Spicer v. Com. of Va., Dept. of Corrections

• Decision Date: 02 October 1995
• Docket Number: 93-2182,Nos. 93-2136,s. 93-2136
• Citation: 66 F.3d 705
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 1255, 66 Empl. Prac. Dec. P 43,684 Peggy M. SPICER, Plaintiff-Appellee, v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CORRECTIONS, Defendant-Appellant, and Buckingham Correctional Center; David Smith, in his capacity as the Warden of Buckingham Correctional Center, Commonwealth of Virginia Department of Corrections; J.M. Perutelli, Captain, Defendants. Peggy M. SPICER, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CORRECTIONS; Buckingham Correctional Center; Buckingham Correctional Center; David Smith, in his capacity as the Warden of Buckingham Correctional Center, Commonwealth of Virginia Department of Corrections; J.M. Perutelli, Captain, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 705

66 F.3d 705

69 Fair Empl.Prac.Cas. (BNA) 1255,

66 Empl. Prac. Dec. P 43,684

Peggy M. SPICER, Plaintiff-Appellee, v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CORRECTIONS,

Defendant-Appellant,

and

Buckingham Correctional Center; David Smith, in his

capacity as the Warden of Buckingham Correctional Center,

Commonwealth of Virginia Department of Corrections; J.M.

Perutelli, Captain, Defendants.

Peggy M. SPICER, Plaintiff-Appellant, v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CORRECTIONS;

Buckingham Correctional Center; Buckingham Correctional

Center; David Smith, in his capacity as the Warden of

Buckingham Correctional Center, Commonwealth of Virginia

Department of Corrections; J.M. Perutelli, Captain,

Defendants-Appellees.

Nos. 93-2136, 93-2182.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1995.

Decided Oct. 2, 1995.

ARGUED: Guy Winston Horsley, Jr., Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant. Tinya Lynnette Banks, Leftwich & Douglas, Washington, DC, for Appellee. ON BRIEF: James S. Gilmore, III Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL and MOTZ, Circuit Judges.

Attorney General of Virginia, Office of the Attorney General, Richmond, Virginia, for Appellant. Natalie O. Ludaway, Brian K. Pearlstein, Leftwich & Douglas, Washington, DC, for Appellee.

Judgment vacated and case remanded by published opinion. Judge NIEMEYER wrote the opinion for the court in which Judges RUSSELL, WIDENER, HALL, WILKINSON, WILKINS, HAMILTON, LUTTIG, and WILLIAMS joined. Judge MOTZ wrote a dissenting opinion in which Chief Judge ERVIN and Judges MURNAGHAN and MICHAEL joined.

OPINION

NIEMEYER, Circuit Judge:

Peggy M. Spicer, a rehabilitation counselor employed by the Virginia Department of Corrections at the Buckingham Correctional Center, filed a complaint under Title VII of the Civil Rights Act of 1964, alleging (1) sexual harassment in the form of remarks made to her by fellow employees and (2) retaliation by her employer for filing a sexual harassment complaint with the federal Equal Employment Opportunity Commission (EEOC). The jury found against Spicer on her retaliation claim, but, following a court trial, the district court ruled in her favor on the sexual harassment claim. The district court also awarded Spicer attorneys fees which were apparently incurred in connection with both claims of her suit.

Because the jury's verdict is adequately supported by the evidence, we affirm that verdict. In connection with the sexual harassment claim, however, we reverse because the Virginia Department of Corrections acted immediately and effectively to eliminate the offensive, yet isolated, behavior of Spicer's fellow employees. Therefore, we also reverse the award of attorneys fees because Spicer is not a prevailing party.

I

Buckingham Correctional Center, where Spicer was employed, is a maximum security prison housing approximately 1,000 male felons. A majority of the felons have been convicted for violent crimes and 37 percent for sexual offenses. For significant security reasons, especially the safety of its female employees, the institution maintains an informal dress policy prohibiting employees from dressing in any manner that might arouse the inmates. As Warden David Smith testified:

[B]ased on my experience, there is certain appropriate ways to dress and certain appropriate ways you don't dress around inmates. And I think it is just more a matter of common sense in that type of environment. I have seen staff held hostage; I have seen staff assaulted; I've seen a lot of things. I've seen attempted rapes on staff. And all of these things you bring with your experience to bear that there is a right and a wrong way to dress in that environment....

The staff's informal dress policy parallels the formal dress code imposed on visitors to the prison.

In July 1991, an elderly woman visiting the prison to see her son, who was incarcerated there, complained irately to Lt. Antoinette Yates about the attire of Spicer, the counselor on duty that day. Referring to Spicer, the visitor stated, "I can't believe that as tough as you are with the visitor's dress code that you would allow one of your employees to come into your institution dressed like this." The visitor threatened to complain to the warden. Lt. Yates looked at Spicer and concurred that her attire was inappropriate. As Lt. Yates testified:

She had on a pullover sweater. If you would excuse me--I'm very embarrassed--her nipples were plainly viewed like she didn't have a bra on.

Yates reported the visitor's complaint to the captain of the security force, Capt. J.M. Perutelli. Capt. Perutelli, who had received complaints from other visitors about the dress of employees at the institution, wrote a memorandum to Warden Smith dated August 1, 1991, about the inappropriate dress of several employees. The portion of the August 1 memorandum discussing Spicer's dress stated:

Numerous security staff have received complaints from inmates complaining that female staff are allowed to enter the institution in clothing that their visitors would not be allowed to wear. Some specific examples include ... Miss Spicer wearing short dresses with a split in the back and blouses that are so revealing that you can see her breast nipples outlined in plain view.

Capt. Perutelli requested that Warden Smith "address" this matter. Warden Smith forwarded the August 1 memorandum to the supervisors of the employees involved, together with a cover letter directing the supervisors to "take appropriate action." Warden Smith admitted in retrospect, however, that he had erred in failing to label the memorandum "confidential." A few days later, on August 6, 1991, Warden Smith sent an additional memorandum to all department heads advising them that employees must dress "in a professional manner." That memorandum noted that the employees deal with an "extremely difficult section of society," and "[w]e should all take this opportunity to examine our wardrobes and appearance to ensure that we dress professionally at all times."

Two of the managers to whom the August 1 memorandum was sent, Mr. B.W. Soles and Ms. L. Dixon, read the memorandum out loud at their staff meetings. Beginning on August 6, 1991, in response to the memorandum, a few fellow employees subjected Spicer to various sexually offensive comments such as: "This is nipple check day," "Which one is bigger?" and "Where are you going to put them?" Both angry and upset by these remarks, Spicer promptly complained to her immediate supervisor, Barbara Wheeler, telling Wheeler that she wanted to talk to Warden David Smith. Wheeler called Smith to indicate that Spicer wanted to see him, without mentioning the reason for the requested visit. Warden Smith was in a meeting, but Spicer was advised that she could meet with him the following morning. The next morning, August 7, Spicer instead called Bob Sizer, the equal employment officer for the Department of Corrections, to complain, and on August 8 she met with Sizer in Richmond. After meeting with Spicer on August 8, Sizer consulted with Ed Morris, the Deputy Director for Adult Institutions in Virginia, who in turn promptly called Warden Smith and had him investigate whether the August 1 memorandum had been posted on any bulletin boards or in any other public places. Warden Smith informed Morris that the memorandum had not been posted anywhere but on the clipboards of Capt. Perutelli and the "12-8 Watch Commander." Capt. Perutelli's clipboard was private, and there is no indication in the record that the 12-8 Watch Commander's clipboard was not likewise private. In response to Morris' call, Warden Smith also met individually with Spicer and most of the other women mentioned in the August 1 memorandum to discuss their concerns. Smith then counseled those individuals who made the inappropriate sexual comments to Spicer and threatened disciplinary action if such conduct was repeated. Finally, Warden Smith spoke with Capt. Perutelli, expressing his concern that the memo had been too graphic.

The next morning, August 9, 1991, Sizer conducted an informal training session on sexual harassment which was attended by approximately 23 employees. The session lasted for one to one and one-half hours. Sizer led a second training session about a month later. This session was attended by about 30 employees, lasted about two hours, and included a 40-minute film titled "The Other Point of View." Finally, Sizer wrote Spicer a letter detailing the steps taken by the Department of Corrections to address her complaint. He concluded this letter as follows:

It is unfortunate that a situation of this nature developed, but, we can assure you that Administrative action was taken with appropriate individuals to help prevent future problems like this from occurring.

I hope that the work environment has improved and I will be glad [to] meet with you at anytime to discuss any further concerns that you might have.

Spicer acknowledged that after Sizer became involved in addressing her complaint on August 7, no one made any further sexually offensive remarks to her.

About two months later, Spicer filed a complaint for sexual harassment with the EEOC. The Virginia Department of Corrections was advised of the complaint in early December 1991.

On December 5, 1991, Warden Smith removed Spicer from the Buckingham Correctional Center's work committee, which assigns prison jobs to inmates. He testified that he did so because he disagreed with Spicer about how the work committee should function and because he had received complaints from inmates and staff concerning her performance. He also stated that Spicer had acted outside of her authority in chairing some committee meetings. Following the filing of a grievance in which Spicer contended that her removal from the...