Opposition Brief — Jordan v. Hodel

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

EVELYN JORDAN, PETITIONER

Vv.

DONALD P. HODEL, SECRETARY OF INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) .. 3

Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th Cir.

NINN ec Bae dee aren ca ie en Dat ns 5

Craft v. Metromedia, Inc., 766 F.2d 1205 (8th Cir.

1985), cert. denied, 475 U.S. 1058 (1986)... ... .. 4

EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.

1975), vacated, 431 U.S. 951 (1977) ....... Gay 4

Great American Federal Savings & Loan Ass'n v.

Novotny, 442 U.S. 366 (1979) .....0000 00... 3

Harmon vy. May Broadcasting Co., $83 F.2d 410 (8th

ee I aie cs age pets ta, ye Gore 4

Johnson v. Georgia Highway Express, ic. 417 F.2d

ed. a 8 ee eee . 4

Jones v. Flagship Int'l, 793 F.2d 714 (Sth Cir. 1986) 5

Lehman v. Nakshian, 453 U.S. 156 (1981) .... 3,4

Lorillard vy. Pons, 434 U.S. 575 (1978) ..... 3

Olin v. Prudential Ins. Co. of America, 798 F.2d 1 (Ist

ae Ec x's cre. 4

Robinson vy. Lovillard Cotp.. 444 F. 2d 791 (4th Cir.),

cert. dismissed, 404 U.S. 1006 (1971) .. 4

Shah v. Mt. Zion Hospital & Medical Center, 642 F.2d

268 (9th Cir. 1981) . saa 4

Slack v. Havens, $52 F. dd 1091 (9th Cir. 1975) : 4

Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182

(Lith Cir. 1985) eye. tate 4

Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248 (1981) ....... : 5

United States v. Lee Way Motor Freight, Inc., 625 F.2d

918 (10th Cir. 1979) , see ie, 4

United States Postal Serv. Bd. of Governers v. Aikens,

460 U.S. 711 (1983) Ends 5

Williamson v. Handy Button Machine Co. 817 F.2d 1290

(7th Cir. 1987)

Youakimv. Miller, 425 U.S. 231 (1976) . 3

(1)

II

Statute: Page

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

| PP ee 2,4

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-673

EVELYN JORDAN, PETITIONER

v.

DONALD P. HODEL, SECRETARY OF INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner claims that (1) the district court erred in deny-

ing her a jury trial on her Title VII gender discrimination

claim; and (2) the courts below erred in refusing to shift to

the defendant a burden of proof by clear and convincing

evidence, Once petitioner established a prima facie case of

gender discrimination.

1. Petitioner was hired as an administrative assistant

at the United States Fish and Wildlife Service in 1972.

Three years later, she filed a complaint with the Service

claiming that she was the victim of gender discriminafion.

In particular, she alleged that her immediate supervisor

Ronald DeVall suggested that it was necessary for her to

engage in a sexual relationship with him in order for her to

keep her job or obtain a promotion, and that after she

refused his advances he retaliated against her in various

ways. Administrative proceedings resulted in a finding of

no discrimination. Petitioner thereafter filed a complaint

in district court, alleging that she was a victim of gender

(1)

2

discrimination, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000e et seg., on several grounds:

(1) she was sexually harassed at her work place; (2) she suf-

fered various adverse personnel actions in retaliation for

her decision to refuse DeVall’s advances and to file a claim

of gender discrimination; and (3) she was actually and

constructively discharged. Pet. App. 20-22.

The district court denied petitioner’s request for a jury

trial on her Title VII claim. Pet. App. 13-14. Thereafter,

the district court granted partial summary judgment for

the government, ruling that petitioner had not been

discharged for an impermissible reason and that she was

dismissed because she had refused to return to work after

being on administrative leave for more than four years.

App., infra, la-3a.' The court reserved decision on peti-

tioner’s other claims. Following a bench trial, the district

court found that petitioner had not been subjected to a

hostile work environment, had not been subjected to

retaliation for filing an administrative complaint, and had

not been constructively discharged. Jd. at 4a-13a.? As the

district court summarized: “It is crystal clear that Plaintiff

and her immediate supervisor were not well suited to

working with one another. The Court finds that it was

their personality clash, not any overt or invidious sexual

considerations or retaliation, that was the ultimate cause

of all of the difficulties which bring this matter to Court.”

Id. at 9a.

' The district court’s order of October 1, 1985, is not reprinted in

the petition appendix, but is reprinted in an appendix to this

memorandum.

2 The district court’s decision of April 29, 1986, is not ~eprinted in

the petition appendix, but is reprinted in an appendix to this

memorandum.

The court of appeals affirmed. Pet. App. 18-38. It

upheld the district court’s ruling that petitioner was not the

victim of a hostile or abusive work environment. /d. at

25-31. The court also upheld as not clearly erroneous the

district court’s finding that petitioner was not the victim of

retaliation for rejecting DeVall’s advances or for filing her

Title VII administrative complaint. Jd. at 33-36.

2. a. Petitioner claims that she was entitled to a jury

trial on her Title VII claims. However, “there is no right to

trial by jury in cases arising under Title VII.” Lehman v.

Nakshian, 453 U.S. 156, 164 (1981); see Great American

Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366,

375 (1979).3 The ability to recover backpay in a Title VII

Suit does not confer on a plaintiff a legal right that entitles

a plaintiff to a jury trial, since “under Title VII, the

availability of backpay is a matter of equitable discretion.”

Lorillard v. Pons, 434 U.S. 575, 584 (1978) (emphasis

added; footnote omitted) (citing A/bemarle Paper Co. v.

Moody, 422 U.S. 405, 421 (1975)).4 Accordingly, the

district court correctly denied petitioner’s request for a

jury trial.

3 Also, petitioner did not preserve that claim. Although petitioner

asked for a jury trial in district court (Pet. App. 9-12), which denied

her request (/d. at 13-14), and petitioner listed that claim in her state-

ment of issues on appeal, which was filed more than a year before her

opening brief (id. at 15), petitioner did not present that claim in her

opening or reply briefs on the merits (Appellant Br. 4, 21-48; Ap-

pellant’s Reply Br. 7-25) or in her petition for rehearing (Pet. App.

39-51). The court of appeals also did not address it. Under these cir-

cumstances, petitioner abandoned her claim in the court of appeals,

and this Court should decline to review it. See, e.g., Youakim v.

Miller, 425 U.S. 231, 234 (1976).

+ Every court of appeals that has addressed this question has ruled

that a plaintiff does not have a right to a jury trial ona Title VII claim,

holding that such claims are equitable, not legal, even when back pay

4

b. Petitioner also contends (Pet. 9-11) that the lower

courts misallocated the burden of proof in her Title VII

retaliation claim. She argues that once she established a

prima facie case that she had been forced to endure a

hostile work environment, the government should have

been required to prove by clear and convincing evidence

that DeVall had no improper motive for taking adverse

personnel actions against her.°

However, the district court found that petitioner was

not forced to endure a hostile work environment, the court

of appeals upheld that ruling (Pet. App. 30-31), and peti-

tioner does not challenge it in this Court. The court of

~ js sought. Olin v. Prudential Ins. Co. of America, 798 F.2d 1, 7 (Ist

Cir. 1986); Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182,

1187 (lith Cir. 1985); Shah v. Mount Zion Hospital & Medical

Center, 642 F.2d 268, 272 (9th Cir. 1981); United States v. Lee Way

Motor Freight, Inc., 625 F.2d 918, 940 (10th Cir. 1979); Harmon v.

May Broadcasting Co., 583 F.2d 410, 410-411 (8th Cir. 1978); Slack v.

Havens, 522 F.2d 1091, 1094 (9th Cir. 1975); EEOC v. Detroit Edison

Co., 515 F.2d 301, 308 (6th Cir. 1975), vacated on other grounds, 431

U.S. 951 (1977); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th

Cir.), cert. dismissed, 404 U.S. 1006 (1971); Johnson v. Georgia

Highway Express, Inc., 417 F.2d 1122, 1125 (Sth Cir. 1969); see

Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1293 (7th

Cir. 1987); see also Craft v. Metromedia, Inc., 766 F.2d 1205, 1209

n.3 (8th Cir. 1985), cert. denied, 475 U.S. 1058 (1986). Further, during

Congress’s consideration of the 1972 amendments to Title VII, which

extended the Civil Rights Act of 1964 to the federal government, the

Senate rejected an amendment that would have conferred a right to a

jury trial in Title VII cases. Lehman v. Nakshian, 453 U.S. at 167

n.16.

$ Petitioner did not raise that claim in her opening or reply briefs in

the court of appeals, and that court did not consider it. In fact, in the

petition for rehearing that petitioner filed in the court of appeals, she

stated that a plaintiff bears the ultimate burden of proof ona Title VII

retaliation claim. Pet. App. 46. Petitioner therefore cannot raise this

claim for the first time in this Court.

appeals therefore correctly held that the only action peti-

tioner took that could serve as the basis for a retaliation

claim was her decision to file an administrative complaint.

Id. at 33. Moreover, the court of appeals also correctly

held (id. at 32) that petitioner’s retaliation claim should be

judged under the same allocation of the burdens of pro-

duction and proof that apply to a disparate treatment

claim. Jones v. Flagship Int’l, 793 F.2d 714, 724-729 (Sth

Cir. 1986); Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th

Cir. 1982). And it is firmly settled that the plaintiff bears

the ultimate burden of proof on a disparate treatment

claim. United States Postal Serv. Bd. of Governers v.

Aikens, 460 U.S. 711, 714-716 (1983); Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 256-257

(1981). Thus, because the court of appeals applied the

correct analysis to the district court’s findings, the decision

below does not warrant further review.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

DECEMBER 1988

® Petitioner misstates (Pet. 9-10) the holding in the Ninth Circuit’s

decision in Cohen v. Fred Meyer, Inc., supra, by suggesting that

Cohen mandates a shift in the burden of proof in a hostile environ-

ment situation. Cohen involved a retaliation claim, not a claim of a

hostile work environment, and the court made perfectly clear that

“(t]he ultimate burden of persuading the court that defendant

unlawfully retaliated against her remains at all times with the

plaintiff.” 686 F.2d at 796-797.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A78-290 Civil

EVELYN JORDAN, PLAINTIFF

VS.

WILLIAM P. CLARK, SECRTARY OF THE DEPARTMENT OF THE

INTERIOR, DEFENDANT

[FILED OCT. 1, 1985]

ORDER

(Partial Summary Judgment Granted)

Defendant moved for partial summary judgment on

August 20, 1985. The motion is unopposed, despite the

Court’s minute order of September 19, 1985, directing

counsel for Plaintiff to show cause within five days from

the latter date why Defendant’s motion for partial sum-

mary judgment should not be granted. The Court is not in

the habit of soliciting opposition in his fashion, but

neither does the Court wish to have matters where there is

some substantial potential for disagreement decided by

default.

The Court has reviewed the substance of Defendant’s

motion and has taken into consideration the provisions of

Local General Rule 5(B)(4), which in substance provides

that: “[f]ailuresto file a brief by the adverse party shall be

deemed an admission that, in the opinion of counsel, the

motion is well taken.”

(la)

2a

On undisputed facts, the Court finds that on January

25, 1980, Plaintiff was terminated as an employee of De-

fendant for her refusal to return to work after November

15, 1979. The Court further finds that no appeal was taken

from the foregoing administrative decision to terminate

Plaintiff as an employee of Defendant.

Title 42 U.S.C. § 2000e-16(d) makes the provisions of

42 U.S.C. § 2000e-5(g) applicable to this action. The latter

section provides in pertinent part:

No order of the court shall require the. . . reinstate-

ment... of an individual as anemployee. . . if such

individual was .. . discharged for any reason other

than discrimination on account of race, color,

religion, sex, or national origin or in violation of sec-

tion 2000e-3(a) of this title.

In consideration of the foregoing, the Court concludes

that Plaintiffs January 25, 1980, termination was for

reasons other than those proscribed by Section 2000e-5(g)

and therefore reinstatement cannot be ordered by this

Court on account of that termination. However, the par-

ties must understand that this ruling does not preclude

Plaintiff from pursuing her complaint, as well as the

possibility of reinstatement and retroactive pay, if Plain-

tiff can establish (among other elements of her case) that

she was constructively discharged from her job prior to

January 25, 1980, on account of sex or some other

discriminatory and therefore proscribed basis. Muller v.

United States Steel Corp., 509 F.2d 923, 930 (10th Cir.),

cert. denied, 423 U.S. 825 (1975); Satterwhite v. Smith,

744 F.2d 1380, 1381 (9th Cir. 1984).

3a

DATED at Anchorage, Alaska, this Ist day of October,

1985.

/s/ H. Russell Holland

H. RUSSELL HOLLAND

United States District Judge

4a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

No. A78-290 Civil

EVELYN JORDAN, PLAINTIFF

VS.

WILLIAM P. CLARK, SECRTARY OF THE DEPARTMENT OF THE

INTERIOR, DEFENDANT

[FILED APR. 29 1986]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Court trial in this matter was concluded on March 7,

1986. The Court has considered the testimony and exhibits

presented at trial and the oral argument of counsel. Based

upon the foregoing and upon the joint statement of un-

contested facts filed herein by the parties, the Court makes

the following:

Findings of Fact

1. Plaintiff in this case is a female who began working

for the United States Fish & Wildlife Service as an admin-

istrative assistant in the office of the Alaska area admin-

istrator at Anchorage, Alaska, on April 9, 1972. Plaintiff

had initially been hired on November 4, 1968, by the

Department of Defense in a civilian capacity as a card

punch operator, GS-2 level, assigned at Elmendorf AFB.

On September 9, 1969, she transferred to Fort Richardson

in a GS-3 position as a clerk-stenographer, and on Octo-

Sa

ber 19, 1969, moved to an administrative clerk position at

a GS-4 level with the Office of the Adjutant General in

Anchorage. On December 12, 1970, Plaintiff transferred

to the Alaska Railroad as a clerk-typist at the equivalent of

a GS-4 level. On April 15, 1971, her position was the sub-

ject of a reduction in force.

2. Plaintiff was thereafter hired as an administrative

assistant at a GS-5 level at the U.S. Fish & Wildlife Serv-

ice. At this time, Plaintiff’s immediate supervisor was ad-

ministrative officer Ronald C. DeVall. Shortly after Plain-

tiff was appointed to this position and for a period of time

thereafter, Plaintiff and Mr. DeVall regularly went to

lunch together, and matters other than business were

discussed on such occasions. During one such luncheon in

May of 1982, Mr. DeVall made statements which Plaintiff

understood as a sexual advance. Mr. DeVall had been

known to tell jokes and make comments that had sexual

overtones. At least one of Plaintiff's co-workers, Ms.

Louise Waddel, had heard Mr. DeVall make such off-

color comments in the past on another occasion, but had

not taken him seriously.

3. In June of 1973, Plaintiff was promoted from the

GS-5 level to the GS-7 level. During early spring of the

following year, 1974, a review of Plaintiff's position

description was made by Mr. William Struhs, a personnel

officer with the U.S. Fish & Wildlife Service located in

Portland, Oregon, who found she was not eligible for pro-

motion at that time.

4. On January 13, 1975, Plaintiff notified Mr. Henry

Hanson, the deputy area director for the U.S. Fish &

Wildlife Service in Alaska, and its equal employment op-

portunity counselor, that she intended to file a formal

complaint based on allegations of sex discrimination. The

formal complaint, which was filed on February 26, 1975,

6a

was investigated in April of 1975 and a report followed on

April 25, 1975. The matter was reviewed, without a formal

evidentiary hearing at Plaintiff’s request, by the U.S. Fish

& Wildlife Service which issued a report on April 26, 1976,

and later by the director of equal employment opportunity

for the Department of the Interior, who issued a report

dated December 3, 1976. Plaintiff thereafter appealed

these decisions to the Appeals Review Board of the U.S.

Civil Service Commission, which issued its written deci-

sion on September 22, 1978. At Plaintiff’s request, no for-

mal hearing was ever held. Plaintiff filed the present suit

in the United States District Court within thirty (30) days

of receipt of this decision.

5. From May 2, 1975, until November 14, 1979, Plain-

tiff was on authorized “leave without pay” status at her re-

quest. Effective January 25, 1980, Plaintiff was removed

from her position for refusal to return to work after

November 15, 1979. No appeal was taken from this ac-

tion.

6. At the luncheon meeting on May 15, 1972, at which

Plaintiff understood she received a sexual advance from

her supervisor, Mr. DeVall, Plaintiff and Mr. DeVall were

more probably than not engaged in flirtatious conversa-

tion and conduct which could, and probably did, leave

each of them with the impression that he or she had been

the recipient of a sexual advance.

7. Even if expressed as an overt solicitation as con-

tended by Plaintiff, the Court finds that the foregoing

May 15, 1972, exchange between Plaintiff and Mr. DeVall

did not rise to the stature of a condition of employment or

promotion. Plaintiff’s evidence fails to convince the Court

that any adverse job action resulted from her refusal of the

Overture attributed to Mr. DeVall.

8. Plaintiff contends that she was harassed by

telephone calls from Mr. DeVall. The evidence in this

7a

regard is very meagre. There is clear evidence of only one

telephone call to Plaintiff's residence, and this is disputed

by Mr. DeVall. Plaintiffs proof fails to establish a pattern

of harassment through telephone calls. Assuming that

multiple telephone calls were made, the Court is not con-

vinced that the telephoning persisted for any significant

length of time, nor that it rose to the stature of condition

of continued employment or promotion. Such is not even

suggested by the evidence.

9. Plaintiff has made other claims of harassment. In

oral testimony, the Court heard allegations of offensive

touching at Plaintiff's place of work. Civen the history of

this case, it is inconceivable that Plaintiff would not have

made these most recent allegations of sexual harassament

during the course of the several years of administrative

proceedings which preceded this litigation. To give Plain-

tiff the benefit of the doubt, and assuming that she has not

simply manufactured these additional allegations of

harassment, the Court finds that any physical contact be-

tween Plaintiff and Mr. DeVall on the job was of so in-

significant a nature as to not rise to the stature of

unwelcome sexual contact. Had the supposed contacts

been of this stature, they surely would have been men-

tioned by Plaintiff during the course of the administrative

investigation of her sexual harassment complaint.

10. Mr. DeVall was given to telling off-color stories

and making occasional sexist comments in the work place.

Much of this conduct appears to have been directed at men

as well as women. Without meaning to condone this con-

duct in any degree, the evidence simply does not support a

finding that the foregoing conduct, to the extent that it

was unwelcome, offensive, and/or sexually discriminatory

in its impact, was also sufficiently pervasive so as to aiter

the terms of employment and create an abusive work en-

vironment.

8a

11. Plaintiff has contended that in the course of

reevaluating her job description in 1974, duties were im-

properly taken away from her. The Court is not convinced

that this action was an outgrowth of the refusal of an

alleged sexual overture two years prior. Moreover, the

evidence taken as a whole clearly establishes that there

were legitimate administrative reasons for making dele-

tions from Plaintiff’s job description. The duties removed

were those of a lesser grade position, and those duties in

fact tended to downgrade Plaintiff's job rather than

enhance its status.

12. Plaintiff has contended that she was denied a pro-

motion to GS-9 level in June of 1974. The Court finds that

Plaintiff was not entitled to such a promotion. Further-

more, there is insufficient evidence to convince the Court

that Plaintiff's job might have been structured so as to

qualify her for a GS-9 level, but was not so structured

because of discriminatory sex considerations.

13. In summary as to the foregoing, the Court finds

that Plaintiff does belong to a protected group. Plaintiff

was not subject to unwelcome sexual harassment with the

possible exception of the May 15, 1972, off work en-

counter. As to the latter, while such conduct was based

upon sex, the situation was not sufficiently pervasive to

alter the conditions of employment or create an abusive

working environment.

14. Plaintiff has contended that her promotion from

GS-5 to GS-7 in 1973 was delayed. The Court finds that

there was no significant delay in this promotion, and in

particular the Court finds that any delay was not occa-

sioned because Plaintiff refused her supervisor’s alleged

sexual advance in May of 1972.

15. Plaintiff has claimed that she was denied manage-

ment training. The Court finds that Plaintiff was afforded

hn ne alll

9a

substantial training at Government expense and, when cer-

tain training was denied, legitimate reasons for a refusal

existed. Management training was not refused Plaintiff

because of the alleged sexual advance in May of 1972.

16. Plaintiff claims that her job performance ratings

were downgraded, that she received a ninety-day warning

notice, and that certain other adverse memoranda were

placed in her personnel file in retaliation for her filing an

administrative sex discrimination complaint. While the

aforementioned incidents, if viewed in isolation, might

give rise to the inference of retaliation, after considering

all of the evidence the Court is unable to find by a

preponderance of the evidence that there has been any

retaliation against Plaintiff. The conduct which Plaintiff

asserts to be retaliatory appears to the Court to be more a

reaction to a problem of clashing personalities than acts in

retaliation for the filing of a discrimination complaint.

The alleged adverse filings are certainly a reaction to

Plaintiff's conduct, but the Court is not convinced that sex

discrimination or the filing of Plaintiff's complaint on this

subject had anything to do with Plaintiff's downgraded

performance ratings, the consequential ninety-day warn-

ing, or other adverse matters placed in her personnel file.

17. It is crystal clear that Plaintiff and her immediate

supervisor were not well suited to working with one

another. The Court finds that it was their personality

clash, not any overt or invidious sexual considerations or

retaliation, that was the ultimate cause of all of the dif-

ficulties which bring this matter to Court.

18. In amplification of the foregoing, the Court finds

that Plaintiff was possessed of a compelling need to

achieve and succeed on her job. The Court is well aware of

the fact that this attribute historically has been seen as a

“plus” in men and occasionally as a “negative” quality in

women. In the past it has not been uncommon for men

10a

possessed of this quality to be characterized as “can do”

people and “go-getters,” whereas women with this at-

tributes were characterized as “pushy women” or worse.

The Court finds no clear evidence of the latter philosophy

in Plaintiff's employment. Rather, Plaintiff's female co-

workers appear to have had every bit as much difficulty

relating to and working with her as did her immediate

supervisor and other male personnel.

19. In her desire to promote herself, Plaintiff has

come across as being divisive, presumptuous, and vitriolic.

She has manipulated her physician in order to absent

herself from work in the latter stages of this matter. She

has taken upon herself to assume responsibilities which

were not hers and, in one instance, appears to have under-

mined the effectiveness of her employer in a Native hire

program. Plaintiff and her supervisor and Plaintiff and

other employees have engaged in loud and angry argu-

ments, some of which degenerated into the exchange of

vulgar suggestions.

20. In summary, the Court finds that Plaintiff was a

very disruptive influence in her workplace. The Court is

convinced that Plaintiff's downgraded performance

ratings and other adverse comments placed in her file were

substantially justified.

21. The Court does not find nor intend to suggest that

this matter was handled well by Plaintiff's employer. In-

deed, it appears that during the period between 1972 and

1975, the area administrator’s office for the Fish &

Wildlife Service was ineffectual, both in handling what

was admittedly a very difficult personnel problem as be-

tween Plaintiff and her immediate supervisor and in

handling that situation when it was brought to a confron-

tation by Plaintiff in the context of a discrimination com-

plaint. Be this as it may, once an outside investigator

was appointed, Plaintiff’s discrimination complaint was

lla

thoroughly and exhaustively evaluated administratively.

No discrimination was found and, on reexamination of

that issue, the Court also so finds. A resolution of Plain-

tiffs complaint was offered by the employer which was

fair, just, and equitable —indeed, for more than Plaintiff

was entitled io in the opinion of the Court. The employer’s

resolution was rejected by Plaintiff.

22. On appeal, the Civil Service Commission ultimate-

ly found that there had been retaliation against Plaintiff.

On retrial of that issue, the Court is convinced that the

evidence does not support such a finding. As stated above,

the Court finds that those actions found to have been

retaliatory were not undertaken because of Plaintiff's

discrimination complaint, but rather solely because of the

dreadful interpersonal relationships which had developed

between Plaintiff and her supervisors and fellow

employees that were in no way sex-oriented.

23. Plaintiff contends that she was constructively

discharged by Defendant prior to her formal administra-

tive discharge. (The final administrative discharge effected

by Defendant is not at issue here, having never been

challenged by Plaintiff.)

24. In 1973, Plaintiff suffered a series of serious

misfortunes (an automobile accident in which she received

a back injury, death of an immediate family member, and

major surgery unrelated to her accident). Plaintiff did not

recover as rapidly as would have been anticipated from her

traumatic injury, and it is very unclear from the evidence

whether the back injury exacerbated the job situation or

whether the reverse was true. The truth likely is that each

compounded the other. More probably than not, job

Stresses aggravated Plaintiffs back injury, and the back

injury aggravated the personality clashes between Plaintiff

and her superiors and fellow employees. This situation

12a

led to Plaintiff taking extended leaves without pay. To the

extent that Plaintiffs job situation may have contributed

to the leaves without pay, the operative cause was poor

personnel interrelationships, not sex discrimination.

25. Plaintiff returned to work briefly in 1979 at a

point in time when a period of extremely rapid growth had

substantially changed the area administrator’s office of the

U.S. Fish & Wildlife Service at Anchorage, Alaska. The

Administrative responsibilities of the Anchorage office

has grown tremendously with the result that jobs were very

differently structured. At this point, all of the personnel

(including Plaintiff's immediate superior) who were in-

volved in this matter from 1972 through the completion of

the administrative proceedings on Plaintiff's discrimina-

tion complaint had retired or been transferred to other

sites. The GS-7 job which Plaintiff had performed into

early 1975 simply didn’t exist anymore. As a consequence,

upon her return to work Plaintiff was assigned to work

under Peggy Thomas, the chief of contracting and general

services of the U.S. Fish & Wildlife Service at Anchorage,

Alaska. Plaintiff was assigned to do administrative work

involving review and indexing of agreements between the

agency and others. Although Plaintiffs new supervisor

found Plaintiff's work to be satisfactory, Plaintiff was not

happy with her new work and found it stressful. Plaintiff

again voluntarily left her employment with the U.S. Fish &

Wildlife Service at Anchorage. There is no evidence that

Plaintiff's departure was anything but her own choice.

26. The Court finds that Plaintiff was not construc-

tively terminated from her employment at the U.S. Fish &

Wildlife Service at Anchorage, Alaska. Plaintiff was not

forced off the job by an abusive working environment.

l3a

Conclusions of Law

(1) In light of the foregoing findings of fact, the Court

concludes as a matter of law that there has not been a

violation of 42 U.S.C. § 2000e-16.

(2) Plaintiff was not denied employment or advance-

ment or other job benefits because of her sex.

(3) Plaintiff was not subjected to harassment which

rose to the stature of a condition of employment or an

abusive working environment.

(4) Plaintiff was not subjected to retaliation because

of her filing a sex discrimination complaint.

(5) Plaintiff was not constructively terminated from

her employment by reason of sex discrimination or harass-

ment.

The Clerk of Court shall enter judgment dismissing

Plaintiff's complaint with prejudice.

DATED at Anchorage, Alaska, this 29th day of April,

1986.

/s/ H. Russell Holland

H. RUSSELL HOLLAND

United States District Judge

US GOVERNMENT PRINTING OFFICE 1968 —241 69900014