Bonnie J. Jensen v. William J. Henderson

Bonnie Jensen, a United States Postal Service (Postal Service) employee,
appeals the district court's grant of summary judgment on her Title VII hostile work
environment claims of sexual harassment in favor of the Postal Service and several
of her co-workers. The district court concluded that Jensen's claims against the Postal
Service were time barred because she failed to exhaust her administrative remedies
and that she also failed to state viable claims against the individual co-workers.

We address whether Jensen established that she timely initiated a sexual
harassment action where she ceased to actively work at the Postal Service due to the
harassment but waited more than the regulatory forty-five days to allege that the
Postal Service failed to take corrective action to remedy the hostile work
environment. In light of the recent decision by the United States Supreme Court in
Nat'l R.R. Passenger Corp. v. Morgan, ___ U.S. ___, 122 S. Ct. 2061 (2002), we hold
that the district court erred in granting summary judgment against Jensen on her
claims of sexual harassment because questions of material fact exist as to the
timeliness and nature of Jensen's complaint to preclude summary judgment. We
reverse and remand Jensen's Title VII sexual harassment claim against the Postal
Service but otherwise affirm.

I. Background

Bonnie Jensen has worked as a letter carrier at the Prairiewood Station Post
Office (Prairiewood Station) in Fargo, North Dakota, for more than twenty years.
Jensen alleges that beginning about May 4, 1999, Karl Palloch, Larry Ibach, Gregg
Sachow and Thomas Greene began harassing her. Palloch, Ibach, Sachow, and
Greene are fellow letter carriers at the Prairiewood Station. Jensen claims that she
contacted the Prairiewood Station manager and her union president on May 10, 1999,
regarding the harassment. After this notification, Jensen contacted other Postal
Service officials1 in an effort to change her work environment.

On June 4, 1999, Jensen contacted the Equal Employment Opportunity (EEO)
office and claimed that her supervisor, Jan Olson, and her co-workers were harassing
her. The EEO counselor provided general information about discrimination laws and sent Jensen the forms necessary to formalize her complaints. Jensen did not complete
the forms.

Jensen continued to work at the Prairiewood Station until November 15, 1999.
At that time, Jensen began outpatient psychiatric treatment. Jensen also applied for
and received Federal Employees Compensation Act (FECA) leave based on her major
depressive disorder that resulted from various work related incidents.2 Her FECA
benefits commenced December 18, 1999, and Jensen remains on compensated leave.
While not currently working at the Prairiewood Station or any other postal facility,
the Postal Service still considers Jensen an employee.

On January 20, 2000, Jensen's attorney sent a letter to the Equal Employment
Opportunity Commission (EEOC) requesting a "formalization and continuation of the
complaint process" and noting "that the Postal Service has not resolved the matter"
of harassment. (App. at 48.) The subsequent mediation failed, and Jensen filed a
formal complaint with the EEOC on March 15, 2000. The EEOC determined that
while Jensen contacted the EEO on June 4, 1999, she abandoned her complaint by
failing to timely pursue her claims. The EEOC advised Jensen of her right to pursue
further agency appeal or to file suit in federal district court. Jensen chose to file suit
in federal court.

In her complaint, Jensen alleged that the Postal Service "conducted an
ineffective investigation of the incidents complained of, and failed to take appropriate
and effective steps to remedy the harassment." (App. at 25.) Without conducting a
hearing and in a written order, the district court converted the Postal Service's motion to dismiss into summary judgment.3 The district court then granted summary
judgment in favor of the Postal Service. Jensen also sued Palloch, Ibach, Sachow and
Greene individually under state law claims, including infliction of emotional distress,
and 42 U.S.C. §§ 1985 and 1986. The district court dismissed these claims against
the individual defendants.

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In order for a federal employee to sue under Title VII, the employee must
satisfy certain time limitations. See Brown v. Gen. Serv. Admin., 425 U.S. 820, 833
(1976). As a federal employee, Jensen is required to initiate contact with an EEO
counselor within forty-five days of the alleged discriminatory conduct. 29 C.F.R. §
1614.105(a)(1).6

The district court rejected Jensen's hostile work environment claims based on
its determination that she contacted the EEO outside of the forty-five-day period. The
district court ruled that Jensen needed to show one discriminatory act within fortyfive
days from the last day she worked at the Prairiewood Station, which was
November 15, 1999. Under the district court's view, Jensen could not claim
discrimination after November 15 because she was not exposed to the alleged
harassment since she no longer worked with her co-workers. Therefore, the district
court determined that Jensen's forty-five-day window for filing a complaint was from
November 15, 1999, to approximately December 30, 1999. The district court
concluded Jensen's January 20, 2000 complaint was untimely.

In also rejecting Jensen's continuing violation theory, the district court
explained that "the purpose of the continuing violation theory is to allow a plaintiff
to include events which occurred outside the limitations period as part of her
properly-filed case." (Add. at 9.) The district court determined that Jensen did not
point out any incident in the forty-five-day period that allowed her to use the
continuing violation theory to reach back beyond that time to include events that
occurred outside of the forty-five-day period.

Jensen argues that the district court erred in its calculation of the forty-five-day
period because her claims are based on the Postal Service's "continued failure to take
remedial action . . . a violation which continues to this day." (Appellant's Br. at 14.)

Based on the individual acts of harassment, Jensen maintains that the Postal Service's
continued failure to redress the situation at the Prairiewood Station creates a hostile
work environment such that she cannot return to work.7

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Click the case caption above for the full text of the Court's opinion.

Reversed

Unavailable

Unavailable

None