Greene, Luria N. v. Dalton, John H. , 164 F.3d 671 ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 1998 Decided January 19, 1999
No. 97-5333
Luria N. Greene,
Appellant
v.
John H. Dalton, Secretary,
Department of the Navy and
Donald W. Clause,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 96cv02161)
Kurt J. Hamrock argued the cause as amicus curiae on
behalf of appellant. With him on the briefs was Daniel G.
Jarcho, appointed by the court.
Luria N. Greene, appearing pro se, was on the briefs for
appellant.
Brian J. Sonfield, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Silberman, Ginsburg, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Luria N. Greene sued the Navy
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
s 2000e-2(a)(1), and her former supervisor under the com-
mon law, claiming that (1) her supervisor had sexually ha-
rassed her while she was employed by the Navy as a summer
intern and (2) in retaliation for her complaining about the
harassment the Navy refused to rehire her the following
summer. The district court, concluding that Greene had
failed to present sufficient evidence to support a jury verdict
against the Navy, granted the Government's motion for sum-
mary judgment and dismissed the claim against the supervi-
sor for lack of subject matter jurisdiction. Upon Greene's
appeal, we hold that a reasonable jury could find that Greene
was sexually harassed by her Navy supervisor, but not that
the Navy retaliated against her because of her complaints
about him. Accordingly, the judgment of the district court is
reversed in part and affirmed in part.
I. Background
Greene started work for the Navy as a temporary engi-
neering technician on June 19, 1995; she was a 22-year-old
graduate student at the time. According to her affidavit,
which we credit in view of the procedural posture of the case,
that same day "and virtually every day thereafter," her
immediate supervisor, Lieutenant Commander Donald
Clause, subjected her to "unwelcome discussions concerning
sexual matters" and to amorous advances. Clause's campaign
of harassment, she says, culminated on June 29 in his raping
her. On August 2, when Clause allegedly propositioned her
again, she reported the rape to a Navy EEO counselor.
In October, 1995 Greene filed a formal sexual harassment
complaint with the Navy's Equal Employment Office. As a
result of her allegations the Navy initiated a court martial
proceeding against Clause, charging him with rape, sexual
harassment, adultery, and conduct unbecoming an officer.
Clause admitted having sex with Greene but claimed that it
was consensual. In support of this defense he introduced
evidence suggesting that Greene had in the past filed a
number of frivolous sexual harassment complaints. He also
introduced a diary, purportedly written by Greene, that con-
firmed his account of the June 29 incident. The military
court found Clause guilty of adultery and conduct unbecom-
ing an officer, but not guilty of rape or sexual harassment.
In 1996 Greene again applied for a summer position with
the Navy. Another, allegedly less qualified, candidate was
hired for the position. Greene asserts that the Navy refused
to hire her because of the charges she had made against
Clause.
Greene filed this suit in September, 1996. Her complaint
includes claims against the Navy for sexual harassment and
retaliation and against Clause for intentional infliction of
emotional distress, as well as a demand for a jury trial.
Instead of answering the complaint, both defendants moved
to dismiss, or, in the alternative, for summary judgment.
The district court granted the Navy's motion for summary
judgment and dismissed the case against Clause. First, in
view of Greene's history of questionable complaints and the
exculpatory contents of her supposed diary, the court rea-
soned that her allegations of sexual harassment "may have
been fabricated for purposes of personal advantage or re-
venge"; although Greene had submitted an affidavit to the
court in which she denied writing the diary, the court faulted
her for not making a "definitive repudiation" of its authentici-
ty. Turning next to Greene's claim of retaliation, which it
mistakenly understood to rest solely upon the Navy's decision
not to hire her for a permanent position, the court observed
that she had failed to present evidence that she had ever
applied for such a position, wherefore no reasonable jury
could find that the Navy had wrongfully denied it to her.
Finally, the court dismissed for lack of subject matter juris-
diction Greene's claim against Clause for intentional infliction
of emotional distress. Greene contends that the court erred
in making each of these rulings.
II. Analysis
This court reviews a grant of summary judgment de novo,
that is, applying the same standard that governed the district
court's decision. See Troy Corp. v. Browner, 120 F.3d 277,
281 (1997). Under Fed. R. Civ. P. 56(c), summary judgment
is appropriate only if "there is no genuine issue as to any
material fact." In deciding whether there is a genuine issue
of fact before it, the court must assume the truth of all
statements proffered by the party opposing summary judg-
ment--subject to an exception discussed below. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
This is the standard even when the court entertains grave
doubts about such a statement; like the weighing of evidence
generally, the task of determining the credibility of a witness
is the exclusive domain of the finder of fact. See id.; Bayer
v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C.
Cir. 1992).
In granting summary judgment for the Navy on Greene's
claim for sexual harassment, the district court quite clearly
invaded the province of the jury. Greene submitted a sworn
affidavit stating that Clause had harassed and raped her, and
that the proffered diary suggesting otherwise was a forgery.
If true, these allegations are indisputably sufficient to support
a verdict against the Navy under Title VII. See Gary v.
Long, 59 F.3d 1391, 1397 (D.C. Cir. 1995). The allegations
may, of course, be false. That is a question not for the court,
however, but for the jury.
Recognizing, one suspects, the inevitability of this conclu-
sion, the Navy argues that the district court's decision can be
upheld upon an alternative ground, namely, that the Navy has
made out the affirmative defense recognized by the Supreme
Court in Faragher v. City of Boca Raton, 118 S. Ct. 2275(1998), and Burlington Industries, Inc. v. Ellerth, 118 S. Ct.
2257 (1998). In those cases the Court held that when a
supervisor creates a hostile work environment for a subor-
dinate, their mutual employer can avoid or decrease its
liability for the supervisor's acts by showing that (1) it took
reasonable care to prevent and correct the harassment, but
(2) the subordinate "unreasonably failed to avail herself of the
employer's preventive or remedial apparatus." Faragher, 118
S. Ct. at 2292. Because the rigor with which the Navy
enforces its strict anti-harassment policy is unquestioned, and
because Greene admittedly waited more than a month to
disclose the alleged rape, the Navy contends that it has made
out this defense as a matter of law.
Even if the Navy can satisfy the first element of the
Faragher test, however, it plainly has not met the second.
The "failure to avail" standard is not intended to punish the
plaintiff merely for being dilatory. Rather, it "reflects an ...
obvious policy imported from the general theory of damages,"
namely, that the victim has a duty to mitigate her damages.
118 S. Ct. at 2292. "If the victim could have avoided harm,
no liability should be found against the employer who had
taken reasonable care, and ... no award against a liable
employer should reward a plaintiff for what her own efforts
could have avoided." Id.
In a suit for sexual harassment, the actionable harm is
caused by "harassment ... sufficiently severe or pervasive to
alter the terms and conditions of [the victim's] employment
and create an abusive working environment." Meritor Sav-
ings Bank v. Vinson, 477 U.S. 57, 67 (1986). In order for the
Navy to avoid all liability based upon its Faragher defense,
therefore, it must show not merely that Greene inexcusably
delayed reporting the alleged rape--which is what it empha-
sizes on brief--but that, as a matter of law, a reasonable
person in Greene's place would have come forward early
enough to prevent Clause's harassment from becoming "se-
vere or pervasive." This the Navy has not done; too little is
known about Clause's behavior in the first ten days of
Greene's employment. The only evidence on the subject is
Greene's rather general assertion that Clause repeatedly
initiated inappropriate sexual conversations with, and made
inappropriate advances toward, her during that period. As
the party moving for summary judgment, the Navy bears the
initial burden of identifying evidence that demonstrates the
absence of any genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). On the record
before us, however, we can determine neither the point at
which Clause's harassment became severe or pervasive nor
when a reasonable person would have reported his behavior.
A jury may resolve both these issues in favor of the Navy, but
without improperly resolving disputed issues of fact, we can-
not.
Greene's claim of retaliation is an altogether different
matter. As she correctly observes, the district court focused
exclusively upon her charge, now effectively abandoned, that
the Navy retaliated against her by failing to give her a
permanent position, and ignored her contention that the
service also refused to hire her for a second summer job.
The latter allegation deserved more attention than the district
court gave it, but not much more.
The only evidence Greene proffered that even conceivably
suggests a retaliatory animus on the part of the Navy consists
of the representation in her affidavit that she applied for
summer jobs in 1996 and 1997 and was not hired although
"another student, who had less experience and education was
hired back" in 1996.1 See Paquin v. Federal Nat'l Mortgage
Ass'n, 119 F.3d 23, 31 (D.C. Cir. 1997) (otherwise inexplicable
hiring decision can support inference of discriminatory ani-
mus). Although, as a rule, statements made by the party
opposing a motion for summary judgment must be accepted
as true for the purpose of ruling on that motion, some
statements are so conclusory as to come within an exception
__________
1 We need not address Greene's objection that the district court
failed to rule on her motion to compel the Navy to produce her
employment records. She sought those documents only to show
that "she did indeed apply for the positions in controversy in this
case"--a fact which, for the purpose of this appeal, we assume to be
true.
to that rule. See, e.g., Delange v. Dutra Constr. Co., 153 F.3d
1055, 1058 (9th Cir. 1998); Lefkowitz v. Citi-Equity Group,
Inc., 146 F.3d 609, 611 (8th Cir. 1998); Huckabay v. Moore,
142 F.3d 233, 240 (5th Cir. 1998).
Greene's statement here is of just that conclusory sort.
See Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)
(plaintiff "must support his allegations of superior qualifica-
tions with facts in the record; a mere unsubstantiated allega-
tion of superior qualifications creates no genuine issue of fact
and will not withstand summary judgment"). Absent sup-
porting facts--and Greene provided none--a jury would be in
no position to assess her claim of superiority. Accepting such
conclusory allegations as true, therefore, would defeat the
central purpose of the summary judgment device, which is to
weed out those cases insufficiently meritorious to warrant the
expense of a jury trial. Because Greene's claim of retaliation
rests entirely upon a conclusory representation, the district
court was right to dismiss it.
III. Conclusion
There is evidence in the record from which a reasonable
juror could conclude that Clause harassed Greene. Further-
more, Greene's failure to seek assistance promptly after
Clause allegedly raped her is not causally related to the harm
for which she is suing and hence does not preclude her
recovery as a matter of law. The district court therefore
erred in granting summary judgment for the Navy on
Greene's claim of sexual harassment and, as a consequence
thereof, in dismissing her pendent common law claim against
Clause.
On the other hand, there is not sufficient evidence in the
record for a jury to conclude that the Navy's failure to rehire
Greene was retaliatory. We have considered Greene's other
arguments and find them to be without sufficient merit to
warrant explication in a published opinion. Accordingly, the
judgment of the district court is affirmed in part and reversed
in part.
So ordered.