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January 26, 1993

CITY OF NORTH TONAWANDA, NEW YORK; LLOYD GRAVES, Individually and as Chief of Police of the City of North Tonawanda; and JOHN SEDLACEK, Defendants.


The opinion of the court was delivered by: JOHN T. CURTIN



 In January 1989, when Kathleen Poulsen had been a police officer with the City of North Tonawanda Police Department for approximately one year, she began working two evenings a week with Lieutenant John Sedlacek. Poulsen and Sedlacek commenced a sexual relationship in February 1989, which lasted until early June of the same year. Two weeks after the relationship ended, Poulsen filed a sexual harassment complaint against Sedlacek with Acting Chief of Police Captain Thurston Gilman. In her complaint, Poulsen claimed that Sedlacek forced her to have sexual relations, with threats that she would suffer retaliation on the job if she did not acquiesce. She explained that she had waited until June to inform anyone about the problem because once the relationship terminated, "I wanted to bail out before Sedlacek destroyed me." Item 69, Ex. 4 at 548. Captain Gilman encouraged her to contact the Equal Employment Opportunity Commission ("EEOC") and forwarded her complaint to Chief Graves, who was vacationing at the time. Graves instructed the captain of Poulsen's shift to talk to everyone about what constituted sexual harassment and to stop all offensive behavior. Item 69, Ex. 6.

 Graves began his investigation of Poulsen's sexual harassment complaint when he returned from vacation on July 3. Under the collective bargaining contract, the Police Department has 25 days to investigate and bring disciplinary charges against a police officer. Item 70, Sedlacek Aff. Ex. A, P 5.86. Within those 25 days, Chief Graves conducted 33 interviews of officers in the Department to ascertain what they knew of the alleged harassment. Most of those interviewed professed no knowledge of a relationship between Poulsen and Sedlacek.

 Graves was informed early in his inquiry that Karen Dolan, the only other female police officer on the force, had complained of problems with Sedlacek. Item 77, Ex. B, p.621. Yet, Graves waited to interview Dolan until August 4. At that time, Dolan outlined various examples of sexual harassment by Sedlacek directed at her during 1989, including obnoxious and demeaning behavior and other attempts to embarrass her. Item 77, Ex. B. at 658-69. Graves apparently never followed up on Dolan's complaints. Item 77, PP 19-20.

 Graves also talked with Sedlacek several times. Graves first called Sedlacek at home on July 5, while the Lieutenant was on vacation. Sedlacek at that point denied all knowledge or involvement with Poulsen outside the professional relationship. Item 69, P 19. Sedlacek came into Graves' office the next day to read the EEOC letter and reiterated that he knew nothing about it. Item 77, Ex. B. at 605. Graves gave Sedlacek a copy of the EEOC charges on July 11 but did not discuss the matter with him again until July 17. By this date, Graves had received information corroborating Poulsen's allegations against Sedlacek. However, Sedlacek continued to deny the existence of the relationship. Item 69, PP 23-27. On July 25, Graves requested that Sedlacek submit a written statement regarding Poulsen's allegation. Sedlacek refused through his attorney. Item 77, P 17. Apparently, Graves never confronted Sedlacek with any evidence of Sedlacek's involvement or conducted more than a casual interview with him. Item 77, Ex. C.

 Chief Graves reassigned Poulsen at her request in order to keep her separated from Sedlacek. According to Poulsen, this separation did not end the harassment. She left early for a scheduled vacation in August and remained out on medical disability for major depression until January.

 In response to Poulsen's complaint of July 3, 1989, the EEOC conducted its own investigation. In October 1989, the Commission found probable cause to believe that Title VII violations of both quid pro quo and environmental sexual harassment had occurred. Item 70, Sedlacek Aff., Ex. F. The Commission thereafter initiated conciliation between Poulsen and the City. Neither Graves nor Sedlacek were named as individual respondents in the EEOC charge, although Sedlacek's name appeared in the body of the charge. Chief Graves was directed by the City to assist the EEOC in investigating Poulsen's charge. He also participated in the conciliation attempts on behalf of the City. Item 69, Graves. Aff. PP 14, 61.

 Sedlacek appeared as a witness at the EEOC proceeding. He admitted having sexual relations with Poulsen on numerous occasions between February and June, but insisted the relationship had been completely consensual. Sedlacek explained during the EEOC proceeding that he had initially denied the relationship, because at the time of the investigation he had still been married. Sedlacek testified that he terminated the relationship because Poulsen had gone to see his wife and wanted to get more serious with him. Sedlacek's counsel observed his client's testimony at the EEOC proceeding but did not act as his representative because the EEOC advised the attorney that Sedlacek was not a charged party. Item 70, Sedlacek Aff. P 17; Lewis Aff. P 4.

 As a result of the EEOC proceedings, a conciliation agreement was drafted which specified that Poulsen would be reinstated in her position when she was able to return to work, with all information concerning the incident removed from her personnel file. Sick leave, personal leave, lost salary, and unreimbursed medical expenses would all be restored. Finally, the City agreed to reassign Poulsen to a different squad so that she and Sedlacek would never have to work together. Item 69, Graves Aff. PP 60-63.

 This agreement was never signed by either Poulsen or the City. The City claims, and Poulsen does not dispute, that the provisions of the unsigned agreement were all implemented by February 1990. There is a dispute over the extent and nature of Poulsen's participation in drafting the agreement. Item 69, Graves Aff. P 62.

 Poulsen returned to work in January 1990. Between January and December, Poulsen repeatedly complained to Graves about harassing and retaliatory actions against her by Sedlacek and others. Item 77, Ex. B, at 712 to end. The City and Chief Graves claim that each reported incident was investigated, but none warranted punitive action against any of the individuals. Poulsen commenced a second medical leave for depression in September 1990, which continues to date. She claims that the continuing hostile work environment she was forced to endure upon her return to work in January contributed to her relapse.

 Poulsen initiated suit against the City of North Tonawanda, Chief of Police Lloyd Graves, and Lieutenant John Sedlacek *fn1" for sex discrimination through quid pro quo sexual harassment and the creation of a hostile work environment. Defendants move for summary judgment on all causes of action.


 Summary judgment may be given only if the pleadings, depositions, and affidavits "show that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All ambiguities are resolved in favor of the non-moving party. Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991).

 I. Title VII Claims

 A. Offer of Full Relief

 The City and Graves first argue that Poulsen is precluded from the instant Title VII suit because she was offered full relief in the proposed EEOC conciliation agreement. The agreement offered Poulsen: 1) reinstatement in her position when she was able to return to work; 2) removal of all information concerning the incident from her personnel file; 3) restoration of sick leave, personal leave, lost salary, and unreimbursed medical expenses; and 4) reassignment to keep her separated from Lieutenant Sedlacek. The defendants claim that Poulsen and her attorney were kept informed about the proposed agreement and agreed with its provisions. Although neither party ever signed the agreement, Poulsen received all the benefits within one month of her return to work. Item 67 at 5-6; Item 83 at 3. Defendants contend that the implementation of the proposed conciliation agreement mandates dismissal of all claims against both the City and its agent, Lloyd Graves. Item 67 at 8.

 Poulsen counters that the agreement was never formally offered or accepted by the City. She accepted coverage of her medical expenses, backpay, and restoration of leave (Item 78 at 2) when she returned to work, but claims that sexual harassment and a hostile work environment continued. According to Poulsen, full relief must include affirmative action on defendant City's part to end the hostile work environment as well as the quid pro quo sexual harassment. Item 78 at 2. Moreover, Poulsen claims she was issued a right-to-sue letter by EEOC on February 23, 1990, because the City had never properly responded to or accepted the Commission's proposed Conciliation Agreement.

 A claimant who is offered full relief in the administrative process must either accept the relief offered or abandon the claim. Wrenn v. Secretary of Veteran Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990). Affirmative and other equitable relief is available under Title VII, 42 U.S.C. § 2000e-5(g), and is not limited to "tangible" benefits such as reinstatement or backpay. Franks v. Bowman Transportation Co., 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1975). In the instant case, the record is unclear as to the precise relief Poulsen was seeking during the conciliation process, or if in fact Poulsen ever specified at the time what relief would be acceptable to her. The City argues that since punitive and compensatory damages are not available to Poulsen under Title VII ( Carrero v. New York City Housing Authority, 890 F.2d 569, 581 (2d Cir. 1989)), its conciliatory offer made during the EEOC conciliation process and accepted when Poulsen returned to her job represents the full relief to which she is entitled. The City also argues that Poulsen is not entitled to usurp the role of final policymaker by demanding implementation of specific policies as part of her relief. Item 83 at 4.

 Poulsen counters that the proposed agreement did not constitute full relief because it did not include the establishment of policies or procedures for making, processing, and preventing sexual harassment. It is reasonable to expect that relief under Title VII would include an end to the discriminatory conditions that instigated the EEOC complaint. A complainant who returns to work without loss of pay or job status is not made whole if she continues to face harassment and discrimination. Poulsen may not be entitled to dictate policy to the City of North Tonawanda and her recovery of monetary damages may be limited under Title VII, but she is not barred from suit to end the discriminatory behavior which she alleges continued after she returned to work.

 Moreover, the EEOC never certified that the proposed settlement constituted full relief. See 29 C.F.R. § 1613.216(a)(7). Rather, the Commission issued a right-to-sue letter at Poulsen's request. Item 76, Ex. B. The City asserts that the issuance of a right-to-sue letter does not mean that conciliation has failed, but only precludes the Commission from formalizing the agreement. However, 29 C.F.R. § 1601.28(d) clearly states that the Attorney General will issue the notice of right to sue against a Governmental respondent, "when there has been a finding of reasonable cause by the Commission, there has been a failure of conciliation, and . . . a charging party has requested a notice of right to sue . . . ."

 In order to win summary judgment on this motion, defendants must show that there are no triable issues of fact that the offer made constituted full relief and was refused. The two parties not only dispute what constitutes full relief, but cannot agree whether an offer was made or accepted. The issuance of a right-to-sue letter by the EEOC strengthens Poulsen's argument that a factual dispute over an offer of full relief still exists, precluding summary judgment of this claim.

 B. Failure to Name Defendants in the EEOC Charge

 Defendants Sedlacek and Graves assert that the court has no jurisdiction over them because Poulsen failed to list them as respondents in her prior EEOC charge. Title VII, 42 U.S.C. § 2000e-5(f)(1), provides that once administrative remedies are exhausted, an aggrieved party may bring a civil action "against the respondent named in the charge." The general rule is that individuals not named as respondents in an EEOC charge cannot be sued under a subsequent Title VII action. Silver v. Mohasco Corp., 602 F.2d 1083, 1086 n.7 (2d Cir. 1979); Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 497 (S.D.N.Y. 1989). Inclusion of all parties in the initial charge increases the likelihood of resolution of the dispute by the administration and insures that all parties will have the opportunity to represent their own interests in any conciliation effort. See Travers v. Corning Glass Works, 76 F.R.D. 431 (S.D.N.Y. 1977).

 However, courts have encouraged a "flexible stance in interpreting Title VII's procedural provisions," Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (2d Cir. 1976), because complaints are often made by persons unversed in the intricacies of EEOC procedure. An exception to the rule barring subsequent suit can be made where there is a clear identity of interest between the named respondent and the subsequent defendant. The Second Circuit has recently adopted the Glus test to determine whether an identity of interest exists which would excuse the failure to name the defendant in the EEOC complaint. The four factors of the test are:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

 Johnson v. Palma, 931 F.2d 203, 209 (2d Cir., 1991), quoting Glus v. G.C. Murphy Co., 562 F.2d ...

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