Intlekofer v. Turnage, 90-16793
| Citation | 973 F.2d 773 |
| Decision Date | 24 August 1992 |
| Docket Number | No. 90-16793,90-16793 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 929, 59 Empl. Prac. Dec. P 41,761 Joyce INTLEKOFER, Plaintiff-Appellant, v. Thomas TURNAGE, Administrator and Veterans Administration, A Federal Agency, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Stephine M. Wells, Sausalito, Cal., for plaintiff-appellant.
Shirley Smith, Asst. U.S. Atty., Reno, Nev., for defendants-appellees.
Appeal from the United States District Court for the District of Nevada.
Before: HALL and WIGGINS, Circuit Judges, and KEEP, * Chief District Judge.
Plaintiff Joyce Intlekofer appeals the district court's judgment in favor of her employer, the Veterans Administration ("VA"), in this Title VII action. She challenges the district court's finding that the VA took reasonable and appropriate steps to end the sexual harassment by her co-worker.
The district court had jurisdiction under 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over this timely appeal pursuant to 42 U.S.C. § 2000e-5(j) and 28 U.S.C. § 1291, and we reverse.
In May, 1988, Joyce Intlekofer initiated this Title VII action against the VA alleging sexual harassment, sexual discrimination, and retaliation. 1 She complained that the VA was liable for the sexual harassment by her co-worker, Norman Cortez, because the VA had actual knowledge of the harassment, yet failed to take immediate and appropriate action to remedy it. After a bench trial, the district court found that Norman Cortez's behavior, although not overtly sexual, constituted sexual harassment. Nevertheless, it found that the VA could not be held liable under Title VII because the VA "acted promptly and reasonably in responding to plaintiff's Reports of Contact." 2 Intlekofer appeals only the latter ruling.
Intlekofer and Cortez were co-workers in the Medical Administration Services division of the VA Medical Center. The district court found that Intlekofer and Cortez were involved in a personal, intimate relationship prior to 1987. In 1987, however, Intlekofer began to file Reports of Contact complaining about Cortez's behavior toward her. From April 1987 to July 1988 Intlekofer filed approximately sixteen Reports of Contact. Although the majority of Reports concern Cortez, only eight involve specific incidents between Intlekofer and Cortez. The other Reports of Contact discuss either allegations about Cortez's behavior reported to Intlekofer by other co-workers, or actions taken by Intlekofer in response to Cortez's actions.
The VA first became aware of the problem between Intlekofer and Cortez in April of 1987, when Intlekofer filed her first Report of Contact with her supervisor, Pat Kehoe. That report alleged harassment in the form of "touching, highly personal and private suggestions and constant pressure to enter into a totally unwanted relationship." Kehoe met with Intlekofer to discuss the report, but Intlekofer apparently declined to give a more detailed description of Cortez's behavior. During a subsequent meeting with Cortez, Kehoe informed him that the behavior Intlekofer had described was inappropriate and must stop immediately. Kehoe also told Cortez that "if there should be additional complaints in the future, a more severe disciplinary measure would be required."
The second Report of Contact stated that Cortez telephoned Intlekofer at her home, asked her personal questions and requested her permission to go to her house after his shift ended. Intlekofer followed Kehoe's advice and quickly "conclud[ed] the unwanted conversation." A five-month interval separated this occurrence and the next Report, which was filed on November 4, 1987. It documented an incident in which Cortez screamed at Intlekofer in front of staff and patients, claiming that Intlekofer gave him a poor shift schedule and threatening that he would call in sick.
Despite a subsequent warning by VA management to stop interacting with Intlekofer, Cortez continued his behavior. The fourth Report of Contact, filed November 29, 1987, revealed that Cortez monitored Intlekofer's telephone calls, informing some callers that Intlekofer was busy and then hanging up. The Report also described verbal quarrels between the two, and stated that Intlekofer felt Cortez's behavior was harassment. Johanna Skinner, a fellow employee, corroborated this Report.
Intlekofer filed her fifth Report on December 10, 1987. It disclosed that one night Cortez "chased [her] out of the hospital" stating Intlekofer indicated that such behavior made her fear for her life. A witness filed a Report on December 9, 1987, corroborating Intlekofer's Report. Kehoe met with Cortez to discuss the incident, but decided not to discipline him or issue a warning because Cortez said he had only asked Intlekofer why she was leaving in the middle of her shift.
The sixth Report concerned the December 18, 1987, meeting between Intlekofer and Michael Brown, Chief of Medical Administration Services, in which Brown discussed Intlekofer's complaints and allegedly accused her of leading Cortez on. The seventh Report repeated a conversation between Cortez and an unknown employee in which Cortez told the employee that Intlekofer was dumb. Intlekofer filed the eighth Report on January 5, 1988, 3 alleging that at the end of her late night shift, Cortez threatened to The day after these threats, Cortez yelled at her.
Intlekofer filed the ninth and tenth Reports of Contact within two days of one another--on January 14 and 16, 1988. Neither Report concerned direct confrontations between Intlekofer and Cortez. In one, Intlekofer alleged that Cortez continued to talk about her to other employees. The other concluded that Cortez ruined her reputation because three co-workers had recently taken a sudden interest in her and had individually asked her out on dates.
Intlekofer filed an informal complaint with the Equal Employment Opportunity Commission ("E.E.O.C.") in early December, 1987. Brown and Kehoe met with Cortez on January 26, 1988, to inform him "that he must change his behavior toward Joyce Intlekofer and that any future valid complaints filed by Ms. Intlekofer ... could lead to disciplinary action." After two months of investigation, Donna Reese, the E.E.O.C. counselor for the VA, issued a report concluding that Cortez was sexually harassing Intlekofer. The report made four proposals for remedying the harassment: (1) Cortez should receive professional counseling; (2) Cortez and Intlekofer should not work the same shifts; (3) Cortez must stop discussing Intlekofer with other employees; and (4) Cortez and Intlekofer should limit their contact at work to VA business. Although the VA disagreed with the report and did not believe that Cortez's actions constituted sexual harassment, it adopted the last three courses of action. Specifically, the VA adjusted both Intlekofer and Cortez's shifts in order to reduce contact at work, and repeatedly warned both employees not to be in the Medical Center at any time other than during their respective shifts. The VA also forbade Cortez from speaking with other employees about Intlekofer, and told both employees to limit their contact at work to business matters. It declined to adopt the first recommendation, citing its lack of authority to order Cortez to seek outside help in the form of professional psychological counseling.
After the VA instituted the three measures, Intlekofer filed six Reports of Contact in the next six months. Only three Reports concerned incidents between Cortez and Intlekofer, and none alleged that Cortez continued to discuss Intlekofer with other employees. The February 15, 1988, Report stated that Cortez "throws keys at me, gives me looks that could kill, and does not give any report as to what is happening at the hospital." On June 1, 1988, Intlekofer filed a Report stating that Cortez made an obscene gesture at her in the employee parking lot. Finally, one of the three Reports filed July 7, 1988, claimed that a co-worker saw Cortez draw an obscene picture on Intlekofer's locker. 4
While the VA investigated Intlekofer's complaints and held continuous counseling sessions with Cortez in which he received both oral warnings to refrain from talking to or about Intlekofer, and threats that he would be disciplined if he continued his behavior, the VA did not take more severe disciplinary steps against Cortez, such as issuing a formal warning letter or imposing probation or suspension. Moreover, it is unclear whether the VA met with Cortez after each Report of Contact or sporadically. Kehoe estimated that she had approximately ten meetings with Cortez in response to Intlekofer's Reports of Contact, and that she spent a total of two weeks working time attempting to solve the conflict. Although Brown estimated that he spent approximately one hundred hours trying to remedy the problem, he did not discipline Cortez in any manner other than meeting with him and requesting that he stop the harassment and that he stay away from Intlekofer.
Maryann Coffey, the Director of the VA Medical Center, met with Intlekofer at least four times starting in December of 1987. Each meeting took approximately one to two hours. Coffey attempted to change Cortez's and Intlekofer's shifts in an effort to separate the two, but did not meet with Cortez personally or discipline him in any other manner. Jacqueline Freeman, the Personnel Management Specialist, met with Kehoe and Brown to discuss possible scheduling changes. She also looked for other positions for both Intlekofer and Cortez, but could not find a suitable position for either employee.
Brown, Coffey and Kehoe met several times after...
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