McKinney v. Dole, 84-5337

• Decision Date: 02 July 1985
• Docket Number: No. 84-5337,84-5337
• Citation: 765 F.2d 1129,246 U.S.App.D.C. 376
• Parties: 38 Fair Empl.Prac.Cas. 364, 37 Empl. Prac. Dec. P 35,339, 246 U.S.App.D.C. 376 Iris McKINNEY, Appellant, v. Honorable Elizabeth DOLE, Secretary of Transportation, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1129

765 F.2d 1129

38 Fair Empl.Prac.Cas. 364,

37 Empl. Prac. Dec. P 35,339, 246 U.S.App.D.C. 376

Iris McKINNEY, Appellant, v. Honorable Elizabeth DOLE, Secretary of Transportation, et al.

No. 84-5337.

United States Court of Appeals District of Columbia Circuit.

Argued March 7, 1985.

Decided July 2, 1985.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-1024).

Charles G. Aschmann, Jr. Alexandria, Va., for appellant.

Daniel Bensing, Sp. Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and R. Craig Lawrence, Scott T. Kragie, Royce C. Lamberth, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before WRIGHT, MIKVA and STARR, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Opinion concurring in part and dissenting in part filed by Circuit Judge STARR.

J. SKELLY WRIGHT, Circuit Judge:

In Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981), and Vinson v. Taylor, 753 F.2d 141 (D.C.Cir.1985), this court held that sexual harassment of a female employee by her male supervisor could, without any concrete adverse employment action having been taken against her, constitute a violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. Sec. 2000e et seq. (1982). In those cases the sexual harassment complained of consisted of sexual advances and other sexual importunings by the male supervisors in question. This case presents a variation of that factual situation. Specifically, it poses the question whether a physically aggressive but not explicitly sexual act by a male supervisor against a female employee may constitute part of a prohibited pattern of sexual discrimination. We hold that it may.

Based on that holding, we hold that the District Court here erred in granting summary judgment for the employer defendant on the plaintiff's sex discrimination/sexual harassment claim. We also hold that the District Court erroneously granted the defendant's motion for summary judgment on the plaintiff's reprisal claim. We then affirm, however, the District Court's disposition of the remaining claims--the age discrimination claim and the claim of sex discrimination in the provision of legal services.

I. BACKGROUND

Iris N. McKinney, the plaintiff-appellant here, is a GS-13 Budget Analyst with the Federal Aviation Administration (FAA). She was born on November 26, 1936. During 1982 she filed four charges of age and sex discrimination against her supervisors and the FAA.

Initially, on April 30, 1982, she filed a written administrative complaint with the FAA Equal Employment Opportunity (EEO) officer, alleging that she had been illegally discriminated against on the basis of her sex, see 42 U.S.C. Sec. 2000e-16(a), ¹ and on the basis of her age, see 29 U.S.C. Sec. 633a(a) (1982). ²

With respect to the sex discrimination claim, Ms. McKinney generally alleged continuing verbal abuse and sexual harassment by Mr. Charles Whitfield, her second-line supervisor at the FAA. ³ Although it is unclear from the record before us precisely what incidents of verbal abuse she was referring to, ⁴ the sexual harassment allegedly included one incident on July 3, 1975, when Mr. Whitfield allegedly exposed himself to Ms. McKinney, and another on March 21, 1981, when he allegedly rubbed up against her and asked her for sexual favors. See Plaintiff's Responses to Defendants' First Set of Interrogatories, filed October 24, 1983, Answer 3. See also Deposition of Iris McKinney, filed February 26, 1985, at 15-17. ⁵ Ms. McKinney also alleged that William A. Plissner, Mr. Whitfield's supervisor, had participated in this continuing sexually discriminatory treatment by sending Ms. McKinney a letter of warning and a proposed suspension letter. See Complaint, filed April 8, 1983, at 3-4.

The culmination of this treatment, and the incident detailed in the complaint, was an assault by Mr. Whitfield that was alleged to have occurred on February 25, 1982. ⁶ On that date Ms. McKinney had met with Mr. Whitfield in his office, apparently to allow Mr. Whitfield to discuss a temporary lay-off without pay necessitated by an FAA funding shortage. Ms. McKinney was to sign a letter acknowledging the "furlough" and the fact that she had been advised of her rights relating to this furlough. At the meeting in Mr. Whitfield's office, Ms. McKinney signed the letter. Having done so, she started to leave the office. The letter dropped to the floor. Mr. Whitfield then ordered Ms. McKinney to retrieve the letter, but Ms. McKinney fled to her own office without doing so. Mr. Whitfield pursued her into her office and there either fired her or threatened to fire her. According to Ms. McKinney, she attempted to leave the office but Mr. Whitfield forcefully prevented her from doing so by grabbing her arm and twisting it. She eventually escaped, but not before, as she alleges, she sustained substantial physical injury. ⁷

With respect to the age discrimination claim, Ms. McKinney alleged in this same April 30, 1982 administrative complaint that she had been prevented from obtaining a promotion by Mr. Whitfield and others within the FAA. Specifically, her allegations are directed toward a promotion vacancy that was first announced in March of 1981. ⁸ At that time she applied for the position and was apparently included on a "highly qualified" list. Then, she alleged, her SF-171 (the government personal qualifications form that must accompany any government personnel decision) disappeared. She alleged that this disappearance was brought about intentionally, probably by Mr. Whitfield, for the purpose of ensuring that she would not be considered for the promotion. Before any selection was made, the vacancy was cancelled in June 1981. Thereafter another, younger, individual was selected to fill the position on a temporary basis. ⁹ Ms. McKinney believed that this person had been pre-selected for the vacancy. When the job was reopened in October 1981, Ms. McKinney did not apply, allegedly because she knew that the other individual had already effectively been selected for the position and because Mr. Whitfield had ordered her not to apply. The younger employee was officially selected for the vacancy in early January 1982.

On July 14, 1982 Ms. McKinney filed a second administrative complaint. In this complaint she noted that, in previous grievance proceedings with the FAA and with respect to her charges of assault and battery against Mr. Whitfield stemming from the February 25, 1982 incident, the government had provided Mr. Whitfield with legal representation. She also noted that the government had refused to provide her with legal representation. She complained that this disparate treatment constituted sex discrimination.

Finally, on September 1, 1982, Ms. McKinney filed a third administrative complaint. In this complaint she focused on her transfer from the FAA Budget Review & Reports Staff to the FAA Advanced Automation Program Office in August of 1982, which she alleged to have been in retaliation for her filing of the earlier discrimination complaints. It appears that this transfer had occurred in violation of an internal FAA regulation, which provides for no transfers while an Equal Employment Opportunity Commission (EEOC) investigation is ongoing. See DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, Equal Opportunity in FAA Employment, Order 1400.8, p 810. ¹⁰ And, although not disputing that she had previously requested a transfer to get away from Mr. Whitfield and that an FAA Grievance Examiner (responding to an earlier internal grievance filed by Ms. McKinney) had recommended such a transfer, Ms. McKinney alleged that the transfer was actually made in retaliation for her earlier EEO complaints. She also noted that she had objected to it. It further appears that this transfer was to a position with the same pay and of the same grade as her previous position. Ms. McKinney, however, alleged that the new position was temporary and in an area with which she was not very familiar, and that her job security and chances of promotion were consequently significantly lower than they would have been had she stayed in her previous job, which was permanent and in which she was proficient.

After 180 days had passed without formal agency action being taken on her administrative complaints, Ms. McKinney filed suit in the District Court, alleging the same discriminatory incidents that she had set forth in those complaints. After discovery, the defendant moved to dismiss the suit for failure to state a claim under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. In conjunction with this motion the defendant submitted to the District Court a document labelled "Statement Of Material Facts As To Which There Is No Genuine Issue," filed January 6, 1984 (Statement). The plaintiff responded with an opposition to the motion. The District Court then granted the defendant's motion, dismissing Ms. McKinney's claims with prejudice. She now appeals.

II. STANDARD OF REVIEW

The first question we must resolve in reviewing the District Court's decision is what standard governs our review. This depends on whether the dismissal of the claims by the District Court was summary judgment for the defendant or simply a Rule 12(b)(6) dismissal for failure to state a claim. The record, however, is not clear on this point.

The defendant's motion was styled as an alternative motion to dismiss for failure to state a claim and for summary judgment. And the District Court's opinion is unclear as to whether it was dismissing Ms. McKinney's complaint for failure to state a claim or granting summary judgment for the defendant because of the proven absence of any genuine issue of material fact. For example, although the District Court indicated in its opinion that it had reviewed the entire record, see...