Toscano v. Nimmo

• Decision Date: 31 August 1983
• Docket Number: Civ. A. No. 82-315-WKS.
• Citation: 570 F. Supp. 1197
• Parties: Margaret Nava TOSCANO, Plaintiff, v. Robert NIMMO, the Administrator of the Veterans Administration, an Agency of the United States of America, Defendant.
• Court: U.S. District Court — District of Delaware

570 F. Supp. 1197

Margaret Nava TOSCANO, Plaintiff, v. Robert NIMMO, the Administrator of the Veterans Administration, an Agency of the United States of America, Defendant.

Civ. A. No. 82-315-WKS.

United States District Court, D. Delaware.

August 31, 1983.

Sheldon N. Sandler, Barry M. Willoughby, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.

Joseph J. Farnan, Jr., U.S. Atty., Theopalis K. Gregory, Asst. U.S. Atty., Wilmington, Del., for defendant.

OPINION

STAPLETON, District Judge.

Plaintiff, Margaret Nava Toscano ("Toscano"), has sued Robert Nimmo, the Administrator of the Veterans Administration, claiming unlawful discrimination in connection with her employment with the Veterans Administration. The suit arises out of the denial of her application for a particular position she sought at the Veterans Administration Hospital in Elsmere, Delaware ("the Hospital"). The complaint alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the denial of due process of law in violation of the Fifth Amendment of the United States Constitution. The issues of liability were tried before the Court from May 12 through May 17, 1983. This Opinion constitutes the Court's findings of fact and conclusions of law.

I. BACKGROUND

At the top of the bureaucratic structure of the Hospital was the Center Director, a position occupied by Robert Ryan at all times here relevant. Ryan's direct subordinate was Wilfred Kingsley, the Assistant Center Director. Directly below the Center Director and the Assistant Center Director were various "Chiefs" of the "services" in the Hospital, including Jesus Segovia ("Segovia"), Chief of the administrative arm of the Hospital, The Medical Administrative Service ("MAS"). Reporting to Segovia was Carlo Rattenni, Assistant Chief MAS.

The position of Medical Administration Assistant ("MAA") reported directly to the Chief and the Assistant Chief MAS. MAAs worked a rotating shift and were responsible for doing all of the administrative functions in the service during the evening and night hours. Toscano attained the position of MAA in 1974.

Also below the Chief MAS and the Assistant Chief MAS were three sections, including the Ward Administration Section ("WAS"). The head of WAS was the Chief WAS and directly below the Chief WAS were the ward secretaries, also called ward clerks. The position of Chief WAS was the position which Toscano, along with a number of others, applied for in September, 1978. Toscano was one of the five individuals selected by Personnel as being qualified for the position. The individual ultimately selected as Chief WAS was Donna Nelson, a ward clerk. The selection was made by Segovia and announced by him in October 1978.

At the time of her promotion, Nelson held a GS-4 civil service rating. Both the MAA and Chief WAS positions had a GS-7 rating, but the Chief WAS position was more desirable because of its supervisory role, greater access to training programs, and greater potential for further promotional opportunities. Advancement to the Chief WAS position was one of the most common routes followed by MAAs seeking career advancement.

Toscano claims she was discriminated against because Segovia conditioned his selection of the Chief WAS on his receiving sexual favors. The defendant disputes that the selection was based on sexual favors, and he contends, alternatively, that Nelson was more qualified than plaintiff and that the Veterans Administration did not have actual or constructive knowledge of Segovia's actions. Plaintiff also claims that she was retaliated against for filing charges of discrimination.

II. THE PROMOTION CLAIM

Title VII of the Civil Rights Act of 1964 prohibits sex discrimination with respect to terms, conditions, or privileges of employment.¹ This bar applies to a wideranging set of employment related actions from promotions and job assignments to rules as to grooming, weight, and smoking. Sex discrimination occurs when an employer differentiates on the basis of sex with respect to a condition of employment and the differentiation is not within a recognized legal justification such as where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the employer's particular business. An employer is not insulated from liability simply because some, but not all, employees of one sex are affected. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). Thus, even where, for example, one woman is promoted over another, if the unsuccessful applicant would not have been treated in the same manner if she were a man, the employer is still liable for sex discrimination. Skelton v. Balzano, 424 F.Supp. 1231, 1235 (D.D.C. 1976).

Sexual harassment in the context of employment can form the basis for a Title VII claim. In the typical case, the female plaintiff claims that her male supervisor requested sexual favors from her and conditioned some job benefit, for example a promotion, on her assent. Such a claim is cognizable under Title VII. See, Tomkins v. Public Serv. Elec. & Gas Co., 568 F.2d 1044 (3d Cir.1977).

This case is slightly different factually from the typical case, although no different in its theoretical underpinnings. Toscano maintains that in order for a woman to be selected as Chief WAS, it was necessary to grant sexual favors, a condition not imposed on men; this contention is consistent with the theory supporting recovery in the typical case. She does not seek to establish the existence of this condition, however, by showing she refused specific requests by Segovia for sexual favors and was then denied the position because of her refusal. Rather, she has offered proof in the form of evidence of the circumstances of Segovia's sexual affair with the applicant he in fact selected for the position. That liability under Title VII may be predicated on such a theory is supported by the guidelines of the Equal Employment Opportunity Commission. They state, in part:

Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.

29 C.F.R. § 1604.11(g).

For the reasons that follow, I find that granting sexual favors was a condition to receiving the position of Chief WAS, an employment practice which discriminated against Toscano on the basis of sex.

A. SEXUAL FAVORS AS A CONDITION OF EMPLOYMENT

A few months after his arrival in Elsmere in June of 1977, Segovia developed a pattern of increasingly unprofessional behavior. At first, Segovia made telephone calls from his home to the MAAs on duty during the evening and night shifts, ostensibly to determine if the MAAs were arriving to their posts on time, or if they needed something from him. Gradually, the calls increased. Segovia would frequently be intoxicated and make arbitrary demands that work be done. As time went on, however, these nighttime telephone calls took on a different tone as Segovia started to brag about sexual encounters he had supposedly engaged in with several female Hospital employees.

Segovia also frequently made sexual advances toward women employees under his supervision. Segovia telephoned Toscano at home and sang her a love song in Spanish. He telephoned Catherine Iorii, Chief of the Ambulatory Care Section, at home on a Sunday afternoon and propositioned her. He called Sharon Hustead, an MAA, at home and asked her to go to New York for the weekend with him. He propositioned Barbara Hines, a switchboard operator, calling her both at home and at work. During work hours, he also placed his hands on Toscano and Hines in a suggestive manner, and made suggestive remarks.

In the fall of 1978, Segovia concededly engaged in an affair with Donna Nelson, the successful applicant for the Chief WAS position. Prior to the summer of 1978, Nelson and Segovia were not well acquainted although they knew each other. During that summer, they discovered they lived in the same apartment complex when Nelson happened to walk by the swimming pool while Segovia was there. They did not then converse. The next time they met, sometime in August, it was again at the apartment complex while Nelson was walking her dog. Segovia came over and started a conversation. The conversation included his questioning her about her career goals at the Hospital.

The affair was initiated by Segovia. He ran into her one evening at the apartment complex, invited her to his apartment for drinks, and then propositioned her. Both Segovia and Nelson maintain this event did not occur until November 1978, after the selection for Chief WAS had been announced in October, 1978.

There is evidence to suggest the affair actually began before the selection, however. Prior to the selection, during night-time telephone calls to the Hospital, Segovia recounted sexual encounters with Nelson to both Toscano, and William Manley, another MAA. Additionally, Segovia's wife, in a letter written in early May 1979, stated that she had become friends with Nelson in August, 1978, which suggests Segovia and Nelson were in fact better acquainted prior to the selection than they maintained in their testimony.²

This evidence persuades me the affair did begin prior to the selection. Further, I find that Segovia awarded the position based on the receipt of sexual favors. I am not convinced by the suggestion that his interest in Nelson was strictly "personal."

Segovia demonstrated a total inability to separate his work life from "personal" matters during his tenure at the Hospital. He described himself as a life-long "womanizer", and he plainly made no attempt to expunge that aspect of his personality from his work life. As I have noted, he made telephone calls...