Spicer v. Virginia, Department of Corrections

44 F.3d 218, 1995 U.S. App. LEXIS 938, 65 Empl. Prac. Dec. (CCH) 43,372, 1995 WL 24232
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 18, 1995
DocketNos. 93-2136, 93-2182
StatusPublished
Cited by3 cases

This text of 44 F.3d 218 (Spicer v. Virginia, Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spicer v. Virginia, Department of Corrections, 44 F.3d 218, 1995 U.S. App. LEXIS 938, 65 Empl. Prac. Dec. (CCH) 43,372, 1995 WL 24232 (4th Cir. 1995).

Opinions

Affirmed in part and remanded in part by published opinion. Judge MOTZ, wrote the opinion, in which Judge MURNAGHAN joined. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.

OPINION

MOTZ, Circuit Judge:

This case involves cross appeals by a prison employee and her employer. The employer appeals the district court’s grant of injunc-tive relief to the employee on her Title VII hostile environment sex discrimination claim and the award to her of attorney’s fees. The employee appeals the court’s denial of her motion for judgment notwithstanding a jury verdict against her on her retaliatory discharge claim.

I.

Peggy M. Spicer is, and has been continuously since 1989, a rehabilitation counselor at Buckingham Correctional Center, an all-male prison operated by the Commonwealth of Virginia, Department of Corrections, which is located in Dillwyn, Virginia. On August 1, 1991, J.M. Perutelli, then a captain (but by the time of trial a major) in the prison security force, sent a memorandum to David Smith, the warden at Buckingham, that made reference to Spicer. The memorandum stated, in pertinent part,

Numerous security staff have received complaints from inmates complaining that female staff are allowed to enter the institution in clothing that their visitors would not be allowed to wear. Some specific examples include Ms. McCoy wearing culottes; Ms. Spicer wearing short dresses with a split in the back and blouses that are so revealing that you can see her breast nipples outlined in plain view; Ms. Gillespie wearing see thru clothing; Ms. Johnson (intern) wearing low cut blouses; Ms. Loukx wearing see thru pants; Ms. Dixon wearing culottes/mini skirt and Ms. Boggs wearing a sleeveless shirt,

(emphasis added).

On the same day that he received the memorandum from Perutelli, Warden Smith attached a short cover letter to it and sent it to B.W. Soles, the Assistant Warden, and Lynn Dixon, the supervisor of the nursing [221]*221staff. Neither the cover letter nor the memorandum was marked “confidential.” Moreover, Soles and Dixon were not instructed that the documents were confidential. Warden Smith admitted that the memorandum “should have been stamped” confidential1 but instead, “made the assumption that they [Soles and Dixon] would figure it out.” Unfortunately, neither Dixon nor Soles “figured it out.” Both informed their staffs (Dixon’s staff included three shifts of nurses, doctors, dentists, “everyone in the whole medical department”) of the contents of the memorandum.

Spicer and six other female, non-security employees were summoned to Soles’ office. Assistant Warden Soles read the memorandum aloud to them. When Spicer was read the memorandum she understood it only to accuse the group generally of wearing short skirts, and laughed it off, pointing out that with her knees she would not wear short skirts. She became aware of the memorandum’s assertions as to her breasts when she “became the topic of discussion, of jokes, of comments being made.” Spicer was told by another employee that the memorandum “was up in security on a clipboard, it was posted.” Spicer looked for the memorandum but could not find it.

In the week following dissemination of the memorandum, Dr. Picarelli, a prison psychologist, while looking “directly at” Spicer said, “This is nipple check day.” On another occasion, when “officers were like lined up on each side of [a prison] hall waiting for roll call,” Spicer had to go through the hall to reach the security area. As she “was going through between the two lines there, one of the officers said, ‘Which one is bigger, the one on the left or the one on the right?’ ” On still another occasion, Spicer was asked, in reference to her breasts, “Where are you going to put them?” In addition to becoming “the topic of discussion, of jokes, of comments,” Spicer described the effect of the memorandum in these terms: “People staring at you, making you feel as if there is something wrong with you, making you feel undressed ... and people that I used to have conversation with you no longer have conversation with.... I didn’t know when people were talking to me whether they were talking to me or looking at my chest to see what they could see. I just felt exposed.”

After being the object of these remarks and learning that the memorandum had been read aloud to large numbers of the staff, Spicer was “angry” and “on the verge of crying,” telling her supervisor, Barbara Wheeler, “I don’t dress like that and I don’t like this damn memo.” On August 6, Spicer attempted to meet with the warden, but he was unavailable. When Spicer was unable to see the warden, she telephoned and then went to Richmond to see Robert Sizer, the manager of the equal employment opportunity office for the Department of Corrections. Spicer told EEO manager Sizer about the memorandum and her belief that it “was circulating” and possibly even on a bulletin board at Buckingham. Sizer and his supervisor telephoned Warden Smith and suggested that Smith “have someone go out through the institution to ascertain whether or not it had been posted” or circulated. The warden did this and determined that, along with the several copies found in various prison files, one copy of the memorandum was found on Captain Perutelli’s clipboard “in the Watch office, to which he only should have access” and another copy was found on the “12-8 Watch Commander’s clipboard,” a location not specified as public or private in the record.

It was also suggested that Warden Smith “as soon as possible ... talk to each of the people mentioned in the letter and discuss it and see how they felt about it and if they had a problem with it.” Smith, “talked to a majority of them.” His meeting with Spicer only lasted two minutes because she assert-edly “didn’t have anything to say,” “would only listen,” and “looked angry.” In his discussion with another female employee, the warden learned that two other unwanted sexual remarks resulted from the memorandum: Ms. Gillespie, another woman mentioned in [222]*222the memorandum, was “asked for a date” by one security officer, G. Johnston, and asked by another officer, Lieutenant Eldridge, “how much money it would take to get into her pants.”

On August 6,1991, Warden Smith circulated a second memorandum that referenced the August 1 memorandum and stated, in pertinent part, “These examples were meant only to illustrate areas which might need to be examined, and were not meant as examples of wrongdoing.” The August 6 memorandum did not apologize for, or retract, any portion of the earlier memorandum. Nor did Warden Smith, in his meeting with Spicer, or at any other time, apologize to her for the dissemination of the August 1 memorandum.

On August 9, EEO manager Sizer went to the prison “to ascertainf ] if the memo [was] placed on the bulletin board or circulated.” While there, Sizer met with “basically department heads” and “talked about the legalistic — this is a legalistic society these days. I talked to them somewhat about sexual harassment, things that could cause sexual harassment, et cetera, et cetera.” Sizer “believed” that the meeting lasted “maybe an hour, hour-and-a-half. I’m not sure.” “Minutes” 2 of the meeting indicated that it was a “mandatory” meeting attended by the warden and twenty other prison employees, including Perutelli, Soles, and Dixon, which the warden opened by stating that it “would not take long.”

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44 F.3d 218, 1995 U.S. App. LEXIS 938, 65 Empl. Prac. Dec. (CCH) 43,372, 1995 WL 24232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spicer-v-virginia-department-of-corrections-ca4-1995.