Yamaguchi v. U.S. Dept. of the Air Force

Decision Date01 April 1997
Docket NumberNo. 95-17266,95-17266
Citation109 F.3d 1475
Parties73 Fair Empl.Prac.Cas. (BNA) 884, 70 Empl. Prac. Dec. P 44,661, 37 Fed.R.Serv.3d 107, 97 Cal. Daily Op. Serv. 2446, 97 Daily Journal D.A.R. 4371 Shirley A. YAMAGUCHI, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, Defendant, and Sheila E. Widnall, Officially as Secretary of the Air Force, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

William Tagupa, Honolulu, HI, for plaintiff-appellant.

Major Maura T. McGowen, Honolulu, HI, for defendant-appellee.

Appeal from the United States District Court for the District of Hawai'i, Alan C. Kay, District Judge, Presiding. D.C. No. CV-04-00766-ACK.

Before: BETTY B. FLETCHER, CHARLES WIGGINS, and T. G. NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

Shirley Yamaguchi, a civilian Air Force employee, is suing her employer, the Secretary of the Air Force, under Title VII for sexual harassment and sex discrimination for failure to protect her and respond adequately to the extreme sexual harassment she suffered at the hands of a uniformed co-worker.

Yamaguchi filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging sexual harassment and sex discrimination. The EEOC found that she had been subjected to sexual harassment in her workplace but that the employer was not liable because it took adequate remedial measures. Yamaguchi then filed a complaint in district court alleging, inter alia, sexual harassment and sex discrimination and seeking equitable relief and compensatory damages. She also requested a jury trial on the damages claims.

The district court dismissed Yamaguchi's sex discrimination claim for failure to exhaust administrative remedies. The court then struck Yamaguchi's requests for compensatory damages and a jury trial on her sexual harassment claim because the court found that all of the alleged sexual harassment occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991 ("CRA"). It also denied both the defendant's and Yamaguchi's motions for partial summary judgment on the issue of the defendant's liability for Clark's (a co-worker's) sexual harassment.

We have jurisdiction under 28 U.S.C. § 1292. We must decide (1) whether Yamaguchi exhausted the administrative remedies for her sex discrimination claim; (2) whether she was entitled to compensatory damages and a jury trial for her allegations of sex discrimination and sexual harassment; and (3) whether there are material factual disputes as to whether the employer took adequate remedial measures in response to the sexual harassment. Because Yamaguchi included allegations of sex discrimination in her EEOC charge, we reverse the grant of summary judgment for the employer on the sex discrimination claim. Further, because Yamaguchi has alleged sexual harassment perpetrated after November 21, 1991, we reverse the grant of the employer's motion to strike Yamaguchi's request for compensatory damages and a jury trial. Finally, because factual issues remain for trial, we affirm the district court's refusal to grant summary judgment to the employer on the issue of its liability.

I. BACKGROUND

Shirley Yamaguchi served as a Chief of the Management Analysis and Support Division at Hickam Air Force Base in Hawaii where she was employed as a civilian employee of the United States Air Force. When she encountered problems on the base's automated system, Yamaguchi was instructed to seek support from, among others, Senior Master Sergeant Clark who provided informal, on-the-job training. Clark had no authority over Yamaguchi. In fact they both shared the same commander, Lt. Col. Charles Elliot.

In her district court complaint, Yamaguchi makes the following allegations. In December 1990, Clark began to sexually harass Yamaguchi by making inappropriate jokes and comments and sending her unwanted notes, gifts and e-mail messages. Although she repeatedly asked him to stop, Clark continued to give her inappropriate gifts and cards and stare at her during work. On one occasion, he attempted to kiss her. He made sexual gestures and remarks about her body, perfume, and clothing and about other women in the workplace (e.g., "Cheryl has a nice ass."), and even about his own wife (e.g., "my wife's nipples are perfect"). Clark began monopolizing Yamaguchi's time at work and his behavior made it very difficult for Yamaguchi to do her job.

The harassment became increasingly serious. On November 8, 1991, Clark allegedly came to Yamaguchi's apartment and told her he was having car problems and needed to use her telephone. Once inside, he allegedly tied her up, gagged her and raped her. He threatened to retaliate against her if she reported what happened.

Yamaguchi heeded Clark's warning initially and did not report the incident. She tried to avoid him altogether. However, as she came to realize that the situation was unbearable and that she was under terrible stress she contacted the EEO counselor at Hickam AFB and orally complained about Clark's conduct at work. On the same day, December 23, 1991, she spoke with the Deputy of her group about Clark's conduct. She did not report the alleged rape at that time.

The defendant contends that it adequately responded to Yamaguchi's complaint. Although Yamaguchi's immediate supervisor, was on leave at the time she originally complained, Col. Deligans, Elliot's immediate superior officer, was informed of the allegations. He ordered Clark not to have any contact with Yamaguchi except on official business. On January 7, 1992, Deligans moved Clark from the contracting center facilities where Yamaguchi worked to another building. On January 30, 1992, Clark was verbally ordered not to enter the building where Yamaguchi worked. This order was reiterated in writing on February 25, 1992 and Clark was ordered to turn over his key to the building. Pursuant to a request by Clark for early reporting to his new assignment, on April 27, 1992, Clark was reassigned to a base on the mainland.

Beginning in February 1992, Yamaguchi's work attendance became erratic due to leave for mental problems which she asserts resulted from the harassment and the attack. The absences continued until September 13, 1992. During this time, Yamaguchi submitted affidavits regarding her condition. In August, she submitted a letter from her psychologist stating that Yamaguchi was ready to return to work but only in a different location. On September 14, 1992, she returned to work in a new position in another office. Although this position was a lower grade, she retained the grade and pay of her original position.

In May 1993, Yamaguchi's work attendance once again became erratic. On May 25, 1993, she stopped reporting for work altogether and 3 days later she submitted a letter from her psychologist stating that, although Yamaguchi was able to work, she could only do so in a different department and not under Elliott's supervision.

On June 15, 1993, Yamaguchi reported that she would not be able to report for duty in any capacity at Hickam AFB. On June 15, 1993, Elliott sent her a written request for updated medical information concerning her inability to work. After no response was received, he mailed Yamaguchi a Notice of Proposed Termination for Disability and provided her 10 days from receipt of the notice to respond. Having received no response, on September 10, 1993, Col. Deligans, the deciding official, terminated Yamaguchi's employment due to her inability to perform the essential functions of her work.

On February 28, 1992, Yamaguchi received a final interview on her informal complaint with the EEO counselor. On March 19, 1992, she filed a formal individual complaint with the Air Force EEO counselor alleging hostile work environment (sexual harassment) and sex discrimination. On December 2, 1992, the Air Force EEO investigator found that Yamaguchi had established that she had been subjected to a hostile work environment but concluded that there was no actionable discrimination because management took proper remedial action.

On May 16, 1994, at an EEOC administrative hearing on Yamaguchi's sex discrimination and sexual harassment claims, the employer agreed to accept the EEO investigator's findings that Clark subjected Yamaguchi to a hostile work environment. The EEOC adopted the investigator's findings that Yamaguchi established a prima facie case of hostile work environment sexual harassment, but held that there was no actionable Title VII violation since management took corrective action and had an effective complaint procedure.

On October 5, 1994, Yamaguchi filed the current action against the Secretary of the Air Force alleging 1) sexual harassment, 2) sex discrimination, 42 U.S.C. § 2000e-2, and 3) disability discrimination, 29 U.S.C. § 791. The defendant moved for summary judgment. The district court granted partial summary judgment to the employer and dismissed the sex discrimination and disability discrimination counts because Yamaguchi failed timely to exhaust her administrative remedies on these counts. Although the district court denied the defendant's summary judgment motion on the sexual harassment claim, it granted the defendant's motion to strike Yamaguchi's request for compensatory damages and a jury trial for conduct which occurred prior to November 21, 1991. In a subsequent order, the district court concluded that, because all of the alleged harassment occurred prior to November 21, 1991, Yamaguchi's requests for compensatory damages and a jury trial should be struck entirely. A final order dismissing these claims was entered pursuant to Federal Rule of Civil Procedure 54(b). Yamaguchi timely appealed.

On appeal, Yamaguchi claims that she was entitled to a jury and to compensatory damages for sexual harassment and sex discrimination perpetrated against her after November 21, 1991. She also appeals the...

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