Johnson v. West, Jr., Sec. of Veterans Affairs

• Decision Date: 05 July 2000
• Docket Number: No. 98-3903,98-3903
• Citation: 218 F.3d 725
• Parties: (7th Cir. 2000) Michelle Johnson, Plaintiff-Appellant, v. Togo WEST, Jr., Secretary of Veterans Affairs, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 725

218 F.3d 725 (7th Cir. 2000)

Michelle Johnson, Plaintiff-Appellant, v. Togo WEST, Jr., Secretary of Veterans Affairs, Defendant-Appellee.

No. 98-3903

In the United States Court of Appeals For the Seventh Circuit

Argued April 12, 1999

Decided July 5, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94-C-6530--Blanche M. Manning, Judge. [Copyrighted Material Omitted] Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Michelle Johnson sued her former employer, the Department of Veterans Affairs ("VA"), under Title VII of the Civil Rights Act of 1964, alleging that her supervisor, Karl Williams, sexually harassed her and that the VA retaliated against her for challenging the harassment. Following a bench trial, the district court held that Johnson had been subjected to a hostile work environment but that the VA was protected from liability by the affirmative defense set forth in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The district court also found that the VA had a legitimate, nonpretextual reason for firing Johnson and thus had not improperly retaliated against her. Because we find the district court's findings on the affirmative defense laid out in Ellerth and Faragher to be incomplete as a matter of law, and we conclude that the VA may have retaliated against Johnson for complaining about the harassment, we reverse the judgment of the district court and remand for further proceedings.

I

From August 28, 1990, to September 1993 Johnson worked as secretary to Karl Williams, the Chief of Police at the Hines VA Hospital. Shortly after Johnson started to work for Williams, he began to express a crude sexual interest in her. The first incidents took place on September 19, 1990. Williams invited Johnson into his office and locked the door to both of their offices. Holding a condom in one hand, he pulled down his pants and exposed himself. When someone knocked at the door, Williams zipped up his pants and instructed Johnson to act calm. Later that day, Williams took Johnson to a hotel. After disrobing and instructing Johnson to do the same, they had sexual intercourse. Johnson testified that she neither wanted nor desired to have sex with Williams but did so out of fear that she would be terminated if she rejected his advances. The next day, Williams gave Johnson a greeting card with a pre-printed message stating "[i]t's nice to be able to share the simple things of life with you: a quiet walk, a candlelit dinner, an evening by the fire . . . sex that registers on the Richter Scale." He signed the card "Luv 'Chief' a/k/a Will a/k/a Maurice a/k/a Batman a/k/a Darkman."

The incidents did not stop there. They continued through 1991, with Williams engaging in a variety of inappropriate sexual behavior. He often touched Johnson inappropriately, for example, by trying to separate her legs as she moved from her desk to her typewriter and pressing his chest against her back while she was typing. When Williams learned Johnson was dating another man, he began verbally abusing her. Williams also gave Johnson a Valentine's Day card on February 14, 1991, which read "I can't imagine loving you more than I do today . . . but tomorrow I will. HAPPY VALENTINE'S DAY, SWEETHEART."

While all of this was going on, Johnson did not report Williams's conduct, because she was afraid of being fired. The Valentine's Day card, however, seems to have been the last straw. One week after she received it, she informed her co- worker, Valerie Davis, of Williams's harassment. Davis encouraged her to report Williams to an EEO officer, but Johnson refused. In the summer of 1991, when her probationary employment period was coming to an end, Johnson told VA Associate Director James Jones, Williams's supervisor, that Williams was spreading false rumors that she and Williams were romantically involved. Johnson, however, did not tell Jones about the other incidents of harassment. Jones confronted Williams about Johnson's allegations (without mentioning her name), but Williams denied that he was involved with any of his employees. In September 1991, Johnson applied for three other jobs in order to avoid further contact with Williams. She was not selected, even though she was qualified for the positions. (Williams had no input into the decisions.)

In January 1992, Johnson met with Dr. Joan Cummings, Director of Hines Hospital, and told her about the harassment. Cummings instructed Johnson to file a formal complaint with an EEO counselor, which Johnson did on February 28, 1992. Cummings then appointed an administrative board to review Johnson's complaint. Although Cummings declined Johnson's offer to drop the complaint in exchange for a promotion elsewhere in the hospital, on May 21, 1992, Cummings transferred Johnson to an equivalent position in another area as a temporary corrective measure while the investigation was ongoing.

In June 1992, Johnson started seeing a therapist, complaining that she was suffering from hallucinations, substance abuse and depression. The EEO investigation ultimately concluded that Johnson had been sexually harassed. Cummings reviewed the EEO report and, on November 9, removed Williams as chief of police and sent him to a different area, transferred Johnson back to her old job, and assigned her to a new supervisor.

On September 23, 1992 (prior to Cummings's notice of corrective action), Johnson encountered Williams in the hallway as he was leaving his interview with the EEO officials. Johnson struck Williams across the face because she believed he had lied to the EEO investigators about her allegations. A year later, in September 1993, Cummings fired Johnson for striking Williams.

Johnson responded with this Title VII action. Her complaint claimed that she had been exposed to a hostile work environment, and that the VA retaliated against her by denying her promotions, transferring her back to the department where she experienced the harassment, and, ultimately, terminating her employment. The district court found that Johnson was subjected to a hostile work environment. However, the court denied Johnson relief, because it found that the VA, upon discovering the harassment, took reasonable and adequate measures to prevent it. The VA had removed Williams from his position as Chief of Police in November 1992 and had appointed a replacement, but in May 1993, as a result of an investigative review board's findings, it reinstated Williams to the Chief of Police position and reassigned Johnson to a different but equivalent job in another department. The district court also found that the VA fired Johnson not because she filed a sexual harassment claim but because she struck Williams.

II

Because this case comes to us after a full bench trial, we review the district court's conclusions of law de novo and its findings of fact for clear error. NRC Corp. v. Amoco Oil Co., 205 F.3d 1007, 1011 (7th Cir. 2000). "If the trial judge correctly states the law, then his findings as to whether the facts meet the legal standard will be disturbed only if they are clearly erroneous. Our review [is] more searching if the district court has committed an error of law, including one that 'infect[s] a so-called mixed finding of law and fact, or a finding of fact that is predicated on a misunderstanding of the governing rule of law.'" Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir. 1991) (internal citations omitted) (quoting Bose Corp. v. Consumers Union, 466 U.S. 485, 501 (1984)).

Johnson raises six arguments on appeal, five of which focus on her hostile environment claim. In contesting the district court's handling of that claim, she first argues that the VA was not entitled to the affirmative defense set forth in Ellerth and Faragher. She then asserts in the alternative that, even if the VA is entitled to the affirmative defense, it failed to satisfy the affirmative defense's two requirements. Johnson's last argument on appeal focuses on her retaliatory discharge claim.

A. Vicarious Liability and the Ellerth/Faragher Affirmative Defense

The district court found that Johnson was sexually harassed. As this finding was not clearly erroneous and in any event the VA has not cross-appealed from it, we focus on the standards of vicarious liability, which is the focus of the parties' arguments on appeal. The VA does argue that if this court reverses the district court's judgment on the Ellerth/Faragher defense, this court should remand for a new trial on the finding of sexual harassment. According to the VA, the district court inexplicably ignored evidence that Johnson and Williams were--at least at the start-- involved in a consensual relationship. A new trial, however, is unnecessary, even if we could give this relief without a cross-appeal. Whether or not the initial sexual relationship was consensual, the VA's proffered evidence does not refute the district court's findings concerning Williams's behavior after the "relationship" dissolved.

In Ellerth and Faragher, the Supreme Court considered an employer's vicarious liability for the sexually harassing conduct of its supervisory staff. "An employer is subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee." Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. Vicarious liability automatically applies when the harassing supervisor is either (1) "indisputably within that class of an employer organization's officials who may be treated as the organization's proxy," Faragher, 524 U.S. at 789, or (2) "when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Id....