Kimzey v. Wal-Mart Stores, Inc.

• Decision Date: 26 March 1997
• Docket Number: 95-4220,Nos. 95-4219,WAL-MART,s. 95-4219
• Citation: 107 F.3d 568
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 87, 69 Empl. Prac. Dec. P 44,503, 65 USLW 2600 Peggy KIMZEY, Cross-Appellant/Appellee, v.STORES, INC., Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 568

107 F.3d 568

73 Fair Empl.Prac.Cas. (BNA) 87, 69 Empl.

Prac. Dec. P 44,503,

65 USLW 2600

Peggy KIMZEY, Cross-Appellant/Appellee, v. WAL-MART STORES, INC., Appellee/Cross-Appellant.

Nos. 95-4219, 95-4220.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 10, 1996.

Decided Feb. 20, 1997.

Rehearing Denied March 26, 1997.

David A. Ranheim, Minneapolis, MN, argued (Michael J. Wahoske, George A. Koeck and Robert J. Borhart, on brief), for appellant.

Carla G. Holste, Jefferson City, MO, argued (Ronald R. McMillin and Timothy E. Gammon, on brief), for appellee.

Before FAGG, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Wal-Mart Stores, Inc., appeals from a judgment awarding Peggy Kimzey, its former employee, compensatory and punitive damages on her hostile work environment and constructive discharge claims. The jury returned a verdict of $35,000 for compensatory damages, $1.00 for back pay, and $50,000,000 for punitive damages. After trial the district court reduced the punitive damages award to $5,000,000; this action is the basis of Kimzey's cross-appeal. We affirm in part and reverse in part.

I.

In July 1988, Kimzey began work as an associate in the receiving department at the Wal-Mart store in Warsaw, Missouri. She left her job for a few months in the beginning of 1989 to care for her sick mother and returned to her position at Wal-Mart in April 1989. Kimzey left Wal-Mart in April 1993, and filed suit under Title VII, 42 U.S.C. § 2000e-5(e), and the Missouri Human Rights Act (MHRA), Mo.Rev.Stat. §§ 213.010-213.095, charging that she had been sexually harassed throughout her employment and that management ignored her complaints, that she had experienced a hostile work environment, and that she had been constructively discharged.

During Kimzey's first period of employment, her supervisor and an assistant store manager made sexual remarks to her and commented on her body. One incident occurred when Kimzey was bending over a box to process freight. Michael Mais, who was then an assistant store manager, gestured toward her bottom and told Henry Brewer, Kimzey's supervisor, that "he had found a place to put his screwdriver." Kimzey objected, but Mais continued his gestures. When she told him that was enough, Mais replied: "Oh, you don't know. You might enjoy it." On another occasion when Kimzey's breasts touched a stack of boxes while she was moving freight, Brewer and Mais laughed, and Mais said, "Well, you can't exactly get through there, can you, with those things sticking out?" Brewer also smacked his lips and made kissing noises at Kimzey.

After Kimzey's return to Wal-Mart in April 1989, both Mais and Brewer engaged in similar behavior toward Kimzey and other women as well. Mais continued as an assistant store manager until he became store manager around 1991, and Brewer remained her supervisor during this period. There was testimony that Brewer and Mais treated women differently from men and that they did not act or talk to men in the same offensive manner. Mais kicked the legs of Kimzey and other female employees when he walked by and once shook a ladder on which Kimzey was standing and laughed when she almost fell. Mais frequently called Kimzey names such as "mother-fucker" and "lazy-son-of-a-bitch." When Kimzey or other women bent over to pick up merchandise, Mais commented on their "tight-ass jeans." He also commented on the women's anatomy and called one female employee a "fat bitch." Mais used profanity with women, even though he was aware that some of them were offended by this usage. Brewer followed Kimzey around the store and out to the parking lot when she left work, called her names like "damn dummy," "stupid," and "idiot" on a daily basis, and regularly yelled at her for extended periods. He also told Kimzey that another employee wanted to assist her when she worked on the ladder so he could look at her "cute ass." Brewer screamed and swore at other female employees as well.

Wal-Mart has an open-door policy under which employees are encouraged to report harassment to any level of management. The Wal-Mart Associate Handbook states:

Harassment of any type whether sexual, ethnic, racial, etc. is not tolerated at Wal-Mart. We want to provide a work environment where everyone is comfortable. Harassment includes offensive language, gestures, physical contact or other conduct which destroys that environment.

If you have any problems with or questions concerning harassment, use our Open Door Policy. If your immediate supervisor is part of the problem, go to the next level of management. There will be no retaliation for reporting harassment and all reports of harassment will be investigated.

Your individual privacy will be of utmost importance. Individuals who engage in harassment will be disciplined up to and including termination depending on the circumstances.

Kimzey's expert witness testified that to implement this policy in a company the size of Wal-Mart, a manager who becomes aware of a problem with an employee should interview other employees to see if the problem is ongoing or isolated. The manager should also prepare a written report to include in the employee's file in order to track whether the problem continues. Brewer testified that he had received no training on the policy, and there was no other evidence introduced indicating that any training was in place at the Warsaw store.

Kimzey complained to members of Wal-Mart management several times about the conduct of Mais and Brewer, but no action was taken on those complaints and the situation did not improve. Kimzey also complained to Mais about his "nasty remarks" and the profane language he used with her, but he did not change. Kimzey and other women complained to Mais about being kicked, but he did not stop the kicking. When Kimzey told Brian Woirhaye, an assistant manager, about Brewer following her around the store, he indicated he was aware of the problem and even referred to Brewer as Kimzey's "shadow," yet he did not take any action. Her complaint to Woirhaye in early 1992 about Brewer's drinking and resulting abusive behavior did not result in an investigation or any other action.

Kimzey also reported to management about two different incidents where she was pinched on the buttocks by a co-worker. After the first incident, Kimzey complained to Woirhaye. He did not investigate, prepare a written report, or take any other action. On receiving the second complaint, Woirhaye laughed and said that he should probably do something about it since two other female employees had also made similar complaints. Woirhaye apparently did nothing further.

When Kimzey complained about Brewer to Marci Turner, another assistant manager, Turner told her it sounded like sexual harassment. Although Turner did not investigate the complaint or prepare a written report, she did report Kimzey's complaint to Mais who had by then been promoted to store manager. Mais spoke with Kimzey, and she repeated her complaints about Brewer's behavior, drinking, and intimidation. Mais' only response, however, was to ask Brewer if he had been drinking at work. The situation did not improve, and when Kimzey continued to complain, Mais told her there was nothing he could do about Brewer and became upset with her. Other women at Wal-Mart also complained to management about Brewer's conduct, but action was not taken on their complaints either.

There was testimony that Kimzey's demeanor changed during the time she worked at the Warsaw store. At the beginning Kimzey had a positive attitude about work, but she became upset after harassing incidents. Later other employees began to see Kimzey crying, and toward the end of her employment she appeared agitated, upset, and nervous almost all the time.

On April 7, 1993, Kimzey told Mais that she was leaving Wal-Mart because of Brewer's conduct and management's indifference to her complaints. Although Mais was aware of Kimzey's stated reasons for leaving Wal-Mart, he did not indicate that he would investigate her complaints or take any other action required by Wal-Mart's open door policy. In her exit interview he did offer her other positions as an associate in either night receiving or in the garden center. She declined both because she was physically unable to work the hours required in night receiving and the garden center schedule included nights, week-ends, and holidays.

On appeal, Wal-Mart claims that the district court erred in admitting evidence of incidents before August 1992 because they occurred outside the period for which Kimzey can recover. Wal-Mart also argues that Kimzey failed to produce sufficient evidence of a hostile work environment or constructive discharge, that punitive damages should not have been submitted to the jury, and that the $5,000,000 punitive damages awarded in the judgment is excessive. Kimzey responds that events before 1992 are admissible because they were relevant background and because there was evidence of a continuing violation. She also asserts she produced sufficient evidence to support her sexual harassment claims and the punitive damages award, and argues in her cross-appeal that part or all of the punitive damages award should be reinstated. ¹

II.

The first issue raised on appeal is whether the district court abused its discretion in admitting evidence from Kimzey's initial employment period. Crane v. Crest Tankers, Inc., 47 F.3d 292, 294 (8th Cir.1995). Wal-Mart argues that any evidence of incidents before August 1992 is time-barred because Kimzey cannot recover for those acts. It says these incidents were unrelated to later conduct and irrelevant because Kimzey did not believe she worked in a hostile environment when they occurred.

A sex discrimination complainant may recover for any discriminatory act for which the statute of limitations has not expired. Gipson v. KAS Snacktime Co., 83 F.3d 225, 229-30 (8th Cir.1996) (citing Ashley...