Nichols v. Frank, Civ. No. 89-635-FR.

• Decision Date: 04 September 1991
• Docket Number: Civ. No. 89-635-FR.
• Parties: Terri L. NICHOLS, Plaintiff, v. Anthony FRANK, United States Postmaster General; and United States Postal Service, Defendants, American Postal Workers Union, AFL-CIO, Non-Aligned Third Party.
• Court: U.S. District Court — District of Oregon

771 F. Supp. 1075

Terri L. NICHOLS, Plaintiff, v. Anthony FRANK, United States Postmaster General; and United States Postal Service, Defendants American Postal Workers Union, AFL-CIO, Non-Aligned Third Party.

Civ. No. 89-635-FR.

United States District Court, D. Oregon.

September 4, 1991.

Barbara J. Diamond and Elizabeth McKanna, Bennett & Durham, Portland, Or., for plaintiff.

Charles H. Turner, U.S. Atty. and Judith D. Kobbervig, Asst. U.S. Atty., Portland, Or., for defendants.

Gene B. Mechanic, Goldberg & Mechanic, Portland, Or., for non-aligned third party.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FRYE, Judge:

Plaintiff, Terri L. Nichols, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. She claims that the defendants, Anthony Frank, the United States Postmaster General, and the United States Postal Service (collectively, the Postal Service), are liable for the acts of her supervisor, Ron Francisco. Nichols alleges that Francisco sexually harassed her by repeatedly coercing her into engaging in sexual activity with him. Francisco denies having engaged in sexual relations with Nichols.

FINDINGS OF FACT

Nichols is deaf and mute and communicates through American Sign Language (ASL) and writing. She began to work at the Salem, Oregon facility (post office) of the Postal Service in 1984 as a part-time employee. In the fall of 1986, she became a full-time manual distribution clerk on the night shift, where she was responsible for assisting in sorting the mail. Francisco was the superintendent in charge of the night shift. As such, he was the highest ranking manager present at the post office during the night shift. He had primary responsibility for deciding which employees would be permitted to leave work early, as well as which employees would be assigned to work overtime. He also had the authority to assign duties to the postal clerks, including assigning clerical duties that were performed off the main work floor of the post office. Francisco was the only supervisory employee on the night shift who was able to communicate with Nichols using ASL.

Nichols was assigned an immediate supervisor who reported to Francisco. However, because Francisco was able to communicate with Nichols through ASL and her immediate supervisor was not, Francisco often functioned as Nichols' immediate supervisor. Francisco instructed Nichols in the performance of her duties both on and off the main floor of the facility; granted or denied her requests for leave; and served as her interpreter on other matters concerning the Postal Service. He counseled Nichols regarding her attendance, sick leave requests, and personal problems.

By virtue of his supervisory position, Francisco had access to one of two keys that opened the two administrative offices that are located off the main floor of the post office, as well as to a master key that opened other private offices. Francisco sometimes met with Nichols in these private offices and sometimes accompanied her to a copy machine in one of the offices when he wanted her to make copies of documents for him.

On October 27, 1986, Francisco asked Nichols to copy some documents for him. He assigned another employee to perform the tasks that Nichols was performing on the main floor and went with Nichols to the copy room. While they were in the copy room, Francisco indicated to Nichols that he wanted her to engage in oral sex. Nichols responded negatively to his request, but ultimately she complied.

During the next several months, on a number of occasions Francisco asked Nichols to copy documents for him as a guise for having her engage in oral sex. Nichols did not solicit sexual contact with Francisco, and his sexual advances were unwelcome. She submitted to his wishes because she feared that if she did not, she would lose her job. She did not report the actions of Francisco to anyone because she feared that she would not be believed.

As a result of the forced sexual contact with Francisco, Nichols became depressed, anxious and irritable. She had frequent nightmares and difficulty sleeping and eating. She was unable to discuss the situation with friends or other workers because she feared retaliation by Francisco. She was afraid to tell her husband because she feared that it would harm her marriage.

In April, 1987, Nichols' husband filed for divorce. 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.

At this point, Nichols informed her husband of the situation at work. Ultimately, the actions of Francisco were reported to the Postal Service Manager of the Equal Employment Opportunity Complaints Processing in Portland, Oregon. Nichols also notified the American Postal Workers Union of the actions of Francisco.

Nichols was on a medical leave of absence from April 14, 1987 until December 4, 1989, when she resumed part-time employment at the post office in Beaverton, Oregon where she is currently employed. Francisco is employed at the post office in Salem, Oregon. Nichols and her husband have divorced, and she has sole custody of their children.

CONCLUSIONS OF LAW

Title VII prohibits discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is a form of sex discrimination that is prohibited under the statute. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).

Courts have recognized two forms of unlawful sexual harassment; quid pro quo and hostile work environment harassment. Id. at 65-66, 106 S.Ct. at 2404-2405; Henson v. City of Dundee, 682 F.2d 897 908-10 (11th Cir.1982). The elements of a prima facie case for hostile work environment harassment are:

1) that the plaintiff was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; 2) that the conduct was unwelcome; and 3) that the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

Nichols v. Frank, 732 F.Supp. 1085, 1090 (D.Or.1990), following EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514-15 (9th Cir. 1989).

The court finds that Nichols was subjected to repeated oral sexual advances by Francisco, and that these advances were always unwelcome. These repeated and unwelcome sexual advances caused Nichols to suffer psychological injury. The court further finds that the conduct of Francisco was sufficiently severe to alter the conditions of Nichols' employment and to create an abusive working environment. Therefore, Nichols has established that she was subject to "hostile work environment" sexual harassment.

Whether the Postal Service is liable for the acts of Francisco which constitute hostile work environment sexual harassment is determined by applying the principles of the laws of agency. See Meritor Sav. Bank v. Vinson, 477 U.S. at 72, 106 S.Ct. at 2408. Pursuant to these principles, an employer is liable for the acts of an agent where the employee is acting within the scope of his employment. Restatement (Second) of Agency, § 219 (1958). The Ninth Circuit has identified three factors to be considered in determining whether an agent is acting within the scope of his employment:

1) whether the act occurred substantially within the time and space limits authorized by the employment; 2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and 3) whether the act is of a kind which the employee was hired to perform.

Dias v. Sky Chefs, Inc., 919 F.2d 1370, 1375 (9th Cir.1990), quoting Chesterman v. Barmon, 305 Or. 439, 753 P.2d 404, 406 (1988).

Each time Francisco asked Nichols to perform sexual acts, both Nichols and Francisco were on duty at the post office in Salem, Oregon. Nichols has established that the acts occurred substantially within the time and space limits of Francisco's employment.

Jack Witt, Francisco's supervisor, testified that Francisco was sometimes sloppy in his paperwork; that he attributed this sloppiness to Francisco's attempt to perform too many tasks; and that he had suggested that Francisco enlist various postal clerks to assist him off the floor with paperwork so that he would not have to perform the work himself. Thus, in requesting the assistance of Nichols in copying documents, Francisco was acting, at least in part, by a purpose to serve the Postal Service.

As to the third prong required for a finding of employer liability, the Ninth Circuit has recognized that the specific act giving rise to an intentional tort claim will itself rarely be of a kind which the employee was hired to perform. Dias v. Sky Chefs, Inc., 919 F.2d at 1375. Therefore, the Ninth Circuit has determined that the appropriate inquiry is whether the employee committed the tort "while performing, or in connection with, his job responsibilities." Id. The demands of Francisco that Nichols engage in oral sex were made simultaneously with the request that she assist him in the performance of the employment-related duties of making copies of documents.

In summary, Francisco was the highest ranking employee routinely present at the Salem, Oregon post office during the night shift. He had the authority to grant requests for leave, assign overtime work, assign duties to postal clerks (including Nichols), and discipline and make recommendations as to the discipline of postal clerks. When Francisco made unwelcome sexual contact with Nichols, he was an agent of the Postal Service. He committed the acts that constitute hostile work environment sexual harassment while performing his job and in connection with the responsibilities of his job. Therefore,...