ML20215L171

Submits Overview of Prohibitions Against Sexual Harassment & Retaliation & Summary of NRC Obligation to Undertake Corrective Action.Info Provided in 851116 Memo Supplemented. Related Info Encl

ML20215L171
Person / Time
Issue date:	12/11/1985
From:	Aloot C NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Asselstine, Palladino, Roberts NRC COMMISSION (OCM)
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References
FOIA-86-85, FOIA-86-A-29 NUDOCS 8610280514
Download: ML20215L171 (38)

Text

I UNITED STATES g

NUCLEAR REGULATORY COMMISSION g

wasHewoTom, p. c. zones

• +,.... *.o#

December 11, 1985 i

i MEMORANDUM FOR:

Chairman Palladino Commissioner Roberts Commissioner Asselstine Commissioner Bernthal Commissioner Zech C. Sebastian AlooV)k i

FROM:

l Office of the General Ccunsel i

SUBJECT:

SEXUAL HARASSMENT, RETALIATION AND APPROPRIATE AGENCY CORRECTIVE ACTION j

In furtherance of my memorandum of November 16, 1985, I have set out below a,brief overview of the prohibitions against sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. SS 2000e set i

seq.

In addition, I have summarized the agency's obligation to undertake corrective action.

I.

SEXUAL HARASSMENT Sexual harassment (i.e., unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature) is a form of sex discrimination actionable under Title VII when that conduct influences employment 4

decisions or adversely affects an employee's ability to perform his or her job.

Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977); Tomkins v. Public Service Electric & Gas i

Co., 568 F.2d 1044 (3rd Cir.1077) ; Henson v. City of Dundee, 682 F.2d 297 (11th Cir. 1981).

See also, 29 CFR

~

1604.11 (a).

In addition, a violation of Title VII cccurs even if the harassment does not result in the loss of i

tangible job benefits by the object of the harassment where the severity of the harassment creates a hostile or offen-sive working environment.

Katz v. Dole, 704 F.2d 251, 254 (4th Cir.1983); Henson, subra at 902; Bundy v. Jackson, 641 F.2d 934, 945 (D.C. Cir. 1981).

See also, 29 CFR i

1604.11 (a) (3 ).

Finally, while some courts have expressed I

reservations, the general rule is that an employer is strictly liable for harassment by supervisors having the power to hire, fire or promote, Horn v. Duke Homes, 755 F.2d 8610280514 861021 l

PDR FOIA GARDE 86-A-29 PDR 44e

... --..=

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's 599, 604-06 (7th Cir. 1085); vinson v. Taylor, 753 F.2d 141, i

149-50 (D.C. Cir. 1985); Bundy, supra at 947; 29 CFR 1604.11(c), and will be held liable for co-employee harass-4 ment unless the employer took immediate and appropriate corrective action once it knew or should have known of the l

harassment, Barnes, supra at 993, 29 CFR 1604.11(d).

The difficult issue is what specific acts constitute sexual harassment.

As a practical matter, such determinations must be made based on the totality of the circumstances, the facts of each case, and the presence or absence of any adverse personnel action against the harassee.

See, 29 CFR 1604.11(b).

Compare, Rabidue v. Osceola Refining Co., 584 F. Supp. 419 (E.D. Mich. 1984) (vulgar language and sexual posters not sexual harassment) and Scott v. Sears & Roebuck and Co., 605 F. Supp. 1047 (N.D. Ill. 1085) (isolated indecent comments and touching not sexual harassment) with Zabkowicz v. West Bend Company, 589 F. Supp. 780 (E.D. Wis.

1984) (cexually offensive conduct and language found to be sexual harassment) and Morgan v. Hertz Corp., 542 F. Supp.

123 (W.D. Tenn.,1981) (sexually indecent comments to female employees are a form of sexual harassment).

Instead of attempting to discuss all the possible forms of harassment l

or to otherwise divine the fact pattern the Commission might confront, I have attached two decisions which, in my view, should assist the Commission in preparing for its Decem-ber 12, 1985 meeting.

In doing so, I wish to call the t

Commission's attention to the last page of the attached l

Bundy decision, where the D.C. Circuit modified the tradi-tional burdens of proof in the EEO area to impose a greater burden on an agency to justify a failure to promote where the plaintiff proves a prima facie case of sexual harass-ment.

II.

RETALIATION l

Retaliation or reprisal against a person due to his or her i

i resort to or participation in the EEO process is impermissi-l ble under Title VII of the Civil Rights Act of 1964, See 42 U.S.C.

2000e-3.

In its regulations implementing Title VII as to Federal employment, the EEOC provides that:

Complainants, their representatives, and witnesses shall be free from retraints, interference, l

coercision, discrimination, or reprisal at any stage in the presentation and processing of or complaint, including the counsel state..., or any time thereafter.

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29 CFR 6.13.261(a).

Given that retaliation is a separate and independent violation of Title VII, it is not unknown for an agency to be held liable for the retaliatory conduct of one of its managers in response to a frivibus complaint of employment discrimination.

In approaching complaints of retaliation, it is important to recognize that Title VII was not intended to change or limit an employer's management rights, Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670 (N.D. Cal. 1980); Cintron

v. Adams, 458 F. Supp. 43, 49 (D.D.C. 1978), or " protect [an employee] against unfair business decisions - only against decisions motivated by unlawful animus."

Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977).

Thus, a retaliatory motive must be shown to underlie the challenged personnel action before a violation of 29 CFR 1613.261 may be found.

As amplified in Leob v. Textron, 600 F. 2d 1003, 1012 n. 6 (1st Cir. 1980), cited with approval in Texas Dept. of Community Affairs v. Burdine, U.S.

, 67 L. Ed. 2d 27, 219 (1981):

While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination.

The employer's stated legitimate reason must be reasonably articulated and non-discriminatory, but does not have to be a reason.that the judge or jury would act on or approve.

The jury must understand that its focus is to be on the employ-er's motivation, however, and not on its business judgment.

(citation omitted).

Moreover, the filing of an administrative EEO complaint does not serve to insulate an employee from the proper exercise of management perogatives not motivated by an illegal purpose.

See, Hochstadt v. Worcester Foundation, 545 F.2d 222, 230 (1st Cir. 1976); Blizard v. Fielding, 454 F. Supp.

318, 325-26 (D. Mass. 1978).

To establish a prima facie case, the complainant need only established three elements.

First, he or she engaged in a statutorily protected activity (e.g., filed a complaint, was a witnesses in an EEO proceeding or investigation, opposed illegal discrimination by his or her employer, etc.).

Second, employer took some disadvantageous personnel or job against the complainant (e.g., demotion, termination,' '

removal of job responsibilities, changes in performance

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appraisals, etc.).

Third, a casual connection Existed between the protected activity and the personnel or job action (e.g., action occurred shortly after employer learned of protected activity).

While the burden of establishing a prima facie case is not great, it is critical that the complaint advance evidence or facts indicating that the employer knew of the protected activity at some point prior to the challenged retaliatory action.

Otherwise, there is no basis to find the necessary retaliatory motive and thus the complaint fails.

Should the complainant establish a prima facie case, the burden shifts to the supervisor to simply articulate, not prove, a legitimate, nor discrimina-tory basis for the challenged action.

Board of Trustees v.

Sweeney, 439 U.S. 24, 29 (1978).

This burden is one of production, not persuasion.

Thus, in one case before the D.C. Circuit, the court only required

" plausible" nondiscriminatory reasons.

Accordingly, in the case of an alleged retaliatory performance appraisal, it is sufficient to state that the relevant performance rating period involved different job responsibilities, different performance standards due to the complaints higher grade, or that the complainant's performance during the rating period had deteriorated.

This burden should not be difficult to satisfy.

However, it does set the stage for the third, and most difficult, step of the analysis by forcing the supervi-sor to specify the asserted basis for the challenged action.

Once the supervisor identifies the basis for his or her action, it is up to the complainant to show that the proferred reason was a mere pretext to hide a retaliatory motive.

It is at this stage that the requisite retaliatory intent or motive, if any, reveals itself.

For example, if the nondiscriminatory. basis for the challenged action was that the complainant's performance did not warrant a pro-motion, the complainant would likely probe the past pro-motion policies of the supervisor, the standards, if any, used in evaluating the complainant's potential, and whether there is any evidence that the supervisor actually con-sidered the complainants performance in arriving at the promotion decision.

If the complainant can show that the supervisor violated the agency's or his or her own proce-dures or acted in a manner inconsistent with their past history, it is likely that a retaliatory motive will be inferred.

As the above suggests, this step of the EEO analysis is generally a matter of credibility and documenta-ry evidence.

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III. MANAGEMENT RESPONSES TO EEO VIOLATIONS I

Where an agency has promptly investigated a complaint of sexual harassment and found it to be, in whole or in part, valid, it has a duty to take prompt and effective action calculated to end the harassment and to deal with the discriminating official.

Barrett v. Omohn National Bank, 584 F. Supp. 22, 30 (D. Nev. 1983), aff'd, 726 F.2d 424, 427 (8th Cir. 1984); Robson v. Eva's Super Market, Inc., 538 F.

Supp. 857 (N.D. Ohio 1982).

This rule generally applies to any violation of Title VII.

Thus, whenever a violation of Title VII is discovered, an agency has essentially three duties:

(1) provide the complainant with corrective relief, (2) ensure that the discriminating official does not repeat the offending action, and (3) ensure that the agency's policies and practices are effective in preventing similar actions in the future.

As to the complainant, the agency must, to the extent possible, provide such relief as will make the complainant whole (i.e., pyt the complainant in the same position he or 4

she would have been in had no discrimination occurred).

Thus, if the complainant had been denied a promotion due to illegal discrimination, he or she is entitled to a retroac-tive promotion together with appropriate back pay.

The complainant is also entitle to all adverse information resulting from the discrimination, including the need to resort to the EEO process, being stricken from his or her personnel records.

The only exception to this rule is if the agency can show, by clear and convincing evidence, that the complainant would not have been given a promotion even absent the discrimination.

As to the discrimination official, the agency is not required to take any specific form or level of administra-tive action.

Of course, if the conduct of the discriminat-ing official was due to a lack of training or knowledge, appropriate corrective action at the very minimum should include counseling and/or specific training in the appropri-ate personnel or EEO areas.

In addition, the need for i

punative action against the discriminating official (e.g.,

memorandum of admonishment, letter of reprimand, suspension without pay, demotion, termination or reassignment) is a made totally dependent upon the facts of the case, the motives of the official, and his or her past disciplinary history.

However, even as to cases of sexual harassment, the law does not require the agency to terminate the' dis-criminating official.

Barrett, 726 F.2d at 427.

A reading 1

4 i

6 of the case law suggests that a court will measure the agency's actions against the facts of the case and the circumstances and history of the individuals involved in determining whether the agency's corrective action against the discriminating official was reasonable and calculated to effectively remedy the Title VII violation.

Finally, because sexual harassment and retaliation are the type of Title VII violations take can easily " poison the l

air," the agency's response to the discriminating official will many times be viewed in the context of its general attempt to ensure that the agency's policies and practices effectively prevent similar actions in the future.

If, for example, an agency failed to reacted to an intentional, long-standing, or gross violation of Title VII or took only minor, transitory disciplinary action, it is possible that the agency will be found have acquienced in the original violation and implicitly adopted a policy of tolerating the discrimination.

See, Morgan, supra, at 128; Robson, supra at 862.

For these reasons, the Commission should consider any disciplinary action against a discriminating official with an eye towards the " message" its action will convey to other employees.

Attachments:

1.

Harrison v. Reed Rubber Co.

2.

Bundy v. Jackson I

e u

i HARRISON v. REED RUBBER CO.

1457 Che se em F. sapp.1487 (Ins) sion. Accordmgly, defendant cannot pre-reasonably calculated to end the harass-vail on its motion.

ment. Civil Rights Act of 12, 5 701 et seq.,42 U.S.C.A. 5 2000e et seq.

• l n'==** 5=>

2. Civil Rights *=42,43 In offensive employment environment cases under 'litle VII, courts should use normal principles of pleading and proof al-location. Civil Rights Act of 1964,5 701 et Daisy HARRISON, Plaintiff, seq., 42 U.S.C.A. I 2000e et seq.

v.

3. Civil Rights M14 REED RUBBER COMPANY, Defendant.

Rubber products manufacturer failed N'* N3)*

to take effectual action to correct offensive United States District Court, work environment which eventually forced E.D. Missouri, E.D.

female foreman, at a monetary loss, to switch departments to avoid sexual harass-Jan.10,1985.

ment from male plant supervisor, who had 7

As Amended Apr0 22,1985.

demonstrated a personal interest in fore-man, and, thus, was liable for supervisor's Former female foreman brought action metaons, where manufacturer, based on pro.

against her empipyer for sexual dancrmuna-dGay considerations, instructed supervi-tion. The District Court, Hungste, J., held sar to stay away from foreman but did not that: (1) employer failed to take effectual include directives to cease all sexual setion to preclud'e its plant supervisor from harassment, and manufacturer did not mo-sexually harassmg foreman; (2) employer nitor supervisor's behavior to ascertam failed to show legitunate,==l--iminato.

whether all harassment had ceased. Civil ry reasons for demoting foreman following Rights Act of 12, 5 701 et seq., 42 U.S.

• asr complaints about supervisor; and (3)

C.A. I 2000e et seq.

foreman was entitled to recover 8565.26 in last wagss, plus attorney fees and costs.

4. Civil Rights M Order in accordance with opmion.

Where discriminatory actions by em-See also, G08 F.Supp.1456.

ployer www established, unce,rtainty as to motree underlying employee's demotaon was resolved against employer. Civil Rights Act of 12, 5 701 et seq., 42 U.S.

1. Civil Rights e43 To prove that sexual harassment C.A. I 2000e et seq.

amounts to employment diserunsaation,

% analysis is appropriak first,

5. Master and Servant #44(3) plaintiff must make prima facie showing Evidence that female foreman for rub-that sexually harassing actaons took place, ber products manufacturer had held her sed, if this is done, employer may rebut Position for almost a year prior to her showing ather duwetly, by provmg that demotion, that her line ran smoothly, and events did not take place, or indirectly, by that she received no complaints about her showag that they were isolated or genu. performance until date of her demotion, imely trmal, second, plaintiff must show established prima facie case of illegal de-that employer knew or should have known anotaan in retahation for her complaints of harassment, and took no effectual action about plant supervisor's sexual harassment to corroet the situation, and such showing attributable to manufacturer. CivD Rights can also be rebutted by employer directly, Act-of 1964, I 701 et seq., 42 U.S.C.A.

or by pointing to prompt remedial action i 2000e et seq.

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4 1458 sea FEDERAL SUPPLEMENT

4. Master and Servant e=40(3)

Clyde E. Craig and Nancy M. Watkins, Absent showing that immediate demo. Wiley, Craig, Armbruster, Wilburn & Mills, tion for single error was ordmary in rubber St. Louis, Mo., for plaintiff.'

products manufacturer's plant, it was not Avny S. Rubin, St. Iouis, Mo., for defend.

clear that female foreman's sexual harass. ant.

ment. complaints about her male plant au-Pemsor, a 20 year employee with manufne.

MEMORANDUM ~

turer, were not in part responsible for fore-HUNGATE, District Judge.

man's demotaon, so that manufacturer failed to show, by clear and convincing Plaintiff, a former employee of defend.

evxlence, legitimate, no=-%

'-+~y rea. ant, contends in this lawsuit that she was sons for foreman's demotion. Civil Rights sexually harassed by her supervisor, Roy Act of 1964, 5 701 et seq., 42 US.C.A.

Nolkemper, while employed by defendant, and that her complaints of the harassment 9 2000e et seg.

were not effgeJively resolved. Plaintiff

7. Master and Servant e=41(1) was eventually demoted from her position as feman of the company's hydraulie Rubber psoducts manufacturer was hose line, and she claims that the demotion not liable for full 50s per hour ices suf-multed from sexual deemnmation on b fered by female foreman upon her demo-fondant's part. Plaintiff sues under 'litle tion in retaliation ihr her axual h

,42 W.S e, e seq.

ment complaints about male plant supervi-Plaintiff's claims were tried to the Court sor, since foreman was offered but refused positaon of assistant foreman at a decrease on September 4,5, and 6,1984. Both par-tim have filed +~-;-H findings of feet i

of only 25e per hour. Civil Rights Act of and conclusions of law.

1964,5 701 et seq.,42 US.C.A. I 2000e et seq.

Mndinge of Feet

8. Master and Servani Wl(1),44

1. Plaintiff, a female citizen of the Unit.

Female foreman was entitled to recoe. ed States and a resident of the State of er $291.90 in lost wages, plus attorney fees Missouri, was employed by defendant from and costa, from her employer for demotion March 19,1979, through August 23,1983.

la retahation for her sexual harassment

2. Defendant, a Missouri corporadon, is complaints about male plant supemsor, an employer engaged in an industry affect-who initiated physical contact, asked ques. ing interstate commerce. Defendant has tions about foreman's home life, and sug. had more than fifteen employees for each gested that foreman date him and divorce woriang dsy in each of twenty or more her husband. Civil Rights Act of 1964, calendar weeks is the current and preesd-9 701(b),42 US.C.A. I 2000e(b).

ing years within the mesmne of 42 US.C.

I 2000e(b).

9. Master and Servant er41(1),44 3.

Plaintiff filed a complaint of sexual Female foreman, who requested trans. harassment agamst defendant with the for to lower 9aying job to avoid male plant Equal Employment Opportumty Comans-supemsor follcwing her demotaan in retah-sion (EEOC) on April 15, 1982. She re-ation for raakmg sexual harassment com-esived a notaee of her right to sue on Feis-plaints about supemsor, was entitled to ruary 14,1983, and this action was brought recover $273.36 in lost wages, plus attor. withm amety days of the noties.

ney fees and costs, for employer's mainte-4.

Defendant manufactures and distrib.

nasce of a sexually offensive work environ-utas rubber products for industrial use.

ment-Civil Rights Act of 1964, 5 701 et There are various departments within the seq., 42 US.C.A. I 2000e et seq.

company, including hydraulic hose prodve-

., s o

HARRISON v. REED RUBBER CO.

1459 ca. ens r.sw. ust itsesi tion, v=W M5 wanhousing, and sales, ed that she could perform the work satis-The president, WDliam Reed, has been em-factorGy without him.

ployed by defendant since 1985. 'the presi-

8. Immediately upon the plaintiff's com-dent's brother, Nelson Reed, is vice presi-plaint, Wmiam Reed instructed Nolkemper dent. Ray Nolkemper has bei:n employed that plaintiff should be able to perform her by defendant in various capac' ties for mm job without his close monitoring, and that than twenty years.

such momtoring was not a good use of

5. Shortly after plaintiff began her em-Nolkemper's time. When Nolkemper stat-ployment with defendant, she was assigned ed that plaintiff still needed assistance, to work on the hydraulic home line. In William Reed suggested she might not be March of 1981, not long after Nolkemper the right person for the job.

becam plant superintendent, plaintiff k

9. After William Reed talked to him, gan tmaung h becom foreman of the Nolkemper stayed away from plaintiff for home line. She was neommnded for the several days but eventually began bother-positaon by Nolkemper and assumed the int er again.

h posation of foreman during the summer of IE On October 25, 1981, plaintiff and 1981 after.recomag the approval of WD-her s. ter accompamed Nolkemper to lunch is liam Red.

in honor of his birthday. Plaintiff testified

6. About the tispe plaintiff became fore-that she did not pay for Nolkemper's lunch.

man, Nolkemper began demonstrating a

11. By 1982, Nolkemper's persistant ef-personal interest in'her. He frequently asked her about her home life, suggested forts to engage plaintiffs affection were that he date her and that she divorce her olmous to other people at the plant. Nol-husband, stated that he would adopt her kaper becane possessaw and sought to children and provide her a home, and told said letting plaintiff speak with other her that sex need not be involnd immedi-men. Upon Nolkemper's approach to plain-ately. He also initiated physical contact, tiff, plaintiffs co workers would make such maarks as, "He coms your boyfriend."

such as placing his hand on hers, putting Plaintiff avoided him when possible and his arm around her, or tuelong her stray told him to leen her alone.

tag into her blouse. Nolkemper pinced himaalf unnecessarHy elone to plaintiff and

12. In February of 1982, plaintiff asked remained in plaintiffs work area more fre-for and was appomted an assistant fore-inan. This position was created at plain-quently than necessary. He adse repeated-ly called her away from the line, both for tiffs request. Plaintiff also complained work-related and personal reasons.'

again to William Reed about Nolkemper's

7. Plaintiff did not seek or enjoy Nol. constant presence and suggested Nolkem-hemper's attentions, and she repeatedly per's personal interest in Iwr The Court does not credit Wmiam Reed's testimony asked him to stop. Notkemper persisted in his tehavior nonetheless. Sometim in the that he was unaware of the nature of plain-fall of 1981, plaintiff approached WGliam tiffs problem with Nolkemper at this time, Reed to complain about Nolkemper. She particularly in light of the relatively amm11 testified that she did not wish to have size of the plant, the admitted openness of Nolkemper fired, and the Court finds that Notkemper's " affection," and the general plaantiff faded to communicate clearly the kamwledge at the plant of his fwlings nature of her problem with Nolkempar. about the plaintiff.

Instead, plaintiff informed William Reed, in

13. In response to plaintiffs complaint, Nelson Reed's presence, that Notkemper William Reed instructed Nolkemper that was spendmg too much time in the home Nolkemper was not to be in plaintiffs work area and infringing on plaintiffs function area for more than ten minutes in the as foreman. Plaintiff expressed her appre-morning and ten minutes in the afternoon.

ciation of Nolkemper's assistance but stat-Nolkemper did not comply with this di-

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H60 sea FEDERAL SUPPLEMENT netive but instead continued to spend crease in wages; however, plaintiff was large amounts of time in plaintiff's work offend the position of assistant foreman, area and to communicate his personal feel. which she refused, at a decrease of only ings to tha plaintiff. Nokemper told Wil. 25e per hour. Plaintiff later accepted the linan Reed that mm than ten minutes a position of assistant fonman, after having needed in order to supervise plaintiff.

fDed her complaint with the EEOC..

14. WiBism Reed was out of town dar-

18. Shugh &&mpw made no sexu.

ing the week of March 22,1982. On March al advances to plaintiff after March of 23,1982, plaintiff advised Nelson Reed of 1982, he continued to lian entact with Nolkemper's personal interest in her. Nel-her. He telephoned the plaintiff at her son Reed was already aware that Nehem-mothw's how in an effort to resoin their per spent too much time in plaintiff's work differences, and he gave her a note at work area, and he told the plaintiff he would take actaan. That same day, he spoke to saying he was her best friend. Notkemper also continued to tell the plaintiff that he Nolkemper who adnutted that thm was something to the plaintiff's charges. Nol-loved her.

hempe was then miimd of his duties as

19. In an effoft to avoid Nolkemper in plant superintendent and reinstated to the Nonsber of 1982 plaintiff asked for and eluking A fran which he had been was given a transfer to the night shift in promoted the preus ym. He suffered the vntemnmng department at 15e per hour no in wages #

, and no less than she was makmg. Nolkemper oe-one was appomtad to npisco hhn. He was, casionaHy stood in the darway and ob however, advised to stay out of the wan-sernd plaintiff work, but did not appreaeb house when plaintiff was is thm.

her. Plaintiff did not complain of this be-

15.. h iff W W M h a

o se s, nor i they a that week, although she asked for and was saluin of whethe Nokempe was refused time off for the end of the week.

I'"'I"I "I"**

Plaintiff did not come to work on Monday or Tuesday of the foBowing week due to

20. In February of 1983, plaintiff's at.

Giness.

torney advised defendant's attorney that

16. WiDiam Reed returned to the plant Nolkemper was continuing t,a subject plain-tiff to unwelcome advances and requested on March 29, 1982, and was advised by Nelson Reed of the previous week's events. that the advances be stopped. Defendant's WIDiam Reed discovered that a.large order attorney investigated the report and detae for which the plaintiff was responsibh had mmed that any incidents between plaintiff not yet been flued and found the scrap bin and Nolkemper were isolated and not een-to be quite full from previous errors, in-tinuing. The company took no action cluding the duplication of various items. agamst Nolkemper, who remained en-In plaintiff's absence, he instructed Nol-played by defendant at the time of trist unper to m to b wanbase to e

21. In April of 1983, plaintiff became il plete the order. Nokempw then reitersted and was hospitahsed for her depressen.

that it had been necessary to supervise She resigned her position m August of plaintiff closely.

1983, citing the allegedly discruninstory

17. Plaintiff had not reemved any com-condition of her employment as the resses plaints about her work prior to that time.

g, 3,;,,-

Nonetheless, when she returned to work on

22. Neither Winiam nor Nelson Reed March 31,1982, Wihm Reed caBed her in to his office and said that she was being ever told plaintiff that she would be dems&

reliend of her supervisory duties due to ed oi discharged if she did not aBow Nel-the large number of errors and scraps.

kemper to touch her, date her, or pre l

This demotion entailed a 50s per hour de-tion her.

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HARRISON v. REED RUBBER CO.

1461 Che as ese r.supyw les? (19ss)

Conclusions ofInsa mer of 1981 through plaintiff's resignation.

1. De Court has juM&m of this in 1988. He Court has further determmed esse under 42 U.S.C. I 2000e, et seq.

that plaintiffs employer knew or should

2. In Bundy m' Jackson, 641 F.2d 934 have known of the harassment by early 1982. The question whether defendant (D.C.Cir.1981), the Court held that sexual har==== ant amounts to decrmunation re-took effectual actan to correct the situs-tion is more difficult. Plaintiff does not gardag the terms or conditions of employ-ment when an employer creates or con. dispute that after her complaints,.Nolkem-1 dones a substantially diser==matary work Per stayed any from her for days at a environment, even if no tangible job bene. time. However, the harassment never fi-fits are lost thereby. His prmeiple has nally consed, and the Court finds that de-been cited with approval by the Eighth fendant's actens were not sufficiently ef-Ciremt, in agard to aDegations of racial factual to preclude liability fa. Nolkem-discrimination. Taylor a Jones, 658 F.2d per's actions. Although the Reeds in-1193,1199 (8th Cir.1981) (Court cited Bun-structed Nolkemper to stay away from dy in support of the propositaon that Etie plaintiff, their instructions were apparently VII is violated by employer's toleration of a based on iw A e ay considerations and racially dipernmaatary work atmosphere). did not include directives to cease all sexual hamasunt. Nor did the Reeds momtor II,21 3. In order to prove such a claim, a twostep analysis is appropriate. Nolkemper's behavior to ascertain whether all harassment ceased.

Consequently, Mrst, the plaintiff must make a prima P aintiff was eventually faseed to switch l

facie showmg thatW harassing ae.

tions took place, and if this is done, the departments in an effort to avoid Nolkem-employer may almt the showing either Per, at a monetary loss to herself. Rus, directly, by provmg that the events did defendant has failed to rebut plaintiff's not take place, or indirectly, by showing evidence provmg an offensive work envi.

that they were isolated or genuinely trivi. roament in violation of Title VII.

al. W the plaintiff must show that

5. The Court now addresses plaintiffs the employerlaw or should have known claim of mtaliatory demotion in March of of the harassant, and took no effectual 1982, when she was relieved of her supersi-acten to comet the situation. His sory duties shortly after again complaining simwing cans als(be mbutted by the em-about Nolkemper. In McDonnell Douglas ployer directly, ce by pointing to prompt Corp. a Green, 411 U.S. 792, 802-45, 93 medial actan reasonably calculated to S.Ct.1817,1824-26,36 I.Ed.2d 668 (11rl3),

and the harmammant.

the Supreme Court established that, to Katz a Dole, 709 F.2d 261, 256 (4th Cir. prove an employment discrimination case 1988).' In offensa environment cases, under Title VII, the burden of proof is as courts should use normal principles of foBows: first, the employee must make out P eedmg and proof aBocation. Henson a a prima facie case, then the employer must l

l l

City of Dundes, 682 F.2d 897, 906 n.11 he given the opportunity to artaculate legiti-l (11th Cir.1982).

mate, nondiseruninatory reasons fo its ac-

[3] 4.

It is virtually uncontested that tions, and finally, the plaintiff is given an plaintiff has established that sexually ha-opportumty to show that the purported le- '

rassag actaons took place from the sum-gnunate reason was pretextual.

L The Eleventh Circuit has developed a more employer kasw or should have known of the detailed, five sesp analysis. In that cdreint, a harassment and failed to take prompt resnmaal pimistiR anse show that she belongs to a pro-action. #sesse v. Gry o(Dwedse,682 F.2d 897 tected group, that she was subsect to unwelcome 903-05 (Iteh Cir.1982). Essentially, the l'arst sexual harassment. that the harassment was four eiernents of this test merely clarify the first based upon sex. that the harassment aRected a step referred so la Kme, teria or condition of employment. and that the

1462 Get FEDERAL SUPPLEMENT

[4] 6. In Bundy v. Jackson, supra, demoted her without considering the ocasi.

this analysis was modified in situations ble effect of the harassment on lar' 3.m where, as here, an employee has already formance.

proved that she was "a victun of illegal diserinunation as a matter whoUy indepen.

[7,81 9. In computing plaintiffs dam.

dont of her claim for back pay and promo. ages, the Court rejects plaintiffs conten.

tion!' Id. at 962. In such cases, the Court tion that defendant is liable for the full noted that once a prima facie case is estab. 50s-per hour loss suffered upon her demo.

hshed, "the employer then must bear the tion, since plaintiff was offered but refused burden of showag, by clear and conymeng the position of assistant foreman at only evulence, that he had legitimate and nondia. 25e per hour less. 'the Court calculates crunientary reasons for [his action]," id, at plaintiffs loss at $291.90 for the period 963, after which a plaintiff must then show from March 31 through November 22, pretextuahty. DL - '+ y actions by 1982, based on defendant's employee data the defendant having already been proved, calendar for plaintiff, 8"_-+ia-1167.6 uncertamty as to the motive underlying hours worked er paid leave. Since plaintiff plaintiffs demotion should be resolved is no longer employed by defendant, the against the defendant 4mployer.

Court need not consider plaintiffs request for reinstatement to the foreman position.

(6) 7. The Court finds that plaintiff established a prima fuie case of illegal (9) 10. When plaintiff began worlung demtmo a mtaliation for plaintiffs com. the night' shift in the vulcamsmg depart.

plaints about Nolkomper by showing that ment, she lost an additional 15e per hour.

she was a victun of a pattern of sexual N & lost an h los per harassment attributable to her employer, hour when she returned to the day shift, and that ab was demtad fran a positmo the date of her return was not suffleiently frun which she was satisfactordy perform. etablishd to award N damages.

ing and of which she had a masonable 'Ibe Court finds that plaintiff worked 683.4 explanation. Plaintiff had performed as hours before her resignation, amounting to femman for shnost a year prior to her a $273.36 loss in wages..

demoten, and the Court credits plaintiffs

11. Plaintiff is the prevailmg party and testimony that the hydraulie hose line ran is therefore entitled to attorney's fees.

smoothly and she received no complains about her performance until the date of her JUDGMENT demtion.

(41 8. 'Ibe Court finds that defendant Findmgs of fact and conclusions of law failed to show, by clear and convmems dated this day are hereby incorporated into evidence, legitimate, nondmermunatory res-and made a part of this judgment.

~

sons for demotmg plaintiff. Defendant IT IS HEREBY ORDERED, AD.

pasented endible evidence suggeting JUDCID, AND DECREED thatjudgment that one order for which plaintiff was re-k and th saw is entered in plaintiffs sponsible was poorly 1xxiled. Absent a favor and agamst defendant in the amoest showmg that immdate demotion for a sin-of $666.26, with costs and attorney's fees gle error was ordmary in defendant's plant, assessed against defendant.

1 it is not clear that plaintiffs complaints IT IS HEREBY FURTHER ORDERED, J

about her supervisor, a twenty. year em. ADJUDGED, AND DECREED that plais-i ployee with the company, were not in part tiff shau Ele a doeurnented natumt k responsible for her demotion. This is per-attorney's fus withm ten days of tlw #

ticularly tree in light of WDliam Reed's of & judgant.

' insistence that he was first aware of the harassment just days before he relieved IT IS HEREBY FURTHER ORDERED,

-the plaintiff of her position as foreman, yet ADJUDGED, AND DECREED that de-l

MATI'ER OF DEMJANJUK 1463 Cne as te F.supp. less (19sel fondant shall respond within ten days dition is sought is guilty of crime charged thereof to plaintiff's request for fees.

to be valid, judge must be authonsed to conduct extradition proceedmgs, judge must have jurmh of subject matter

=

• \\ """""M and of accused, applicable treaties must be in full force and effect, enmes for which extradition is requested must be offenses "withm the treaty," judge must determme whether party brought before it is one In the Matter of the Extradition of John named in complaint, and there must be DEMJANJUK, A.K.A. John Ivan Dem. " competent and adequate evidence" for de-Jasduk, A.K.A. John Ivan Demyanyak. cision. 18 US.C.A. I 3184.

Misc. No. M.

3. Extradition and Detainers *1W2)

United States District Court, In an extradition hearing, individual N.D. Ohio, E.D.

whose extradition is sought may not

• • I" Dec. 6' 1984' ing government's proof; individual may 7

Sgpplemental Order Dec. 11, 1984.

only present explanatory evidence. 18 US.

C.A. I 3184.

In matter of an extrachtaon for alleged

4. Extradition and Detainers *1W2) war ensnes, the, Judge, held that partaes District Court, M J.

Distinction between explanatory evi-Battisti, Chief h that an india h &

muld only address issa of wW a is sought may present in extraditaon hear-United States civihan court has subjact-adm% hhh maw junediction a extraditaon W ual may not present, is essentially the line mg when enmes aHeged occuned dunng between evadence rebutting probable cause wartime or whether only a properly consta-g g g_~

tuted mihtary tribunal has jurmh over eBeged war crunes, and what evidence was

5. Extradition and Detainers *1W2) relied upon by State of Israel to establish In an extradition hearmg, =L Lg ruimW individual was indeed the court may exclude evidence of alibi.

respondent.

Order accordagly.

4. Extradition and Detainers *1W2)

See also, D.C., 584 FSupp.1321, D.C.,

Determination of what evidence is ex-808 FSupp.1468.

planatory, and therefore admissible in ex-

~

traditaon heanng, is left to sound discretaon of extradition judge.

1. Extradition and Detainers *142)

In an extradataon heanng, district judge need not find that evidence is suffi-cient to convict individual h extrada.

Gary D. Arbetnik, Asst. US. Atty.,

tio= is sought but only whether thsee is Cleveland, Ohio, Murray R. Stein, Alvin D.

" probable cause" or " reasonable grensds" Iodish, Michael Wolfe, Bruce Emhorn, US.

to believe individual is guilty of crime Dept. of Justice, Washington, D.C., for pe-ebarged. 18 US.C.A. I 3184.

titaoner Mark O'Connor, Buffalo, NJ, J6 J.

2. Extradition and Detainers *1MI)

Gill, Cleveland, Ohio, for respondent.

For heion in extradition W ing that " probable cause" or " reasonable Steven M. Schneebaum, Patton, Boign &

grounds" to believe individual whose extra-Blow, Washington, D.C., amicus cunne.

l

- ~

t

$3d 641 FEDERAL REPORTER,2d SERIES THE BOARD'S REMEDY

[2] The Board ordered that the Compa.

Sandra G. BUNDY, Appellaat, ny pay the striking employees backpay v.

from March 17, 1975, five days after their Delbert JACKSON, Director, D.C.

unconditional offer to aturn to work. Cit.

Department of Corrections.

ing Mbreboard Paper Products Corpora-No. Nim tion," the Company argues that the back.

pay award should be tolled to the data of United States Court of Appeals, the Board's decision finding an 8(a)(5) viola-District of Columbia Circuit-Li'"-

Argued March 26, 1980.

The instant case is clearly distinguishable Decided Jan. 12, 1981.

from Mbreboard Between the Board's two deemons in Mbreboard, the NLRB estab.

lished a new policy regarding the duty to

_p,;g y

g,

,,3 bargaan over subtract % em,y com discrimination in employment. The United B

trast, them was no new pohey in case.

Indeed, e m, courfs mmand

• was Statse District Court fw the District of pr*8nised on ee Board's departum fmni b Columbia refused to grant pfaintiff any de-exata,nt pol,cy of Gneral Mc-claratory or injunctive relief, and appeal i

was taken. The Court of Appeals,J. Skelly There is a need for telling backpay Wright, Circuit Judge, held that: (1) sexual

'-i awards where there are "special factors" harassment established through claim that which make such awards unfair.8 But one conditions of employment included psycho-cannot tell from the date of a deemon of logical and emotional work environment the Board merely beesuse it is on the books and that sexually stereotyped insults and until it is reconsidered by the Board and demeaning propositions to which plaintiff modified. No opinion is "the law cf the was indisputably subjected and which case" if it is duly reconsidered or appealed caused her anxiety and debilit4 tion consti-and changed. This is not a case where the tuted sex discrimination with respect to employer has taken action in reliance on terms, conditions, or privileges of employ-any pending decimon. Someone must bear ment regardless of whether plaintiff last the burdens resulting from the employer's any tangible job benefits as a result there-illegal actions. The Board was within its of, and (2) a final disposition of claims for sound discretion in providing that the bur-back pay and promotion could not be made den of the less should fall on the employer and it was neessaary, therefore, to remand rather than on the employees.

the case to the district court to enable it to Affirmed.

conduct further evidentiary proceedings, where the district court, whether right or wrong in its factual findings, failed to allo.

cate properly the burden of proof according to principles of the equal employment pro-

,g,,,'.,,,y vision; the findings of fact and conclusions t=

of law in no way indicated that the court

~

properly defined the requirements of the plaintiff's prima facie case or the burden of the employer in rebutting a prima facie case.

Reversed and remanded.

3e. 333 N1.3tB 580 (1982).

21. NLAS v. R. J. Smsth Construerson Co.c l'8 U.S. App.D.C. 100, 114. 545 F.2d 187. 192 (1976).

'N h*

a*

BUNDY v. JACKSON 935 Cine as sel F.3d es4 (isst)

1. Civil Rights e=37 natory work environment regardless of Equal employment provision places whether complaining employee loses any name restrictions on federal and District of tangible job benefits as a result of discrimi-Columbia agencies as it does on private nation.

Civil Rights Act of 1964, employas. Civil Rights Act of 1964, il 708(aX1),717(a) as amended 42 U.S.C.A.

H 70e(aX1),717(a) as amended 42 USC.A. 65 2000e-2(aX1),2000e-16(a).,

56 2000e-2(aX1),2000e-16(a).

)

7. Civil Rights =9.14

2. Civil Eghts =L14 Sexual stereotyping 'through discrimi-Sex discrimination in employment is natory dress requirements may be benign in not limited to disparate treatment founded intent, and may offend women only in a solely or catesoncally on gender; rather, general, atmospheric manner, yet be viola-discrimination is sex discrimination whenev*

tive of equal employment provision. Civil er sex is for no legitimate reason a substan* Rights Act of 1964, il 703(aX1),717(a) as tial factor in discrimination. Civil Rights amende a USCA $$ 2000e-2(aX1),

Act of 1964,8's 703(aX1). 717(a) as amnded 2000e-16(a).

42 UAC.A. $$ 2000e-2(aXI), 2000e-16(a).

3. Civil Righte =37

& Civil Rights =9.14 An employer is liable for discriminato-Sexual harassment which injects most I

ry acts committed by supervisory personnel. demeaning sexual stereotypes into the gen-Civil Rights Act of 1964,il 708(aXI),717(a) eral work environment and which always as amended 42 U.S.C.A. (( 2000e-2(aXI),

r* Presents an mtentional insult on an mdi-2D00e-16(a).

vidual female's innermost privacy is viola-tive of the equal employment provision.

4. Civil Mghts =37 Civil Rights Act of 1964, $$ 708(aX1),717(a)

Agency 'was liable as plaintiff's employ-as amended 42 USC.A. (( 2000e-2(aX1),

er for sexual harassment committed by 2000e-16(a).

agency supervisors, even though director of agency did not use his position to harass,

9. Civil Rights =38 where director and other officials in agency Women may sue to prevent sexual j

who had some control over employment and harassment in employment without having promotion decisions had full notice of to prove that they resisted harassment or harassment committed by agency supervi-that their resistance caused them to lose nors and did virtually nothing to stop or tangible job benefits. Civil Rights Act of even investigste practace.. Civil Rights Act 1964, il 703(aX1), 717(a) as amended 42 of 1964, $$ 70S(aX1),717(a) as amended 42 USC.A. $5 2000e-2(aX1),2000e-16(a).

USC.A. (( 2000e-2(aX1),2000e-16(a).

14. Civil Rights *=9.14 8"*

Sexual harassment established through l

An employer is liable for disenmmation claim that conditions of employment includ-i m employment even tf only one employee is M

chological aM etional work avi-vietamined inasmuch as equal employment ronment and that sexually stereotyped in-Wn was intended 2 protect individu-sults and demeaning propositions to which als against clase. based prej,udice. Civil plaintiff was indisputably subjected and Rights Act of 1964, il 70$(a)(1), 717(a) as whd' causd k anxW aM Mie amaded a UACA H 2D00e4aX1),

constituted sex discrimination with respect 3Dee-Ma).

to terms, conditions, or privileges of em-

4. Civil Rights =9.14 ployment regardless of whether. plaintiff Sexual harassment amounts to discrim, lost any tangible job benefits as a result instion with respect to terms, conditions, or thereof.

Civil Rights Act of 1964, privileges of employment when employer il 70S(aX1),717(a) as amended 42 U.S.C.A.

creates or condones a substantially discrimi-il 2000e-2(aX1),2000e-16(a).

a

t.

a 936 441 FEDERAL REPORTER,2d SERIES

11. Civil Rights mes

- nism over sexual harassment complaints Back pay and reinstatement are irrele-and needed only to order the director of the vant to a discriminatory environment issue offending agency to insure that such com-P aints received thorough and effective l

in a suit under equal employment provision.

Civil Rights Act of 1964, l 706(g, k) as tnatment within the formal preeses the amended 42 U.S.C.A. 5 2000e-6(g, k).

agency had already established to comply

12. Damages e=49.10 with ee Equal Employant Opportunity CommW mgulah M Eghts Add Equitable relief to which a victonous

,il 8(aX1), 7ma) as an 42 plaintiff is entitled in a discriminatory em-M

• • X1),mie(s).

ployment case precludes any award of dam-ages for emotional harm. Civil Rights Act 18. Federal Courts==858 of 1964, f 706(g, k) as amended 42 U.S.C.A.

Given factual dispute on issue whether i 2000e-5(g, k).

plaintiff's supervisors illegally retaliated

13. Civil Rights *=38 against her refusal-of their sexual propcmi-Injunctive relief in a discriminatory tions by delaying her promotion, the Court employment case,does not become moot of Appeals was required to give great def.

simply because offending party has ceased erence to the trial court's findings, and was offending conduct but becomes moot only required to affirm the trial court's conclu-where there is no reasonable expectation sion on the question of discrimination if the that conduct will recur or interim events so-called " subsidiary facts" were not clearly have completely and irnvocably eradicated erroneous, if the infereness drawn from

, ~,

effects of allegell violation. Civil Rights them were reasonable, and if the findings Act of 1964, l 700(g, k) as amended 42 and inferences reason bly supported the ulti-j U.S.C.A. $ 2000e-5(g, k).

mate factual finding on discrirsination.

14. Civil Rights =9.14 Civil Rights Act of 1964, il 703(aXI),717(a)

The dinctor of the agency employing as amended 42 U.S.C.A. (( 2000e-2(aX1),

the individual subjected to sexual harass. 2000e-16(a).

ment should raise affirmatively the subject 17. Federal Courts =937 of sexual harnasment with all his employees A final disposition of claims for back and inform ~ all employees that sexual harassment violates the equal employment Pay and prandson M nd k made by provimon, the guidelines of the Equal Em-ee Court d Apals, and it was nemsary, eenfore, a n se cam.to district ployment Opportunity Commission, the ex-court to enable it to conduct further eviden-press orders of the mayor of the Distnet of Columbia, and the policy of the agency as tiary Proceedings, where the district court, whether nght er wrong,n its factual find-i well, should establish and publicise a ings, fa to aHocate gy & Mn scheme whereby harassed employees may d rod Ming 2 pnne@ d the equal P

complain to the director immediately and confidentially, should promptly take all nee, em#ymnt Provh the findings d fad 1

and conclusions of law in no way indicated essary steps to investigate and correct any that the court properly defined the require-haremment, including warnings and appro-priate discipline directed at the offending ments of the plaintiff's prima facie case or partn and hid prally hiop & the burden of the employer in rebutting a Prima facie case. Civu Eghts Ad d 1964, means of preventing harassment within the

$$ 703(aX1),717(a) as amended 42 U.S.C.A.

agency.

Civil Rights Act of 1964, II E*XII'

'I'

$$ 708(aX1),717(a) as amended 42 U.S.C.A.

il 2000e-2(*X1),2000e-le(s).

18. Civil Rights==44(1)

IL Civil Rights==46 A prima facie showing in an e'mploy.

The district court was not required to ment discrimination case does not !n itself establish an entire new procedural mecha-prove illegal discrimination; rather, it con-

O

(

BUNDY v. JACKSON 937 Che as sol F.be ese (Issi) stitutas proof of actions taken by employer 22. CMI Rights *=9.10 fr-en which a discriminatory animus can hre can be no absolutely preene and reasonably be inferred. Civil Rights Act of uniform time period before and after denit.1 1964, il 700(aX1), 717(a) as amended 42 of complainant's promotion during which he.

UAC.A. (( 2000e-RaX1),2000e-16(a).

must show that similarly qualified nondis-advantaged employees were promoted, but

19. CMI Rights =43 a court can certainly detertnine a reasons-Ones a prima facie showing is made in ble period on facts of a particular case.

a discriminatory employment case, burden Civil Rights Act of 1964, $5 705(aX1),717(a) shifts to employer to articulate legitimate, as amended 42 UAC.A. 55 2000e-2(aX1),

nondiseruninatory reasons for denying the 2000e-16(a).

applicant the position, and if the employer 23. CMI Rights *=43 does so, the employee must still be given a Where plaintiff, unlike a woman claim-l full and fair opportunity to prove in re-ing gender discrimination, had already

'ponse that de purpwtad legitimate mason proved that she was a victim of illegal was in fact a mere pretext for discrimina-discrimination as a matter wholly indepen-tion. Civil Rights Act of 1964, $$ 708(aX1), dent of her claim for back pay and promo-717(a) as amended 42 UAC.A. $$ 2000e-tion, plaintiff was entitled to enter the ritu-RaX1), 2000s -16(a).

al of order of proof at an advantage over med categW ne W #n i-

28. CMI Rights e=44(1) w gender discrimination which could only be m plaintiff in & discriminatory em-proved as an incident of the discriminatory ployment case must normally make a prima denial of promotion or other tangible bene-fade showing by a paponderana of the fit. Civil Rights Act of 1964, il 108(aX1),

evidence, wherens the employw's burden to 717(a) as amended 42 UAC.A. il 2000e-attaculate a legitimate, nondiscriminstwy 2(aXI), 2000e-16(a).

russon for his action is simply the burden of

24. CMI Rights =44(1) going forward with the evidence; once the Where a defendant in a discriminatory employer has submitted evidence tending to emP oyment case is proved a diserinunator l

show that he had a legitimate reason for his metaon, the burden of going forward with "

• matter independent of plaintiffs claim of d.iscriminatory demal of a tangible job the evidence shifts bacit to the plaintiff; benefit, court should ease plaintiffs burden the ultimate burden of persuasion always on that latter claim. Civil Rights Act of remains with the plaintiff. Civil Rights 1964, il 700(aX1), 717(a) as arnended 42 Act of 1964, il 708(aX1),717(a) as. amended USC.A. il 2000e-RaX1), 2000e-16(a).

42 UAC.A. Si 2000e-2(aX1), 2000e-16(a).

25. CMI Rights m=44(4)

21. CMI Rights =44(4)

To establish a prima facie case of ille-A plaintiff alleging a discriminatory gal denial of promotion in retaliation refusal to promote must make out a prima against plaintiffs refusal of sexual ad-fade case by showing that he belong to a vaness by her supervisors, plaintiff was re-protected group, that he was qualified for quired to show that she was a victim of a and apphed for a promotion, that he was pattern or practim of sexual harassment considered for and denied promotion, and attributable to her employer, and that she that other employees of simila: qualifica-applied for and was denied a promotion for tions who were not members of protected, which she was technically eligible and of group were indeed promoted at time plain-which she had a reasonable expoetation; tiffs request for promotion was denied. employer was then required to bear burden.

Civil Rights Act of 1964, il 708(aX1),717(a) of showing, by clear and convincing evi-as amended 42 UAC.A. $$ 2000e-2(aXI), dence, that he had legitimate nondiscrimi-2000e-18(a).

natory reasons for denying claimant promo-

.- o

'0 938 641 FEDERA REPORTER,2d SERIES tion, and plaintiff, in event employer sue 'Kahn, New York City, were on the brief, cessfully embutted prima facie case, was to for appellant.

he given an opportunity to prove that em-Leo N. Gorman, Asst. Corp. Counsel for P ayer's pwported reasons were mere pre-the District of Columbia, Washington, D. C.,

l text. Civil Rights Act of 1964, il 70S(aX1). with whom Judith W. Rogers, Corp. Coun-717(a) as amended 42 U.S.C.A. $$ 2000e-sel, and Richard W. Barton, Deputy Corpo-2(aX1), 2000e-16(s).

ration Counsel, Washington, D. C., were on

25. CivE Rights==44(4) the brief, for appellee. Margaret L. Hines, Where plaintiff could prove that she Asst. Corp. Counsel, Washington, D. C., also was a member of a disadvantaged group entered an appearance for appellee.

and that she had perunally suffered illegal Vella M. Fink, Atty., E. E. O. C., for discrimination through harassment itself, amicus curiae Equal Employment Opportu-plaintiff was not require:I to show as part nity Commission, urging reversal. Beatrice of her prima facie case of illegal denial of Rosenberg, Asst. Geperal Counsel, and Mar-promotion that other employees who were ilyn S. G. Urwitz, Atty., E. E. O. C., Wash-no better qualified, but who were not simi-ington, D. C., were on the brief for amicus larly disadvantaged, wm promoted at time curiae Equal Employment Opportunity she was denied promotion. Civil Rights Act Commission.

of 1964, $5 703(aXI),717(a) as amended 42 Linda F. Thome, Washington, D. C., was U.S.C.A. $$ 2000e-2(aX1),2000e-16(a).

on the brief for amicus curiae Women's

27. Civil Rights =44(4)

Idgal Defense Fund, urging reversal.

Employer, in rebutting plaintiff's pri-Before J. SKELLY WRIGHT, Chief ma facie case of illegal denial of promotion, Judge, and SWYGERT

• and ROBINSON, could show by clear and convincing evi-Circuit Judges.

dence that, despite employee's technical eli-gibility for promotion, it set qualification Opinion for the court filed by Chief criteria for promotion more stringent than Judge J. SKELLY WRIGHT.

employee could meet. Civil Rights Act of 1964, il 703(aX1), 717(a) as amended 42 J. SKELLY WRIGHT, Chief Judge:

U.S.C.A. (( 2000e-2(aX1), 2000e-16(a).

In Barnes v. Castle,561 F.2d 983 (D.C. Cir.

1977), we held that an employer who abol-

28. Civil Rights =43 ished a female employee's job to retaliate In support of its rebuttal to employee's against the employee's resistance of his sex-pruns facie case of illegal denial of promo-ual advances violated Title VII of the Civil tion, employer could show that any other Rights Act of 1964, as amended,42 U.S.C.

employees who were promoted at spproxi- $ 2000e et seg. (1976 & Supp. !!! 1979).

mately time employee was denied promo-The appellant in this case asserts some tion and who were not themselves victims claims encompassed by the Barnes decision, of pattern of sexual harassment in fact met arguing that her rejection of unsolicited those more stringent criteria. Civil Rights and offensive sexual advances from several Act of 1964, $$ 703(aX1),717(a) as amended supervisors in her agency caused thcee su-42 U.S.C.A. $f 2000e-2(a)(1), 2000e-16(a). pervisors unjustifiably to delay and block l

promotions to which she was entitled.

• Hy mpwtant, howew, appellant asks Appeal from the United States District I

'"I Court for the District of Columbia (D.C.

employer violates Title VII merely by sub.

Civil Action No. 77-1850).

ject,ng female employees to sexual harass-Barry H. Gottfried, Washington, D. C.,

rnent, even if the employee's resistance to with whom Arthur D. Chotin and Arthur that harassment does not cause the employ'-

• Of the Seventh Circutt. sitting try desagneuon pursuant to 28 U.S.C. $ 291(a) (1976).

l l

i BUNDY v. JACKSON 939 Che as sol F.ss see (Issi) er to deprive her of any tangible job bene-with the District of Columbia Department fits.

of Corrections (the agency). Bundy began The District Court in this mee made an with the agency as a GS-4 Personnel Clerk express finding of fact that in appellant's in 1970, was pmmoted to GS-5 that same agency "the making of impmper sexual ad-year, and became a GS-4 Staffing Techni -

v==a== to female employees [was] standard cian in the Personnel Departmedt in IM3.

operating pmcedure, a fact of life, a nwmal After training as a technician in employ-condition of employment," Finding of Fact ment staffing, she became a US-7 Employ.

No. 38, Appellant's Appendix (App.) 15, and ment Development Specialist (the predeces-ser classification to Vocational Rehabilita-that the director of the agency, to whom she complained of the harassment, failed to tion Specialist) in IM4, and achieved her Investigate her complaints or take them current GS-9 level in 1976, one year after seriously, id. No. 44, App.16. Neverthe-

"h' N*d h".I*'"*I ***P *I"" 'I *"*I I

less, the District Court refused to grant harassment with the agency. In recent years Bundy's chief task has been to find appellant any declaratory or injunctive re-jobs fw fwmu winunal onenden.

lief, concluding that sexual harassment does not in itself represent discrimination "with The District Court's finding that sexual respect to * *

• terms, conditions, or privi-intimidation was a " normal condition of l

emP oyment" in Bundy's agency finds am-leges of emplo of Title VII,gnent" within the.neaning P e support in the District Court's own chro-i 42 U.S.C. ( 2000e-2(a)(1)

(1M6). Further, the court denied appel-nology of Bundy's experiences there.

e lant's request for bacjc pay to compensate Those experiences began in IM2 when Bun-for the allegedly improper delay in her pm-dy, still a GS-5, received and rejected sexu-al ropositions from Delhert Jackson, then a P

motion to GS-9, and for elevation to GS-11 fellow emP oyee at the agency but now its l

and back pay for the delay in that promo-Director and the named defendant in this tion, holding that the employer had inde-pendent, legitimate reasons for delaying lawsuit in he official capacity. Findings of

- - - ~ ~ '

Fact Nos. 28-29, App.11-12. It was two and denying the '" Mns.

years later, however, that the sexual intimi-Because we believe the District Court dation Bundy suffered began to intertwine wrongly construed Title VII on the claim directly with her employment, when she for declaratory and injunctive relief and received propositions front two of her su-failed to apply the pmper burden of proof pervisors, Arthur Burton and James Gai-analysis to the promotion -claims, we re-ney.

Burton became Bundy's supervisor when i

Bundy became an Employment Develop.

I. BACKGROUND ment Specialist in 1974. Shortly thereafter l

Appellant Sandra Bundy is now, and was Gainey became her first-line supervisor and l

at the time she filed her lawsuit, a Voca-Burton her second-line supervisor, although tional Rehabilitation Speenalist, level GS-9, Burton retained control of Bundy's employ.

I. Bundy's complaint and. originally, her appeal Defendant's Exh. No.13. Appellant's Supple.

also included a claim that the agency had ille-mental Appendur (SA) 296. Before oral argu.

gally delayed her promotion to GS-9, for which mer.t. however, appeDee Distnct of Columina she was found fuuy qualified in January 1976, conceded that Gilmore had been wrong in de-until July of that year, in aueged retaliation laymg the promouon and offered Bundy back i

against her filing a discrimination complaint.

pay for the delay. The Distnct believes, how-I Aquga Gihnore, who won Ch6ef Equal Employ.

ever, that Bundy is entitled only to four, rather ment Oppostunity Officer for the agency, ad-than five, months' back pay since.'aven if Gil-mitted at trial that he delayed the promouan in. more had not delayed the promodon, normal response to Bundy's flung of her -. ^ ^

procedures would have delayed Bundy's fonnat l

Finding of Fact No. 43, AppeDant's Appendix elevation for one month after she was declared l

(App.) 17, but contended that he had done so in affloally qualified. On remand the Distnct the good faith belief that the delay was autho-Cowt can determine the proper amount of j

rtzed under District of Columbia regulations, back pay as a remedy for appellee's error here.

I o,.

F

l

'D 940 641 FEDERAL REPORTER,3d SE' RIES ment status. Id. Nos. 32-33, App.12. that Bundy's rejection of their advances did Burton began sexually harassing Bundy in not evoke in them any motive to take any June 1974; continually calling her into his actaon against her. Id. Nc 38, App.15.

offlee to request that she spend the work-The record, however, contains nothmg to f

day afternoon with him at his apartment support this view, and indeed some evidence l

and to questaon her about her sexual pro. directly belies it. For example, after Bun-elivities. Id. No. 34, App.12-13.8 Shortly dy complained to Swain, Burton began to after becoming her first-line supervisor Gai-derogate her for alleged malingering and l

ney also began making sexual advances to poor work performance, though she had not Bundy, asking her to Jom him at a motel and on a trip to the Bahamas. Id. No. 35, previously roonived any such criticism.

App.18-14. Bundy complained about these App.30. Burton also arranged a meeting advances to I4wrence Swam, who super-with Bundy and Gainey to discuss Bundy's vised both Burton and Gainey. Swain ersu-alleged abuse of leave, though he did not ally disnussed Bundy's complainta, telling pursue his charges at th.is meeting. App.

her that "any man in his right mind would M-

~~

want to rape you," id. No. 37, App.14, and Beyond these actions, Bundy's supervisors then proceeding himself to request that she at least created the impression that they begin a sexual relationship with him in his were impeding her promotion because she apartment. Id. No. 38, App.14. Bundy had offended them, and they certainly did

~.

rejected his foquest.

nothing to help her pursue her harassment We add that, although the District Court claims through established channels. Bun.

made no explicit findings as to harassenent dy became eligible for promotion to GS-9 in of other female employees,its finding that January 1975. App.178. When she con-harassment was " standard operating proce-tacted Gainey to inquire about a promotion dure" finds ample support in record evi-he referred her to Burton, who then re-dhnee that Bundy was not the only woman ferred her back to Gainey, who then told subjected to sexual intimidation by male her that because of a promotion freese he supervisors.'

could not recommend her for a promotion.

In denying Bundy any relief, the District App. 41-43. One month later, however, Court found that Bundy's supervisors did Bundy learned that the personnel office had not take the " game" of sexually proposi-indeed recommended other employees for tioning female employees " seriously," and promotion despite the freese. App. 44.

2. Burton called Bundy into his office to ask him. App. 94. Epps also testifled that she about her weekend activities and,in particular, heard Swain ask other female employees to I

whether she liked horses. When she respond-come to has apartment for drinks and saw him ed that she indeed rode horses, he sand that he pressing his body against their bodies in his had heard that women rode horses to obtain office. App. 96-97. In 1974 Epps applied to sexual rehef. He told her he had books and become an admimstrative aide. stenographer.

pictures at home to support this theory and wh6:h would have meant a promotion from suggested that she come to his apartment to GS-4 to GS-7. She testified that. although she see them. Burton specincally asked her to was qualified for the job. It went instead to come to his apartment to look at the books and pictures during the workday afternoon instead another female employee who had received of performang her job-related fleid activases.

sexual advances from Swain and who, unlike Moreover. he regested his importunings by tel.

Epps, did not know stenography. App. 100-101

• "*' ""'*i"I"8 """##

""I'**

Ann Blanchard worked for the agency ikom 1971 to 1973. supervised by James Gainey and

3. Carolyn Epps, who worked for the agency Arthur Burton Burton made sexual advances between 1937 and 1974. testifled that after she toward her and also apparently intimidated her asked her supervisor, Lawrence Swain, about by staung that another employee whom ha the possibility of a promotion he began making would not identify had told Burton that Blanch.

unsolicited physical and verbal advances to-ward her, App. 93-96. and that she received ard had been conducting a sexual relationship verbal sexual advances from supervisor Claude with one of her agency clients. App. 105-108.

Burgin after she discussed her promotion with

...m

BUNDY v. JACESON 941 Che as Get FJs sS4 (lost)

Bundy then informally consulted an Equal her alleged work deficiencies. Id. No. 40, Employment Opportunity (EEO) Of&er App.15-16. On April 23 Gainey and Bur-who was working in her office, and then ton completed a memorandum offering requested a meeting with Claude Burgin, Bundy's inadequate work performance as Swain's supervisor On February 18, 1975 the reason for denying her a promocon to Bundy met with Burton and Burgin and GS-9. Plaintiff's Exh. 2. Appellant's Sup-told the latter that Burton and Gainey had piemental Appendix (SA) 217. Bundy re-sexually harassed her and denied her a pro. sponded to this memorandum, arguing that motion h==n= she had resisted their ad. her supervisors had never presented her vances. Burgin simply responded that she with any written criticism of her perform-was denied the promotion because her work anee until she raised the harassment issue.

was unsatisfactory, and that she was free to See App. 145-148.4 pursue the matter further if she cared to.

Bundy proceeded to pursue her complaint App. 46-48. Bundy then informally com-beyond her immediate supervisors. She plained about the sexual harassment to registered an informal complaint with EEO Aquila Gilmore, the Chief EE0 Officer in Officer Philip Matthews, App. 64-66,8 and the agency. Gilmore, however, simply ad-then filed a formal complaint and supple-vised that her charges might be difficult to mental complaints with the agency. Jack-prove, and cautioned her against bringing son, having learned of the formal com-unwarranted complaints.

He never plaints, took no steps to investigate km

~.

brought the issue to the attention of Del-beyond simply asking Burten, Gainey, and bort Jackson, by then 4)irector of the agen-Swain whether they had made improper cy. App.187-190.

advances to Bundy. Finding of Fact No.

44. A p.16-17; App.125-127. Bundy was On April 11, 1975 Bundy met with Jack.

P son and showed him the draft of a letter finally promoted to GS-9 in July 1976.

summarising her complaint. Jackson then Having received " satisfactory" ratings for arranged an April 14 meeting with Burgin, her work performance, she became eligible Burton, and Bundy, Finding of Fact No. 39, for promotion to GS-11 irt July 1977, but Aw.14, but Gilmore, who had become has not yet received that promotion.

Chief of Manpower Management at the Bundy filed her complaint in the District agency, and Charles Rogers, Assistant Di-Court on August 3,1977.8 rector of Operadons, also attended the meeting. Bundy, purportedly embarrassed II. CLAIM FOR DECLARATORY AND at the unexpected presence of the latter INJUNCTIVE RELIEF two men, did not take the oppor,tunity of The District Court appeared to find that discussing her sexual harassment claims at even Bundy took a casual attitude toward this meeting, nor did Jackson or Gilmore the pattarn of unsolicited sexual advances raise the issue. Instead, the meeting fo. in the agency, Finding of Fact No. 47, App.

~

cused on Bundy's possible promotion and 17, thereby implying that these advaness by

4. The memorandum criticized Bundy for failing

5. Even after Bundy consulted Matthews. Bur.

to file proper weekly and monthly reporta. to ton apparently continued to intimidate her. ac.

serve cuents properly. and to make sunicient cusing her of faihng to honor a duty asman.

fleid vists. Plaint 6fra Exh. No. 2. SA 217.

ment. App. 146-150. which Bundy testified she Bundy responded that all her co. workers not.

had never oeen given. Plaintiffs Exh. No. 9. SA mally had difficulties filing reports because of 250.

inef5ciencies in the flung system. that R was not possible to give any better service to her S.

Since the agency took no final action on her ascensive number of chants in the 15-30 min.

complaint. and since she waked more than ISO uses eBotted for cos-heasa= with each one.

days after she filed the complasst with the and that her,.

. never provided her. agency. Bundy fully exhausted her admanistra.

mitth any express requirements or goals for the tive remedies before viL ^ ; in Destrict number of her fleid vissta. App. 61-44.

Court. 42 U.S.C. $ 2000e-16(c) (1976k Ovil Service Commission Regulations 6 713.281 Federal Personnel Manual Supp. 990-1 (1978).

s

s i

942 641 FEDERAL REPORTER,2d SERIES themselves did no harm to female employ-same, and that it refused Bundy declaratory eaa. We find little or no basis in the record ' and injunctive relief because it believed for the Duanet Court's finding or implica-that sexual harassment not leading to loss tion, =p=aally since Bundy's tastimony that or denial of tangible employment benefits the sexual harassment she endured did her for the harassed employee fell outside the sonous emotional harm, App. 40, was essen-scope of discrimination with respect to tially unrefuted. In any event, the essen- " terms, conditions, or privileges of employ-tial basis for the District Court's refusal to ment."

hold that the sexual harassment was in itself a violation of Title VII, Conclusion of Because Paulette Barnes had had her job I4w No. 5, App.18, was not tnis factual terminated after she refused her supervi-

~

finding, but the District Court's construe-

,,,,s sexual importunings, we were not re-to co m h ph e M in tion of Title VII.

g;

,, p,;y;

,g,p;

[1] The key provision of Title VII ment." Instead, our task of statutory con-rtates:

I struction in Barriss was to determine It shall be an unlawful employment prac-whether the disparate treatment Barnes

, ~

tion for an employer-suffered was " based on * *

• sex." Id.at (1) to fail or ufuse to hire or +.o die. 989. We heard arguments there that what-charge any indivklual, or otherwise to ever harm Barnes suffered was not ser u

discriminate against any individual with discrimination, since Barnes' supervisor ter-l respect to [ber] compensation, terms, con-minated her job because she had refused

~

ditions, or privileges of employment, be-sexual advances, not because she was a cause of such individisal's * *

• sex * *[.]

woman. We rejected those argumenta as disingenuous in the extreme. The supervi.

42 U.S.C. 5 2000e-Ra)(1) (1976). The spe-sor in that case made demands of Barnes cifle provision of Title VII applying to em-that he would not have made of male em-ployment with the District of Columbia, as ployees. Id. "But for her womanhood *

• well as to a federal agency as in Barnes v.

[Barnes'] partseipation in sexual activity Castle, supra, states:

would never have been solicitad. To say, All personnel actions affecting employ-then, that she was victimised in her employ-ess * *

• in those units of the Govern-ment simply because she declined the invi-

~

ment of the Distnet of Columbia having tation is to ignore the asserted fact that she positions in the competitive service * *

• was invited only because she was a woman shall be made free from any discrimina-subordinate to the inviter in the hierarchy

~

tion based on race, color, religion, sex, or of agency personnel" Id. at 990 (emphssis national origin.

added; footnotes omittad).'

Id. ( 2100e-16(a). Despite the difference in language between these two sections, we

[2] We thus made clear in Barnes that have held that Title VII places the same sex discrimination within the meaning of restnetions on federal and District of Co. Title VII is not limited to disparate trest-lumbia agencias as it does on private em-ment founded solely or categorically on players, Barnes v. CaetJe, supra,561 F.2d at gender. Rather, discrimination is ser dis-gas, and so we may construe the latter crimination whenever sex is for no legiti-provimon in terms of the former. We infer mate reason a substantial factor in the dis.

that the Distnet Court in this case did the crimination. Id. at 900 & n.50, citirag Phil-

7. We also rejected the argument that sexual ing employee have suffered the harassment ha) heresament could not be gender discrimination he or she been of a different gender

• Barnes v.

simply because a woman could also harass a Castle. S61 F.2d 983. 930 n.55 (D.C. Cir.1977).

man. or because any homosexual supervisor Only by a reductso ad absurduas could we could harass an employee of the same gender imagme a case of harassment that la not sex We noted that is each instance the quescon is discrimination-where a bisexual supervisor one of but.for causados: would the complaan.

harasses men and women alike. Id.

l 2

't >

BUNDY v. JACKSON 943 Cne aseel F.se ese (Issi) lips v. Martin Marietta Corp.,400 U.S. 542, fense. Id; see Croker v. Boeing Co. (Ver-91 S.Ct. 496, If I.Ed.2d 613 (1971); see 29 tol Div.), 437 F.Supp.1138,1194 (E.D. Pa.

C.F.R. $ 1604.4(a) (1979) ("so long as sex is 1977). Here, however, Delbert Jackson and a factor in the application of [an employer's other officials in the agency who had some el-aa], such application involves a dis-control over employment and promotion de-crimination based on sex"). Other circuits eisions had full notice of hgrassment e6m-have agreed. Torakins v. Public Service mitted by agency supervisors and did virtu-Beetne A Gas Co.,568 F.2d 1044 (3d Cir. ally nothing to stop or even investigate the 1977); Gerber v. Saxon Business Products, practice.8 See id at 1191. And though Inc., 562 F.2d 1082 (4th Cir.1977);

there was ample evidence in this esse that see Miller v. Bank of Amenes, 000 F.2d 211 (9th Cir.1979).

at least two other women in the agency suffered from this harassment, see note 3

[3-6] We thus have no difficulty infer-supra, Barnes makes clear that the employ-ring that Bundy suffered discrimination on e could k held liable even tf Bundy were the basis of sex.

Moreover, applying the only w, ant, since Congress inteM Barnes, we have no difficulty as ribing the Me to protect idWals Wnst ht-the " standard opwating pro clase. based prejudice. Barnes v. Castle, su-eedure"--to Bundy's employer, the agency. pra,561 F.2d at 998.

Although Delbert Jackson himself appears

[4] We thus readily conclude that Bun-not to havp used his position as Director to dy's employer discriminated against her on harass Bundy, an geployer is liable for the basis of sex. What remains is the novel discriminatory acts committed by supervi-question whether the sexual harassment of sory personnel, Barnes v. Castle, supra,561 the sort Bundy suffered amounted by itself l

F.2d at 908, and there is obviously no dis-to sex discrimination with respect to the pute that the men who harassed Bundy " terms, conditions, or privileges of employ-were her supervisors. Barnes did suggest ment." Though no court has as yet so held, that the employer might be relieved of lia-we believe that an affirmative answer fol-bility if the supervisor committing the lows ineluctably from numerous cases find.

harassment did so in contravention of the ing Title VII violations where an employer employer's policy and without the employ. erested or condoned a substantially discrim-er's knowledge, and if the employer moved inatory work environment, regardless of promptly and effectively to rectify the of-whether the complaining employees lost S. This case thus also satisifes the more strin-Finding of Fact No. 44. App.16. To state the gent test of employerR - _O supenor lia.

all too obvious. Jackson may have avoided all bility Judge MacKinnon advocated in has con.

investigatum precisely because he realized that currence an Barnes v. CostJe. supre note 7. 561 proof of a practice of sexual harassment would F.2d at SOS-1001: The employer. In full knowl-he a senous matter for his agency indeed. Al.

adge of the alleged offense and having received tornatively. If he in fact did consuler the whole a formal complaint, was in the best position to matter trivial, he was only compounding Bun.

correct the offenses, yet impeded the com-dy's difficuky in obtaining relief from harass.

plaint--and even abetted the offenses.

ment and thus, in a sense, compoundtng the We note in this context that the Distnct Title Vll violation.

Court's finding that Jackson, among others. did not take the harassment rttual "eartously"is a remarkable non sequitur.

9. We note that although a pattern or practice of harassment directed at a single employee Jackson never took any further steps whateo.

can violate Title Vll. casual or isolated mani!es.

ever to ascertain whether Bundy's com, tations of a discrisninatory environment, such plaints were valid, nor did he take plaintiff's as a few ethnic or racial slurs, may not raise a compinant seriously enough to sak for a copy cause of action. Carxhg v. Kansas City Chiefs of the written report of the invesugauon FoerbaN Club. Inc S$8 F.2d 87. SE (Ath Cir.

widch was conducted. This is a harther indi.

1977): Tekere v. U. S. Steel Corp.,353 F.Supp.

canos that letraasi. as had others befor, 1877,1888 (W.D. Pa.1973); see lar7 Brfwf of him. cons 6dered sexual advances by males in Teamsters v. United States. 431 U.S. 324,336 t

the ofHee to female employees as a game that n.16, 97 S.Ct.1843.1854 n.16, 52 led.2d 396 was played and not to be taken seriously (1977).

i l

l l

.(

944 e41 FEDERAL REPORTER,2d SERIES any tangible job benefits as a result of the 454 F.2d at 288. The Fifth Circuit then discrimination.

concluded that the employer had indeed vio-Bundy's claim on this score is essentially lated Title VII, Judge Goldberg explaining that " conditions of employment" include that " terms, conditions, or privileges of em-the psychological and emotional work envi-ployment" ronment-that the sexually stereotyped in-is an expansive mneept which sweeps suits and demeaning propositions to which within its protective ambit the praction of she was indisputably subjected and which creating a work environment heavily caused her anxiety and debilitation, App.

charged with ethnic or racial discrimina-40, illegally poisoned that environment.

h One can readily envision This claim invokes the Title VII principle working environments so heavily polluted enunciated by Judge Goldberg in Rogers v.

Equal Employment Opportunity Com'n,454 wia disenunination as to destmy com-F.2d 284 (5th Cir.1971), cert. denied, 406 pietely the emotional and psychological U.S. 967, 92 S.Ct. 2068, 32 led.2d 348 stability of minority group workers * * *.

(1M2). The plaintiff in Rogers, a Hispanic, Id.; accord, Carmll v. Talman Federal Sav-did not claim that her employer, a firm of ings & Loan Ass'n, God F.2d 1028,1082-1083 Opticians, had deprived her of any tangible & n.18 (7th Cir.1919), petition for cert.

Rather, she claimed that by pending(forcing female bank employees to job benefit.

giving discriminatory service to its Hispanic wear uniforms while allowing males to elients the firm created a discriminatory wear own suits violates Title VII by perpet-and offensive work environment for its His-unting demeaning sexual stereotypes; panic employees. Grantmg that the ex.

" terms and conditions of employment" press language of Title VII did not mention this situation, Judge Goldberg stated:

mean more San tangible emnpensation and benefitsh Mi v. Esases City Chiefs Congress chose neither to enumerate spe-Football Club, Inc., 568 F.2d 87 (8th Cir.

cific discriminatory practices, nor to eluci-date in extenso the parameter of such 1977) (though employee could only prove nefanous activities. Rather, it pursued isolated incidents, a pattern of offensive the path of wisdom by being unconstric, ethnic slurs would violate his Title VII tive, knowing that constant change is the rights); Firefighters Institute for Racial order of our day and that the seemingly Equality v. City of St. Louis,549 F.2d 506, reasoaable practices of the present can 514-515 (8th Cir.), cert. denied, 434 U.S.

I easily become the injustices of the mor-819,98 S.Ct. 60,54 led.2d 76 (1977) (segre-row. Time was when employment dis-gated employee eating clubs ' condoned.-

crimination tended to be viewed as a se-though not organised or regulated-by em-ries of isolated and distinguishable pioyer violate Title VII by creating discrim-events, manifesting itself, for example, in instory work environment); Gray v. Grey-an employer's practices of hiring, firing, hound Lines, East,178 U.S. App.D.C. 91,545 and promoting. But today employment F.2d 18,176 (D.C. Cir.1M6)(pattern of m-discrimination is a far more complex and cial slurs violates Title VII rights to nondis.

pervasive phenomenon, as the nuances criminatory environment); United States v.

and subtleties of discriminatory employ.

City of Buffalo,457 F.Supp. 612,681-435 ment practices are no longer confined to bread and butter issues. As wages and (W.D. N.Y,1978) (black employees entitled

. hours of ' employment take subordinate to work environment free of racial abuse and i

mies la management-labor relationships, insult); Compston v. Borden, Inr., 424 the modern employee makes ever-increas. F.Supp.157 (S.D. Ohio IM6) (demeaning ing demands in the nature of intangible religious slurs by supervisor violate Title fringe benefits. Recognizing the impor-VII); Steadman v. Nundley,421 F.Supp. 58, tance of these benefits, we should neither 57 (N.D. Ill.1976) (racial slurs may lead to l

ignore their need for protection, nor blind Title VII violation); ef. Karrington v. Vaa-ouresives to their potential misuse.

dalia-Butler Board of Edue.,586 F.2d 192, I

i f-

BUNDY v. JACESON 945 Cas se ett F.3d and (last) 194 nJ (6th Cir. IM8), omrt. denied,441 U.S.

lose tangible job benefits. Judge Goldberg 902, 90 SsCt. 2063, 60 led.2d 660 (IM9) noted that even indirect discrimination is (giving female physier] education teachers illegal beca'ame it inferior locker and shower facilities is ille.

gal dancruninstion; Title VII reaches "actu-may constitute a subtle scheme designed al working conditions" not just equal

• to create a working environment imbued portunity for employment); Waters v. Neu-with discrimination and directed uki-hiaia, Inc., 547 F.2d 466 (9th Cir.), cert.

mately at minority group dmployees. As demed, 488 U.S. 915, 97 S.Ct. 2988, 53 patendy disennunstwy pmtm becom led.2d 1100 (IM7) (white plaintiff has oudawed, thee employen bent on ptimu-standing to sue employer who discriminates int

• 8'n'ral Policy declared illegal by against blacks, since she has statutory right Congressional mandate will undoubtedly to work environment free of racial preju.

devise more sophisticated methods to per-dies); Swiat v. Pullman. Standard,589 F.2d petuate discrimination among ernployees.

7T(5th Cir.1976)(discriminatory job assign-ments violate Title VII even where no dis-454 F.2d at 239. Thus, unless we extend crimination in salary; Title VII claimant need not prove tangible economic harm)." the Barnes holding, an employer could sexu-ally harass a female employee with impuni-

[7,8] The relevance of these "discrimi-ty by carefully stopping short of firing the natory environment" casas to sexual harass-employee or taking any other tangible ac-ment is beyond serious dispute. Raesal or tions against her in response to her resist-ethnic du, erimination against a company's anee, thereby creating the impresmou-the

... ~

minority clients may refleet no intent to one received by the District Court in this discriminate directly against the company's case-that the employer did not take the minority employees, but in poisoning the ritual of harassment and resistance "seri-atmosphere of employment it violates Title ously."

VII. Sexual stereotyping through discrimi-natory dass requirements may be benign in Indeed, so bg as womn amaa.n inM intent, and may offend women only in a ors in the employment hierarchy, they may general, atmosphene manner, yet it violates have little recourse against harassment be-Title VII. Racial slurs, though intentional yond the legal recourse Bundy seeks in this and directed at individuals, may still be just case. The law inay allow a woman to prove verbal insults, yet they too may create Title that her resistanee to her her job or some ec,the harassment cost VII liability. How then esa sexual harass-onomic benefit, but s%t, which injects b most demeaning this will do her no good if the employer sexual stereotypes into' the generab work never takes such tangible actions against environment and which always represents her.

an intentional assault on an individual's in-And this, in turn, means that so long as normast privacy, not be illegal?

the sexual situation is constructed with

[9] Moreover, an important principle ar.

enough coerciveness, subtlety, sudden-ticulated in Rogers v. Eirual Eireployraent ness, or one-sidedness to negate the effee-Opportunity Com's, supra, suggests the spe-tiveness of the woman's refusal, or so eial importance of allowing women to sue to long as her refusals are simply ignored prevent sexual harassment without having while her jcb is formally undisturbed, she to prove that they resisted the harassment is not considered to have been sexually and that their resistance caused them to harassed.

le. The Equal Employment Opportuaity Com-yants an employee a working envuonment h (EEOC) kself, to whose interpretation itse of discrumnataan. Eg, EBOC Decamen -

et Thie VII we owe considerable deference.

No. 74-84. CCH EEOC Decisions

• 6480 (1975h Griggs v. Duke Power col,401 U.S. 424,433-EEOC Decision No. 72-0779. CCH EEOC Deci.

434. 91 S.CL 849, 854-455. 28 led.2d 158 sions

• 6321. 4 FEP Cases 317 (1971).

(1971) has consistently held, that the statute

1 e

• o 946 641 FEDERAL REPORTER,2d SERIES C. MacKinnon, Sexual Harassment of The employer can thus implicitly and ef.

Working Women 46-47 (1979). It may fectively make the employee's endurance of even be pointless to require the employee to sexual intimidation a " condition" of her em-prove that she "reaisted" the harassment at ployment. The woman then faces a " cruel j

all So long as the employer never literally trilemma." She can endure the harnas-forces sexual relations on the employee, ment. She can attempt to oppose it, with "remstanse" may be a meaningless alterna. little hope of sucessa, either legal or practi-tive for her. If the employer demands no cal, but with every prospect of making the i

response to his verbal or physical gestures job even less tolerable for her. Or she can l

other than good-natured tolerance, the leave her job, with little hope of legal re-1 i

woman has no means of communicating her lief 88 and the likely prospect of another job I

rejection. She neither seeepts nor rejects where she will face harassment anew.

the advances; she simply endures them.

[16-13] Bundy proved that she was the She might be able to contrive proof of victim of a practice of sexual harassment rejection by objecting to the employer's ad-and a discriminatory work environment vances in some very visible and dramatic permitted by her employer. Her rights un-way, but she would do so only at the risk of der Title VII were therefore violated. We making her life on the job even more miser-thus reverse the District Court's holding on

-. ~

able. Id. at 43-47. It hardly helps that the this issue and romand it to that court so it remote prospect of legal relief under can fashion appropriate injunctive relief.88 Barnes remains avai},ble if she objects so And on this novel issue, we think it advisa-o powerfully that she provokes the employer ble to offer the District Court guidance in into firing her.

framing its decree as II. Compare la se Carnuta Wood. Case No.

party in this suit. the Distnct Court on remand 75-E2437, New York State Dep't of Labor Un-may entertain a request for attorney's fees. 42 employment Insurance Appeals Board Deci-U.S.C. $ 2000e-S(k) (1976).

mon and Notice of Decision (March 7,1975)

(employee who claimed sexual harassment

13. Appellee has argued that an injunction is forced her to leave job was held to have re-improper and unnecenary in this case mace signed voluntartly. and thus was inehenbie for Bundy has {

M of no instances of sexu-I compensadom), with Appeals Board Decision al harassment since 1975 and ther*e is therefore No. P-B-130 (California). rewrsag Decision of no reason to think funkt brausnent wdl oc.

the Referee. Ja se Nancy J. Fillhouer, Case No.

cur. Common sense teus us that the rnen who SJ-5083. Wuliam J. Costello. Referee (San Jose harasad Bundy may won have ceased thir Referee OfRce. April 28,1975) (granting such aedons niety beaum of th W of 5

-- ;" and lawsuit. Moreover, the law teus

12. Title VII aDows the courts to award a victo.

us that a suit for injunctive relief does not rious plannuff reinstatement, back pay, or "any become moot simply because the offending other equitable relief as the court deems appro.

party has ceased the offending conduct. since priate." 42 U.S.C. l 2000e-S(g) (1976). Back the offending party might be free otherwise to pay and reinstatement are, of course, irrelevant renew that conduct once the court denied the to the discriminatory e. ;. - t issue, and relief. Anee v. Medrano. 416 U.S. 802. 810-we follow the great majority of the federal Sil. 94 S.Ct. 2191,2197-2198,40 led.2d 586 courts la construing " equitable relief" to pre-(1974). The request for indunctive relief wtll be chade any award of damages for emotional moot only where there is no reasonable expec.

harm resulting front a Title VII violation. Eg.,

tation that the conduct wdl recur. United States

.-_;. v. Vandaha. Butler Board of Educ.,

v. W. T. Grant Ca. 34S U.S. 829,13 S.Ct. 894 SAS F.2d 192 (8th Cir.1978), cert. desued. 441 97 led.2d 1303 (1963), or where interim events U.S. 232,90 S.Ct. 2053. 80 led.2d 800 (1979);

have "-=;

J, and irrevocably eradicated j

Curran v.

Portland Supenntendng School the effects of the aueged violation " County of Considesse, 435 F.Supp. 1083 1077-1078 tos Ansefes v. Davis. 440 U.S. 625, 631, 90 (D. Me.1977), Wright v. St. John's Noepital.414 S.Ct.1379.1383. 50 led.2d 642 (1979). We F.Supp.1202,1206 (D. OkL 1975): see Equal perceive no such certaanty here, most obviously.

Employneemt Opportundry Com'a v. Detrodt Ed-because Bundy's agency has taken no amtma-som Co., S15 F.2d 301,308-300 (6th Cir.1975),

tive steps to prevent recurrence of the harass-vocated and remanded. 431 U.S. 961, 97 S.Ct.

ment, and because au the harassing employees 2006, S3 led.2d 267 (1976). We add that, stin work for the agency. The issuance of ance our holding makes Bundy a prevailing Mayor's Order No. 79-89 (May 24,1979), see i

t

e *

• b V

BUNDY v. JACESON N7 Che as s48 F.as see (lest)

The Final Guelines on Sexual Harass. appropnate corrective action" when it asent in the Workplace (Guidelines) issued learns of any illegal harassment, id., but the by the Equal Employment Opportunity employer should fashion rules within its Co==i==ian on November 10,1980,46 Fed. firm or agency to ensure that such corree-Rag. 74676-74677 (1980) (to be codified at tive action never becomes -ry, id. (to B C.F.R. $ 1804.11(a)-(f)), offer a useful be codified at 2 C.F.R. 5 Itl04.11(f)).

basis for injunctive relief in this case.

Those Guidelines define sexual harassment

[14] Applying these Guidelines to the D

present case, we believe that the Director of the agency should be ordered to raise af-Unwelcome sexual advaness, requests for firmatively the subject of sexual harass-sexual favors, and other verbal or physi-emi conduct of a sexual nature constitute ment with all his employees and inform all employees that sexual harassment violates sexual harassment when (1) submission to such conduct is made either explicitly or Title VII of the Civil Rights Act of 1964, unplicitly a term or condition of an indi-the Guidelines of the EEOC, the express

.vidual's employment,(2) submission to or orders of the Mayor of the District of Co-lumbia,88and the policy of the agency itself.

rejection of such conduct by an individual a used as the basis for employment deci. The Director should also establish and pub-1,

sions affecting such indisidual. or (8) such licise a scheme whereby harassed employees may complain to the Director immediately conduct has the purpose w Q of un-and confidentially. The Director should reasonably interfering with sq individu-dy W all -='y shps to inti-

+

al's work performance or creating an in-timidatang, hostile, or offensive work en-gate and correct any harasament, including warnie and wu discipline direct-

"*"I*

ed at the offending party, and should gen-Gasdelines, supra,45 Fed. Reg. at 74677 (to erally develop other means of preventing he codified at 2 C.F.R. 51804.11(a)). The harassment within the agency.

Guidelines go on to reaffirm that an em-picyer is responsible for discriminatory acts

[15] Perhaps the most important part of of its agents and. supervisory employees the preventive remedy will be a prompt and with respect to sexual harassment just as effective procedure for hearing, adjudicat-with other forms of discrimination, regard. ing, and remedying complaints of sexual less of whether the employer authorised or harassment within the agency. Fortunate-knew or even should have known of the ly, the District Court need not establish an acts, id. (to be codified m B C.F.R. 51604.- entire new procedural mechanism for 11(d)), and also remains responsible for sex-harassment complaints. Under regulations ual harassment committed by nonsuperviso-promulgated by the Equal Employment ry employees if the employer authorised, Opportunity Commission, S C.F.R. H knew of, or should have known of such 1613.201-1613.283 (1979), the Department harassment, id. (to be codified at 29 C.F.R.

of Corrections,like all other federal and Dis-5 1804.11(d)). The general goal of these trict of Columbia agencies, is required to es.

Guidelines is preventive. An employer may tablish procedures for adjudication of com-negate liability by taking "immediate and plaints of denial of equal employment op-tout and note at note 14 Jahs. does not provide ment, requires the District's Office of Human any certaanty that the offending conduct wiB Rights to receive and adjudicate any com-not recur.

plaints of sexual harassment of District om-

14. On October 31.1975 the Mayor of the Dis-utet of M lasued Mayor's Order h Mayor's Order No.75-230. and sequsres au 75-230. prohibains employment disch agency heads to establish and implement intra. _

on the basis of sex and other improper factors agency means of investigating and adjudicating la a5 District agencies. On May 24.1979 May-canNaints d harassment. h e am a or Barry amended Order k 75-230 wkh May-useful supplement to the EEOC Guidehnes and or's Order No. 75-43. which construes Glegal a District h injunction.

sexual escrimination to include sexual harass-

- - - ~ ~ - !

e M8 641 FEDERAL REPORTER,2d SERIES portunity, whether the ground of discrimi-diction of the case so that it may review the 2

nation is race, color, religion, sex, or nation-Dimetor's plans for complying with the in-al origin. The required procedures guaran-juneten>8 tee the complainant a prompt and effective investigation, an opportunity for informal III. CLAIMS FOR BACK PAY adjustment of the discrimination, and, if AND PROMOTION necessary, a formal evidentiary hearing.

Beyond claiming that the sexual harass.

Moreover..if the complaint proves meritori-ment she suffered was illegal in itself. Bun-ous the agency may be required to take dy claims that her superneors illegally re-disciplinary action against any employee taliated against her refusal of their sexual found to have comunitted discriminatory propositions by delaying her promotion to acts. Id. i 1618.221(c). Finally, the agency GS-9 level, and that they continue to retali-amst inform any employee denied relief sta by denying her a promotaon to GS-1L within the agency of his or her right to file Bundy thus requests boek pay for the delay a civil action in the District Court. Id. In promotion to both levels, and an order i 1618.2B2.

requiring her immediate promotion to GS-Since we have held that sexual harass. IL The District Coet held against Bundy ment, even if it does not result in loss of on these claims, essentially finding that the tangible job benefite, is illegal sex discrimi-supernsors were not offended by Bundy's

~.

nation, the District Court may simply order refusal of their advaness, and benee had no the Duvetor of the agency to ensure that motive to retaliate against her, and that

..m complaints of sexual harassment receive Bundy's flawed qualifiestions and work thorough and affactive treatnwnt within performance gave them legitimate reasons the formal process the agency has alrundy for delaying and denyi'ig the prornotaons.

estabbshed to comply with the Civil Service Bundy now argues that the District Court's Co==i=ian regulations. Finally, we be. factual findings were clearly erroneous, lieve the District Court should retain juris. Fed.R.Civ.P. SRs), and notes that in a die.

i IS. We oNor the fouowing as appropriate lan.

guideunes of the Equal r ; _," Oppor.

guage for the trJunctica tunity ?

. the express orders of the The court decrees that the defendant Del.

Mayw W the thstrict of Columgw and the bort Ja<*aaa Director of the Distnct of Co-policy of the Departerwat of Corrections.

hunbia Department of Corrections, along

2. To ensure that

, _,... complaimag wtth his supervising

---;-_,s., agents, and of sexual harassment can avail themselves of au those subject to his control or acung in the full and effecuve use of the -." "-

concert with him, are enjoined froaa causing.

hearing, adjudication, and appeals proce.

'1 condoning, or permitting the dures for complaints of discrimination estab-practice of sexual harassment of female om.

Eshed by the Department of Correcuens pur.

ployees by male supervisors and M

suant to Equal Employment Opportunity

, -i w4 thin the Department to wit any unwel.

Comemasion regulauons 29 C.f".It. ll 1g13..

coew wmuel advances. ruluests for sexual 201-1313.233 (1979).

~

favora, or other verbal or physical conduct of a sexual nature when submassoon to such

3. To dmiop approprtste sancuans w conduct is explicitly or implicstly a require-discipunary nueses fw supwvisors or oth.

or used w emplW who are found to have sexuaHy reent of the individual's - ',

as a basis for any -

_, - - decision coa.

harased feale uployees. including warn-corning that indivichEl. or when such coa.

ings to the offending person and nosahaam in duct has the purpose or effect of c ---

that person's employment record for refer.

bly interfering with the individual's wortt per.

esce in the event future complaints are di.

formance or creating an intimidating or hos-rected against that person.

tile or oNeamve worts environment.

4. To develop other appropriate means of Defendant is further seguired.

Instructing

, -,_. of the Department of

1. To notify all -.,... and' supervisors the M nature d wxual haraement.

in the C- - " through individual letters Defendant shau return to this court within and perunanent posting in prominent loca.

30 days to report on the steps he has taken in tions throughout Department offices, that compEance with this order and to present his sexual harassment as expucttly defined la plans for the additional measures required by i

the previous paragraph. violates Title VII of Paragraph 4 above. The court shas retain the Ovtl Itights Act of 1934. regulatory justsdiction of this case.

I i

f s-a.-..

~~ -

o BUNDY v. JACESON gg Che as 448 F.hs ses (Issi) erimination case the appellate court may experience working with ex offenders or make an independent renew of the record disadvantaged youths before by joined to determine whether the Distnet Court the agency, and that Goff, unlike Bi ndy, was correct in finding the " ultimate fact" poussened a college degree. The District of of discriminataon or no disenmination. Columbia now supports the Distnet Court Lassy v. Mrst Regional Seevrities, Inc.,567 decision by noting that Bundy's consistent F.2d 880,836 (D.C. Cir. IM7). The parties " satisfactory" work ratings are not in presented to the Distnet Court, and present themselves a sufficient basis for pronnotion, to us now, a fairly esafusing set of facts Defendant's Exh. No.17, SA 294, and that with respect to the promotion claims. We had Bundy been promoted in January 1975 review them only very briefly.

she would have achieved the promotion Bundy becarne eligible for promotion to faster than any employee in her unit, samle GS-9 in January 1975 after 12 months as a or female, and amels earlier than seversil GS-7. She was not promoted until July saale employees, Defendant's Exh. No.14, 1M6.88 At the time she became technically SA 288. Bundy responds that there is no eligible for a promotion she was told that a basis for the District's challenges to her temporary job freese made even a recom-work performance, that-in the tastimony inendation of promotion impossible. Never-of her colleague Ann Blanchard--all em-theless, other employees in her unit were ployees in the unit had difficulty with filing 7-recommended for promotion and even pro-and other procedures, App. 107-114, and moted during the purported freese. App. that her allegedly excessive sick leave was 41-44. S$ecifically, Wdliam Hill, another a fact due to anotional stress she suffered Voestional Rehabilitation Specialist, was as a result of sexual harassment, App. 39-promoted'to GS-9 in May 1975 after 15 40.

smooths as a GS-7 and three months of As for her desired promotion to GS-11, technical eligibility, App.184, and William Bundy notas that such a promotion was Goff, who was hired as a GS-9 Vocational granted in 1977 to another employee, Curtis Rehabilitation Specialist, was promoted to Davis, whose responsibilities and perform.

GS-11 in July IM5 after 15 enonths as a anee, she argues, were similar to hers. In GS-9, App.188. Bundy citas evidenee that finding against her on this issue, the Dis-she performed the same work as these men, trict Court found that l=a==== Bundy, un-and that she performed it every bit as well like Davis, worked mostJy with socalled as they did. App. IM-108.

" regular procedure" esses rather than "spe-

' time trial court found that Bundy's work *ial procedure" esses, as definal by the was in fact deficient, and that her qualifica-Civil Service Commission, she was not eligi.

tions were inferior to those of Hill and ble for GS-11. Findings of Fact Nos.16-Goff. It found that Bundy had taken ex-11, App. 9; Conclusion of I4w No. 4, App.

enmive sick leave, failed to file required 17-reports, made insufficient field contacts, The relevant distinction between Bundy's and neglected to report her duty assign-and Davis' work is apparently that Bundy monts, Findings of Fact Nos.16-19, App. worked primarily with clients over 26 years 10, and that her supernsors had properly old and Davis solely with clients under 26.

Informed her of these deficiencies, id. No. App. 78-75. Bundy insists that the Distnet 20, App.10. It also found that Hill and Court misconstrued the Civil Sernee classi-Goff, unlike Bundy, had had considerable fications in concluding that the age of the IG. Desdy thus beteves she is entitled to heck wrongful r==panae to her flhag of a discrimiaa.

pay for the perted between January IMS and tion claim. Thus the request for back pay to Jidy IME; However, as we noted earher. see compensate for the delay in promonoa to GS-9 asse ! supra. the Dietatet has caaaad=d that anegedy due to her refusal of her supervtaars' Bundy should have been promoted at least as ersual advances really involves the 12. month l

of February IME. stoce the agency innproperty period from January 1975 to January 1976.

denied her January IM6 promotice request in I

I l

l

_ 3, g_ - - -.

-"~ ~' ' '

i

950 641 FEDERAL REPORTER,2d SERIES clients automatically and by itself deter-

[17] However, we cannot make a final mines a Vocational Rehabilitation Special - disposition of these claims, because the Dis-ist's eligibility for GS-11. She argues that trict Court, whether right or wrong in its the Civil Service Commission's notaon of factual findings, failed to allocate properly "8Pecal procedurn" cases is in fact flexible, the burden of proof according to Title VII including clients of any age who present principles. The District Court's findings of such special placement problems as illim fact and conclusions of law in no way indi.

ey or emotional disability. Smee many of her adult clients have such problems, App. este eat h e My ddiW h 19S-198, 207-208, she believes & District r*9(u* ment 8 d b P ain&s prima facie l

Court erred in entegorically prueuming that case, or the burden the employer bears in she was ineligible for GS-11.8' Although rebutting a prima facie case. McDonnell this issue may appear to be one of constru-Douglas Corp. v. Green, 411 U.S. 792, 802, ing h Civil Service classification rules, it 806, 68 S.Ct 1817,1824,1825, 36 I.Ed.2d is also a factual question of the similarity or 668 (1973); Nackley v. Roudebush,520 F.2d difference between Bundy's and Davis' re-108,157-158 (D.C._Cir.1M5). We therefore sponsibilities.

must remand the case to the District Court

[16] In a esse.of such factual dispute, to enable it to conduct further evidestiary we of course owe great deference to the proceedings in accordance with the proper trial court's findings. Indeed, we must af-allocation d burden of proof. However,

~~

firm the trial court's conclusion on the ques-adjusting the pneml burden of proof prin-ci les of McDonnell Douglas Corp. r. Green, tion of discrimination if the so called "sub-P sidiary facts" are not clear y erroneous, if supra, to unusual factual situations is a 3

the infereness drawn from them are reason-matter of some difficulty, and this sexual able, and if 'the findings and infereness harassment claim is indeed exceptionally reasonably support & " ultimate" factual unusual among Title VII cases. We there-finding on discrimination. Kinsey v. First fore shall attempt to guide the District Angional Securities, Inc., supra,567 F.2d at Court in this matter.

835-836. Nevertheless, were we to make a final disposition of. Bundy's boek pay and

[18-30] Recognizing the ' difficulty a

promotion claims, even under this highly plaintiff faces in proving the motives be-deferential standard we might be inclined hind en employer's actions, McDonnell es-to overrule the District Court. Most impor-tablished the general principle that in an tant, we would readily reject as clearly employment discrimination case under Title erroneous the District Court's findings that VII the employee must first make out a the supervisors in Bundy's agency never p,;,, f,,;,,,,,,

took the ritual of harassment seriously and that they therefore had no motive for M This may be done by showing (i) that he isting against Bundy. Findings of Fact belongs to a racial minority; (ii) that he li

• PP ed and was qualified for a job for Nos. 38, 44, App.15,16. Moreover, we would at least be inclined to question b which the employer was seeking appli-District Court's findings on Bundy's al-cants; (iii) that, despite his qualifications, legedly poor work performance, id. Nos.

he was rejected; and (iv) that, after his 16-20, App.10, since the only important rejection, the position remained open and evidence of flaws in her work was the self-the employer continued to seek applicants serving testimony of supervisors who had from persons of complainant's qualifica-themselves been her harassers.

tions. ***

17. As we noted earlier, see note 6 supra. Bundy instion suit because she did not prev 6ously re-property exhausted her admanistrouve reme-quest reclassincation with the Civil Service des ce her harassment claims. We reject the Commission, sance her classincation argument District's argumer.t that Bar.dy cannot request is an inddent of her harassment claims, an order of promouco to GS-Il in this discrun.

~

~

f BUNDY v. JACESON 951 Che as848 F.ss see (Issi) 411 US at 802,98 S.Ct. at 1824 (footnote harassment, where the alleged basis of dis-omitted). As the Supreme Court noted in a crimination is not the employee's gender later case, this prima facie shewing does not per se, but her refusal to submit to sexual in itself prove illegal duerimination. Rath-advaness which she suffered in large part er,it constitutes proof of actmas taken by because of her gender. NeDonasl1 itself, the employer from which we can reasonably however, recognises very realistically that infer a discriminatory animus, because com-the courts must adjust the definition pf a non experience tells us that such actions pruna facie case and the allocation of bur-normally have a discriminatory motive. den of proof to the differing situations that Furneo C--*

1. Corp. v. Waters, 488 may arise in Title VII cases,411 US at 802 U.S. 587, 519-580, 98 S.Ct. 2948, 2960-2962, n.14, 98 S.Ct. at 1824 n.14, and with that 57 led.2d 967 (1M8). Once the prima fa-recognition in mind we praesed to consider cie esse is made out, the burden shifts to b proper proof standards for this case.

the employer to artneulate legitimate, non-discriminatory reasons for denying the ap.

[21,22] Adjusting the McDonnell for-plicant the position. McDonnell Douglas mula to eases of discriminatory refusal to Corp. v. Green, septs,411 UA at 804,93 promote is relatively simple. Thus to make S.'Ct. at 1825. If the employer meets that out a prima facie es:e the plaintiff must burden, he has rebutted the prima facie show that she belongs to a protected group, case. But the employee must still have a that she was qualified for and applied for a

" full and fair opportunity" to prove in re-promotion, that she was considered for and

~

sponse that the purported legitimate reason denied the promotaon, and that other em-was in fact a mere pretext for discrimina-ployees of similar qualifications who were tion. Id. al 806,98 S.Ct. at 1825. Normal-not numbers of the protected group were ly, the plaintiff must make out his prima indeed promoted at the tirne the plaintiff's fade case by a preponderance of the evi-request for promotion was denied. Kanda dance. The employer's burden to articulate

v. Muhlenberg College,468 F.Supp. 294,307 a legitimate, nondiscriminatory reason for (E.D.Pa.1M8). Qualification for promotion, his action is simply the burden of going of course, may not be a strictly precue forward with the evidence. Jaarif of Trus-concept, and will depend on the rules and sees v. Sweeney, 489 U.S. 24, 90 S.Ct. 296, customs of a particular employer. Ir.the 58 led.2d 216 (1978) (per curiam); id. at present case, for example, a Vocational Re-9,99 S.Ct. at 297 (Stevens, J., dissenting). habilitation Specialist's technical eligibility Once the employer has submitted evidence for promotion to a GS-9 level never auto-tending to show that )g had a legitimate matically means promotion, nor does mere reason for his actaon, the burden.of going " satisfactory" performance in the complain-forward with the evidence shifts back to ant's c arrent job ever guarantee promotien.

the plaintiff. Under NeDonnell, the ulti. But proof of these factors certainly help.

mate burden of persuasion always remains establish a prima facie case. On the other

~

with the plaintiff.

hand, there can be no absolute precise and The liters! NcDonnell formula, of course, uniform time pened before and after the is designed for a claim of discriminatory denial of the complainant's promotion dur-refusal to hire'due to alleged racial preju-ing which plaintiffs must show that similar-dies. It does not preesely apply to a claim, ly qualified nondisadvantaged employees like Bundy's, of discriminatory refusal to were promoted. But a court can certair.ly i

promote.

Even more important, the deterraine a reasonable pened on the facts NeDonnell formula presumes the standard of a partacular case.

mitaation where the alleged discrimination is due to the bare fact of the claimant's mem-

[23].This minor adjustment in the-bership in a disadvantaged group. It thers NeDonnell formula for promotion esses fore also fails to fit with precision the very could, of course, end our analysis of the unusus,1, perhaps unique, s'ituation of sexual issue of Bundy's claims for back pay and

.,y #

l l

952 641 FEDERAL REPORTER,2d SERIES promotaon; since she is obviously a member proceedings under the proper legal standard of a protected group-women--Bundy of proof, we held that, since the employer sould go on to prove the other retuisite had already been proved a discriminator, factors. See Williams v. Bell, 587 F.2d the plaintiffs prima facie case with respect 1300,1246-1246 a.45 (D.C. Cir.1F18) (die. to the denial of promotion had in effect tum). Nevertheless, to treat Bundy's case already been made out, and that the burden as if it were equivalent to an ordinary case should immediately shift to the employer to of alleged gender discrir.iination is mani-prove that Day's qualifications were 1puch festly unfair. Unlike a woman claiming that he would not have been promoted even general gender discrimination, Bundy has if he had not been the victim of discrimina-already proved that she is a victim of illegal tion. Id. at 1085. Moreover,in.this special discrimination as a matter wholly indepen. circumstanee we held that thd burden of dont of her claim for back pay and promo-persuasion, not just the buaien of going tion. We think she should therefore enter forward with the evidence, shifted to the the ritual of order of proof at an advantage employer. And we held that the employer over the typical Title VII plaintiff who must meet his burden by clest and convine-claims categorical gender discrimination ing evidence, rather than simply by a pre-which can only be. proved as an incident of ponderance of the evidence. Id. See Bar-the discriminatory denial of promotion or ter v. Savannah Segar Refiniar Corp.,486 ohr tangible benefit.

F.2d 487, 444-445 (5th Cir.), eart. denied, 419 U.S.1088,96 S.Ct. 515,42 !aEd.2d 308

[24] We have already essentially taken (IFl4) (once ' employer is proved to have this view in an analogous case. In Day v.

discriminated against plaintiff class, he Afstbews,580 F.2d 1088 (D.C. Cir.1F16), a bears burden of presenting clear and con-black employee of the Department of vincing evidence on issue of discrimination Health, Education and Welfare had sought against individual plaintiffs). We stressed IE 9 He alleged, and HEW eonced-in Day that since the employer's own ed, that HEW officials had discriminated proved discriminatory actions arere largely i

against him on account of his race by im-responsible for the plaintiff's typical dilem-peding his rec.uest through administrative ma of having to prove the motive underly-delays and unfairly low ratings of his per-ing the employer's past action, "any result-formance.

Id. at 1084. Nevertheless, ing uncertainty (should] be resolved against i

HEW argued that Day would not have got-the party whose action gave rise to the ten the promotion even if he had not been problem." 580 F.2d at 1086 (footnote omit-the victim of discrimination; apparently tad). We thereby recognised that where a HEW believed the discrimination was a Title VII defendant is proved a discrimina-t gratuitous act by prejudiced officials and tor as a matter ind.pnder.; of the plain.

that Day was in any event not qualified for tiff's claim of discriminatory denial of a j

the promotion. In remanding h case to tangible job benefit, the court should esse the District Court for further evidentiary the plaintiff's burden on that latter claim.88

18. In Pettit v. United States. 203 Ct.C1. 207,438 We, therefore, hold that a prima facie case of i

F.2d 1023 (Ct.C1.1973), the Court of Claims failure to promote because of racial discnnd-

)

l addressed a claim analogous to Bundy's. The nation is made by showing- (i) that planatiff piniatiff. seeking rehef from an auegedly dis-belongs to a racial minenty. Oi) that he was criminatory denial of a promotion, proved as an qualined for promotion and might have ree-independent matter that superv6aors in his sonably expected selection for promotion un-agency had subjected him to a blatantly dis.

der the defendant's on-going competitive pro.

cremanatory work environment by making of-motion system. (iii) that he was not promot-fansive rectal jokes and insuks and giving him ed. and (iv) the supervisory level employees Referior work facumaan M. 203 Ct.CL 207,4gg having.,

-i to exercise judgmes.1

^"

l F.2d at 1023. le asses ing his claim for back under the promotion system betrayed in oth-l pay and promotion the court accordingly and er matters a predisposition towards disertad-appropriately modiflod the McDonnell formula nation against members of the involved mi-(

as fouows:

nortty. * *

• l i

eP.#

.Q' o

o BUNDY v. JACKSON 953 Che as441 Fad ase (IssI)

[25] We would adjust the McDonnell require the plaintiff to show that according formula to Bundy's claim as follows: To to the employer's formal rules she was eligi-estabbsh a prima facie case of illegal denial ble for promotion and that, within the con-of promotion in retaliation against the text of the employer's actual practical pat-plaintiff's refusal of sexual advaness by her tarn of promotion, she had a reasonable supervisors, the plaintiff must show (1) that expectation of the promotion she sought.

she was a victim of a pattern or practace of In rebutting the prima facie case-af the sexual harassment attributable to her em-plaintiff makes it out-the employer would pioyer (Bundy has, of course, already shown then have to show by clear and convincing this); and (2) that she applied for and was evidence that, despite the employee's tach-deeied a promotaon for which she was tech-nical eligibility for promotion, in practice it nically eligible and of which she had a rea-set qualification eriteria for promotion more sonable expectaticn. If the prima facie stringent than the employee could ' meet.

case is made out, the employer then must The employer could support his rebuttal bear,the burden of showing, by clear and case by showing that any other employees convincing evulence, that he had legitimate who were promoted at approximately the mondaseruninatory reasons for denying the time the plaintiff was denied promotion and claimant the promotion. As in McDonnell, who were not themselves victims of the if the employes =>w lly rebuts the pri-pattern of sexual harassment in fact met u

ma facie case, the claimant should still have these more stringent criteria. See note 18 the opportunity to prove that the employ-supra.

s3

• r's purpwtad reasons wm mm pretexts.

Applying these principles, we remand the 208t imPwtant dWfmace case to the District Court for further pro-between this formula and the McDonnell coedings consistent with this opinion.

formula is that we are not twquiring the So ordered.

plaintiff to show as part of her prima facie ease that other employees who were no better qualified, but who were not similarly disadvantaged, were promoted at the time she was denied a promotion. We relieve

• {'"***?551")

the plaintiff of the need to prove such facts because, as we have explained, we think her burden should be eased where she can prove not only that she is a member of'a disad-vantaged group, but also that she has per-sonally suffered illegal discrimination through the harassment itself. We simply M 303 Ct.C1. 207, 488 F.2d at 1033: acconf.

tween himself and other employees who were Depoit 7tnice Of5cers Ass's v. Youras. 446 in fact promoted-or even to prove that other F.Supp. 979.1003 (E.D.Mich.1978). The last employees were promoted at the time his own sisment in this formula is the innovation rnost request for promotaon was denied. We infer relevant to Sundy's case: the pleantiff can that in FIrttit the court intended that if any.

snake out the prima facie case in part by show.

other employees were promoted at roughly the ing escrimination independent of the back pay time the plaintiff sought promotion and if these claise bem chv6ously relevant to the quesuon of employees were distinctly better qualiasd. the the semployer's mouve in denying the plaintiff employer would have to prove these facts as pe==aeta=

But we also acte the isoportant. part of his rebuttal This issue arises in text amadam in this formula. Unlike the McDon-infra when we instruct the Distrtet Court in the aof fonsula.'this one does not require the present case on the possible elements of the plateuff to drew the relevant comparison be-agency's rebuttal ses rJo-Je I

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am hereby advised of the filed representative of my choice present during all right to have a interviews by DANA E. PRESBERRY, an EEO Complaints Investigator.

The Representative may provide advice on how to respond to any questions that may be asked by the Investigator.

(The ADO must be given an opportunity to respond to any and all alleged actions made against him/her.)

I t$ ave been furnished a copy of FPM Letter 713.42 have read and fully' understand my rights (Rights of the ado).

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