NIES, Circuit Judge.
The decision of the Merit Systems Protection Board (board or MSPB), sustaining the charges against petitioner H. Finley Downes of sexual harassment of female employees as the basis for his demotion and reassignment, is reversed.
I.
On April 30, 1983, Downes was demoted and reassigned from his position as Supervisory Aviation Safety Inspector (Grade 15), at the Cleveland General Aviation District Office (GADO), a position he had held since December 1979, to the position of
As the basis for this adverse action, the agency specified five charges:
Charge 2 was withdrawn by the agency and charges 1 and 3 were not sustained by the presiding official because of failure of proof. The presiding official upheld charge 4 upon a finding that the agency proved each of the four alleged instances of misconduct.
The status of charge 5 is uncertain. Charge 5 was not mentioned in the agency's decision letter; however the presiding official considered that the two instances underlying that charge were relied on by the agency and held that one was proved. He then considered that instance as part of the pattern of the offensive environment set out in charge 4. The other instance of charge 5 was held not to have been proved. Because of these circumstances, petitioner argues that charge 5 was not sustained while the agency argues that upholding the one instance of charge 5 means that the charge was sustained as a violation of Section 1604.11(a)(2).
The MSPB denied Downes' petition for review. Accordingly, the presiding official's decision became the final decision of the board.
II.
Sexual discrimination in employment can take a variety of forms. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17 (1982), was designed to prevent discrimination in employment, inter alia, because of sex, in the sense of gender. However, because the statute prohibits discrimination with respect to an employee's "condition" of employment, 42 U.S.C. § 2000e-2(a),
The classic example of sexual harassment is the situation in which sexual demands are made by a supervisor to a subordinate in exchange for career advantages or under threats of adverse job consequences. Because tangible job consequences are involved, this type of offense has been characterized as "quid pro quo" sexual harassment. See, e.g., Henson v. City of Dundee, 682 F.2d 897, 908 (11th Cir.1982). Sexual harassment has also been recognized because of offensive sexually related conduct which interferes with an employee's work performance or which creates an intimidating, hostile or offensive
The regulations embodying these concepts are found in 29 C.F.R. § 1604.11(a) and (b), which read as follows:
These regulations are directed to determination of a formal claim for relief from sexual harassment by an employee.
III.
Quid Pro Quo Harassment
In order to clear Downes' record, we will adopt the government's view that charge 5 based on Section 1604.11(a)(2) was sustained, that is, that the board found that Downes used sexual favors as the basis for his decisions on advancement and other personnel action.
A single incident of quid pro quo harassment under Section 1604.11(a)(2) may be sufficient to sustain that type of charge. Joyner v. AAA Cooper Transportation, 597 F.Supp. 537 (M.D.Ala.1983); Sexual Harassment, supra note 2, at 1458. Here, however, all elements of that charge were not proved.
Charge 5 was based on the following statements in an affidavit by Ms. Jones
The Jones affidavit, if accepted as true in all respects, contains no hint that sexual favors were "used as the basis for employment decisions." There is, indeed, no evidence that Downes requested sexual favors from any employee, including Ms. Jones. He repeatedly and publicly praised the professional work of Ms. Jones, which in her affidavit she viewed as creating resentment in co-workers. He increased Ms. Jones' responsibilities in response to her complaints against her previous supervisors, which she had revealed to Downes at professional meetings long before he was connected to the Cleveland GADO. She advanced in grade regularly. There is no evidence of retaliation for denial of sexual
In addition, the record does not indicate the context in which the subject remark was made. There is no indication of what preceded or followed the alleged remark. There is no indication when it occurred. One must even infer that he was her supervisor at the time. No failure can be attributed to Downes to develop the record on this point. It was part of the agency's case, and it is at this point that the Jones affidavit, the only evidence, is inadequate to sustain the charge.
Due to a critical illness, Ms. Jones became unavailable for deposition or trial testimony, which Downes sought. While we will, for purposes of the appeal, accept the presiding official's ruling to admit the affidavit under the circumstances and to find it credible for what it contains, the agency cannot benefit from her unavailability to the extent of being relieved of its burden of proof of the elements of the charge against Downes by a preponderance of the evidence.
Turning to what the presiding official actually said about the incident, we quote from his decision because it indicates confusion between the two very different types of sexual harassment:
From the above, it appears that the presiding official did not consider it necessary to rule on whether instance 1 established a Section 1604.11(a)(2) violation. However, if he intended to do so, the finding that the incident occurred is insufficient to establish violation of that regulation without evidence that it resulted in specific job action. Here, the record as a whole is overwhelming that Downes never used sexual favors or denials as the basis for employment decisions affecting Ms. Jones. That was the charge and the presiding official erred in not analyzing its elements. The charge is too serious to permit a lapse into generalities and conclusory findings.
Since the record is inadequate as a matter of law to establish instance 1 of charge 5 as "quid pro quo" harassment, we do not remand for a redetermination by the presiding official. To the extent the adverse action rested on Section 1604.11(a)(2), it cannot be sustained. The incident will, however, be taken into account as part of charge 4 directed to offensive environment.
IV.
Intimidating, Hostile or Offensive Environment
A.
To establish a claim of sexual harassment for creating an intimidating, hostile or offensive environment, the decisions which have recognized a claim based on that type of misconduct have required at least two elements: (1) the offensive conduct must be sufficiently pervasive so as to alter the conditions of employment, and (2) be sufficiently severe and persistent to affect seriously the psychological well-being of an employee. Henson v. City of
While the aim of the U.S. government as employer should be to free its workplace of offensive sexual remarks entirely, the statute and the subject regulations do not create a claim of sexual harassment for each and every crude joke or sexually explicit remark made on the job by employees, even supervisors. The courts have uniformly held that a pattern of offensive conduct must be proved which is perpetuated or condoned by an employer to such an extent that an employee's job performance or state of psychological well-being is adversely affected.
In connection with a comparable racial harassment charge, Judge Goldberg stated in his landmark Rogers decision:
Rogers v. EEOC, 454 F.2d at 238.
Similarly, with respect to sexual harassment, the elements of a claim have been set forth as follows:
Coley v. Consolidated Rail Corp., 561 F.Supp. at 649.
The District of Columbia Circuit has held:
Bundy v. Jackson, 641 F.2d at 943 n. 9 (emphasis added).
Thus, proof of occasional, isolated, and/or trivial remarks of a sexual nature do not satisfy the first element of the claim under Section 1604.11(a)(3). The offensive conduct must be persistent.
As explained by Senator Humphrey, "a pattern or practice would be present only when the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature." 110 Cong.Rec. 14,270 (1964).
B.
The Section 1604.11(a)(3) charge against Downes was premised on four incidents:
1. Referring to Ms. Jones as "the Dolly Parton of the office" in a conversation with two visitors to the facility which a female employee overheard.
2. Speculating on the frequency of Ms. Jones sexual relationships after her divorce, in a telephone conversation with her in January, 1982.
3. Describing a woman (non-employee) who wore tight shorts and repeating a joke attributed to Bob Hope about such attire to staff members.
4. Touching Ms. Jones' hair on two occasions.
Downes was supervisor of Cleveland GADO for more than three years. He is charged with at most five incidents of sexually offensive conduct during that period.
Even discounting the trivial nature of some incidents, these few instances, which we assume to have occurred, do not establish a pattern of harassment directed to "female employees" or to a particular employee. They do not show that conduct has been repeated to the point where it is "routine" or "of a generalized nature," i.e., has become a "condition" of anyone's employment. Bundy v. Jackson, 641 F.2d at 944 (sexual harassment by several supervisors was "standard operating procedure" in agency); Carroll v. Talman Federal Savings & Loan Assn., 604 F.2d 1028, 1032-33 (7th Cir.1979) (uniforms for women but not men bank tellers); Cariddi v. Kansas City Chiefs Football Club, Inc., 568 F.2d 87, 88 (8th Cir.1977) (ethnic comments not "excessive and opprobrious"). Indeed, Ms. Jones stated that no offensive remarks were made by Downes after she called him "gross" and hung up on him during the January, 1982, telephone conversation.
The context in which the statements by Downes occurred was not established by the agency, nor considered by the presiding official. To illustrate the importance of context, Downes admitted and explained one hair incident, testifying as follows:
If Downes' testimony is true — and it was not found incredible — (indeed, the presiding official relied on it as an admission) it illustrates that touching a woman's hair may or may not be a sexual gesture.
Similarly, Downes testified that Ms. Jones frequently called him at home at night to discuss numerous problems, personal and professional. The incident of Downes' remark made during a phone call — if it occurred in a late night call from her — is of a distinctly different character from a face to face office conversation.
The important point is that the offensiveness of conduct cannot be judged simply by proving that an incident involving sexual remarks occurred without considering the context.
C.
A second element of offensive environment is proof that the misconduct interfered with an employee's work or caused serious psychological damage. The agency's proof and argument, as well as the decision of the presiding official, exhibits no awareness that the requirement of an adverse impact on an employee is even a factor in the charge. Thus, the standard applied by the MSPB was wrong as a matter of law. The decision rests solely on the basis that some of the instances were proved to have occurred.
Ms. Jones, the office's Equal Employment Opportunity Representative, did not file a formal complaint of sexual harassment. Ms. Jones' affidavit, to the extent she expresses her distress, tied it to other employees' gossip, which she considered some form of sexual harassment. Regardless of whether that might be relevant evidence in a claim by her against the agency, it is not relevant to the personal charge made by the agency against Downes. The record is wholly devoid of evidence that Downes' remarks interfered with anyone's work or psychological well-being. Indeed, the portion of the record supplied to us indicates that every female employee of the Cleveland GADO, except Ms. Jones, signed a petition or letter approving of Downes as a manager. Since there is no other evidence on this point, the charge against Downes for violation of Section 1604.11(a)(3) is not supported by substantial evidence.
D.
Downes was not demoted for failing to perform his job as a supervisor, but on specific charges of sexual harassment under Section 1604.11(a). When such a charge is made, the agency must be held to the same standard as an individual or a class of complainants who might bring the charge. In this case, the agency did not meet that standard.
V.
Downes raises other issues concerning the violation of procedural due process by reliance on the affidavit of Ms. Jones, the failure of the agency to provide him with initial counselling before taking action, and questions whether the Jones affidavit was a complaint against him for sexual harassment at all. We have not addressed these issues, and it should not be inferred that they are resolved in reaching our decision here.
VI.
The elements of neither claim of sexual harassment have been established. Accordingly, the decision of the MSPB sustaining the adverse action against Downes is reversed.
REVERSED.
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