Ellison v. Brady, 89-15248

Decision Date05 February 1991
Docket NumberNo. 89-15248,89-15248
Citation924 F.2d 872
Parties54 Fair Empl.Prac.Cas. 1346, 55 Fair Empl.Prac.Cas. 111, 55 Empl. Prac. Dec. P 40,520, 59 USLW 2455 Kerry ELLISON, Plaintiff-Appellant, v. Nicholas F. BRADY, * Secretary of the Treasury, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Terrence A. Beard, Oakland, Cal., for plaintiff-appellant.

Stephen L. Schirle, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BEEZER and KOZINSKI, Circuit Judges, and STEPHENS, ** District Judge.

BEEZER, Circuit Judge:

Kerry Ellison appeals the district court's order granting summary judgment to the Secretary of the Treasury on her sexual harassment action brought under Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e (1982). This appeal presents two important issues: (1) what test should be applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of employment and create a hostile working environment, and (2) what remedial actions can shield employers from liability for sexual harassment by co-workers. The district court held that Ellison did not state a prima facie case of hostile environment sexual harassment. We reverse and remand.

Both issues require a detailed analysis of the facts, which we consider in the light most favorable to Ellison, the non-moving party. Sierra Club v. Penfold, 857 F.2d 1307, 1320 (9th Cir.1988). We review summary judgments de novo. Id.


Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo, California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also assigned to the San Mateo office. The two co-workers never became friends, and they did not work closely together.

Gray's desk was twenty feet from Ellison's desk, two rows behind and one row over. Revenue agents in the San Mateo office often went to lunch in groups. In June of 1986 when no one else was in the office, Gray asked Ellison to lunch. She accepted. Gray had to pick up his son's forgotten lunch, so they stopped by Gray's house. He gave Ellison a tour of his house.

Ellison alleges that after the June lunch Gray started to pester her with unnecessary questions and hang around her desk. On October 9, 1986, Gray asked Ellison out for a drink after work. She declined, but she suggested that they have lunch the following week. She did not want to have lunch alone with him, and she tried to stay away from the office during lunch time. One day during the following week, Gray uncharacteristically dressed in a three-piece suit and asked Ellison out for lunch. Again, she did not accept.

On October 22, 1986 Gray handed Ellison a note he wrote on a telephone message slip which read:

I cried over you last night and I'm totally drained today. I have never been in such constant term oil (sic). Thank you for talking with me. I could not stand to feel your hatred for another day.

When Ellison realized that Gray wrote the note, she became shocked and frightened and left the room. Gray followed her into the hallway and demanded that she talk to him, but she left the building.

Ellison later showed the note to Bonnie Miller, who supervised both Ellison and Gray. Miller said "this is sexual harassment." Ellison asked Miller not to do anything about it. She wanted to try to handle it herself. Ellison asked a male co-worker to talk to Gray, to tell him that she was not interested in him and to leave her alone. The next day, Thursday, Gray called in sick.

Ellison did not work on Friday, and on the following Monday, she started four weeks of training in St. Louis, Missouri. Gray mailed her a card and a typed, single-spaced, three-page letter. She describes this letter as "twenty times, a hundred times weirder" than the prior note. Gray wrote, in part:

I know that you are worth knowing with or without sex.... Leaving aside the hassles and disasters of recent weeks. I have enjoyed you so much over these past few months. Watching you. Experiencing you from O so far away. Admiring your style and elan.... Don't you think it odd that two people who have never even talked together, alone, are striking off such intense sparks ... I will [write] another letter in the near future. 1

Explaining her reaction, Ellison stated: "I just thought he was crazy. I thought he was nuts. I didn't know what he would do next. I was frightened."

She immediately telephoned Miller. Ellison told her supervisor that she was frightened and really upset. She requested that Miller transfer either her or Gray because she would not be comfortable working in the same office with him. Miller asked Ellison to send a copy of the card and letter to San Mateo.

Miller then telephoned her supervisor, Joe Benton, and discussed the problem. That same day she had a counseling session with Gray. She informed him that he was entitled to union representation. During this meeting, she told Gray to leave Ellison alone.

At Benton's request, Miller apprised the labor relations department of the situation. She also reminded Gray many times over the next few weeks that he must not contact Ellison in any way. Gray subsequently transferred to the San Francisco office on November 24, 1986. Ellison returned from St. Louis in late November and did not discuss the matter further with Miller.

After three weeks in San Francisco, Gray filed union grievances requesting a return to the San Mateo office. The IRS and the union settled the grievances in Gray's favor, agreeing to allow him to transfer back to the San Mateo office provided that he spend four more months in San Francisco and promise not to bother Ellison. On January 28, 1987, Ellison first learned of Gray's request in a letter from Miller explaining that Gray would return to the San Mateo office. The letter indicated that management decided to resolve Ellison's problem with a six-month separation, and that it would take additional action if the problem recurred.

After receiving the letter, Ellison was "frantic." She filed a formal complaint alleging sexual harassment on January 30, 1987 with the IRS. She also obtained permission to transfer to San Francisco temporarily when Gray returned.

Gray sought joint counseling. He wrote Ellison another letter which still sought to maintain the idea that he and Ellison had some type of relationship. 2

The IRS employee investigating the allegation agreed with Ellison's supervisor that Gray's conduct constituted sexual harassment. In its final decision, however, the Treasury Department rejected Ellison's complaint because it believed that the complaint did not describe a pattern or practice of sexual harassment covered by the EEOC regulations. After an appeal, the EEOC affirmed the Treasury Department's decision on a different ground. It concluded that the agency took adequate action to prevent the repetition of Gray's conduct.

Ellison filed a complaint in September of 1987 in federal district court. The court granted the government's motion for summary judgment on the ground that Ellison had failed to state a prima facie case of sexual harassment due to a hostile working environment. Ellison appeals.


Congress added the word "sex" to Title VII of the Civil Rights Act of 1964 3 at the last minute on the floor of the House of Representatives. 110 Cong.Rec. 2,577-2,584 (1964). Virtually no legislative history provides guidance to courts interpreting the prohibition of sex discrimination. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court held that sexual harassment constitutes sex discrimination in violation of Title VII.

Courts have recognized different forms of sexual harassment. In "quid pro quo" cases, employers condition employment benefits on sexual favors. In "hostile environment" cases, employees work in offensive or abusive environments. 4 A. Larson, Employment Discrimination Sec. 41.61 at 8-151 (1989). This case, like Meritor, involves a hostile environment claim.

The Supreme Court in Meritor held that Mechelle Vinson's working conditions constituted a hostile environment in violation of Title VII's prohibition of sex discrimination. Vinson's supervisor made repeated demands for sexual favors, usually at work, both during and after business hours. Vinson initially refused her employer's sexual advances, but eventually acceded because she feared losing her job. They had intercourse over forty times. She additionally testified that he "fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions." Meritor, 477 U.S. at 60, 106 S.Ct. at 2402. The Court had no difficulty finding this environment hostile. Id. at 67, 106 S.Ct. at 2405-06.

Since Meritor, we have not often reached the merits of a hostile environment sexual harassment claim. In Jordan v. Clark, 847 F.2d 1368, 1373 (9th Cir.1988), cert. denied sub nom., Jordan v. Hodel, 488 U.S. 1006, 109 S.Ct. 786, 102 L.Ed.2d 778 (1989), we explained that a hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, 5 (2) that this conduct was unwelcome and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.

In Jordan, we reviewed for clear error the district court's determination that an employee was not subjected to particular unwelcome advances. Id. at 1375. We explained that we will review de novo a district court's final conclusion that conduct is not severe enough or pervasive enough to constitute an abusive...

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