Hirschfeld v. New Mexico Corrections Dept.

• Citation: 916 F.2d 572
• Decision Date: 12 October 1990
• Docket Number: No. 88-2397,88-2397
• Parties: 54 Fair Empl.Prac.Cas. 268, 54 Empl. Prac. Dec. P 40,308 Diana HIRSCHFELD, Plaintiff-Appellant, v. NEW MEXICO CORRECTIONS DEPARTMENT, Michael Francke, in his official capacity as Secretary of the New Mexico Corrections Department, and Dareld Kerby, in his capacity as Warden of the Central New Mexico Correctional Facility, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 572

916 F.2d 572

54 Fair Empl.Prac.Cas. 268,

54 Empl. Prac. Dec. P 40,308

Diana HIRSCHFELD, Plaintiff-Appellant, v. NEW MEXICO CORRECTIONS DEPARTMENT, Michael Francke, in his

official capacity as Secretary of the New Mexico Corrections

Department, and Dareld Kerby, in his capacity as Warden of

the Central New Mexico Correctional Facility, Defendants-Appellees.

No. 88-2397.

United States Court of Appeals, Tenth Circuit.

Oct. 12, 1990.

E. Justin Pennington, Albuquerque, N.M., for plaintiff-appellant.

Michael Dickman, Asst. Atty. Gen., N.M. (Hal Stratton, Atty. Gen., N.M., Sante Fe, N.M., with him on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, ANDERSON and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-appellant Diana Hirschfeld filed an action against defendants under Title VII of the Civil Rights Act of 1964, alleging that she was the victim of gender-based discrimination, retaliation for complaints of sexual harassment which she had filed, and constructive discharge from her employment with the New Mexico Corrections Department. After a bench trial, the court entered final judgment in favor of defendants and dismissed plaintiff's complaint. Plaintiff appeals from that judgment. We affirm. In addition, appellees have moved for sanctions, damages or excessive costs, arguing that plaintiff's appeal of the district court's dismissal of her constructive discharge claim was frivolous and fraught with misrepresentations. We decline to sanction plaintiff's counsel.

I. BACKGROUND

In March 1984, plaintiff accepted a position as a typist at the Central New Mexico Correctional Facility ("CNMCF"), a medium security prison located in Los Lunas, New Mexico. In August 1984, plaintiff began working for four staff psychologists at CNMCF. Plaintiff worked in "H Building," a structure without a permanent security guard located within the prison compound and accessible to the inmate population during office hours.

Plaintiff's immediate supervisor was Dr. Barbara Schwartz, the Director of Mental Health at CNMCF, who in turn reported to the State Director of Mental Health Services. That director reported to the State Director of Health Services, who in turn reported to defendant-appellee Michael Francke, the Secretary of the New Mexico Corrections Department ("the Department").

In early 1985, an inmate was discovered on three different occasions "hiding and watching plaintiff from a dark empty room across from her office." Dist.Ct.Op. at 5. In January 1985, the officials at CNMCF received an anonymous letter detailing a planned rape of plaintiff. The inmate who had been discovered surreptitiously observing plaintiff was determined to be the inmate referred to in the anonymous letter. He was placed in administrative detention until his release, and no further difficulties were reported. Following receipt of the anonymous letter, plaintiff was reassigned to a secure area of the prison until a temporary guard was assigned to H Building.

The sexual threats from inmates ceased, a temporary guard was placed on duty in H Building, and plaintiff resumed work in the structure. The next month, however, plaintiff became the target of sexual harassment by a correctional officer, Captain Danny Galvan. On February 11 and 12, 1985, Galvan approached plaintiff while she was working in H Building and hugged her. "He either attempted to kiss her or actually kissed her on these occasions." Dist.Ct.Op. at 6. Plaintiff did not solicit or welcome Galvan's advances and, on February 13, 1985, plaintiff complained to Associate Warden Sanchez. Associate Warden Sanchez told plaintiff that Captain Galvan was away for the day, but that he would speak with Galvan the next day. However, before Associate Warden Sanchez spoke to Captain Galvan about plaintiff's complaint, another incident occurred.

The incident occurred on February 14, after a prison staff meeting. At that meeting, Galvan was informed that the removal of the newly assigned temporary guard from H Building had been ordered in order to strengthen security in other parts of CNMCF. Shortly after the meeting, Galvan approached plaintiff and informed her of the decision to remove the guard. As he left her office, Galvan kissed her and wished her a "Happy Valentine's Day." Dist.Ct.Op. at 6. Plaintiff did not solicit or otherwise welcome the kiss by Galvan. Id.

Plaintiff immediately complained of Galvan's conduct to her supervisor, Dr. Barbara Schwartz. Plaintiff and Schwartz then complained directly to Warden Kerby. Kerby interviewed plaintiff and asked her to submit a written statement detailing the incident. Later that evening, Galvan was placed on administrative leave pending the completion of an investigation of the incident.

Instead of submitting a written statement, plaintiff filed a formal grievance. On February 15, Kerby spoke with Galvan and arranged for a formal interview on February 19. During that interview, Galvan admitted hugging plaintiff on February 11 and 12, and kissing her on February 14. He also admitted harassing another female employee at CNMCF. Plaintiff was also interviewed on February 19. All of the interviews were tape recorded and transcribed. According to the district court, "[s]ubsequently, the tapes were mixed up and thought to be inadvertently erased." Dist.Ct.Op. at 7.

On February 22, Warden Kerby informed Galvan of his decision to demote him from Captain to Lieutenant. Warden Kerby twice declined Galvan's request that he change his decision. The demotion became effective on March 23, 1985. Following the demotion, there were no more reported incidents of sexual harassment of plaintiff by Galvan.

Galvan appealed his demotion to the New Mexico State Personnel Board. Although the district court found that "the contents of the transcripts of the missing tapes were never in dispute," see Dist.Ct.Op. at 7, the Personnel Board considered the loss of the tapes a failure in "bad faith" by the Department of Corrections to comply with certain discovery orders. As a result, the Personnel Board ruled that Galvan's demotion was invalid, and he was reinstated to the position of Captain.

Following the filing of her formal grievance, plaintiff became the subject of numerous rumors. The district court found, however, that "[r]umors were a natural result of curiosity in a closed community such as the Facility. In fact, almost every witness testified that rumors were common about everybody. They did not single plaintiff out." Dist.Ct.Op. at 23-24. Plaintiff also received several obscene telephone calls from unidentified persons at her home after filing the grievance against Captain Galvan.

Plaintiff left work on June 14, 1985. She was diagnosed as having tonsillitis and a bladder infection. She never returned to work at CNMCF. On June 27, 1985, plaintiff began seeing Dr. Charles Bright, a psychiatrist. Dr. Bright determined that plaintiff suffered from clinical depression. In January 1986, plaintiff was admitted to a psychiatric hospital for a brief period.

Plaintiff subsequently filed this action against the New Mexico Corrections Department, and both the Secretary of the Corrections Department and the Warden of CNMCF in their official capacities. Plaintiff claimed sexual harassment by Captain Galvan and other employees ¹ and inmates, as well as retaliation when she protested the harassment and constructive discharge, all allegedly in violation of Title VII of the Civil Rights Act of 1964, as amended. Plaintiff requested declaratory and injunctive relief, back pay, and reinstatement.

After a bench trial, the district court concluded that Captain Galvan's conduct, in combination with the incident of sexual harassment by an inmate, constituted sexual harassment which gave rise to an intimidating and offensive work environment. However, the court concluded that the Department of Corrections and the other two named defendants were not liable for the harassment. The court found that although Galvan was not a supervisor of plaintiff, he was an agent of the Corrections Department. Ultimately, the court declined to impose liability under an agency theory, concluding that Galvan's sexual harassment was not sufficiently aided by his agency relationship with the Corrections Department, and that the remedial action taken by the Corrections Department was "prompt, adequate and effective." Dist.Ct.Op. at 20.

The district court also rejected plaintiff's claim of retaliation. ² In addition, the district court rejected plaintiff's constructive discharge claim, concluding that the evidence linking her depression to the sexual harassment was "not convincing" and that "a reasonable person in plaintiff's position would not have felt compelled to resign under the circumstances." Dist.Ct.Op. at 25.

On appeal, plaintiff challenges the district court's dismissal of her sexual harassment and constructive discharge claims. We affirm. Additionally, defendants have requested various sanctions against plaintiff's counsel for making an allegedly frivolous appeal and for misrepresentation therein. We decline such an invitation.

II. DISCUSSION

A. Hostile Work Environment Sexual Harassment

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-2(a)(1). Congress defined "employer" as a "person engaged in an industry affecting commerce ... and any agent of such a person." 42 U.S.C. Sec. 2000e(b) (emphasis added).

The courts have interpreted Title VII to prohibit two types of sexual harassment: quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment involves the conditioning of tangible employment benefits upon the submission to sexual conduct. See...