
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                                         -2-                                          2            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                                         -3-                                          3            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.                                         -4-                                          4            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                                         -5-                                          5            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,                           ______                                         -7-                                          7                      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                                         -9-                                          9                      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?                                         -12-                                          12                      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                                         -13-                                          13            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.                      _________                                         -16-                                          16
