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

42 F.3d 503 66 Fair Empl.Prac.Cas. (BNA) 614 , 65 Empl. Prac. Dec. P 43,410 Terri L. NICHOLS, Plaintiff-Appellee, v. Anthony M. FRANK, Postmaster General; U.S. Postal Service, Defendants-Appellants. Nos. 91-36241, 92-35315. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 2, 1993. Decided Nov. 29, 1994. Order Dec. 13, 1994. Judith D. Kobbervig, Asst. U.S. Atty., Portland, OR, for defendants-appellants. Elizabeth McKanna, Barbara J. Diamond, Bennett & Hartman, Portland, OR, for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before: REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Concurrences by Judge FERNANDEZ and Judge BRUNETTI. OPINION REINHARDT, Circuit Judge: 1 Terri Nichols ("Nichols"), a deaf-mute postal employee, was sexually harassed by her night-shift supervisor and, as a result, repeatedly but unwillingly performed oral sex on him over a period of approximately six months. The Postmaster General and the United States Postal Service (collectively referred to as "Postal Service") were found liable under Title VII of the Civil Rights Act of 1964, following a non-jury…

Opinion by Judge REINHARDT; Concurrences by Judge FERNANDEZ and Judge BRUNETTI.

OPINION

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

I. FACTS

Terri Nichols is deaf and mute. She communicates through sign language and in writing. Like many deaf individuals, Nichols’ reading ability is limited. She reads at only a fifth-grade level. In the fall of 1986, Nichols became a night-shift mail sorter at the Salem, Oregon, postal facility.

Ron Francisco was the night-shift supervisor and the highest ranking manager at the postal facility during that shift. He had the *507 authority to grant employees leave and overtime pay, and to ask employees to perform various clerical duties. He had access to keys…

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…

concurring:

I concur in Parts I, II, III.A.1, and III.B of Judge Reinhardt’s opinion. As to Part III. A.2, I concur only in the result. I further concur in Judge Fernandez’s concurrence.

ORDER

Dec. 13, 1994

The Clerk is directed to add Court of Appeal No. 92-35315 to the existing opinion filed November 29, 1994.