Henson v. City of Dundee

Decision Date09 August 1982
Docket NumberNo. 80-5827,80-5827
Citation29 FEP Cases 787,682 F.2d 897
Parties29 Fair Empl.Prac.Cas. 787, 29 Empl. Prac. Dec. P 32,993 Barbara J. HENSON, Plaintiff-Appellant, v. CITY OF DUNDEE, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Morris W. Milton, Williams & Milton Law Firm, St. Petersburg, Fla., for plaintiff-appellant.

Lynn H. Groseclose, Lakeland, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before VANCE, KRAVITCH and CLARK, Circuit Judges.

VANCE, Circuit Judge:

In deciding this appeal, we must determine the proper application of Title VII principles to claims of sexual harassment at the workplace. Appellant, Barbara Henson, filed a Title VII action against the City of Dundee, Florida alleging sexual harassment on her job with the police department. At the close of appellant's case, the district court entered judgment for the City of Dundee and this appeal followed.

Henson was hired as a dispatcher in the five-officer Dundee police department on January 14, 1975. Her position was funded by the federal government under the Comprehensive Employment Training Act (CETA). There were five other CETA employees who worked as dispatchers for the department, one female employee who generally worked with Henson during her shift, Carolyn Dicks, and four male employees.

Henson claims that during the two years she worked for the Dundee police department, she and her female coworker were subjected to sexual harassment by the chief of the Dundee police department, John Sellgren. She alleges that this harassment ultimately led her to resign under duress on January 28, 1977. In May 1977 Henson filed a complaint against the City of Dundee with the Equal Employment Opportunity Commission (E.E.O.C.) alleging sexual harassment. The E.E.O.C. issued a right to sue letter on January 31, 1978 and Henson filed this suit in the middle district of Florida in March. 1

At trial, Henson attempted to prove three types of sexual harassment. First, she claimed that Sellgren created a hostile and offensive working environment for women in the police station. She and her former coworker, Dicks, testified that Sellgren subjected them to numerous harangues of demeaning sexual inquiries and vulgarities throughout the course of the two years during which Henson worked for the police department. Henson stated that in addition to these periodic harangues, Sellgren repeatedly requested that she have sexual relations with him. The district court, however, did not permit Henson's attorney to present evidence that Sellgren had also made sexual advances to Dicks. Henson testified further that she complained of Sellgren's conduct in 1976 to the city manager, Jane Eden, but that Eden took no action to restrain Sellgren.

Henson also claimed that her resignation on January 28, 1977 was tantamount to a constructive discharge based upon sex in violation of Title VII. Specifically, she testified that on January 18, 1977 Sellgren suspended her for two days on the pretext that she had violated an office policy by bringing food into the dispatch room. According to Henson, this policy had not been previously enforced, and she regarded the suspension as a warning by Sellgren that she would be fired if she did not accede to his sexual requests. She therefore claimed that her resignation was involuntary.

Finally, Henson claimed that Sellgren prevented her from attending the local police academy because she refused to have sexual relations with him. She testified that Sellgren made it clear to her that if she agreed to have a relationship with him, he would help her gain the approval of the city manager to attend the academy. Both Henson and Dicks testified that during this period two of the male CETA dispatchers were sent to the police academy. This testimony was corroborated by other witnesses and by the employment records of the two male dispatchers. Additionally, the city manager testified that Henson was qualified to attend the police academy and that she would have permitted Henson to attend if Sellgren had informed her of Henson's interest in the academy.

During opening arguments, the district judge intimated serious reservations about the viability of a Title VII claim involving sexual harassment of the types alleged by Henson. 2 At the close of Henson's case, the district court granted the city's motion to dismiss the action pursuant to rule 41(b) of the Federal Rules of Civil Procedure. 3 From the judge's comments on the bench and from his memorandum accompanying the dismissal order, we discern the following bases for dismissal:

(1) Henson's claim that she suffered under a hostile and demeaning work environment standing alone did not state a cognizable claim under Title VII. Although Henson's supervisor, Sellgren, subjected her and her female coworker to "crude and vulgar language, almost daily inquiring of these two women employees as to their sexual habits and proclivities," the trial judge concluded that there was no violation of Title VII unless Sellgren's conduct inflicted upon Henson some tangible job detriment.

(2) Henson's claim that she was compelled to resign because of an intolerable, sexually demeaning work environment stated a claim upon which relief could be granted for constructive discharge under Title VII. However, the district court did not credit Henson's testimony that she resigned from the Dundee police force because of an intolerable work environment. Specifically, the court found that Henson resigned because a Dundee police officer with whom she was having an affair, Robert Owens, had been forced to resign in January 1977.

(3) Henson's claim that she was prevented from attending the police academy because of her refusal to have sexual relations with Sellgren stated a claim under Title VII. At the same time, her testimony regarding Sellgren's demands for sex as a condition to attendance at the academy was "not believed by me, as the Trial Judge." The court specifically found, however, that none of the male CETA dispatchers had been sent to the academy. The court also found that Sellgren had never made any sexual advances to Henson's coworker, Carolyn Dicks.

On appeal, Henson argues that her work environment allegations stated a claim under Title VII for sexual harassment. She also argues that the district court erred in its holdings on her constructive discharge and police academy claims.

I.

Sexual harassment and work environment

Henson contends that a plaintiff states a claim under Title VII by alleging that sexual harassment perpetrated or condoned by an employer has created a hostile or offensive work environment. She argues that the trial court erred by holding that a Title VII plaintiff must allege in addition that she suffered some tangible job detriment as a result of working in such an environment. We agree that under certain circumstances the creation of an offensive or hostile work environment due to sexual harassment can violate Title VII irrespective of whether the complainant suffers tangible job detriment. We therefore reverse the district court's order as to this claim and remand for a new trial on Henson's work environment claim.

Title VII prohibits employment discrimination on the basis of gender, and seeks to remove arbitrary barriers to sexual equality at the workplace with respect to "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1); Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). The former fifth circuit has held that "terms, conditions, or privileges of employment" include the state of psychological well being at the workplace. In the area of race discrimination, Judge Goldberg stated:

the phrase "terms, conditions, or privileges of employment" in (Title VII) is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.

Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). Therefore, courts have held that an employer violates Title VII simply by creating or condoning an environment at the workplace which significantly and adversely affects an employee because of his race or ethnicity, regardless of any other tangible job detriment to the protected employee. See, e.g., Calcote v. Texas Educational Foundation, Inc., 458 F.Supp. 231, 237 (W.D.Tex.1976) (racial harassment of white employee created discriminatory working conditions), aff'd, 578 F.2d 95 (5th Cir. 1978). 4

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. 5 A pattern of sexual harassment inflicted upon an employee because of her sex is a pattern of behavior that inflicts disparate treatment upon a member of one sex with respect to terms, conditions, or privileges of employment. There is no requirement that an employee subjected to such disparate treatment prove in addition that she has suffered tangible job detriment.

We are bolstered in our conclusion that a hostile or offensive atmosphere created by sexual harassment can, standing alone, constitute a violation of Title VII by a recent decision of the United States Court of Appeals for the District of Columbia circuit. In Bundy v. Jackson, 641 F.2d 934, 943-46 (D.C.Cir.1981), the court found that the principle of law equating illegal sex discrimination with a hostile work environment caused by sexual harassment "follows ineluctably from numerous cases finding Title VII violations where an...

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