# Intlekofer v. Turnage > Court of Appeals for the Ninth Circuit · August 24, 1992 · 973 F.2d 773 URL: https://www.frixlaw.com/law-library/cases/9002502 ## Case - **Full name:** Joyce INTLEKOFER v. Thomas TURNAGE, Administrator and Veterans Administration, A Federal Agency - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** August 24, 1992 - **Citations:** 973 F.2d 773; 92 Daily Journal DAR 11702; 59 Empl. Prac. Dec. (CCH) 41,761; 59 Fair Empl. Prac. Cas. (BNA) 929; 92 Cal. Daily Op. Serv. 7218; 1992 U.S. App. LEXIS 19400; 1992 WL 201088 - **Precedential status:** Published - **Opinion:** Dissent by Wiggins - **Judges:** Hall, Keep, Wiggins - **Cited by:** 52 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9002502 ## How later opinions describe it (automated extraction) - stating that, in a case involving workplace hostility after the end of a consensual relationship between coworkers, “[i]t is not an employer’s responsibility to mediate relationship disputes between employees unless and until there is actual sexual harassment,” and that sexual… - concluding that case was submissible where employer “failed to take more severe disciplinary measures against [harasser] once it learned that [the] harassing behavior had not stopped” - holding that an oral warning may be sufficient “where the harassing conduct is not extremely serious” - holding that more severe disciplinary mechanisms are needed when harassment continues - stating that the employer “must take some form of disciplinary action” ## Opinion text WIGGINS, Circuit Judge, dissenting. I respectfully dissent. I do not believe that the behavior of Mr. Cortez constituted a prima facie case of sexual harassment of Ms. Intlekofer. While this court may be required to find that there was in fact sexual harassment because the VA failed to appeal that finding, I nevertheless believe that an employer has no duty to remedy nonexistent harassment. Thus, I disagree with the majority’s conclusion that the VA took insufficient steps to stop Cortez’s behavior. I. Title VII of the Civil Rights Act prohibits employers from discriminating “with respect to ... compensation, terms, conditions, or privileges of employment because of ... sex_” In what some may regard as a major advance in social justice, the administrator of the Equal Employment Opportunity Commission has taken the addition of a single word, “sex”, to Title VII and has created a new substantial risk of liability to employers. In implementing regulations, the EEOC has defined sexual harassment in 29 C.F.R. section 1604.11 as follows: *784 Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. We deal here with conduct that fits, if at all, under subdivision (3), a so-called “hostile environment” case. Each subdivision, however, requires a preliminary showing by the claimant. Basic to a finding of illegal sexual harassment by an employer is that the complained of conduct must be “unwelcome” — i.e., nonconsensual — must constitute a sexual advance, request a sexual favor, or constitute verbal or physical conduct of a sexual nature. Jordan v. Clark, 847 F.2d 1368, 1373 (9th Cir.1988), cert. denied, sub. nom., Jordan v. Hodel, 488 U.S. 1006 , 109 S.Ct. 786 , 102 L.Ed.2d 778 (1989). This circuit has not declared that simple hostility between coworkers of the opposite sex, without sexual overtones, may state a cause of action against the employer under Title VII. Ellison v. Brady, 924 F.2d 872 , 875 n. 5. (“We need not and do not decide whether a party can state a cause of action for a sexually discriminatory work environment under Title VII when the conduct in question is not sexual.”) And I am not prepared to do so here. The district court found that Intlekofer and Cortez were involved in a consensual sexual relationship for two years, apparently from 1985 until 1987. When they broke up, there was a great deal of ill feeling on both sides. Intlekofer simply chose to air her grievances against Cortez to her employer. It is not an employer’s responsibility to mediate relationship disputes between employees unless and until there is actual sexual harassment. In this case, it is clear that Cortez’s relationship with Intlekofer after their consensual affair ended did not fit into any of the three definitions of sexual harassment. Intlekofer testified that Cortez, for no reason apparent to her, became possessive of her in 1987, apparently after their sexual relationship ended. She testified that he would try to touch her when they were alone at work. I find this to be the only complaint of arguably “sexual harassment.” Given the previous sexual relationship between the parties and Intelkofer’s failure to complain when the attempted touching occurred, I discredit this complaint as a basis for her cause of action. She first complained to her supervisor because Cortez allegedly told her that he was watching to see which direction she took to go home. She next complained because Cortez allegedly told coworkers that Intle-kofer had sex with him. She said Cortez made it impossible to work because he did not give her phone messages and would sometimes pace the room as she interviewed patients. She also complained that she feared Cortez because he said he would get even with her. Intlekofer further complained that Cortez told jokes about her to fellow employees — some of which she believed were sexually explicit. On her third complaint, Intlekofer complained that Cortez called her at home. However, she admitted that many of the calls she attributed to Cortez were never identified. Furthermore, there is no evidence they were of a sexual nature. Intlekofer also complained that Cortez would throw office keys and the beeper on the desk or the floor rather than hand them to her, as he was required to do at the end of a shift. Likewise, Intlekofer complained that Cortez would yell at her because she talked to her boyfriend. She also testified that on at least one occasion Cortez asked if he could go over to her house.' She said he complained to her about the fact that he had been assigned to work midnight shifts seven days a week in late 1987. According to Intlekofer, Cortez threatened to call in sick for his shifts so that she would have to work double shifts. He also allegedly followed her out of the hospital one night in December 1987 when she left work early *785 because she was not feeling well, asking her where she was going and yelling “I’ll get you for this. I owe you one.” Intle-kofer also offers as proof of the sexual harassment the fact that three men asked her for dates entirely unexpectedly. She speculated that this showed Cortez had ruined her reputation, making these men want to date her. She also complained that Cortez once parked next to her in the lot, out of his way, slammed his car door and made an obscene gesture toward her. She also testified that she believed Cortez defaced a sticker on her locker with an obscene drawing, but a fellow employee scraped it off. The district court, however, did not find Intlekofer entirely credible, as evidenced by the fact that the judge did not believe her denials of any sort of personal relationship with Cortez. Other YA employees testified that it was common knowledge that Cortez and Intlekofer had an intimate relationship. Cortez testified that he broke up with Intlekofer because she was dating several other people at the same time and lying to him about it. At the time they broke up, Intlekofer was in charge of scheduling and Cortez testified that she made a concerted effort to give him the most undesirable shifts — nights, weekends and double shifts. Furthermore, Intlekofer allegedly threatened Cortez at the time of their breakup by warning him that he would never be able to ignore her. After they broke up, Intlekofer filed multiple complaints of harassment against him. It may be argued that some of Cortez’s alleged conduct was of a sexual nature, and was offensive. However, viewed in the context of their prior relationship and of the behavior Intlekofer apparently directed toward Cortez, Cortez’s conduct does not constitute sexual harassment. Instead, there is significant evidence that In-tlekofer and Cortez disliked each other and each was therefore hostile toward the other. The VA, for its part, did what could reasonably be expected to defuse a difficult situation. After the first two complaints, the VA counseled both Cortez and Intlekofer, suggesting they avoid each other and asking Cortez not to talk to Intlekofer. After the complaints persisted, the VA demoted Cortez to the file room and separated their schedules so they would not work together. Although their schedules still overlapped for a few minutes, this was unavoidable under the circumstances. Even Intlekofer testified to the fact that given the number of shifts a week and the number of MAAs, it would be impossible for the VA to work out a schedule where Intlekofer and Cortez never saw each other. Under the circumstances, the VA made a reasonable effort to separate two feuding employees. Even if Cortez’s behavior constituted sexual harassment, which I do not believe, the VA needed only do what was reasonably calculated to end the harassment. I believe the VA did so. I do not, of course, maintain that sexual harassment can never occur after a failed relationship between employees. Rather, I believe that the relationship is a factor to be considered both in determining if there was in fact sexual harassment and in determining what should properly be done by an employer to remedy the situation. In this case, I do not believe there was sexual harassment. Because there was not, the VA’s actions were entirely appropriate. II. I agree with the majority that Ellison would apply retroactively to this case, were I to believe that there was a need to apply it. I write to point out what I believe is incorrect dicta in the majority’s opinion. Ellison does not always require punitive disciplinary conduct when an employer receives notice of alleged sexual harassment. 1 It is true that the Ellison court stated that “Title VII requires more than a mere request to refrain from discriminatory con *786 duct.” However, this statement was made in the context of a specific set of facts involving an egregious and obvious case of sexual harassment. After examining the surrounding language and the logic of the decision, I cannot believe the Ellison court meant to create a rule always requiring punitive disciplinary action as the first response. “Employers should impose sufficient penalties to assure a workplace free from sexual harassment.... [W]e think that the reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in the harassment.” Ellison, 924 F.2d at 882 . By this language, this court clearly recognized that cases of sexual harassment vary greatly, and the action necessary to stop the behavior also must vary. In some cases, I believe that a request to stop may be sufficient as an employer’s first course of action. Without this as an option, we put employers in an impossible position. If we were always to require punitive discriminatory measures, we would create strict liability for employers who fail to define sexual harassment correctly and immediately. First, the parameters of sexual harassment are not clear, and are constantly evolving. To expect an employer always to be able to identify conduct correctly and immediately as sexual harassment is unreasonable. Employers would be forced to punish all accused barassers, regardless of whether they are guilty. This is, of course, unfair to the alleged harasser who is not actually guilty. It is also unfair to the employer, who in trying to protect himself from suit by the alleged victim opens himself up to suit from the unfairly punished alleged harasser. Furthermore, in some cases, it is bad policy to require punitive disciplinary action immediately when a simple request to stop the behavior may be sufficient. 2 Because the definition of sexual harassment is constantly evolving, the alleged harasser, like the employer, may not always know immediately that his conduct constitutes sexual harassment. I respectfully dissent. . I believe this to be dicta because the majority’s problem with the VA is not its initial response to the complaints. Instead, the majority holds that "the VA's response to Intlekofer’s repeated complaints was insufficient under Title VII.” . I do not belittle the importance of remedying sexual discrimination as quickly as possible. I simply believe that there should be some latitude for an employer to adjust his response to the individual situation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9002502. Public record. Not legal advice.