Unpublished Disposition, 879 F.2d 865 (9th Cir. 1985)

MEMORANDUM^* 

Plaintiff Janie L. Christensen appeals the district court's decision that defendant Brian Bozart did not violate Title VII of the Civil Rights Act of 1964.¹  Christensen contends that the district court erred in determining that Bozart's sexual advances were not unwelcome conduct. We affirm.

* Christensen began working at the St. Helens police department in November, 1983. Sergeant Brian Bozart supervised Christensen one night a week, and eventually became her immediate supervisor. As shift commander, Bozart had the actual or apparent authority to hire, fire, promote and withhold benefits from employees under his supervision. Christensen and Bozart worked the graveyard shift, on which the regular assigned personnel were a dispatcher, a shift commander, and three to five patrol officers. All of the shift commanders and patrol officers in the department were male. All of the dispatchers were female. On September 30, 1985, Christensen received a letter from her therapist recommending that she leave work to avoid further mental and emotional stress. Christensen's lawyer subsequently informed the St. Helens police department that Christensen was unable to return to her position as a dispatcher because of sexual harassment by Bozart.

The gist of Christensen's Title VII claim is that Bozart made unwelcome sexual advances toward her and then retaliated against her because she rejected these advances. After a full trial, the district court rejected Christensen's claim because it found that Christensen had failed to meet her burden of demonstrating that Bozart's sexual advances were "unwelcome." We have jurisdiction pursuant to 28 U.S.C. § 1291.

The question of whether particular conduct was unwelcome "presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact...." Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1985). "The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary." Id. In deciding whether advances were unwelcome, a district court may consider whether the plaintiff engaged in sexually provocative behavior at the work-place which was directed toward the party who allegedly made unwelcome advances. Id. at 73; Swentek v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987) (evidence of plaintiff's sexually provocative behavior is not relevant where there is no evidence that the alleged harasser knew of the plaintiff's sexually provocative conduct).

Since the district court's finding that Bozart's sexual advances were not unwelcome was essentially a factual one, we review this finding for clear error. See United States . McConney, 728 F.2d 1195, 1202 (9th Cir. 1984) (en banc). Since the district court made its findings after a full trial, the question of whether Christensen established a prima facie case is no longer relevant. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-14 (1983) (where a discrimination trial was fully tried on the merits, the appropriate question for a reviewing court is whether the district court correctly decided "the ultimate question of discrimination").

II

In essence, Christensen's argument on appeal is that the record does not support the district court's finding that Bozart's sexual advances were not unwelcome. We disagree. It was undisputed that Bozart gave Christensen at least four "backrubs," touched her breasts on at least two occasions, and rubbed her buttocks and legs on at least one occasion. Sergeant Bozart testified that Christensen never told him not to hug her; that she once patted him on the buttocks; that she told him he reminded her of another man that she considered attractive; that she told him that she bet he was "well hung"; and that in August 1985 she asked him to come home with her because she did not like sleeping alone. Officer Cade testified that he observed Christensen requesting backrubs and hugs from Bozart. Christensen contradicted much of this testimony. However, the district court was entitled to believe the testimony which supports the defendants' contention that Bozart's advances were not unwelcome. On the record before us, we cannot conclude that the district court's finding that Bozart's advances were not unwelcome is clearly erroneous.² 

We affirm the decision of the district court.