F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 6 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
JANET DAVIS, named as “aka
Confidential Informant #59”,
Plaintiff - Appellant,
v.
No. 96-1304
UNITED STATES POSTAL
SERVICE, UNITED STATES
POSTAL INSPECTION SERVICE,
MARVIN RUNYON, U.S. Postmaster
General,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 95-WY-1421-AJ)
John F. McBride (John J. Zodrow with him on the briefs), Zodrow, et al., P.C.,
Denver, Colorado, for the Plaintiff - Appellant.
Kathleen L. Torres, Assistant United States Attorney (Henry L. Solano, United
States Attorney, and William G. Pharo, Assistant U.S. Attorney, with her on the
brief), Denver, Colorado, for the Defendants - Appellees.
Before HENRY and LUCERO, Circuit Judges, and MILES-LaGRANGE *,
District Judge.
*
The Honorable Vicki Miles-LaGrange, United States District Judge for the
Western District of Oklahoma, sitting by designation.
LUCERO, Circuit Judge.
In this opinion, we consider whether an employee is required to leave her
employment or demonstrate that her performance at work suffered in order to
vindicate her right to be free of a hostile work environment. Janet Davis, a postal
employee, brought this action against the United States Postal Service and related
parties (collectively “USPS”) alleging employment discrimination on the basis of
disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well
as hostile work environment and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). At the close of
plaintiff’s case-in-chief, the district court granted defendants’ motion for
judgment as a matter of law as to all of plaintiff’s claims. Davis now appeals the
lower court decision as to the disability and hostile work environment
discrimination claims pursuant to 28 U.S.C. § 1291. We affirm the district
court’s dismissal of the disability discrimination claim for failure to exhaust
administrative remedies. We reverse the dismissal of plaintiff’s Title VII claim,
however, because we conclude that an employee need not demonstrate either
actual or desired termination from employment in order to maintain a hostile work
environment claim.
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I
In August 1990, Davis, a training technician at the Postal Education and
Development Center (“PEDC”) located at the General Mail Facility in Denver,
Colorado, was asked by Postal Inspector Donald Fox to become a confidential
informant in an investigation into drug trafficking by postal employees. Davis
was subsequently transferred to various other facilities where she made controlled
drug purchases from three postal workers. When Davis learned that the Postal
Inspection Service intended to arrest them, she became anxious that her identity
might be revealed and relayed her concerns to Fox. With Fox’s assistance, Davis
was assigned to a temporary position in Des Moines, Iowa. The three employees
were arrested and eventually fired. Fox, concerned about Davis’s personal safety
and emotional condition, requested that she be assigned to a position away from
the PEDC upon her return to Denver. In August 1991, Davis was placed at the
USPS’s Communications Department in downtown Denver.
Shortly after her transfer to the Communications Department, Perry
McMullin, a co-worker, began greeting Davis by hugging and kissing her,
ignoring her objections to his behavior. Davis did not report these incidents to
her supervisors. In February 1992, Scott Budny, a supervisor in the department,
observed McMullin hugging Davis. Budny immediately warned him not to do it
again. A few weeks later, in early March, McMullin approached Davis from
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behind, grabbed her by the hips, and thrust his pelvis against her. Davis reported
this incident to Budny and another supervisor. Budny contacted Phyllis Kadison,
manager of the Postal Service’s Equal Employment Opportunity office, who
requested a meeting with Davis. Kadison later indicated to Budny that she was
aware of prior similar behavior by McMullin.
At the meeting, Davis told Kadison about the incident. According to Davis,
Kadison stated she was glad that Davis was reporting this incident because other
women had allegedly been sexually harassed by McMullin but would not make
formal complaints. Kadison could not recall the details of this meeting at trial but
testified that, in order for any action to be taken against McMullin, Davis would
have had to request counseling or have agreed to file a complaint. Davis testified
that Kadison directed her to make a statement to another EEO office employee.
Although Davis acknowledged that she was reluctant to bring formal charges
against McMullin, she testified that she understood that a formal complaint was
being filed.
The next day, McMullin, Davis and another employee drove to the Denver
Convention Center to prepare an exhibition. According to Davis, McMullin made
a sexually obscene gesture to her while in the car. She did not report this
incident. A few days later, McMullin again grabbed Davis and hugged and kissed
her. According to the postal service, McMullin was transferred out of the
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Communications Department immediately thereafter, in early March; Davis
testified, however, that she was still working with him some weeks later in early
April. 1
Meanwhile, William Fitzwater, one of the employees fired as a result of
Davis’s involvement in the drug sting, contested his termination in a union
grievance proceeding. In April 1992, the arbitrator presiding over this proceeding
directed the Postal Service to disclose Davis’s identity as the confidential
informant. Davis was ordered to testify at a hearing related to the grievance
proceeding on August 20, 1992. According to Inspector Fox, Davis became
distraught at this prospect.
In August 1992, Davis received an interoffice communication notifying her
that on August 20, she would be reassigned to her permanent position at the
PEDC. She contacted Fox, Budny, Kadison, and her union representative, among
others, requesting that she be permitted to continue her detail at the
Communications Department because of the hostility she would face from her co-
workers and the emotional stress engendered by a return to the PEDC. Fox
1
In order to support its claim as to the date of McMullin’s transfer, the USPS
submitted documents purporting to reflect that he was being paid by a different
department as of March 6. See Appellee’s App. at 228-34. The earliest of these
documents, however, appears to be dated “4/92.” Id. at 228. Absent further explanation
as to the import of these documents and how they support the USPS’s factual assertion,
we cannot conclude that they resolve the dispute as to when McMullin left the
department.
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relayed his concern for her emotional health to postal management in Denver.
Davis testified that she was told she could not remain at Communications because
temporary positions such as hers were being eliminated pursuant to a nationwide
reorganization of the agency, and employees were being returned to their
permanent positions in order to facilitate the reorganization. Frank Beebe, the
Denver postmaster and district manager, testified, however, that no policy was in
place at that time preventing Davis from remaining in the Communications
Department.
Rather than return to work at the PEDC, Davis took leave, eventually
exhausting her annual and sick leave, and then took leave without pay status. She
also filed for benefits with the Office of Workers’ Compensation Programs
(“OWCP”). Her OWCP claim was approved in March 1993. According to a
psychiatrist who evaluated Davis for the OWCP, she was unable to work due to
major depression precipitated by the loss of her position at the Communications
Department. Her personal psychiatrist, Dr. Jeanne Floerke, testified that the
impending reassignment to the PEDC contributed to her depression.
In May 1993, the USPS offered Davis the same position in the
Communications Department that she had left unwillingly the previous August.
Davis immediately attempted to contact Kadison to discuss possible EEO claims
against the USPS. After much effort, Davis was able to schedule a meeting with
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Kadison on July 13, 1993, following which Davis filed a request-for-counseling
form, an informal complaint alleging discrimination on the basis of sex and
mental disability.
The EEO office issued a letter dated November 22, 1993, denying her pre-
complaint and notifying her of the right to file a formal complaint of
discrimination within 15 days. By separate letters dated December 9, 1993 to
Kadison and Mel Stencil, the Denver postal service’s human resources manager,
Davis’s attorney entered his appearance as her legal representative and requested
a 21-day extension to file a formal complaint. The Denver EEO office did not
respond to this letter. A letter from Davis’s attorney, dated December 13, 1993,
and addressed to Kadison, stated that “Ms. Davis wishes to make a formal
complaint.” Appellee’s App. at 191. 2 Davis testified that she was mailed a copy
of this letter by her attorney. The Denver EEO office did not respond to this
letter, and Kadison testified it was never received. On April 10, 1994, Davis’s
attorney sent another letter to the Denver EEO office, inquiring about the status
of her formal complaint. The Denver EEO office did not respond to this letter
either. Davis’s attorney, by letter dated July 22, 1994, again inquired about the
status of her claim and sought to review the file. By letter dated July 28, 1994,
2
According to appellee, the December 13, 1993 letter was only admitted in
evidence as an attachment to Plaintiff’s Exhibit 27. See Appellee’s Br. at 18. For
purposes of this opinion, we assume the letter was properly in evidence.
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Kadison responded that she had no record that a formal complaint had been filed
within 15 days of Davis’s receipt of the November 22, 1993 letter.
II
The district court entered judgment as a matter of law in favor of
defendants on plaintiff’s disability and hostile work environment claims for
failure to exhaust administrative remedies and on the merits. 3 Judgment as a
matter of law is appropriate “[i]f during a jury trial a party has been fully heard
on an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find for that party on that issue.” Fed. R. Civ. P. 50(a). We review a
district court’s grant of this motion de novo. See Corneveaux v. CUNA Mut. Ins.
Group, 76 F.3d 1498, 1502 (10th Cir. 1996). “[A] court may grant the motion
‘only if the evidence points but one way and is susceptible to no reasonable
inferences which may support the opposing party’s position.’” Finley v. United
States, 82 F.3d 966, 968 (10th Cir. 1996) (quoting Q.E.R., Inc. v. Hickerson, 880
F.2d 1178, 1180 (10th Cir. 1989)). On review, we examine the evidence in the
light most favorable to Davis, extending to her the benefit of all reasonable
inferences. Id.
3
The district court dismissed the retaliation claim as well. Because the
appellant’s briefs before this court do not address the retaliation claim, that claim is
deemed waived on appeal. See Jenkins v. Wood, 81 F.3d 988, 995 (10th Cir. 1996).
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A. Disability Claim
Plaintiff’s disability claim is based on her reassignment as of August 20,
1992 to the PEDC from the Communications Department and the alleged failure
of the USPS to accommodate her mental and emotional condition. It is
undisputed that plaintiff did not raise concerns about her reassignment with any
EEO counselors within 45 days of that date as required by the applicable
regulations. See 29 C.F.R. § 1614.105(a)(1) (requiring federal employees “to
initiate contact with a Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action.”) Plaintiff argues that we should disregard this 45-
day time limitation based on equitable tolling or estoppel. See 29 C.F.R. §
1614.105(a)(2) (extending the 45-day time limit “when the individual shows . . .
that he or she did not know and reasonably should not have [] known that the
discriminatory matter or personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her control from contacting
the counselor within the time limits, or for other reasons considered sufficient by
the agency or Commission.”) We need not address plaintiff’s equitable tolling or
estoppel arguments, however, because, even assuming that the 45-day deadline
should be equitably extended, we find that plaintiff’s disability claim would still
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be procedurally barred by the 15-day time limit under 29 C.F.R. § 1614.106(b),
for failure to file a timely formal complaint. 4
It is undisputed that plaintiff received notice of the requirements for filing
a formal complaint by December 1, 1993. Under § 1614.106(b), she was required
to file a formal complaint within 15 days of that date. Plaintiff argues that the
December 13, 1993 letter from her attorney to Kadison constitutes a timely formal
complaint. Although Kadison claimed that her office never received the
December 13, 1993 letter, she testified that she would have treated it as a formal
complaint if she had received it. Plaintiff’s position on appeal is that, by
producing a copy of the letter, she has made a sufficient showing to withstand
judgment as a matter of law by raising a question of fact over whether a formal
complaint was mailed to the USPS in a timely manner.
4
Section 1614.105(d) of the regulations provides that:
[T]he Counselor shall conduct the final interview with the aggrieved person
within 30 days of the date the aggrieved person brought the matter to the
Counselor’s attention. If the matter has not been resolved, the aggrieved
person shall be informed in writing by the Counselor, not later than the
thirtieth day after contacting the Counselor, of the right to file a
discrimination complaint. The notice shall inform the complainant of the
right to file a discrimination complaint within 15 days of receipt of the
notice, of the appropriate official with whom to file a complaint and of the
complainant’s duty to assure that the agency is informed immediately if the
complainant retains counsel or a representative.
Section 1614.106(b) mandates that “[a] complaint must be filed within 15 days of receipt
of the notice required by § 1614.105(d) . . . .”
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While the law presumes receipt of a properly addressed piece of mail, see
Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994), there is no testimony
on the record permitting any inference that the December 13, 1993 letter was
actually mailed. The common law presumption that an item properly mailed was
received by the addressee arises upon proof that the item was properly addressed,
had sufficient postage, and was deposited in the mail. See Konst v. Florida E.
Coast Ry. Co., 71 F.3d 850, 851 (11th Cir. 1996); see also Hagner v. United
States, 285 U.S. 427, 430 (1932) (“The rule is well-settled that proof that a letter
properly directed was placed in a post office creates a presumption that it reached
its destination in usual time and was actually received by the person to whom it
was addressed.”) Plaintiff’s testimony that her attorney mailed the letter to USPS
is insufficient because plaintiff has no personal knowledge that her attorney did
so. There is no affidavit presented in the record by the attorney or anyone from
the attorney’s office as to such a mailing, nor is there any testimony regarding the
customary mailing practices in the attorney’s office that would permit an
inference that the letter had sufficient postage and was mailed. Cf. Wells Fargo
Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir. 1983) (placing
letters in the mail may be proved by circumstantial evidence including customary
mailing practices used in the sender’s business and testimony that letter was seen
in envelope and sealed).
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Because plaintiff offers no evidence to rebut Kadison’s testimony that she
did not receive a formal complaint regarding plaintiff’s disability claim, judgment
as a matter of law was properly entered on this claim for failure to exhaust
administrative remedies.
B. Hostile Work Environment Claim
Plaintiff’s hostile work environment claim does not suffer from the same
infirmities. There is no question that Davis brought her sexual harassment
complaint to the attention of the EEO counselor within the prescribed time limit,
that is, she met with Kadison within at least 45 days of the alleged sexual
harassment.
The record is unclear as to how plaintiff’s sexual harassment complaint was
handled by the USPS both at this meeting and subsequently, and whether a formal
complaint was filed. According to Kadison, plaintiff was reluctant to file a
formal complaint at their initial meeting. Plaintiff, however, testified that though
she was reluctant to file a formal complaint, she believed she had filed one.
Although Kadison testified that she did not recall a written statement being taken
at this meeting, in a memo dated November 13, 1992 to the supervisor of the
injury compensation office, Kadison refers to a “written document” in which
Janet Davis alleges sexual harassment by Perry McMullin. See Appellee’s App.
at 189. Davis and Kadison’s conflicting testimony as to what occurred at that
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meeting is sufficient to create a dispute of fact over whether Davis did in fact file
a formal complaint, a dispute which must be resolved in favor of plaintiff for
purposes of this motion. 5 Taking all inferences in favor of plaintiff, dismissal of
this claim on procedural grounds is therefore inappropriate. We thus turn to the
merits of Davis’s hostile work environment claim.
This claim is predicated on the allegations of harassment by McMullin and
the USPS’s imputed liability for that harassment. The district court dismissed this
claim on the merits, stating:
Within a short time [of her complaint], McMullin was removed from
the communications office, for whatever reason, and was no longer a
problem for plaintiff. She continued to enjoy and succeed in her
employment in communications.
In such a situation it is difficult to see how the work
environment could be considered intolerable to plaintiff, especially
when she continued to work there and apparently [was] enjoying and
succeeding at her work. With all of the information presented to the
court during trial, it is inappropriate to impute liability to the
employer under such circumstances . . . .
Davis v. United States Postal Serv., 934 F. Supp. 1210, 1216 (D. Colo. 1996).
In order for a hostile work environment sexual harassment claim to
withstand judgment as a matter of law, a plaintiff must show that a rational jury
5
Even if we were to conclude that plaintiff did not file a formal complaint at
the meeting with Kadison, there is no evidence that she was then notified in writing by the
EEO counselor within 30 days of their meeting of the 15 day time limit for filing a formal
discrimination complaint, as required by 29 C.F.R. § 1614.105(d).
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could find that “the workplace is permeated with ‘discriminatory intimidation,
ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). While the
plaintiff must show that the “environment would reasonably be perceived, and is
perceived, as hostile or abusive,” she need not show actual psychological injury.
Whether an environment is hostile or abusive “can be determined only by looking
at all the circumstances . . . [including] the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Id. at 23.
We disagree with the district court that the record, taken in the light most
favorable to the plaintiff, cannot show a hostile work environment. Under the
Meritor/Harris standard, a plaintiff must show that the environment was both
objectively and subjectively hostile or abusive. See Smith v. Norwest Fin.
Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997). A rational jury could
find that a work environment in which a plaintiff is subjected to regular
unwelcome hugging and kissing combined with the other specific incidents
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alleged by Davis, one of which the district court described as an assault, see
Davis, 934 F. Supp. at 1212, is objectively hostile.
In order to prevail on the subjective component of this test, the law does
not require a plaintiff to show that the discriminatorily abusive work environment
seriously affected her psychological well-being, Harris, 510 U.S. at 22, or that it
tangibly impaired her work performance, id. at 25 (Scalia, J., concurring).
Likewise it does not require that she quit or want to quit the employment in
question. The trial court’s implicit conclusion — that a plaintiff who otherwise
enjoys her work, is successful, and testifies that she hopes to continue that
employment cannot as a matter of law “subjectively perceive the [work]
environment to be abusive,” Harris, 510 U.S. at 21 — is erroneous. Such a result
would place plaintiffs seeking to challenge a hostile work environment in the
untenable position of being unable to challenge hostile or abusive behavior when
they occupy an otherwise desirable position, forcing them to choose between
remaining in suitable employment or pursuing a claim to redress a legal wrong.
Title VII, designed to compensate plaintiffs for the effects of such hostile work
environments and to prevent such hostile environments from occurring, does not
force them into such a Hobson’s choice. “‘The criterion is not what a reasonable
woman employee is capable of enduring, but whether the offensive acts alter the
conditions of employment.’” Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1455
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(7th Cir. 1994) (quoting King v. Hillen, 21 F.3d 1572, 1583 (Fed. Cir. 1994)).
Title VII does not presume that the reasonable employee is incapable of
separating the deleterious effects of a hostile environment from the aspects of the
job which she enjoys and finds fulfilling, and it is in part intended to provide her
with means to put an end to the hostile or abusive behavior so she can continue in
otherwise desirable employment. Davis testified that the actions of Mr. McMullin
made her “more and more stressed out and pretty cracked,” Appellant’s App. at
63, and feel “[t]errible,” id. at 69, that she “hated” the behavior, id. at 69, was
“pretty shocked,” id. at 64, and that she “just wanted to avoid the whole
situation,” id. at 63. Such testimony is sufficient to go to the jury on whether she
subjectively perceived a hostile environment.
The question of whether the USPS can be held liable for this alleged hostile
work environment is a closer one. An employer may be held liable for
“negligence or recklessness in failing to respond to hostile work environment
sexual harassment by employees.” Hirschfeld v. New Mexico Corrections Dep’t,
916 F.2d 572, 577 (10th Cir. 1990) (citing Restatement (Second) of Agency §
219(2)(b) (1958)). This liability attaches when a plaintiff establishes that an
employer had actual or constructive notice of the hostile work environment and
failed to respond adequately to that notice. See Harrison v. Eddy Potash, Inc.,
112 F.3d 1437, 1444 (10th Cir. 1997); see also Creamer v. Laidlaw Transit, Inc.,
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86 F.3d 167, 170-71 (10th Cir. 1996) (holding employer would be liable if it
failed to remedy a hostile work environment brought about by sexual harassment
of which it knew or should have known). There is evidence that the USPS was
aware of previous complaints against McMullin and thus should have been on
notice of his harassing behavior. See Hirase-Doi v. U.S. West Communications,
Inc., 61 F.3d 777, 784 (10th Cir. 1995) (holding plaintiff may rely on employer’s
notice of evidence of similar harassment by co-worker in order to raise a genuine
issue of material fact about employer’s notice); Yates v. Avco Corp., 819 F.2d
630, 636 (6th Cir. 1987) (finding employer’s duty to address harassment may be
“created . . . when initial allegations of harassment were reported,” not once
plaintiffs registered a formal complaint). Additionally, the record is unclear as to
why McMullin was eventually transferred as well as how soon he was transferred
after Davis reported the harassment. Reading this record in the light most
favorable to plaintiff, a rational jury could find the USPS negligently handled
plaintiff’s sexual harassment complaint in failing to remedy a known hostile work
environment.
III
We hold that judgment as a matter of law is AFFIRMED on plaintiff’s
disability claim for failure to exhaust administrative remedies and is REVERSED
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on plaintiff’s hostile work environment claim on the merits. This case is
REMANDED for further proceedings.
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