189 F.3d 1177 (10th Cir. 1999), 97-4154, Knowlton v. Teletrust Phones

Docket Nº:97-4154, 97-4162
Citation:189 F.3d 1177
Party Name:PIERRE KNOWLTON, Plaintiff-Appellee Cross-Appellant, v. TELTRUST PHONES, INC., a Utah corporation, Defendant-Appellant Cross-Appellee.
Case Date:August 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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189 F.3d 1177 (10th Cir. 1999)

PIERRE KNOWLTON, Plaintiff-Appellee Cross-Appellant,


TELTRUST PHONES, INC., a Utah corporation, Defendant-Appellant Cross-Appellee.

Nos. 97-4154, 97-4162

United States Court of Appeals, Tenth Circuit

August 16, 1999

        Appeal from the United States District Court for the District of Utah. D.C. No. 95-CV-93

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        Lincoln W. Hobbs, of Winder & Haslam, P.C., Salt Lake City, Utah, (Gerry B. Holman of Winder & Haslam, P.C., and Steven E. Swenson and Christie Babalis of Teltrust, Inc., Salt Lake City, Utah, with him on the briefs) for Appellant.

        Erik Strindberg, of Cohne, Rappaport & Segal, P.C., Salt Lake City, Utah, (Ralph E. Chamness and Brian F. Roberts with him on the brief) for Appellee.

        Before BRISCOE, BARRETT, and MURPHY, Circuit Judges.

        MURPHY, Circuit Judge.

        A jury found appellant, Teltrust Phones, Inc. ("Teltrust Phones"), liable for the sexual harassment of Ms. Pierre Knowlton, awarding her $75,000 in compensatory damages. On appeal, Teltrust Phones argues that: (1) the district court erred in sanctioning it for failing to comply with a discovery order; (2) there was insufficient evidence to support the jury's finding of a "single employer"; and (3) Teltrust, Inc. and Teltrust Communication Services, Inc. ("TCSI") should not have been included in this suit because they were not named as parties in Knowlton's complaint to the EEOC. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

        Appellee Knowlton cross-appeals the district court's grant of a directed verdict dismissing Knowlton's punitive damages claim.1 This court reverses and remands.


        In September 1992, Knowlton, a sales representative for Teltrust Phones, complained to the management of Teltrust, Inc.2 that Mark Neihart, her supervisor, had sexually harassed her since she was hired in October 1990. Neihart's behavior included constant use of vulgar language, telling sexually explicit jokes, talking about the sexual conduct of the management, making both sexually charged and insulting comments about other female employees,

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telling Knowlton about the details of his sex life with his wife, discussing the size of his penis, pretending to masturbate in front of Knowlton, and sending messages to Knowlton's pager which read "696969." On the occasions Knowlton's husband sent flowers to her office, Neihart speculated about her husband's infidelity or Knowlton's sexual skills. Neihart also placed in Knowlton's desk a radish cut in the shape of a vagina, garnished with cheese spread.

        Neihart also repeatedly propositioned Knowlton, told her about fantasies he had about the two of them, asked her about the clothing she slept and exercised in, and requested that she give him oral sex. His propositions escalated after Knowlton married and they began to affect her work performance. He refused to approve contracts Knowlton had obtained with new clients unless she would agree to perform oral sex, resulting in a number of her contracts not being approved. He also required Knowlton, but not others, to sell phones which generated significantly less in commission.

        Upon hearing Knowlton's complaint, Teltrust Inc.'s management transferred Neihart to another position within the company. Fearing continued interaction with Neihart and retaliation, Knowlton resigned from Teltrust Phones and filed a complaint with the Utah Anti-Discrimination Division/EEOC ("UADD/EEOC"), claiming she was sexually harassed while employed with Teltrust Phones. After receiving a right-to-sue notice from the UADD/EEOC, Knowlton filed a complaint in federal district court against Teltrust Phones.3 A jury found that Teltrust Phones, TCSI, and Teltrust, Inc. constituted a single employer, and awarded Knowlton $75,000 in compensatory damages.

        II. SANCTION

        Approximately three months before trial, Knowlton served upon Teltrust Phones a third set of interrogatories and a Request for Production of Documents.4 Teltrust Phones did not respond to the interrogatories or file objections to the discovery request in violation of Rules 33(b)(3) and 34(b) of the Federal Rules of Civil Procedure.5 Consequently, Knowlton filed a motion to compel a week before trial, and Teltrust Phones responded almost exclusively with objections. The district court ordered an immediate hearing and at the hearing granted the motion to compel, warning Teltrust Phones that failure to comply would result in a sanction, consisting of a jury instruction that Teltrust Phones had failed to provide the information and the jury could infer that the evidence would have been unfavorable to Teltrust Phones.

        Despite the court's order, Teltrust Phones failed to produce much of the information

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sought. In response, Knowlton filed a Motion for Default Judgment, pursuant to Rule 37(b). Teltrust Phones made numerous arguments about the timing of the discovery request and its effort to comply with the request. Nevertheless, the court ruled that the information provided by Teltrust Phones was unresponsive to both Knowlton's request and the court's order. The court also concluded, however, that granting Knowlton's motion for default judgment would be too severe a sanction. Instead, the court instructed the jury as it had warned. The jury instruction stated the following:

        Teltrust Phones, Inc., has failed to give Pierre Knowlton evidence within its exclusive control that is relevant and material to the determination of whether [Teltrust Phones], Teltrust, Inc., and [TCSI] constituted a single employer. Therefore, in determining whether the three entities were a single employer and whether to include all three entities' employees in your calculation [of the number of employees], you must presume that the evidence which Teltrust Phones, Inc. would not provide would have weighed against Teltrust Phones, Inc. and in favor of Pierre Knowlton.

        Discovery sanctions are reviewed for an abuse of discretion, considering the totality of the circumstances.6 See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 642 (1976); Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136, 139 (10th Cir. 1994). The district court's discretion is limited by the requirement that the sanction be both "'just'" and "'related to the particular claim which was at issue.'" See Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992) (quoting Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)).

        Teltrust Phones advances several arguments. First, Teltrust Phones argues that it complied with the court's order when it delivered to Knowlton four consolidated financial reports on April 10, 1997. Relatedly, Teltrust Phones argues that the information sought by Knowlton was cumulative and irrelevant. This court is unable, however, to determine whether the magistrate judge abused his discretion on these bases because Teltrust Phones has failed to provide an adequate record for review. There are no citations to the record and this court can find no evidence in the record of Teltrust Phones' answer to Knowlton's third request for interrogatories, or of the financial statements allegedly provided on April 10, 1997. Teltrust Phones' failure to provide an adequate record on appeal renders review of its compliance with the court's order impossible, and requires that this court disregard these particular challenges to the district court's sanction. See 10th Cir. R. 10.3(B) ("When the party asserting an issue fails to provide a record sufficient for considering that issue, the court may decline to consider it."); 10th Cir. R. 30.1(A)(3) ("The court need not remedy any failure of counsel to provide an adequate appendix."); see also McEwen v. City of Norman, 926 F.2d 1539, 1550 (10th Cir. 1991) (failure to designate relevant record requires court to hold that appellant did not meet burden of proving that ruling was abuse of discretion).

        The same record deficiency dictates the resolution of Teltrust Phones' argument that the information sought by

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Knowlton had already been provided and was, in any event, publicly available. Teltrust Phones acknowledges only the information sought by Knowlton which related to the directors, officers, and shareholders of the various Teltrust entities, failing to address whether it had answered other questions in Knowlton's third interrogatory, such as the identity of the person to whom Richard Heath, the supervisor of the man who sexually harassed Knowlton, reported during 1992; the person who was responsible for employee relations during 1991 and 1992; and the identity of the entity which employed Knowlton prior to Teltrust Phones' incorporation in June 1991. This information was relevant in determining single-employer status. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1362-64 (10th Cir. 1993) (noting information useful in proving interrelation of operations and centralized control of labor relations). Because the record does not contain Teltrust Phones' response to the interrogatories, this court is deprived of an essential tool to assess whether Teltrust Phones indeed complied with the court's order and whether the court's order constituted an abuse of discretion.

        Teltrust Phones further argues that Knowlton failed to raise Teltrust Phones' discovery deficiencies in its proposed pretrial order, subsequently adopted by the court on March 31, 1997, in which Knowlton specifically requested "that the Court specify what, if any, additional discovery will be allowed and when it must be conducted." Teltrust...

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