the procedural requirements for this court to exercise its jurisdiction over her claims. She timely filed a complaint of discrimination with the SEC's EEO office, the EEO office issued its decision, and the present suit in this court was timely filed.
Plaintiff's Sexual Harassment Claim
2. The parties stipulated that the definition of sexual harassment contained in the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11 (1986), is the definition that should be applied in this case. Section 1604.11(a) defines sexual harassment as follows: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or the effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." (Emphasis supplied.) Additionally, section 1604.11(g) provides that "where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit."
3. The United States Supreme Court recently held that a violation of Title VII may be predicated on either of two types of sexual harassment: (a) harassment that involves the conditioning of concrete employment benefits in return for sexual favors,
and (b) harassment that, while not directly affecting economic benefits, creates a hostile or offensive working environment. Meritor Savings Bank, F.S.B. v. Vinson, 477 U.S. 57, 62-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986); see also Yates v. AVCO Corp., 819 F.2d 630, 634 (6th Cir. 1987); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987); Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 943-46 (D.C. Cir. 1981); Henson v. City of Dundee, 682 F.2d 897, 901-02 (11th Cir. 1982); Jones v. Lyng, 669 F. Supp. 1108, 1121 (D.D.C. 1986).
4. A "hostile work environment" claim is actionable under Title VII if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are so pervasive that it can reasonably be said that they create a hostile or offensive work environment. Meritor, 477 U.S. at 65-67. Whether the sexual conduct is sufficiently pervasive to amount to harassment and create a hostile or offensive work environment must be determined from the totality of the circumstances. Id. at 69; Hicks, 833 F.2d at 415-16. Additionally, Title VII is also violated when an employer affords preferential treatment to female employees who submit to sexual advances or other conduct of a sexual nature and such conduct is a matter of common knowledge. King v. Palmer, 778, F.2d 878, 880 (D.C. Cir. 1985); Priest v. Rotary, 634 F. Supp. 571, 581 (N.D. Cal. 1986); Toscano v. Nimmo, 570 F. Supp. 1197, 1199 (D. Del. 1983); see also 29 C.F.R. § 1604.11(g).
5. Evidence of the general work atmosphere, involving employees other than the plaintiff, is relevant to the issue of whether there existed an atmosphere of hostile work environment which violated Title VII. Vinson v. Taylor, 243 U.S. App. D.C. 323, 753 F.2d 141, 146 (D.C. Cir. 1985), aff'd in relevant part and rev'd in part, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986); Delgado v. Lehman, 665 F. Supp. 460 (E.D. Va. 1987). See also Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957, 32 L. Ed. 2d 343, 92 S. Ct. 2058 (1972). This is so because "even a woman who was never herself the object of harassment might have a Title VII claim if she were forced to work in an atmosphere in which such harassment was pervasive." Vinson v. Taylor, 753 F.2d at 146.
6. Ms. Broderick established a prima facie case of sexual harassment because of having to work in a hostile work environment. The evidence at trial established that such conduct of a sexual nature was so pervasive at the WRO that it can reasonably be said that such conduct created a hostile or offensive work environment which affected the motivation and work performance of those who found such conduct repugnant and offensive. Ms. Broderick was herself sexually harassed by Leonard, Hunter, Kennedy and possibly others. But we need not emphasize these isolated incidents. More importantly, plaintiff, without any doubt, was forced to work in an environment in which the WRO managers by their conduct harassed her and other WRO female employees, by bestowing preferential treatment upon those who submitted to their sexual advances. Further, this preferential treatment undermined plaintiff's motivation and work performance and deprived plaintiff, and other WRO female employees, of promotions and job opportunities. The record is clear that plaintiff and other women working at the WRO found the sexual conduct and its accompanying manifestations which WRO managers engaged in over a protracted period of time to be offensive. The record also establishes that plaintiff and other women were for obvious reasons reluctant to voice their displeasure and, when they did, they were treated with a hostile response by WRO's management team.
Plaintiff's Opposition and Retaliation Claims
7. Title VII makes it an unlawful employment practice for an employer to discriminate against an employee "because [s]he has opposed any practice made an unlawful practice by this title . . . ." 42 U.S.C. § 2000e-3(a). As this court has recognized, "'the opposition clause' protects opposition expressed in a wide variety of forms and is not limited to the filing of charges." Jones, 669 F. Supp. at 1121-22. See also Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981); Novotny v. Great American Federal Savings and Loan Assoc., 584 F.2d 1235, 1260-61 (3rd Cir. 1978), vacated on other grounds, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979); Gresham v. Waffle House, Inc., 586 F. Supp. 1442, 1446 (N.D. Ga. 1984). Title VII also prohibits an employer from retaliating against an employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. . ." 42 U.S.C. § 2000e-3(a).
8. To establish a prima facie case of unlawful retaliation, a plaintiff must show (1) that she engaged in protected activity; (2) that she was subject to an adverse action by her employer after engaging in the protected activity, and (3) that there was a causal connection between the two. Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 74 L. Ed. 2d 633, 103 S. Ct. 491 (1982). Plannels v. Howard Univ., 32 Fair Empl. Prac. Cas. (BNA) 336, 344 (D.D.C. 1983); Jones, 669 F. Supp. at 1121 (quoting Segar v. Civiletti, 516 F. Supp. 314, 319 (D.D.C. 1981), aff'd in part and vacated in part, 238 U. S. App. D.C. 103, 738 F.2d 1249 (D.C. Cir. 1984), cert. denied, 471 U.S. 1115, 86 L. Ed. 2d 258, 105 S. Ct. 2357 (1985)).
9. Plaintiff met the first element of her prima facie case by showing that she repeatedly protested the hostile work environment at the WRO, and that she ultimately filed an EEO claim because of the office environment. Plaintiff complained to Hilton Foster about Hunter's insistence on giving her a ride and touring her apartment, the ridicule to which he subsequently subjected her and her transfer from his branch. She also told Foster about Hunter's attempt to proposition Karen Nelson and his efforts to get her fired after she rebuffed his overtures. She also informed him about the sexual remarks and gestures management made towards her and other female employees at the WRO. Furthermore, plaintiff made known her opposition to the Hunter-Bour affair, the Brooks-McDonald affair, the Kennedy-Sarles affair and the employment benefits awarded to these women because of their relationships with members of WRO's management team. Finally, when all else had failed, plaintiff, after more than two years of frustration, filed an EEO charge on February 16, 1984. These activities of plaintiff are clearly protected by Title VII against retaliation. Jones, 669 F. Supp. at 1121; Spence v. Local 1250, United Auto Workers, 595 F. Supp. 6, 10 (N.D. Ohio 1984); Garcia v. Rush-Presbyterian - St. Luke's Medical Center, 80 F.R.D. 254, 262 (N.D. Ill. 1978); Eichman v. Indiana State Univ. Bd. of Trustee, 597 F.2d 1104, 1107 (7th Cir. 1979).
10. Plaintiff met the second element of her prima facie case by demonstrating that she was subjected to adverse employment action after she made known her opposition to the WRO managers' conduct: to wit, promotion from GS-12 to GS-13 was delayed without explanation. Hickman v. Flood & Peterson Ins., Inc., 29 Fair Empl. Prac. Cas. (BNA) 1467, 1469 (D. Colo. 1982). In addition, she was given adverse performance appraisals after she complained about the improper conduct of WRO managers, and she was reprimanded and threatened with termination when her complaints persisted. EEO v. Atlantic Richfield Co., 30 Fair Empl. Prac. Cas. (BNA) 551, 552 (C.D. Cal. 1979); Mead v. U.S. Fidelity & Guar. Co., 442 F. Supp. 114, 123, 129-130 (D. Minn. 1977); Croker v. Boeing Co., 437 F. Supp. 1138, 1195 (E.D. Pa. 1977), aff'd in relevant part, 662 F.2d 975 (3d Cir. 1981) (en banc), Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690, 30 Fair Empl. Prac. Cas. (BNA) 638, 641, 649 (E.D. Mich. 1982). After she filed her EEO complaint she was given an adverse performance evaluation and transferred to the Division of Corporation Finance.
11. Plaintiff also established the third element of the prima facie case by proving that the Commission was aware of the protected activities, and that the adverse actions followed after she made known her opposition and after she filed her EEO charge. For instance, the complaint of Foster in February 1984 concerning plaintiff's lack of punctuality,
his threat of discharge and the adverse performance evaluation of 1984 are examples of defendant's retaliation. The proximity of the adverse actions taken against her and her protected activity establishes the necessary nexus to meet the third element of the required prima facie case. Jones, 669 F. Supp. at 1121; Gonzalez v. Bolger, 486 F. Supp. 595, 601 (D.D.C. 1980), aff'd, 211 U.S. App. D.C. 310, 656 F.2d 899 (D.C. Cir. 1981); Brown v. Biglin, 454 F. Supp. 394, 399 (E.D. Pa. 1978); Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass. 1976) aff'd, 545 F.2d 222 (1st Cir. 1976).
The Defendant's Failure to Rebut the Prima Facie Case
12. In the ordinary gender bias case, once the plaintiff has established a prima facie case of discrimination or retaliation, the burden shifts to the defendant "to articulate some legitimate non-discriminatory reason" for the actions taken. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 797, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109 (D.C. Cir. 1980), cert. denied, 451 U.S. 985, 68 L. Ed. 2d 842, 101 S. Ct. 2319 (1981). In a sexual harassment case involving the claim of hostile work environment, the burden on the defendant employer is markedly heavier. Once a plaintiff has established a prima facie case of sexual harassment or retaliation for opposing sexual harassment, the burden shifts to the employer to rebut the plaintiff's harassment claims and to show by clear and convincing evidence that the plaintiff would not have been treated differently if she had not opposed the harassment. Bundy, 641 F.2d at 952-53; Day v. Mathews ; 174 U.S. App. D.C. 231, 530 F.2d 1083, 1085 (D.C. Cir. 1976); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437, 444-45 (5th Cir.), cert. denied, 419 U.S. 1033, 42 L. Ed. 2d 308, 95 S. Ct. 515 (1974). This is a higher standard than that required of an employer in a simple gender discrimination case. Bundy, 641 F.2d at 953. The reason for this different rule in sexual harassment cases is that "once a plaintiff establishes that she was harassed . . . it is hard to see how an employer can justify [the] harassment." Moffett v. Gene B. Glick Co., Inc., 621 F. Supp. 244, 266 (N.D. Ind. 1985).
13. In this case, the Commission failed to rebut Ms. Broderick's hostile atmosphere, sexual harassment and retaliation claims by clear and convincing evidence, or even by a preponderance of the evidence. The Commission attempted to meet Ms. Broderick's harassment claims by arguing that Ms. Broderick "was paranoid." Admittedly, plaintiff had problems of personal adjustment before being employed by the Commission in 1979. Whether diagnosed either as "paranoia" or as a "post traumatic stress disorder", we are satisfied that plaintiff's mental condition was caused and exacerbated by the hostile atmosphere in which she worked. Even assuming that the assertion that plaintiff was a paranoid personality has support in Dr. Stein's testimony, it does not rebut similar testimony from other witnesses presented by the plaintiff as to the conditions of sexual harassment and retaliation at the WRO.
14. With respect to plaintiff's opposition and retaliation claims, the Commission's argument that Ms. Broderick's tardiness and her diminished work performance accounted for her performance evaluations and were legitimate reasons for reprimands and threats to terminate her are not persuasive in the overall context of this case. The Commission's allegations of excessive tardiness when tardiness by others was overlooked is sheer "make weight" and pretext. Ms. Broderick amply demonstrated, through both lay and expert witnesses, that any alleged deficiencies in her work performance, which rested largely on her failure to interact with her supervisors, were directly attributable to the atmosphere in which she worked.
15. Defendant in effect argues that this is a " quid pro quo " sex harassment case and, except for isolated instances, plaintiff was not sexually harassed. This contention is in error, and misses the mark. The Commission's attempt to justify the sexual misconduct on the part of supervisory personnel as "social/sexual interactions between and among employees" which Title VII never intended to regulate is unacceptable on the facts of this case. However relaxed one's views of sexual morality may be in a different context, such views do not cover the pattern of conduct disclosed by the record in this case. We hold, and plaintiff has proved, that consensual sexual relations, in exchange for tangible employment benefits, while possibly not creating a cause of action for the recipient of such sexual advances who does not find them unwelcome, do, and in this case did, create and contribute to a sexually hostile working environment.
16. The SEC was the employer of, and had authority over, the personnel who persisted in this activity of which it had actual, as well as constructive, knowledge. It took no action. It is therefore liable under agency principles for the acts of these high-ranking subordinates.
The Court's Order
Based upon the entire record in this case, and the Findings of Fact and Conclusions of Law set forth above, it is by the court this 13th day of May, 1988,
ORDERED that judgment be and the same hereby is entered in favor of plaintiff for defendant's violation of Title VII of the Civil Rights Act of > 1964, and it is
ORDERED that the parties appear for a hearing on the 26th day of May, 1988, at 1:30 P.M. to consider the appropriate relief to be granted plaintiff.