Jordan v. Clark

Decision Date24 May 1988
Docket NumberNo. 86-3985,86-3985
Citation847 F.2d 1368
Parties46 Fair Empl.Prac.Cas. 1558, 46 Empl. Prac. Dec. P 38,009 Evelyn JORDAN, Plaintiff-Appellant, v. William P. CLARK, Secretary of the Department of the Interior, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas H. Dahl, Anchorage, Alaska, for plaintiff-appellant.

Mark A. Rosenbaum, Asst. U.S. Atty., Anchorage, Alaska, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska.

Before SNEED, HALL and NOONAN, Circuit Judges.

SNEED, Circuit Judge:

Evelyn Jordan appeals from a district court judgment against her in her Title VII suit in which she alleged sexual discrimination and harassment, retaliation for filing an administrative complaint, and constructive termination arising out of her employment with the U.S. Fish & Wildlife Service. We affirm.


Evelyn Jordan began working for the U.S. Fish & Wildlife Service (Service) in April 1972. She was hired as an administrative assistant at the GS-5 level. 1 Her immediate supervisor was an administrative officer named Ronald DeVall. In January 1975 Jordan filed an informal complaint and in February 1975 she filed a formal complaint with the Service, alleging that she had been discriminated against because of her sex. In particular, she alleged that during a lunch date DeVall had suggested that she sleep with him in order to keep her job and to get a promotion, and that after she refused, he retaliated against her.

The Service's investigator completed her report in April 1975. She concluded that Jordan had not been discriminated against, but that there had been retaliation against Jordan for filing her complaint. Jordan went on leave without pay that same month. Administrative proceedings within the Service, the Department of the Interior, and the Civil Service Commission consumed the next three-and-one-half years, and concluded in September 1978 with a decision by the Civil Service Commission Appeals Review Board that Jordan had not been sexually discriminated against.

The Board sent a copy of its decision to Jordan on September 22, 1978. On October 27, 1978, Jordan first filed suit against the Service in federal district court, alleging sex discrimination and retaliation under Title VII. Her complaint named the Service, the Department of the Interior, and two of her supervisors as defendants. On January 5, 1979, the defendants filed a motion to dismiss on the ground that Jordan's complaint did not name the Secretary of the Department of the Interior as the defendant, as required by 42 U.S.C. Sec. 2000e-16(c). On March 14, 1979, the district court gave Jordan leave to amend her complaint, and on March 23, 1979, Jordan filed an amended complaint that named Cecil Andrus, then Secretary of the Department of the Interior, as a defendant.

Jordan returned to work in November 1978. She contends that her old position had not been abolished, and that she was harassed by being given a clerical job. The district court found that her old job "simply didn't exist anymore," and that she was assigned to do administrative work. E.R. tab 184 at 11. In January 1979 Jordan again went on leave without pay. The Service conducted a fitness hearing and as a result ordered Jordan to return to work in November 1979. Jordan did not return, and the Service terminated her employment in January 1980.

Jordan's first counsel did not move her case forward, and withdrew in March 1981. In October 1985, the district court granted the defendant's motion for partial summary judgment, holding that Jordan's termination in January 1980 was not improper. However, the court expressly reserved the possibility that Jordan might prevail on her other claims, including constructive termination which might allow her to be reinstated in her job. E.R. tab 150.

The parties tried the case to the district court judge in March 1986. The judge found that Jordan had not been discriminated against on the basis of her sex, that she had not been retaliated against for filing an administrative complaint, and that she had not been constructively terminated. Findings of Fact and Conclusions of Law, Excerpt of Record (E.R.) at 9, 11, 12. Jordan timely appealed.


At the outset, we must address the defendant's claim that the district court lacked jurisdiction to hear this case because Jordan did not name the Secretary of the Interior as a defendant in her initial complaint. Resolution of this issue is more difficult than one might suppose. Our review is de novo, of course. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986).

Title VII protects government employees from discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. Sec. 2000e-16(a) (1982). After pursuing administrative remedies, a government employee may file a civil suit against his or her employer under 42 U.S.C. Sec. 2000e-16(c), which states:

Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, ... an employee ... may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.

We have stated that "the naming of the proper defendant within the 30-day period is a jurisdictional requirement." Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Therefore, the requirement cannot be waived by the parties and must be addressed by this court. Office & Professional Employees Ins. Trust Fund v. Laborers Funds, 783 F.2d 919, 921 (9th Cir.1986).

It is undisputed that the proper defendant was not named until five months after Jordan filed her initial complaint. The district court therefore lacked jurisdiction unless Jordan's amended complaint related back to her initial complaint under Federal Rule of Civil Procedure 15(c). Rule 15(c) states:

An amendment changing the party against whom a claim is asserted relates back if ... within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

The delivery or mailing of process to the United States Attorney, or the United States Attorney's designee, or the Attorney General of the United States, ... satisfies the requirement of clauses (1) and (2) hereof with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

See Schiavone v. Fortune, Inc., 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986).

In her initial complaint, Jordan stated that she received notice of the final agency action on October 1, 1978. She therefore had until October 31, 1978 to fulfill Rule 15's requirements. The record indicates that on October 30, 1978 she served the U.S. Attorney for Anchorage, Alaska and mailed process to the U.S. Attorney General. See District Court Clerk's Record, Docket No. 4. Jordan's amended complaint thus related back to her initial complaint under Rule 15(c), and the district court had jurisdiction over her suit. See Cooper v United States Postal Service, 740 F.2d 714, 717 (9th Cir.1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985). Our jurisdiction rests upon 28 U.S.C. Sec. 1291.


On appeal, Jordan's arguments focus on alleged errors of the district court with respect to sexual harassment, retaliation, and the partial summary judgment on the propriety of the January 1980 termination.

A. Sexual Harassment

Jordan's harassment claim focuses on whether she was subjected to a hostile or abusive environment. The district court found that she was not; Jordan argues that the court misconstrued the law, ignored relevant evidence, and reached conclusions contrary to the evidence.

In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court endorsed the "hostile or abusive work environment" theory of sexual harassment. Under this theory, a sexually harassed plaintiff does not have to show that her harassment resulted in "tangible loss" of "an economic character" in order to prove a violation of Title VII. Id. at 64, 106 S.Ct. 2404. It is sufficient for the plaintiff to show that "discrimination based on sex has created a hostile or abusive work environment." Id. at 66, 106 S.Ct. at 2405. To make this showing, the plaintiff must demonstrate that she was subjected to "sexual advances, requests for sexual favors, [or] other verbal or physical conduct of a sexual nature," id. at 65, 106 S.Ct. at 2405 (quoting Equal Employment Opportunity Commission Guidelines, 29 C.F.R. Sec. 1604.11(a)); 2 that this conduct was unwelcome, id. at 65, 68, 106 S.Ct. at 2405, 2406; and that the conduct was "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Id. at 67, 106 S.Ct. at 2406 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)). 3

Before turning to Jordan's arguments, we must dispose of the defendant's contention that she did not raise the abusive environment theory below, and that it is therefore waived on appeal.

1. Did the court consider the abusive environment theory of sexual...

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