Sexual Harassment Claim Was Timely Under Continuing Violation Doctrine

Bonnie Jensen worked as a letter carrier at the Prairiewood Station Post Office in Fargo, North Dakota, for more than twenty years. Jensen alleged 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 officials 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.

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. 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." The district court granted summary judgment in favor of the Postal Service.

In order for a federal employee to sue under Title VII, the employee must satisfy certain time limitations. As a federal employee, Jensen is required to initiate contact with an EEO counselor within forty-five days of the alleged discriminatory conduct.

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 forty-five 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, "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." 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.

On appeal by Jensen, the 8th Circuit reversed:

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." 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.

After the district court made its decision and after we heard oral argument, the United States Supreme Court, in Nat'l R.R. Passenger Corp. v. Morgan, ____ U.S. ____, 122 S.Ct. 2061 (2002), addressed what constitutes the timely filing of Title VII claims. In particular, the Court clarified the use of the continuing violation doctrine in Title VII hostile work environment cases. Morgan, an Amtrak employee, alleged that he had been subjected to discrete discriminatory and retaliatory acts and had experienced a racially hostile work environment. Morgan complained of some racially motivated conduct by his co-workers that occurred outside the statutory time period, i.e., more than 300 days before the filing of his EEOC charge. The Court resolved whether events that fell outside the time period could be considered under claims of discrete discriminatory acts and claims of hostile work environment.

In addressing discrete acts of discrimination, the Court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." The Court then distinguished hostile work environment claims holding that "[i]n order for the charge to be timely, the employee need only file a charge [within the relevant time period] of any act that is part of the hostile work environment ."

The Court noted that hostile work environment claims "are different in kind from discrete acts" because "[t]heir very nature involves repeated conduct." The Court further explained: "The 'unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years, and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Therefore, courts must look to "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."

The Court determined that timely filing provisions require only that "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." "The statute does not separate individual acts that are part of the hostile [work] environment claim from the whole for the purposes of timely filing and liability."

In essence, the Court has simplified the law by allowing courts to view allegations of hostile work environment as "a single unlawful employment practice." Only the smallest portion of that "practice" needs to occur within the limitations period for the claim to be timely. Here, in light of the statement of law in Morgan for hostile work environment claims, the district court erred in concluding that Jensen needed to show a discrete act of discrimination within the relevant time period and misconstrued the nature of a continuing violation. Therefore, we reverse the district court on Jensen's Title VII claims against the Postal Service.

Jensen v. Henderson

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

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