Nichols v. Frank
| Decision Date | 13 December 1994 |
| Docket Number | 92-35315,Nos. 91-36241,s. 91-36241 |
| Citation | 42 F.3d 503 |
| Parties | 66 Fair Empl.Prac.Cas. (BNA) 614, 65 Empl. Prac. Dec. P 43,410 Terri L. NICHOLS, Plaintiff-Appellee, v. Anthony M. FRANK, Postmaster General; U.S. Postal Service, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Judith D. Kobbervig, Asst. U.S. Atty., Portland, OR, for defendants-appellants.
Elizabeth McKanna, Barbara J. Diamond, Bennett & Hartman, Portland, OR, for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.
Opinion by Judge REINHARDT; Concurrences by Judge FERNANDEZ and Judge BRUNETTI.
Terri Nichols ("Nichols"), a deaf-mute postal employee, was sexually harassed by her night-shift supervisor and, as a result, repeatedly but unwillingly performed oral sex on him over a period of approximately six months. The Postmaster General and the United States Postal Service (collectively referred to as "Postal Service") were found liable under Title VII of the Civil Rights Act of 1964, following a non-jury trial. They appeal the finding of liability, as well as the district court's award of back pay to Nichols. We affirm.
Terri Nichols is deaf and mute. She communicates through sign language and in writing. Like many deaf individuals, Nichols' reading ability is limited. She reads at only a fifth-grade level. In the fall of 1986, Nichols became a night-shift mail sorter at the Salem, Oregon, postal facility.
Ron Francisco was the night-shift supervisor and the highest ranking manager at the postal facility during that shift. He had the authority to grant employees leave and overtime pay, and to ask employees to perform various clerical duties. He had access to keys that opened private offices throughout the facility. Most important, Francisco was the only supervisor who was able to communicate with Nichols in sign language.
Shortly after Nichols commenced work, Francisco asked her to copy some documents for him. He assigned another employee to assume her duties on the work floor and followed her into the copy room. While they were in the copy room together, Francisco started kissing Nichols and indicated that he wanted her to perform oral sex on him. She refused his advances, but ultimately complied because she was afraid she would lose her job if she refused. According to Nichols:
I remember that when this first happened I was just in shock. I was nervous. I was upset. I wasn't happy doing it, and I was hoping it would never happen again. And I just kept that all to myself. But then there was repeats and repeats and repeats, and I was more upset and I didn't want it. I didn't want to do it again and again for him, and I didn't know how to say, "Stop, just stop."
This routine occurred repeatedly over a period of approximately six months.
During that entire six-month period, Nichols never solicited any sexual contact with Francisco. However, she did not report Francisco's actions to anyone. She feared that she would not be believed and that Francisco would eventually retaliate against her. She did not tell her husband because she feared that it would harm their marriage. According to Nichols:
I tried to kill myself because I just didn't know how to tell my husband, you know, what was going on ... I was afraid that he would take my children and divorce me.
And so I was just stuck. I was stuck between the two and there was no one I could talk to. I was afraid other people wouldn't believe me, so I was really stuck with both. Say, if I went and I told anybody on him, on the supervisor I would lose my job. My husband and I had just recently bought a house and that house depended on my earnings, and I didn't want to lose everything. And that job was so important to the support of my family, so I was just stuck with the two.
As a result of the repeated forced sexual conduct with Francisco, Nichols became depressed, anxious, and irritable. She had frequent nightmares and difficulty sleeping and eating:
You know, I was losing weight. I wasn't able to eat regularly. I didn't have enough sleep. I got real emotional at home. I was angry. I remember as time progressed, I was getting crazier. I hated that sex. I didn't want sex even with my husband.
In April 1987, six months after Nichols commenced orally copulating Francisco, her husband filed for divorce. Nichols sought two weeks leave of absence from Francisco to deal with her family problems. When she did so, he requested that she perform oral sex on him once again. She complied for the last time, whereupon Francisco approved her request for a leave of absence.
Nichols ultimately reported Francisco's harassment. She filed a complaint with the Postal Service, the EEOC, and the American Postal Workers Union. She was diagnosed as having post-traumatic stress disorder and was granted federal disability benefits from April 14, 1987, until December 4, 1989. She is currently employed at another postal facility in Oregon and has sole custody of her two young children. Francisco is still employed at the Salem post office. 1
After a non-jury trial, the district court concluded that the Postal Service was liable for sexual harassment under Title VII of the Civil Rights Act of 1964. 2 The district court first found that Francisco's acts created a "hostile work environment" for Nichols. That is, his acts were "sufficiently severe or pervasive [as] to alter the conditions of [Nichols'] employment and create an abusive working environment." See Nichols v. Frank, 771 F.Supp. 1075, 1078 (D.Or.1991). The district court then found that the appellants were liable for Francisco's harassment of Nichols. Id. at 1078-81. It reasoned that, under the "principles of the laws of agency," the appellants were liable because Francisco had been acting within the "scope of his employment" when he harassed Nichols. Id. (applying Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1375 (9th Cir.1990), vacated by 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 965, on remand, 948 F.2d 532 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992)). 3
Accordingly, the district court awarded Nichols back pay for the two and one-half year period during which she was unable to work. Nichols had previously received disability benefits for that period under the Federal Employees' Compensation Act ("FECA"); however, those benefits were, pursuant to statute, limited to only 75% of her total salary. See infra p. 515 n. 8. Relying on Title VII, the district court awarded Nichols back pay in an amount sufficient to make up the difference between the benefits awarded her and the salary she would have received during her period of disability. 4
Upon appeal, the Postal Service does not contest the district court's finding of a hostile work environment, but only the finding that it was liable for Francisco's actions. It argues that the district court used the wrong test in making its liability determination. It further contests the district court's award of partial back pay to Nichols.
A. Employer Liability
1. Hostile Environment Liability. As an initial matter, we agree with the Postal Service that the district court used the wrong test in holding it liable for Francisco's conduct. The proper analysis for employer liability in hostile environment cases is what management-level employees knew or should have known, not whether an employee was acting within his "scope of employment." See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir.1989) . Thus, the district court erred by applying the scope of employment test. Moreover, with respect to the hostile environment claim, the error was prejudicial. Had the proper analysis been applied, given the record before us the Postal Service could not have been held liable on a hostile environment theory.
2. Quid Pro Quo Liability. Despite the district court's erroneous reliance on "hostile environment," we hold that the Postal Service is liable for Francisco's acts. Because the acts constituted quid pro quo harassment in addition to hostile environment harassment, the Service is liable for his acts under the doctrine of respondeat superior. See infra pp. 513-14.
(a) Overview. The essence of the quid pro quo theory of sexual harassment is that an individual "relies upon his apparent or actual authority [in order] to extort sexual consideration from an employee." Henson v. City of Dundee, 682 F.2d 897, 910 (11th Cir.1982). We have stated that quid pro quo sexual harassment occurs whenever "employers condition employment benefits on sexual favors." See, e.g., Ellison v. Brady, 924 F.2d 872, 875 (9th Cir.1991).
Here, Nichols presented evidence to the district court that Francisco conditioned employment benefits on sexual favors. The district court credited her testimony. Its findings demonstrate the close connection between Nichols' request to take a two-week leave of absence and her performance of oral sex on Francisco. According to the district court:
Nichols requested two weeks leave of absence so that she could deal with her family problems. On April 14, 1987, at his request, Nichols engaged in oral sex with Francisco for the last time. Following the act, Francisco approved Nichols' request for leave.
Nichols v. Frank, 771 F.Supp. 1075, 1077-78 (D.Or.1991) (emphasis added). The court's finding was consistent with Nichols' testimony that she was "required" to perform oral sex in order to obtain leave:
Q Terri, you have just stated that the sexual harassment started on October 27, 1986. How long did it last? Do...
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