Downes v. F.A.A.

• Decision Date: 18 October 1985
• Docket Number: No. 85-588,85-588
• Parties: 39 Fair Empl.Prac.Cas. 70, 38 Empl. Prac. Dec. P 35,590 H. Finley DOWNES, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 288

775 F.2d 288

39 Fair Empl.Prac.Cas. 70, 38 Empl. Prac.

Dec. P 35,590

H. Finley DOWNES, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent.

Appeal No. 85-588.

United States Court of Appeals Federal Circuit.

Oct. 18, 1985.

Robert F. Belovich, Parma, Ohio, argued for petitioner.

Platte B. Moring, III, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Asst. Director.

Perry A. Kupietz, Federal Aviation Admin., Des Plaines, Ill., of counsel.

Before RICH, Circuit Judge, COWEN, Senior Circuit Judge, and NIES, Circuit Judge.

NIES, Circuit Judge.

The decision of the Merit Systems Protection Board (board or MSPB), sustaining the charges against petitioner H. Finley Downes of sexual harassment of female employees as the basis for his demotion and reassignment, is reversed.

I.

On April 30, 1983, Downes was demoted and reassigned from his position as Supervisory Aviation Safety Inspector (Grade 15), at the Cleveland General Aviation District Office (GADO), a position he had held since December 1979, to the position of Aviation Safety Inspector (Grade 14) in Des Plaines, Illinois.

As the basis for this adverse action, the agency specified five charges:

1. Failure to follow a direct order by a superior official.

2. Discrimination based on sex by reassigning a particular duty from a female to a male inspector.

3. Failure to deal effectively with an employee's complaint and giving false information in an investigation.

4. Sexual harassment by engaging in a pattern of abusive and offensive sexual behavior directed to female employees in violation of 29 C.F.R. Sec. 1604.11(a)(3).

5. Sexual harassment by suggesting or inferring that sexual favors by females are the basis for employment, training or promotional opportunities in violation of 29 C.F.R. Sec. 1604.11(a)(2).

Charge 2 was withdrawn by the agency and charges 1 and 3 were not sustained by the presiding official because of failure of proof. The presiding official upheld charge 4 upon a finding that the agency proved each of the four alleged instances of misconduct.

The status of charge 5 is uncertain. Charge 5 was not mentioned in the agency's decision letter; however the presiding official considered that the two instances underlying that charge were relied on by the agency and held that one was proved. He then considered that instance as part of the pattern of the offensive environment set out in charge 4. The other instance of charge 5 was held not to have been proved. Because of these circumstances, petitioner argues that charge 5 was not sustained while the agency argues that upholding the one instance of charge 5 means that the charge was sustained as a violation of Section 1604.11(a)(2).

The MSPB denied Downes' petition for review. Accordingly, the presiding official's decision became the final decision of the board.

II.

Sexual discrimination in employment can take a variety of forms. Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2000e-17 (1982), was designed to prevent discrimination in employment, inter alia, because of sex, in the sense of gender. However, because the statute prohibits discrimination with respect to an employee's "condition" of employment, 42 U.S.C. Sec. 2000e-2(a), ¹ the statute has been read as prohibiting sexual harassment by offensive behavior directed to one or more employees in the workplace. In such cases, "sex" is taken to mean "sexual" although, under the theory that such conduct has a disparate impact on one sex over the other, it continues to mean gender as well. ² Sexual harassment is used herein in the sense of offensive behavior of a sexual nature which is prohibited by Title VII.

The classic example of sexual harassment is the situation in which sexual demands are made by a supervisor to a subordinate in exchange for career advantages or under threats of adverse job consequences. Because tangible job consequences are involved, this type of offense has been characterized as "quid pro quo" sexual harassment. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 908 (11th Cir.1982). Sexual harassment has also been recognized because of offensive sexually related conduct which interferes with an employee's work performance or which creates an intimidating, hostile or offensive working environment, irrespective of whether the complainant is threatened with actual economic consequences. Id., 682 F.2d at 901. This appeal deals with sexual harassment of both types.

The regulations embodying these concepts are found in 29 C.F.R. Sec. 1604.11(a) and (b), which read as follows:

(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. [Footnote omitted.] 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, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

These regulations are directed to determination of a formal claim for relief from sexual harassment by an employee. ³ However, sexual harassment may also be the basis for adverse action against a federal employee. See, e.g., Jackson v. Veterans Administration, 768 F.2d 1325 (Fed.Cir.1985). In either case, the alleged violation must be judged by the same standard.

III. Quid Pro Quo Harassment

In order to clear Downes' record, we will adopt the government's view that charge 5 based on Section 1604.11(a)(2) was sustained, that is, that the board found that Downes used sexual favors as the basis for his decisions on advancement and other personnel action.

A single incident of quid pro quo harassment under Section 1604.11(a)(2) may be sufficient to sustain that type of charge. Joyner v. AAA Cooper Transportation, 597 F.Supp. 537 (M.D.Ala.1983); Sexual Harassment, supra note 2, at 1458. Here, however, all elements of that charge were not proved.

Charge 5 was based on the following statements in an affidavit by Ms. Jones ⁴:

Fin has asked me if I have ever thought about trading favors to get ahead in the agency. He's also said, "Boy, if I had a body like yours, I'd really go places."

The Jones affidavit, if accepted as true in all respects, contains no hint that sexual favors were "used as the basis for employment decisions." There is, indeed, no evidence that Downes requested sexual favors from any employee, including Ms. Jones. He repeatedly and publicly praised the professional work of Ms. Jones, which in her affidavit she viewed as creating resentment in co-workers. He increased Ms. Jones' responsibilities in response to her complaints against her previous supervisors, which she had revealed to Downes at professional meetings long before he was connected to the Cleveland GADO. She advanced in grade regularly. There is no evidence of retaliation for denial of sexual favors. A necessary element of "quid pro quo" harassment under Section 1604.11(a)(2)--that there be a reward or penalty from the alleged harasser--is lacking.

In addition, the record does not indicate the context in which the subject remark was made. There is no indication of what preceded or followed the alleged remark. There is no indication when it occurred. One must even infer that he was her supervisor at the time. No failure can be attributed to Downes to develop the record on this point. It was part of the agency's case, and it is at this point that the Jones affidavit, the only evidence, is inadequate to sustain the charge.

Due to a critical illness, Ms. Jones became unavailable for deposition or trial testimony, which Downes sought. While we will, for purposes of the appeal, accept the presiding official's ruling to admit the affidavit under the circumstances and to find it credible for what it contains, the agency cannot benefit from her unavailability to the extent of being relieved of its burden of proof of the elements of the charge against Downes by a preponderance of the evidence.

Turning to what the presiding official actually said about the incident, we quote from his decision because it indicates confusion between the two very different types of sexual harassment:

There is little doubt that when a supervisor makes remarks to a female employee about getting ahead on the job by trading sexual favors and at the same time suggests to her that a body like hers would advance one's career, he offends the prohibition against sexual harassment. It has been held that sexual harassment occurs if the proscribed conduct creates a discriminatory or offensive work environment even though the complaining employees have not lost any tangible job benefits as a consequence. Deatrick v. Department of Treasury, MSPB Docket No. SF07528110474 at 6 [9 MSPB 507, 10 M.S.P.R. 262] (Feb. 17, 1982), citing Bundy v. Jackson, 641 F.2d 934, 943-44 (D.C.Cir.1981). This incident, when considered with the instances described in specification 4, was not isolated, but was only one in a pattern that permeated the workplace, creating an intimidating, hostile and offensive environment. Therefore, I conclude that the agency has proven instance 1 by the preponderance of the...