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

> Court of Appeals for the Ninth Circuit · December 13, 1994 · 42 F.3d 503

URL: https://www.frixlaw.com/law-library/cases/9487599

## Case

- **Full name:** 66 Fair empl.prac.cas. (Bna) 614, 65 Empl. Prac. Dec. P 43,410 Terri L. Nichols v. Anthony M. Frank, Postmaster General U.S. Postal Service
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 13, 1994
- **Citations:** 42 F.3d 503
- **Precedential status:** Published
- **Opinion:** Concurrence by Fernandez
- **Judges:** Reinhardt, Brunetti, Fernandez
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487599

## How later opinions describe it (automated extraction)

- holding that a claim for work-related injury within the Act’s definition is preempted but harm from discrimination that was not an injury within the meaning of FECA is not
- holding employer vicariously liable where victim submitted to supervisor's requests for oral sex out of fear that she would lose her job if she refused
- noting that a "verbal nexus" between work-related discussions and sexual requests, although not necessary to a finding of an actionable quid pro quo offer, often helps to establish the existence of an implicit condition
- finding that harm suffered from sex discrimination is not an “injury” within the meaning of FECA

## Opinion text

FERNANDEZ, J.,
concurring:
I concur in Parts I, II, III.A.1 and III.B of Judge Reinhardt’s opinion. However, as to Part III.A.2, I concur in the result only.
The facts of this case, as found by the district court and outlined by Judge Reinhardt, are rather simple. They spell out an elemental demand for sexual favors. Francisco, the supervisor, had actual authority over the conditions of Nichols’ employment. He made submission to his sexual demands an explicit or implicit condition of her employment, and she gave her unwilling consent. See 29 C.F.R. § 1604.11 (a) (1993); Ellison v. Brady, 924 F.2d 872, 875 (9th Cir.1991). His significant power and her significant weakness contributed to that. In other words, on virtually any theory one can construct, there was quid pro quo sexual harassment liability.
I, therefore, concur in the result, but that is all I concur in. I do not concur in Judge Reinhardt’s lengthy, detailed, even scholarly attempt to describe the length and breadth of the elements needed to prove a case of quid pro quo sexual harassment — a discussion meant to cover everything from the core to the penumbra. This case is so clearly at the core that we need not decide the outer limits.
In fine, whether Judge Reinhardt’s efforts have made the legal waters pellucid or luta-ceous, I do not say. I only say that they are largely unnecessary to the resolution of this ease. Thus, I do not join in the reasoning of Part III.A.2, nor do I join in its explication of the law. I do, however, concur in the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487599. Public record. Not legal advice.