Davis v. U.S. Postal Service, 96-1304

Decision Date06 May 1998
Docket NumberNo. 96-1304,96-1304
Citation142 F.3d 1334
Parties76 Fair Empl.Prac.Cas. (BNA) 1515, 73 Empl. Prac. Dec. P 45,418, 12 NDLR P 217, 98 CJ C.A.R. 2201 Janet DAVIS, named as "aka Confidential Informant #59", Plaintiff-Appellant. v. UNITED STATES POSTAL SERVICE, United States Postal Inspection Service, Marvin Runyon, U.S. Postmaster General, Defendants--Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

John F. McBride (John J. Zodrow, with him on the brief), Zodrow, et al., P.C., Denver, CO, for Plaintiff--Appellant.

Kathleen L. Torres, Assistant United States Attorney; Henry L. Solano, United States Attorney, and William G. Pharo, Assistant U.S. Attorney, Denver, CO, on brief for Defendants--Appellees.

Before HENRY and LUCERO, Circuit Judges, and MILES-LaGRANGE *, District Judge.

LUCERO, Circuit Judge.

In this opinion, we consider whether an employee is required to leave her employment or demonstrate that her performance at work suffered in order to vindicate her right to be free of a hostile work environment. Janet Davis, a postal employee, brought this action against the United States Postal Service and related parties (collectively "USPS") alleging employment discrimination on the basis of disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). At the close of plaintiff's case-in-chief, the district court granted defendants' motion for judgment as a matter of law as to all of plaintiff's claims. Davis now appeals the lower court decision as to the disability and hostile work environment discrimination claims pursuant to 28 U.S.C. § 1291. We affirm the district court's dismissal of the disability discrimination claim for failure to exhaust administrative remedies. We reverse the dismissal of plaintiff's Title VII claim, however, because we conclude that an employee need not demonstrate either actual or desired termination from employment in order to maintain a hostile work environment claim.


In August 1990, Davis, a training technician at the Postal Education and Development Center ("PEDC") located at the General Mail Facility in Denver, Colorado, was asked by Postal Inspector Donald Fox to become a confidential informant in an investigation into drug trafficking by postal employees. Davis was subsequently transferred to various other facilities where she made controlled drug purchases from three postal workers. When Davis learned that the Postal Inspection Service intended to arrest them, she became anxious that her identity might be revealed and relayed her concerns to Fox. With Fox's assistance, Davis was assigned to a temporary position in Des Moines, Iowa. The three employees were arrested and eventually fired. Fox, concerned about Davis's personal safety and emotional condition, requested that she be assigned to a position away from the PEDC upon her return to Denver. In August 1991, Davis was placed at the USPS's Communications Department in downtown Denver.

Shortly after her transfer to the Communications Department, Perry McMullin, a co-worker, began greeting Davis by hugging and kissing her, ignoring her objections to his behavior. Davis did not report these incidents to her supervisors. In February 1992, Scott Budny, a supervisor in the department, observed McMullin hugging Davis. Budny immediately warned him not to do it again. A few weeks later, in early March, McMullin approached Davis from behind, grabbed her by the hips, and thrust his pelvis against her. Davis reported this incident to Budny and another supervisor. Budny contacted Phyllis Kadison, manager of the Postal Service's Equal Employment Opportunity office, who requested a meeting with Davis. Kadison later indicated to Budny that she was aware of prior similar behavior by McMullin.

At the meeting, Davis told Kadison about the incident. According to Davis, Kadison stated she was glad that Davis was reporting this incident because other women had allegedly been sexually harassed by McMullin but would not make formal complaints. Kadison could not recall the details of this meeting at trial but testified that, in order for any action to be taken against McMullin, Davis would have had to request counseling or have agreed to file a complaint. Davis testified that Kadison directed her to make a statement to another EEO office employee. Although Davis acknowledged that she was reluctant to bring formal charges against McMullin, she testified that she understood that a formal complaint was being filed.

The next day, McMullin, Davis and another employee drove to the Denver Convention Center to prepare an exhibition. According to Davis, McMullin made a sexually obscene gesture to her while in the car. She did not report this incident. A few days later, McMullin again grabbed Davis and hugged and kissed her. According to the postal service, McMullin was transferred out of the Communications Department immediately thereafter, in early March; Davis testified, however, that she was still working with him some weeks later in early April. 1

Meanwhile, William Fitzwater, one of the employees fired as a result of Davis's involvement in the drug sting, contested his termination in a union grievance proceeding. In April 1992, the arbitrator presiding over this proceeding directed the Postal Service to disclose Davis's identity as the confidential informant. Davis was ordered to testify at a hearing related to the grievance proceeding on August 20, 1992. According to Inspector Fox, Davis became distraught at this prospect.

In August 1992, Davis received an interoffice communication notifying her that on August 20, she would be reassigned to her permanent position at the PEDC. She contacted Fox, Budny, Kadison, and her union representative, among others, requesting that she be permitted to continue her detail at the Communications Department because of the hostility she would face from her co-workers and the emotional stress engendered by a return to the PEDC. Fox relayed his concern for her emotional health to postal management in Denver. Davis testified that she was told she could not remain at Communications because temporary positions such as hers were being eliminated pursuant to a nationwide reorganization of the agency, and employees were being returned to their permanent positions in order to facilitate the reorganization. Frank Beebe, the Denver postmaster and district manager, testified, however, that no policy was in place at that time preventing Davis from remaining in the Communications Department.

Rather than return to work at the PEDC, Davis took leave, eventually exhausting her annual and sick leave, and then took leave without pay status. She also filed for benefits with the Office of Workers' Compensation Programs ("OWCP"). Her OWCP claim was approved in March 1993. According to a psychiatrist who evaluated Davis for the OWCP, she was unable to work due to major depression precipitated by the loss of her position at the Communications Department. Her personal psychiatrist, Dr. Jeanne Floerke, testified that the impending reassignment to the PEDC contributed to her depression.

In May 1993, the USPS offered Davis the same position in the Communications Department that she had left unwillingly the previous August. Davis immediately attempted to contact Kadison to discuss possible EEO claims against the USPS. After much effort, Davis was able to schedule a meeting with Kadison on July 13, 1993, following which Davis filed a request-for-counseling form, an informal complaint alleging discrimination on the basis of sex and mental disability.

The EEO office issued a letter dated November 22, 1993, denying her pre-complaint and notifying her of the right to file a formal complaint of discrimination within 15 days. By separate letters dated December 9, 1993 to Kadison and Mel Stencil, the Denver postal service's human resources manager, Davis's attorney entered his appearance as her legal representative and requested a 21-day extension to file a formal complaint. The Denver EEO office did not respond to this letter. A letter from Davis's attorney, dated December 13, 1993, and addressed to Kadison, stated that "Ms. Davis wishes to make a formal complaint." Appellee's App. at 191. 2 Davis testified that she was mailed a copy of this letter by her attorney. The Denver EEO office did not respond to this letter, and Kadison testified it was never received. On April 10, 1994, Davis's attorney sent another letter to the Denver EEO office, inquiring about the status of her formal complaint. The Denver EEO office did not respond to this letter either. Davis's attorney, by letter dated July 22, 1994, again inquired about the status of her claim and sought to review the file. By letter dated July 28, 1994, Kadison responded that she had no record that a formal complaint had been filed within 15 days of Davis's receipt of the November 22, 1993 letter.


The district court entered judgment as a matter of law in favor of defendants on plaintiff's disability and hostile work environment claims for failure to exhaust administrative remedies and on the merits. 3 Judgment as a matter of law is appropriate "[i]f during a jury trial a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). We review a district court's grant of this motion de novo. See Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1502 (10th Cir.1996). "[A] court may grant the motion 'only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party's position.' " Finley v. United States, 82 F.3d 966, 968 (10th Cir.1996) (quoting Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989)). On review, we examine the evidence...

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