USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 93-1823
SALLY KLESSENS,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
____________________
ERRATA SHEET
In response to the appellant's petition for rehearing in No.
93-1823, we delete the reference to Mark Persson on p.4, l.13 of
the opinion. The sentence as modified should read: "John
Russell denied the remarks attributed to him by plaintiff."
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 93-1823
SALLY KLESSENS,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. T. Dupree, Jr.,* U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Bownes, Senior Circuit Judge. ____________________
____________________
William J. Royal, Jr. for appellant. _____________________
Thomas E. Kanwit, Assistant United States Attorney, with __________________
whom Donald K. Stern, United States Attorney, was on brief for _______________
appellee.
____________________
____________________
_________________________
*Of the Eastern District of North Carolina, sitting by
designation.
BOWNES, Senior Circuit Judge. Plaintiff-appellant BOWNES, Senior Circuit Judge. ____________________
Sally W. Klessens appeals from a judgment by the district
court denying her claims of sexual harassment and retaliatory
discharge brought pursuant to Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. 2000e-16, et seq. She __ ___
initially attempted to raise a wrongful termination claim.
After defendant moved to dismiss for lack of subject matter
jurisdiction, the complaint was construed by the district
court as stating Title VII claims for sexual harassment and
retaliatory discharge.
There are two main issues on appeal: (1) Whether
the district court applied the wrong legal standard in
finding that plaintiff was not subjected to a hostile and
abusive workplace environment and therefore erred in denying
plaintiff's sexual harassment claim; (2) Whether the
district court's finding that plaintiff's discharge was not
retaliatory was clearly erroneous.
We have reviewed the record for clearly erroneous
findings of fact and erroneous rulings of law by the district
court. We find it appropriate to discuss each issue
separately.
The Sexual Harassment Claim The Sexual Harassment Claim ___________________________
Plaintiff's evidence can be summarized as follows.
She began work for the Postal Service on January 19, 1988, as
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a mail handler. Her immediate supervisor was John Russell.
A very short time after starting work, a coworker, William
Russell, not related to her supervisor, began making sexually
explicit remarks to her about her body. Russell persisted in
asking for a date despite the fact that his advances were
emphatically rebuffed. Russell made explicitly sexual
comments to plaintiff, one being, "If I don't get laid I'm
going to take hostages." Because of Russell's conduct
towards her, plaintiff made it a practice to eat her lunch in
her car. At least four times Russell joined her without an
invitation by plaintiff. She finally told him he was not
wanted and he stopped lunching with her.
Other personnel, only one of whom (Mark Spillane)
plaintiff could name, also made sexually lewd statements to
her. The most frequent remark was "nice piece of ass."
Spillane said to plaintiff that she had "small tits," and "go
fuck yourself." He also recounted to her at length his own
sexual exploits.
Shortly after starting work, plaintiff complained
to her supervisor, John Russell, about William Russell's
conduct. According to plaintiff, John Russell showed no
sympathy and made jokes in the presence of her and William
Russell about "getting laid." These jokes were accompanied
by nudges to William Russell. John Russell also put his arm
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around plaintiff repeatedly. He claimed to view this in the
same way as shaking a person's hand.
Plaintiff then reported her harassment to John
Russell's supervisor, Mark Persson. According to plaintiff,
Persson did not say that he would do anything. Instead, he
told her, "OK, Bill [Russell] has done this before, he wrote
a letter to another female that worked there, saying that he
wanted to slip his tongue so far up her ass . . . ."
Most of this evidence came from plaintiff's trial
testimony, and from the EEOC hearing transcript which was
admitted as evidence at the trial.
There was evidence that tended to contradict and
undercut plaintiff's evidence. John Russell denied the
remarks attributed to them by plaintiff. According to the
defendant Postal Service, as soon as it became aware of
plaintiff's complaints about William Russell, it took steps
to investigate the problem. After the investigation, it
offered plaintiff a transfer that would take her away from
Russell. Plaintiff declined the transfer when it was
offered, but later in the summer of 1988, she agreed to a
transfer. The Postal Service also ultimately transferred
Russell to another post office.
Prior to the transfers, Russell and plaintiff
regularly sat together in plaintiff's car during shift breaks
when the weather became warm in April or May of 1988.
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Plaintiff had coffee with Russell at least once after work.
On one occasion, she and Russell were together in her car for
several hours after work, having a discussion that extended
into the early hours of the morning. Defendant stresses that
no formal complaints about William Russell were made until
after plaintiff was ordered to undergo a fitness for duty
examination following her complaint about a workplace back
injury.
Both sides agree that, until her back injury,
plaintiff performed her work in an exemplary fashion. This
was attested to in her evaluations by Mark Persson and John
Russell.
The District Court Opinion The District Court Opinion __________________________
The court purportedly followed the teachings of
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), in _____________________ ______
deciding plaintiff's sexual harassment claim. It started
with the rule that sexual harassment of an employee which
creates a hostile working environment violates Title VII.
The court ruled that in order to prove a hostile environment
claim, a plaintiff must prove four things: (1) membership in
a protected class; (2) unwelcome sexual harassment; (3) the
harassment was based on sex; "and (4) the charged sexual
harassment had the effect of unreasonably interfering with
the plaintiff's work performance and creating an
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intimidating, hostile, or offensive working environment that
affected seriously the psychological well-being of the
plaintiff."
The court found that plaintiff was unable to prove
the fourth element. Prefatory to its specific findings, the
court ruled that in order for sexual harassment to be
actionable under Title VII, the conduct had to be so severe
or pervasive as to alter the condition of the plaintiff's
employment and create an abusive working environment. It
further ruled:
Furthermore, a court must find both that
a reasonable employee's psychological
status and work performance would have
been seriously undermined by the
defendant's conduct and that the
plaintiff was actually offended by the
conduct as well as injured in some way by
the hostile environment.
The court cited to Rabidue v. Osceola Refining Co., 805 F.2d _______ ____________________
611, 620 (6th Cir. 1986), for this proposition.
The court found that plaintiff's proof failed to
meet the standard set forth. It found that the evidence
presented at trial "did not point to the sort of offensive or
abusive environment contemplated by the Supreme Court in
Meritor Savings Bank." The court was influenced by the fact _____________________
that "not only was plaintiff able to do her job . . . but was
given positive performance evaluations during this period."
The court also pointed out that plaintiff let William Russell
sit with her in his car on several occasions and at least
-6- 6
once she "conversed with him in her car after work." The
court found that this conduct, while not evidence that
plaintiff welcomed Russell's advances, "cast doubt on her
claim that she was subjected to an intolerable work
environment by his conduct." The court concluded that
"Russell's conduct -- while deplorable -- did not amount to a
hostile or offensive work environment within the meaning of
Title VII." The court noted that plaintiff testified that
she had never been fondled or touched in a sexual manner by
Russell or any other co-worker. In a footnote, the court
held that the remarks of Mark Spillane were "isolated" and
"also fail to show a hostile abusive work environment."
The court noted the conflict in testimony between
plaintiff and John Russell. It pointed out that Russell
acknowledged that off-color language was used occasionally in
the workplace, and testified that on one occasion plaintiff
stated to John Russell she would "cut [his] balls off and
nail them to the wall." The court found that it could not
say that plaintiff's testimony was more credible than that of
John Russell.
The district court's opinion issued on April 23,
1993. As far as we can determine, it was not published. On
November 9, 1993, the Supreme Court decided Harris v. ______
Forklift Systems, Inc., 114 S. Ct. 367 (1993). Certiorari _______________________
was granted in Harris, ______
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to resolve a conflict among the Circuits
on whether conduct, to be actionable as
"abusive work environment" harassment (no
quid pro quo harassment issue is present _____________
here), must "seriously" affect [an
employee's] psychological well-being" or
lead the plaintiff to "suffe[r] injury."
The Court noted that, in focusing on the employee's
psychological well-being, the district court was following
Rabidue v. Osceola Refining Co., 805 F.2d 611. Harris, 114 _______ _____________________ ______
S. Ct. at 370. The district court here also relied on
Rabidue in formulating its fourth element of proof. See _______ ___
supra at 6. _____
The Court held that the standard which it was
reaffirming
takes a middle path between making
actionable any conduct that is merely
offensive and requiring the conduct to
cause a tangible psychological injury.
As we pointed out in Meritor, "mere _______
utterance of an ... epithet which
engenders offensive feelings in a
employee," ibid (internal quotation marks ____
omitted) does not sufficiently affect the
conditions of employment to implicate
Title VII. Conduct that is not severe or
pervasive enough to create an objectively
hostile or abusive work environment an
environment that a reasonable person
would find hostile or abusive is beyond
Title VII's purview. Likewise, if the
victim does not subjectively perceive the
environment to be abusive, the conduct
has not actually altered the conditions
of the victim's employment, and there is
no Title VII violation.
Id. at 370. ___
The Court went on:
-8- 8
But Title VII comes into play before
the harassing conduct leads to a nervous
breakdown. A discriminatorily abusive
work environment, even one that does not
seriously affect employees' psychological
well-being, can and often will detract
from employees' job performance,
discourage employees from remaining on
the job, or keep them from advancing in
their careers. Moreover, even without
regard to these tangible effects, the
very fact that the discriminatory conduct
was so severe or pervasive that it
created a work environment abusive to
employees because of their race, gender,
religion, or national origin offends
Title VII's broad rule of workplace
equality.
Id. at 370-71. ___
The Court further stated:
We therefore believe the District
Court erred in relying on whether the
conduct "seriously affect[ed] plaintiff's
psychological well-being" or led her to
"suffe[r] injury." Such an inquiry may
needlessly focus the factfinder's
attention on concrete psychological harm,
an element Title VII does not require.
Certainly Title VII bars conduct that
would seriously affect a reasonable
person's psychological well-being, but
the statute is not limited to such
conduct. So long as the environment
would reasonably be perceived, and is
perceived, as hostile or abusive,
Meritor, supra, 477 U.S., at 67, 106 _______ _____
S.Ct. at 2405, there is no need for it
also to be psychologically injurious.
The Court concluded by pointing out that,
whether an environment is "hostile" or
"abusive" can be determined only by
looking at all the circumstances. These
may include the frequency of the
discriminatory conduct; its severity;
whether it is physically threatening or
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humiliating, or a mere offensive
utterance; and whether it unreasonably
interferes with an employee's work
performance. The effect on the
employee's psychological well-being is,
of course, relevant to determining
whether the plaintiff actually found the
environment abusive. But while
psychological harm, like any other
relevant factor, may be taken into
account, no single factor is required.
Id. at 371. ___
Harris prompted a motion by plaintiff for relief ______
from judgment under Fed. R. Civ. P. 60(b). Plaintiff's
motion argued that the district court applied a different
standard than that mandated by Harris in determining whether ______
plaintiff was subjected to an abusive work environment
arising from sexual harassment. The court, in reply to the
motion, stated that it had considered "all of the
circumstances," and that its decision was in line with
Harris. It held: ______
Correctly read, therefore, the court's
memorandum of decision, far from being
based solely on the lack of evidence
showing plaintiff's severe psychological
injury, was in fact based on a
consideration of all the circumstances
which led the court to conclude that
plaintiff had failed to prove her claim
of sexual harassment by a preponderance
of the evidence as she was required to
do. The court continues to adhere to
that conclusion.
Although hindsight revamping of an opinion is unusual, it is
not without precedential support. See Aoude v. Mobil Oil ___ _____ __________
Corp., 862 F.2d 890, 895 (1st Cir. 1988). _____
-10- 10
The court, however, did not rely solely on its
reinterpretation of its own opinion in light of Harris to ______
deny plaintiff's motion. It also stated another reason for
finding against the defendant on the issue of sexual
harassment. Because the court found it unnecessary to do so
in its original opinion, it specifically refrained from
deciding whether the Postal Service knew or should have known
of the alleged sexual harassment and failed to take prompt
action to stop it. There can be no doubt that this is one of
the elements of plaintiff's proof in a hostile environment
sexual harassment claim. See Lipsett v. University of Puerto ___ _______ ____________________
Rico, 864 F.2d 881, 895-98 (1st Cir. 1988). ____
In its opinion denying plaintiff's motion for
relief from judgment, the court found
that as soon as the alleged sexual
harassment was brought to the attention
of defendant's management with authority
to take corrective action the offending
employee, William Russell, was promptly
transferred to another of defendant's
facilities.
The sexual harassment issue is close, but the last
finding of the district court, which has a solid evidentiary
foundation, is insurmountable. It was not clearly erroneous.
We, therefore, affirm the district court on the sexual
harassment claim.
The Retaliatory Discharge Claim The Retaliatory Discharge Claim _______________________________
-11- 11
Plaintiff claims she was discharged because of her
complaints of sexual harassment. Unlike the sexual
harassment claim, this is not a close issue. Plaintiff gave
false answers to certain questions asked on the forms she
filled out in applying for work with the Postal Service.
There was evidence from which it could reasonably be found
that plaintiff's sexual harassment claim was not implicated
in the Postal Service's decision to discharge plaintiff.
Plaintiff was required to fill out a pre-employment
certificate of medical examination form (PS Form 2485) in
order to work for the Postal Service. Question number 4
asked, "Have you Ever Been Treated for Any Medical Condition
Other Than Minor Illness, or had Any Operations?" Plaintiff
answered "Yes" to this question and wrote in: "Tosilectomy
[sic] 1960." Question 20 on PS Form 2485 asked, "Do you Now
or Have you Ever Had Any of the Following Conditions,"
including Condition number 43, "Back Injury or Abnormality."
Plaintiff put a cross in the "No" column, as she did for all
of the other listed conditions.
Plaintiff also had to answer questions on a form
entitled, "TEST OF STRENGTH AND STAMINA" (PS Form 2481).
Four questions were asked on this form:
1. DO YOU HAVE HEART TROUBLE?
2. DO YOU HAVE A HERNIA OR RUPTURE?
3. HAVE YOU HAD ANY TROUBLE WITH YOUR BACK?
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4. IS THERE ANY OTHER REASON THAT YOU
SHOULD NOT REPEATEDLY LIFT 70 POUNDS?
Plaintiff answered "No" to all four questions.
The evidence disclosed that plaintiff was in three
automobile accidents prior to going to work with the Postal
Service, and that each of the accidents caused injury to
plaintiff's back and neck. There was further evidence that
plaintiff suffered back pain in April and October of 1987,
and that she had thirteen weeks of physical therapy treatment
for her back during the two years before her employment by
the Postal Service. There also was evidence establishing
that plaintiff was fully aware of her back problems at the
time she filled out the two Postal Service forms.
Plaintiff began working as a mail handler on
January 19, 1988. This required the regular and repeated
lifting of seventy pound mail bags. On July 31, 1988,
plaintiff requested that she be put on light duty work
because her back was bothering her. Several days later
plaintiff's supervisor learned that she claimed that her back
injury was caused by her work as a mail handler. He ordered
her to fill out an Injury on Duty (IOD) form immediately.
This form should have been completed and filed when plaintiff
first claimed she was injured at work. After the Postal
Service received the completed IOD form, it told plaintiff to
obtain clearance from her doctor that she could return to
work. Plaintiff submitted letters from her health care
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insurer, Harvard Community Health Plan, which disclosed a
pre-existing recurring back problem.
Plaintiff was subsequently ordered to submit to a
fitness-for-duty examination. An examination was given
plaintiff by Dr. James Ryan on August 17, 1988. He concluded
that she had a pre-existing back problem which she had failed
to disclose on her Postal Service employment application
forms.
Plaintiff was notified in September 1988 that she
would be terminated, effective October 1, 1988, for giving
false answers to questions on her employment application
forms. The termination action was initiated by her
supervisor in her new work location, Jeremiah Farren. Farren
testified that he was unaware of any sexual harassment
complaints by plaintiff when he decided to recommend her
termination. There also was evidence showing that the Postal
Service neither knew nor had any reason to know of
plaintiff's claims of sexual harassment by a Postal Service
employee other than William Russell prior to the time that
plaintiff was ordered to take a fitness-for-duty physical
examination. There was evidence establishing that other
postal employees had been discharged for giving false answers
to questions asked on Postal Service employment application
forms.
-14- 14
The district court applied the correct legal test
in its analysis of the retaliatory discharge claim. It found
that plaintiff had made out a prima facie case for
retaliatory discharge. After considering the facts in
detail, the court ultimately found that plaintiff had failed
to meet her burden of showing that the Postal Service's
stated reasons for her discharge were pretextual.
We have considered carefully the evidence and
arguments of plaintiff, and do not find them sufficient to
overcome the clearly erroneous barrier. Plaintiff relies
heavily on the affidavit of Michaela Norton. Norton was
employed by the Postal Service as a physician's assistant
during the time plaintiff worked as a mail handler. Norton
interviewed plaintiff in connection with plaintiff's pre-
employment medical examination and assessment. Paragraphs
four and five of the Norton affidavit state:
4. I am certain that if Ms.
Klessens had indicated to me that she had
ever experienced any recurrent back pain,
any particular back injury or that she
underwent physical therapy for her back,
I would have made a notation of this on
the PS Form 2485.
5. Unless Ms. Klessens volunteered
such information, I would have had no way
of knowing of [sic] that she had a back
condition or that she had back trouble
previously. The only information she
provided on the Form 2485 was that her
back had been x-rayed after a motor
vehicle accident. She told me, according
to my notes, that the x-rays showed she
had no problems. I therefore had no
-15- 15
reason to suspect any back injury or
condition.
These statements reinforce defendant's assertion that
plaintiff knowingly withheld information during the
application process.
Contrary to plaintiff's assertion, there was
evidence from which it could be reasonably found that the
Postal Service was not aware of plaintiff's back injury
history until Dr. Ryan's report. Plaintiff's basic
contention is that the district court clearly erred in
finding that she failed to prove the Postal Service's stated
reason for discharging her was pretextual.
Our review of the record convinces us that this
finding was not clearly erroneous. Indeed, we think it
clearly correct.
Affirmed. Affirmed. _________
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