of Title VII."); Meritor Savings Bank v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). The Meritor Court states that:

As an 'administrative interpretation of the Act by the enforcing agency,' Griggs v. Duke Power Co., 401 U.S. 424, 433-434 [91 S.Ct. 849, 854-55, 28 L.Ed.2d 158] (1971), the[ ] [EEOC] Guidelines ... 'constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,' General Electric Co. v. Gilbert Id. 477 U.S. at 65, 106 S.Ct. at 2404. Accord Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192 (1st Cir.1990).

429 U.S. 125, 141-142 [97 S.Ct. 401, 411, 50 L.Ed.2d 343] (1976), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 [65 S.Ct. 161, 164, 89 L.Ed. 124] (1944).

The EEOC guidelines articulate two types of sexual harassment. "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment" [or] "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual ['quid pro quo' harassment], or ...