

                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
