Terri L. NICHOLS, Plaintiff-Appellee, v. Anthony M. FRANK, Postmaster General; U.S. Postal Service, Defendants-Appellants

that depicted believe the District Court attention on critical events in We Exhib- it 1. Calnimptewa correctly that had suffi ruled knowledge testify to about personal

cient Further, reject suggestion we Lee’s testimony Exhibit 105 because his was based Calnimptewa’s testimony improperly invaded 1, perceptions on his own of Exhibit the province jury the of the because Ms narra- 602, original videotape. Fed.R.Evid. which opmions tion included on critical facts and supported only prescribes personal knowledge require the Government’s the version of July the witnesses, events on 20th. pertinent part: ment for states allowing Lee maintains that Calnimptewa testify A to a matter witness essence, testify, to provided the Govern- sufficient to unless evidence introduced opportumty present legal ment the to argu- support finding per- that the witness has stand, ment from the opposed witness as to knowledgе sonal of the matter. Evidence proper argument by podi- counsel from the prove personal knowledge may, but Calnimptewa’s um. Lee is incorrect. narra- not, need consist of the witness’ own testi- expla- tion of Exhibit 105 involved a factual mony. portions nation of enhanced of Exhibit 1. He standard, Calnimpte- Under this we find that arguments did not offer or conclusions con- knowledge testify wa had sufficient about eerMng depicted the actions of those in the 105, the contents of Exhibit based on his videotape. Thus, extensive review of Exhibit 1. we Moreover, Calmmp- we do not believe that reject Calnimptewa Lee’s contention that testimony province tewa’s invaded the of the testify. personal knowledge lacked the jury. Calnimptewa subject to extensive cross-examination Moreover, Ap- defense counsel. agree we District pellants every opportumty present had Calnimptewa’s testimony Court about Calnimptewa’s evidence to contradict testi- likely helpful Exhibit 105was to have been mony. properly jury It was thus left to the jury evaluating Although Exhibit 1. to draw regarding its own conclusions jury entirety, 1 in viewed Exhibit its it is weight presented. of the evidence viewing reasonable assume one Therefore, the District videotape involving of a demonstration Court did not abuse over allowing Calnimptewa’s its discretion in testi- people likely would not see certain de mony. tails, given array the tremendous of events occurring simultaneously. all Officer Cal AFFIRMED. nimptewa spent viewing over 100 hours Ex-' jury Mbit 1. To have the do likewise would extremely jury’s

be an inefficient use of the Therefore, Calnimpte and the court’s time. testimony concerning persons wa’s which NICHOLS, Plaintiff-Appellee, Terri L. engaged any given were in what conduct at help jury correctly moment could discern efficiently depicted the events in the Anthony FRANK, M. Postmaster videotape. General; Service, U.S. Postal Defendants-Appellants. Next, we consider Lee’s contention 91-36241, Nos. 92-35315. that, Calnimptewa’s testimony even if were admissible, testimony unfairly preju Appeals, UMted Court of States dicial because was cumulative and invaded Nmth Circuit. outset, province jury. of the At the Argued and Submitted Nov. 1993.

reject Calnimptewa’s the notion that testimo Decided Nov. 1994. ny presentation constituted “needless Order Dec. cumulative evidence” under Fed.R.Evid. 403. above, As indicated we find that the District correctly Calnimpte

Court determined that testimony help jury wa’s would focus its

505 Kobbervig, Atty., D.

Judith Asst. U.S. Portland, OR, defendants-appellants. McKanna, Diamond, Elizabeth Barbara J. Hartman, Portland, OR, plain- Bennett & tiff-appellee. REINHARDT, BRUNETTI,

Before: and FERNANDEZ, Judges. Circuit REINHARDT; Opinion ‍​‌​​​‌​​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​‌‌‌‌‌​‌‌​​​​​​‍Judge by Judge Concurrences FERNANDEZ and Judge BRUNETTI.

OPINION

REINHARDT, Judge: Circuit (“Nichols”), Terri deaf-mute postal employee, sexually was harassed and, result, night-shift supervisor her as a repeatedly unwillingly performed but oral him period approximately sex on over a six months. The Postmaster General and (collectively United States Postal Service re- Service”) ferred to as “Postal were found Rights liable under Title VII of the Civil Act 1964, following non-jury They trial. appeal finding liability, as well as the pay district court’s award of back to Nichols. We affirm.

I. FACTS

Terri Nichols is deaf and mute. She com- through sign language municates and in writ- individuals, ing. many Like deaf Nichols’ reading ability is limited. at She reads fifth-grade level. In fall of Nich- night-shift ols became a mail sorter at the Salem, Oregon, facility. postal night-shift Ron supervi- Francisco was the highest ranking sor and manager at the facility postal during that shift. He had the me, really wouldn’t so I authority grant employees leave and over- believe was stuck Say, if I employees perform any- with both. went and I told pay, time and to ask him, body supervisor on on I duties. He had accеss would various clerical throughout my job. My just I opened private offices lose husband and had keys that recently bought important, Francisco was a house and that house facility. Most depended my earnings, to commu- and I didn’t only supervisor who was able everything. job language. want to lose And that sign Nichols in nicate with important support my family, so work, Shortly Nichols commenced after just I so was stuck the two. copy some documents Francisco asked her assigned employee another for him. He repeated As a result of the forced sexual work floor and assume her duties on the Francisco, conduct with Nichols became de- copy they followed her into the room. While anxious, pressed, had irritable. She fre- copy together, Francisco were in the room quent nightmares difficulty sleeping kissing indicated that he started Nichols and eating: perform on him. wanted her to oral sex She know, losing weight. You I I wasn’t advances, ultimately complied refused his but regularly. enough eat I able to didn’t have because she was afraid she would lose sleep. got I real emotional at home. I According job if refused. to Nichols: she angry. progress- I was remember as time happened I remember that when this first ed, getting I was crazier. I hated that sex. just I I was in shock. I was nervous. was my I didn’t want sex even with husband. it, doing I upset. happy I wasn’t and was 1987, April six months after Nichols com- happen again. And hoping it would never Francisco, orally copulating menced her hus- just kept myself. I all But then that sought band filed for divorce. Nichols two repeats repeats repeats, and and there was from weeks leave absence Francisco to upset I it. and I was more and didn’t want family problems. deal with her When she again again for I didn’t want to do it so, requested perform did he oral she him, say, “Stop, and I didn’t know how to again. complied sex on him once for the She just stop.” time, whereupon approved last Francisco repeatedly peri- This routine occurred over a request for a leave of absence. approximately six months. od of ultimately reported Nichols Francisco’s period, During that entire six-month Nich- complaint harassment. She filed ols never solicited sexual contact with Service, EEOC, Postal and the American However, report Francisco. she did not diagnosed Postal Workers Union. She was anyone. Francisco’s actions to She feared post-traumatic having as stress disorder and that she would not be believed and that disability granted was federal benefits from eventually against Francisco would retaliate 14, 1987, 4, April until 1989. December She her. She did not tell her husband because currently employed postal at another faсili- marriage. that it would harm their she feared custody ty Oregon in and has sole of her two According to Nichols: employed young children. Francisco is still myself just I kill I tried to because didn’t post at the office.1 Salem know, husband, my you know how to tell going ... I what was on was afraid II. PROCEEDINGS BELOW my he would take children and divorce me. trial, just non-jury court I was I was stuck After a the district And so stuck. was the two there was no one I concluded that the Postal Service liable between people I harassment under Title VII of the could talk to. was afraid other for sexual Systems complaint against his termination. The Merit Protection 1. While Nichols' Francisco however, reversed, being investigated, postal another female and Francisco was re- Board employee allegations made similar of sexual April in our 1988. The facts set forth instated 1987, 31, against October harassment him. On by opinion the district court in this are as found terminated the Postal Service. Francisco was case. Resources affirmed The Field Director of Human 508 wrong gues that the district court used the Rights Act of 1964.2 The district court

Civil making liability determination. It acts created a test its first found that Francisco’s award of further contests the district court’s work environment” for Nichols. “hostile is, pay “sufficiently partial or back to Nichols. That his acts were severe pervasive to alter the conditions of [as] employment create an abusive [Nichols’] III. DISCUSSION

working Nichols v. environment.” See (D.Or.1991). Frank, 1075, F.Supp. 1078 771 Employer Liability A. appel The district court then found that the lants were liable for Francisco’s Liability. Environment Hostile that, Id. at 1078-81. It reasoned Nichols. matter, agree an initial with the Postal As “principles agency,” the laws of under the wrong court used the Service the district appellants because Francisco were liable holding it liable for Francisсo’s con test “scope acting had been within the of his proper analysis employer lia duct. employment” he harassed Nichols. Id. when bility in cases is what hostile environment Inc., Chefs, (applying Sky 919 F.2d Dias v. management-level employees knew or should (9th Cir.1990), 1370, 1375 vacated 501 U.S. known, employee have not whether an 965, 2791, L.Ed.2d S.Ct. “scope employment.” acting within his remand, (1991), cert. de 948 F.2d 532 Hotel, See EEOC Hacienda , — -, U.S. S.Ct. nied (9th Cir.1989) (“[E]mployers 1515-16 are lia (1992)).3 L.Ed.2d 517 failing remedy prevent ble for a hostile or offensive work of which man environment Accordingly, court awarded the district knew, agement-level employees or in the ex pay back for the two and one-half ercise of reasonable care should have year period during which she unable added)). Thus, (emphasis known.” the dis previously work. Nichols had received dis- by applying scope trict court erred of ability period benefits for that under the Morеover, employment respect test. Employees’ Compensation Federal Act claim, the hostile environment the error was (“FECA”); however, were, those benefits analysis prejudicial. proper Had the been statute, pursuant only limited to of 75% applied, given the record before us the Postal salary. p. Rely- n. her total See 515 8. infra on a Service could not have been held hable VII, ing on Title the district court awarded theory. hostile environment pay Nichols back in an amount sufficient to up make the difference between the benefits Quid Quo Liability. Despite Pro salary awarded her and the she would have the district court’s erroneous reliance on disability.4 during period received her of environment,” that “hostile we hold the Post Upon appeal, Postal al Service does Service is hable Francisco’s acts. Be finding quid pro quo contest the district cоurt’s of a hostile cause the acts constituted environment, finding work but that in addition to hostile environ harassment, ar- was hable for Francisco’s actions. It ment the Service is liable for his VII, employment gress agency principles 2. Under Title it is an unlawful wanted courts to look to practice employer guidance expressly for an this area” and looked individual, (Second) discharge any Agency to the Restatement for such or otherwise to against any principles.” discriminate individual with re- "common-law See id. The Court terms, conditions, spect compensation, employer [her] declined to issue a "definitive rule” on privileges employment, however, because of liability, such and left that task to the lower individual's ... sex.... courts. See id. 2000e-2(a)(l). § 42 U.S.C. $43,- judgment pay of back 4.The consisted Supreme employers 3. The Court that has held 661.40; $10,854.35; pre-judgment interest of an- can be held liable for thе acts of sexual harass- hours; leave of sick leave of 288.00 nual hours; 433.28 employees ment their that create a "hostile $1,039.11; Savings retirement benefits of environment.” See Meritor Bank v. Vin- son, 57, ‍​‌​​​‌​​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​‌‌‌‌‌​‌‌​​​​​​‍72, 2399, 2408, post-judgment any paid 477 U.S. interest for amounts not 106 S.Ct. (1986). days judgment. L.Ed.2d 49 The Court held that "Con- within 60 of the you per- Q you Do believe if were not respondeat superi- doctrine of under the acts forming the oral sex he wouldn’t have pp. 513-14. or. See infra approved some of these leaves? (a) essence of the Overview. refused, yes, pretty A I I am sure If harassment is quo theory of sexual quid pro turned me down. he would have upon apparent his “relies that an individual added). (emphasis sexual authority to extort [in order] or actual presented that Fran- Nichols also evidence v. employee.” Henson consideration from employment cisco conditioned other kinds of (11th Dundee, City example, оn her sexual favors. For benefits Cir.1982). pro quo quid We have stated testified that her work evaluations Nichols “employ harassment occurs whenever willing- conditioned on her were sometimes on sexual employment benefits ers condition perform ness to oral sex on Francisco. She See, Brady, e.g., 924 F.2d Ellison favors.” perform that he her to oral testified asked (9th Cir.1991). 872, 875 just they had discussed her sick sex after Here, presented evidence Nichols attendance record: leave and her em- that Francisco conditioned district court Q you Did ever have discussions re- The dis- on sexual favors. ployment benefits you garding things work or other while testimony. find- her Its trict court credited room alone with [a Francisco]? were the close connection be- ings demonstrate talking A A few times —I remember once request to take a two-week tween Nichols’ my my about sick leave and attend- оral performance leave of absence and dis- ance. There was a book and we According district to the sex on Francisco. something in cussed the book. court: Q Okay. And then[J that[J after of ab- requested two weeks leave Nichols you perform asked'to that a time were fami- could deal with her sence so that she sex? 14, 1987, April at his ly problems. On A Yes. engaged in oral sex with request, Nichols added). (emphasis punctuation Following the for the last time. Francisco Finally, presented evidence act, request approved Francisco Nichols’ employ- her.continued Francisco conditioned leave. for willing- ment with the Postal Service her Frank, F.Supp. 1077-78 Nichols v. perform oral sex: ness to (D.Or.1991) added). court’s (emphasis The you agree oral with him? Q Did to sex finding with Nichols’ testimo- was consistent very sex. I was A I didn’t want to have perform oral ny “required” that she was know, you if I said no. frightened, leave: sex order obtain you frightened? Q Why were Terri, just Q you have stated the get in trou- A that he’d me I was afraid on October harassment started wrong, I I it but was ble. knew was Do long How did it last? I he could really afraid because knew time you remember when the last superinten- he was a me because fire came, you required? the last time were shocked, you And know. dent. I was I the leave A That’s when asked say just I couldn’t no. —I weeks, that was the last time. two and added). (emphasis added). testified that (emphasis Nichols also testimony and the dis- In of Nichols’ view requests approved other leave Francisco determination, judge’s credibility we trict perform oral sex only agreed she because findings say that the court’s factual cannot on him: Thus, accept them clearly are erroneous. appeal. ap- purposes of this Q you that Mr. Francisco as correct for Do beliеve you because were proved these leaves (b) con- question of what Definition. your on him? performing oral sex complicated is a sexual harassment stitutes increasingly important one in our soci- A Yes. hand, ety. agreed upon of opportunity There is no definition On the other the to take versions, newly popular the term. In some advantage unfair of a co-worker or subor- appears possible range to cover the widest of eommensurately. dinate has increased Title sins, physical reading mag- from assault to principle. VII embodies a most essential It public facility. particular azine Whether workplace entitles individuals to a that is free appropriate conduct is or whether it crosses repres- from the evil sexual intimidation or subject disagreement the line is the frequently sion. It is difficult to reconcile controversy, always legiti- heated and often cases, competing the two values. some opinion change rapidly. mate. can It Public difficulty shortly arises after an individu- quite possible accept- for conduct that is al decides that he or she would like to ex- today unacceptable able to become tomorrow. plore possibility of a romantic relation- sex, age, One’s views are influenced one’s ship healthy with a co-worker. When does a origin, religion, philosophy, national edu- constructive interest romance become sex- cation, experience. There is no uniform ual harassment? To pursuit what extent is attitude towards the role of sex nor proper of a co-worker but of a subordinate agreement appropriate on what is for inclu- wooing courting thing forbidden? Is or governing sion in a code sexual conduct. past? Must a suitor cease his attentiоns Nevertheless, right from un- be free sign at the first of disinterest or resistance? wanted sexual attention is of fundamental express agreement Must there be before importance, and answers to the relevant person seeking romance even hold questions Nothing must be found. is more subject the hand of the of his affection? Is it dignity being destructive of human than now verboten to steal a kiss? In the work- perform against forced to sexual acts one’s place? Everywhere? all circum- Under Rape will. is still the ultimate violation. At stances or some? Has art of roman- time, charges, same unfounded persuasion Questions tic lost its charm? re- charges misconceptions based on or misun- lating to among love and sex are the most derstandings, wrongfully destroy can ca- society difficult for to answer —in or out of reers, if not lives. workplace hardly courts are ex- —and Workplace particu- sexual harassment is a Still, perts in that realm. ways we must find larly complex ge- and sensitive form of the harassment, protect po- define sexual competing nus. There are two concerns. conduct, against tential victims such and to hand, understandably On the one courts are rights injury; enforce the of those who suffer legitimate reluctant to chill the incidence of clarity, and we must do so with with under- People romance. closely together who work standing, and with wisdom. and share common interests often find that sexual attraction surprising ensues. It is not oppressive The most type and invidious feelings that those arise even when one workplace quid pro quo sexual harassment is persons superior ais and the other a justification requir- sex. There can be no for grows, subordinate. As our workforce ing engage a worker to in sexual acts in necessary, more and more of us find it or job job-rеlated benefit, order to obtain a or desirable, living, to earn our own spend we job-related or to avoid a detriment. Most an increasing amount of our time at work. subjected pressure workers to sexual in the employment Sexual barriers have less- workplace have little means of defense —oth- days, ened. We tend these far than in more reasons, er than the law. For economic most times, friends, lovers, earlier to find our simply workers cannot abandon their em- even in workplace. spend mates We ployment jobs are hard to find. —new longer traveling hours at the office or VII, employers Under Title job-related are held strict- purposes, and often discover that ly they place positions accountable if our of interests and are values closer to those of authority persons colleagues our who employees or fellow extrаct sexual favors than to people they power. those of from those over whom we meet connection with exercise short, Yet, other In proximi- question activities. even the increased of what constitutes ty activity. breeds increased volitional sexual the most blatant form of sexual harass-

511 advances, requests for al- Unwelcome sexual not pro quo harassment —is quid ment — favors, physical and other verbal or thing, it is sexual easily. For one ways answered (1) ... a sexual nature when actually conduct of the facts clear what frequently not is made either conflicting submission to such conduct totally may tell parties are. The elsewhere, implicitly a term or condition explicitly or stories, trial court and in the (2) employment, sub- [or] of an individual’s witnesses. percipient no are often there by rejection of such conduct mission to or what tran- dispute over there is When is used as the basis for em- findings the fact- an individual rely of spired, we on the affecting ployment decisions such individu- findings clearly finder, are unless those Here, problem. al.... are not the wrong. the facts clearly findings are not court’s

The district (2) (1993) 1604.11(a)(1) §§ See 29 C.F.R. question instead is whether The erroneous. added). (EEOC guidelines) (emphasis quid pro quo a case of make out the facts guidelines to Distilling the EEOC Title VII. purposes of harassment for sexual essence, quid pro quo we hold that their an indi harassment occurs whenever how sexual previously decided we have While job, implicitly conditions a pro quo explicitly vidual or quid what constitutes we determine benefit, job of a detri harassment, job or the absence circuits several other sexual ment, acceptance sex upon employee’s an doing so. five-part test for announced have Chamberlin, Dundee, F.2d Accord 915 See, F.2d uаl conduct. City 682 e.g., Henson v. test, pro quo includes the situation (quid at 783 like a number of find that at 909.5 We supervisor granting courts, “a conditions to be unnec- where employed others job upon other benefit overly of an economic or formalistic. essarily complicated and receipt favors from a subordinate” asks of sexual part of the test example, the first For (internal omitted)); quotes Spencer, 894 F.2d of a employee a “member an whether (quid pro quo is where “sexual consid at 658 inquiry is unneces- group.” This protected exchange job ben or fe- eration is demanded sary all individuals —male because efits”); Baptist Memorial Geriat pur- Collins “protected” group for belong to a male — Cir.1991) (5th Center, 196 ric 937 determining on the discrimination poses of “job pro quo [are] is where benefits (quid parts find other their sex. We basis of harassment”), acceptance of the unnеcessary on the conditioned equally five-part test be — denied, U.S.-, 112 S.Ct. rt. overlap consider- appear to opaque. Some ce (1992); Highlander, L.Ed.2d three fall into ably. Parts two and Cir.1986) (6th quo (quid pro at Moreover, is 805 F.2d category. sexual “submission situation where could it includes the What else ordinarily based on sex. supervi advances of event, sexual the unwelcomed In we decline be on? based implied express or sory personnel [is] five-part in this circuit. adopt the test Hicks, benefits”); job receiving condition for Instead, guidelines, we turn to the EEOC pro quo is where (quid F.2d at to be “a Supreme has held which the Court a con conduct is made to sexual “submission judgments body experience and informed benefits”). employment of concrete dition may properly resort for ... to which courts cases, quid pro quo Vinson, at 106 S.Ct. 477 U.S. guidance.” means. either two pro quo reach our conclusion quid define guidelines at 2404. standard, objective under apply an canWe harassment as: (1st Cir.1990); Spencer General (i) v. employee 915 F.2d 777 the be- involves whether 5. The test (4th Cir.1990); (ii) Co., group; Jones longed protected whether the F.2d 651 to a Electric 894 Cir.1986), Int’l, (5th subjected employee to unwelcome sexual Flagship 793 F.2d 714 harassment; (iii) com- the harassment denied, whether S.Ct. 93 479 U.S. 107 cert. sex; (iv) plained whether the of was based (1987); Highlander Nat’l v. K.F.C. 1001 L.Ed.2d affected employee's the harassment reaction to (6th Cir.1986); Co., Management F.2d 644 compensation, aspects employee’s tangible terms, of the (8th Moylan County, F.2d 746 v. Maries conditions, employment; privileges of or Co., Cir.1986); 833 F.2d Gates Rubber Hicks v. (v) superior. respondeat whether there (10th Cir.1987). Inc., 909; Realty, v. 101 at accord Chamberlin Id. which possible promotion we determine whether a reasonable about a and then some- person refuses, in position the accuser’s would position have time after she awards thе subject believed that he or she was the employee. another It is even less if clear the quid pro quo merely sexual harassment. If the ac- manager employee invites the out for woman, cuser a hypothetical is we use a a drink on one or more occasions but does in applying person woman our suggest reasonable that he wishes to discuss work- Brady, matters; standard. Ellison v. manager if spurned related the is (9th Cir.1991). 878-80 If subsequently the accuser is a anticipated withholds bene- man, hypothetical fits, bells, a may use man. Id. at 879 set off alarm but further course, person n. 11. a Of reasonable is not required charge evidence would be before solely by defined his or her sex. Other of sexual harassment could be sustained. possessed by person immutable traits the in implicit Harassment cases of con bringing charge, including the but not limited ditioning can par be inferred from the race, agе, physical disability, or mental ticular facts and circumstances of the ease. orientation, may and sexual in particular charge We must examine each such with the inquiry cases be relevant to the as well. care, way utmost for an error either can alternative, In apply the we can gross injustice result and will often have subjective standard, under which the fact- impact a disastrous on the life of whichever may inquire finder alleged into whether the person truly injured party. is the actually subject harasser intended the ac ability identify quid The implicit pro quo quid pro quo cuser to sexual harassment. accurately important for two also, approach proper Under this it is for the very already different reasons. have We fact-finder to consider the fundamental or possibility mentioned the first: the that the immutable characteristics of the individual charge is erroneous or the result of a misun- here, bringing addition, charge. the But derstanding, consequences and the disastrous may the fact-finder consider other individual may person. befall an innocent traits or characteristics known to the accused precisely second involves opposite the con- may especially make the victim or quid Implicit pro quo cern. harassment is a uniquely susceptible quid pro quo sexual most likely serious matter. It is far more harassment. A may defendant be un liable place explicit take than is variety. As subjective intentionally der the if test he goes by they time and harassers learn that advantage particular takes of some fear or longer will, can no prey victimize their at By weakness that afflicts the accuser. Holly- their actions become less In overt. token, same characteristics of and informa wood, example, casting cоuch has tion about the accused which are known to replaced by techniques. been more subtle part accuser become of the mix. A potential Yet for employee, the result is showing subjective objec that either the parallel still the same. The with racial dis- tive standard support is met is sufficient to crimination is offering obvious. Landlords imposition liability. apartments longer post for rent no notices We note that difficult legal factual and Instead, saying Only.” they ‘Whites will tell questions always will almost arise whenever African-Americans and other minorities that (or conditioning either the of benefits ab- apartment already has been rented. detriment) request sence of or the for favors Employers who do not wish to hire minori- explicit, is not implicit but is instead longer ties no announce that such is their harasser’s dealings communications or policy. They now up cover their misdеeds prey. example, quid his For pro quo harass- explanations employ- offer false for their manager explicitly ment is clear if a tells his So, too, ment misconduct. with the sexual you “I you subordinate will fire sleep unless harasser. However, with me.” it is much less clear whether a violation manag- has occurred if a attempting to determine simply er asks the implicit quid subordinate whether she pro quo whether harassment occurred, would like to have a drink key after work to talk has the is often the verbal her sick leave and her establishing workplace and discuss a way of is one That nexus. thereafter, Immediately record. between attendance tighter the nexus The violation. him. perform oral sex on request would ask her to job and a he benefits about discussion spot. Again, on the we favors, likely that there would do so more She the sexual job conditioning by the the that the nexus between “implicit” conclude has been differs, here, ability receive a However, and case Nichols’ each harasser. benefit — act provide an answer the sexual positive rules will evaluation —and set of work rule or no seven-part Five-part, hardly have been closer. could all circumstances. in frequently serve ten-part tests or even above, Third, Nichols testified as we noted truth, there inquiry. In the real to obfuscate requests submitted Francisco’s that she in rigorous examination no substitute if he would fire her feared that because she and facts of the relevant of all each instance requests the All of his she refused. —and of circumstances, application as as the well involuntary dur- subsequent acts —occurred sense, and general principles, sound common postal service and on ing her work shift understanding human nature. of a true facts, light in light of these property. In difficulty (c) Here, we have no Analysis. of bene- granting that the of our conclusion objective and sub- the concluding, under both commit- upon Nichols’ fits was conditioned subject- was that Nichols approaches, jective Francisco, have no upon we ting sexual acts harassment. We pro quo sexual quid toed determining that her con- difficulty further subtle with the more do not have wrestle similarly conditioned. employment was tinued many cases present questions that are sum, supervi that a we conclude In conditioning. nexus involving “implicit” perfor intertwining request for the of a sor’s of work-relat- Francisco’s discussion between a discussion of sexual favors with mance of requests for oral his sex matters and ed job detriments potential benefits or actual or that can be no doubt that so close there ‍​‌​​​‌​​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​‌‌‌‌‌​‌‌​​​​​​‍quid pro single constitutes in a conversation position would person in Nichоls’ reasonable that follows quo harassment. It sexual condi- Francisco was that have understood conduct, Francisco, by his us the case before job on the benefits tioning granting of the granting specific implicitly conditioned nexus act. That sexual performance upon performance job Nichols’ benefits in fact that Francisco also serves establish Moreover, totality of the sexual favors. to do so. intended leads to the conclusion conduct involved earlier, asked First, Nichols we as noted with employment Nichols’ continued Before of absence. for a two-week leave one of Either was at stake. Postal Service requested request, Francisco granting her be sufficient would these circumstances did so sex on him. She perform oral that she quo quid pro sexual holding of support a act, following Immediately unwillingly. standard.6 subjective under the suрra p. 509. See granted her leave. he addition, clearly facts establish In these (Nichols requests for that other also testified position in Nichols’ person a reasonable willingness to depended upon her also leave subject believed that she would have Francisco.) All of this perform oral sex on Thus, quid pro quo sexual harassment. job The nexus between at the site. occurred objec analysis, subjective both forms here, ability to ob- Nichols’ job benefit — tive, compel our result here. have act could not sexual tain leave—and the been closer. quo (d) quid pro Liability. Once established, the has been above, sexual harassment Second, testi- as we noted facto, is, As liable. employer ipso in the harasser’s in a room would sit fied that Francisco (D.Or.1991) (finding that F.Supp. 1077-78 attempts rebut appeal, the Service 6. On Postal con- repeatedly engaged in sеxual Francisco had by arguing sexual testimony that no Nichols’ fact, Nichols). to make it refused duct between Nichols ever occurred conduct of the facts. trial, any findings on his version based denied At Francisco Francisco. say court’s the district we cannot court Because The district with Nichols. involvement erroneous, reject clearly findings are rejected testimony in its soundly Francisco’s Frank, argument. Postal Service's findings Nichols v. of fact. See 514 earlier, quid pro quo

we discussed anything beyond ols is not entitled to receive harassment occurs an whenever individual what she already has received in federal job, job conditions a a benefit or the absence disability benefits. It contends that under joba upon employee’s of detriment an sub- Employees Act, Compensation Federal 5 mission to sexual conduct. A harasser 8101, §§ seq. U.S.C. receipt et of those job grant able to such benefits or dеtriments disability benefits renders them the “exclu- apparent because he has actual or au- compensation sive” form of for Nichols’ thority “delegated do so to him his injuries. § work-related See 5 U.S.C. 8116. employer.” Policy See EEOC Guidance on Accordingly, the Postal Service claims that Harassment, Current Issues of Sexual 8 Fair the district court awarding erred Nichols (BNA) Empl.Prac.Man. 405:6681, at 6694 disability the difference between her benefits (Mar. 1990) 19, Policy [hereinafter EEOC pay. upon 100% of her back Based Guidance]. plain-language reading of the relevant stat- agency Under traditional principles, (FECA VII), reject utes and Title apparent exercise of such actual or au appellants’ arguments affirm the district thority gives liability part rise to on the of judgment. court’s employer theory under a respondeat Statutory 1. compen- (Second) Provisions. FECA superior. See Restatement 219(2)(d) (1958). emрloyees sates Agency held, § federal for certain lost We have so America, 211, wages see Miller v. Bank 600 and medical costs are incurred as (9th Cir.1979), 213 and the has “injury” EEOC so result of perfor- sustained in the versity ment.” Cir.1988) (First Circuit); Carrero v. New held. See agree. (D.C.Cir.1981) (D.C.Circuit); Lipsett v. Uni sponsible 6694 (“An employer See (emphasis Puerto EEOC Bundy acts of Rico, Policy v. added)). will ‘quid Jackson, 864 F.2d Guidance, always pro quo’ Other circuits 641 F.2d 934 881, be held re supra, 901 harass (1st at mance of prosthetic devices.... ment, medical disease act addition to [1] defines their duties. See 5 U.S.C. braces, proximately ^[3] damage “injury” artificial injury caused as follows: limbs, or destruction of accident, by employ- and other § ^[2] City York Housing Authority, 569, 890 F.2d 8101(5). § See 5 U.S.C. FECA limits a fed- (2d Cir.1989) (Second Circuit); Craig v. employee’s eral compensation total for his Snacks, (3d Cir.1983) Y&Y 721 F.2d “injuries” work-related monthly 75% of his (Third Circuit); Dole, Katz 709 F.2d pay.7 employee’s FECA also right limits (4th Cir.1983) (Fourth 255 n. 6 Circuit); disability receive other compensa- forms of (Sixth Highlander, 805 F.2d at 648-49 Cir tion from Among the United States. other cuit); Homes, Horn v. Duke 755 F.2d things, expressly provides FECA (7th Cir.1985) (Seventh Circuit); Crimm liability of the United States respect “with R.R., (8th v. Missouri 750 F.2d 703 Pacific injury or death employee of an is exclu- Cir.1984) Henson, (Eighth Circuit); 682 F.2d 8116(c) added). § sive.” (emphasis See id. (Eleventh Circuit). Here, at 909-10 successfully contrast, has By supervi compensates established that her Title em- VII sor, Francisco, engaged quid pro quo ployees sexu who have suffered from unlawful dis- al Accordingly, harassment. on, the Postal Ser among crimination things, the other basis vice is liable for his acts. of their sex. § See U.S.C. 2000e-2. Un- VII, employees der Title who have suffered B. Exclusivity Disability Payments from such unlawful ‍​‌​​​‌​​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​‌‌‌‌‌​‌‌​​​​​​‍discrimination are enti- relief, The Postal argues equitable Service next tled to including, even if in appropri- harassment, it is hable for cases, Francisco’s Nich- ate 100% of pay: their back that, (establishing § 7. See id. 8105 ployee if the depеndents, disabili- with one or more he is "enti- total, ty is pay the United States the em- compensation tled to have disability "shall his basic ployee monthly monetary compensation ... augmented" by percent monthly "8 of his 1/3 equal percent monthly to 66 pay”); of his id. 2/3 pay”). that, § (establishing in the case of an em- contrast, suf- the harm that Nichols By may appro- be action as affirmative [S]uch “inju- an is not from sex discrimination fered include, limit- but is not may which priate, First, meaning of FECA. ry” the within employ- hiring of to, or reinstatement ed “injury by accident.” an harm is not such by (payable pay back ees, with or without sex dis- from Francisco’s The harm arose or la- agency, employment employer, the crimination, an was an intentional —not which be, re- the case as organization, bor Second, harm is not “a the accidental —act. employment the unlawful sponsible by employ- proximately caused the diseаse as equitable any other practice), or relief post-traumatic By contrast with ment.” appropriate. court deems the (which classified is a disease disorder stress DSM-III-R), impact that sex discrim- by the added). 2000e-5(g)(l) (emphasis § id. See victim is not a “disease.” on a ination has The Postal Service Analysis. Third, or “damage not to de- the harm is receiving from is barred argues limbs, that Nichols braces, artificial struction of medical exclusivity provi by pay the Accordingly, back prosthetic additional devices.” and other § “injury” 8116. We on qualify 5 U.S.C. an of FECA. See does not as sions the harm Therefore, ex Although FECA’s the exclusivi- argument. ground either. reject this apply to the do not ty provisions from of FECA prevent a court provisions clusivity award. district court’s payments additional awarding Nichols meaning “injury” the within her work-related only compelled by not conclusion is Our (i.e., stress dis post-traumatic VII, act of the her and Title plain language of FECA the an prevent order), provisions do the the Postal by sense. Under also common but for harms of sex discrimi- payments argument, a victim of additional award Service’s “injury.” post-trau- not suffer from nation does definition who fall outside of FECA’s to be entitled compen disorder would matie stress court’s award the Because district Title pay under 100% of her back receive she suf solely for the harm sated However, discrimination a victim of sex VII. is not sex fered from discrimination —which a disease happens to suffer from who also meaning of FECA— “injury” within an only to 75% be entitled as stress would such applicable are not exclusivity provisions Congress could under FECA.8 pay of her this case. unjust result. such not have intended an apply exclusivity provisions VII, discrimina- victims of sex FECA’s Under Title inju- that discrimina- regardless for work-related of whether payments to additional tion — tion “injury” or in a work-related post-traumatic example, Nichols’ results For ries. of 100% of to a maximum entitled not —are clearly injury defined an as stress disorder is does not long as sum pay, as their back proximate- it is “a disease by act because recovery. Duplicative benefits lead double supra pp. 3- by employment.” See ly caused deducted, did district court as the must be Association, Diag- 4; Psychiatric American here.9 Mental Manual nostic Statistical (3d 309.89, rev. ed. § at 247-51 Disorders on conclusion the same We reach 1987) According- DSM-III-R]. [hereinafter second, ground. As we have independent exclusivity provisions, ly, FECA’s above, under Title VII under relief noted recovering any other “equitable” in purely from pay Nichols is barred is of back form By relating con supra pp. 514-15.10 States from the nature. See sums United of “com trast, under FECA consists See 5 U.S.C. disorder. relief post-traumatic stress per- (i.e., damages) as defined 8116(b) 8116(c). pensation” §§ & operate against to reduce shall disability are discriminated benefits federal 8. This because and, pay otherwise pay allowable. employee’s the back back limited 75% argument, recov- See id. Service’s full exclusivity under the Postal by FECA's ery be barred would prior as stood Title VII 10.We construe clause. 102-166, amendments, Stat. Pub.L. provides: (1991). the effect of express VII no on 9. Title We view nature of Title essential the amendments earnings amounts eamable or Interim event, change any in that by person persons VII relief. diligence reasonable centage monthly of the employee’s salary. case, The facts of this as found exclusivity provisions Because the district court and Judge FECA outlined Rein hardt, solely are “compen limited are simple. They spell other forms rather out an sation,” they elemental simply applicable are not demand for sexual to the favors. Fran cisco, supervisor, types “equitable” by authority relief authorized had actual Title See, Barton, over e.g., the conditions of employment. VII. Smith v. Nichols’ 914 F.2d (9th 1380, Cir.1990) He made (holding 1337 submission to his sexual demands com explicit implicit pensatory money condition of damages her em generally are ployment, gave and she relief, unwilling her con equitable “distinct” from forms of such 1604.11(a) (1993); § sent. See 29 C.F.R. injunctions denied, as El or back pay), cert. 501 (9th 872, lison Brady, 924 1217, 2825, Cir. U.S. S.Ct. 115 L.Ed.2d 995 1991). (1991). significant power His signifi and her cant weakness In contributed that. other sum, In payments recover words, virtually any theory one can con discriminatory harm to the full extent al- struct, quid pro there was quo sexual harass only lowed Title VII. The limit that Title liability. ment places VII on back pay prohibi- awards is a I, therefore, result, concur in the but that against recovery. tion double See U.S.C. is all I concur in. I do Judge not concur in § 2000e-5(g)(l). The district court’s award lengthy, detailed, Reinhardt’s scholarly even did not allow for such windfall. It sim- attempt to length describe the and breadth ply awarded the between Nichols’ difference of the elements prove needed case of disability benefits and salary 100% of the she quid pro quo sexual harassment —a discus- would have during received disability her sion meant to everything cover from the core period. That award only proper, was not penumbra. to the clearly This case is so at fully implemented the Congress intent of the core that we not need decide the outer respect to both statutes. Accordingly, limits. judgment affirm the of the district court on this issue as well. fine, Judge whether Reinhardt’s efforts

have legal made the pellucid waters or luta- ceous, say. I do only say I they are IV. CONCLUSION largely unnecessary to the resolution of this We affirm the judgment of the district Thus, ease. join I do not reasoning court. quid Nichols suffered pro quo from III.A.2, join Part nor do I explication its supervisor, an em- do, however, the law. I concur in the result. ployee of Postal Service. The Service is therefore liable for such harassment. We BRUNETTI, Judge, concurring: Circuit further hold that receipt Nichols’ of FECA I, I II, III.A.1, concur in Parts and III.B of prevent benefits do not her from receiving an Judge opinion. Reinhardt’s As to Part III. monetary additional award under the remedi- A.2, I concur in the I result. further provisions al Accordingly, Title VII. Judge concur in Fernandez’s concurrence. properly Nichols was awarded an amount equal to the difference disability between her ORDER benefits and pay. 100% of her back Dec. judgment of the district court is The Clerk is directed add Court of

AFFIRMED. Appeal No. existing 92-35315 opinion filed November FERNANDEZ, J., concurring: I, I II, concur in Parts III.A.1 and III.B of

Judge However, opinion. Reinhardt’s as to III.A.2, Part I concur in only. ‍​‌​​​‌​​‌​‌‌‌‌‌‌​‌​‌​‌‌​‌‌​‌‌​‌‌​​‌‌‌‌‌​‌‌​​​​​​‍the result probably status would not be (1994). retroactive. See S.Ct. 128 L.Ed.2d 229 (cid:127)— Products, Landgraf , v. USI Film U.S.

Case Details

Case Name: Terri L. NICHOLS, Plaintiff-Appellee, v. Anthony M. FRANK, Postmaster General; U.S. Postal Service, Defendants-Appellants

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 13, 1994

Citation: 42 F.3d 503

Docket Number: 91-36241, 92-35315

Court Abbreviation: 9th Cir.