214 F.3d 813 (7th Cir. 2000), 99-1155, Equal Employ Opport Comm'n v. In Bell Tel

Docket Nº:99-1155
Citation:214 F.3d 813
Party Name:Equal Employment Opportunity Commission, Plaintiff-Appellee, v. Indiana Bell Telephone Co., Inc., d/b/a Ameritech Indiana, and Ameritech Corp., Defendants-Appellants.
Case Date:May 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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214 F.3d 813 (7th Cir. 2000)

Equal Employment Opportunity Commission, Plaintiff-Appellee,


Indiana Bell Telephone Co., Inc., d/b/a Ameritech Indiana, and Ameritech Corp., Defendants-Appellants.

No. 99-1155

In the United States Court of Appeals, For the Seventh Circuit

May 26, 2000

Argued November 12, 1999

As Modified Aug. 4, 2000.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP-95-217-C M/S--Larry J. McKinney, Judge.

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Before Flaum, Ripple, and Rovner, Circuit Judges.

Flaum, Circuit Judge.

The defendants, Indiana Bell Telephone Co., doing business as Ameritech Indiana, and Ameritech Corp. (collectively referred to as "Ameritech") appeal the judgment entered against them following a jury trial in the United States District Court for the Southern District of Indiana. The defendants contend that the evidence presented at trial was insufficient to support the jury's verdict. In addition, the defendants allege various errors by the district court concerning the admission of evidence and the jury instructions. For the reasons stated below, we reverse and remand this case to the district court for further proceedings consistent with this opinion.

I. Facts A. This appeal arises out of a suit brought by the Equal Employment Opportunity Commission ("EEOC" or "Commission") on behalf of the claimants alleging that Ameritech engaged in unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq. The sexual harassment claims upon which the EEOC's suit is based stem from a course of sexually offensive conduct that former Ameritech employee Gary Amos directed at several of his female co-workers. Although only those incidents that occurred after November 21, 1991 can serve as a basis for holding Ameritech liable for Amos's actions, all of the incidents are relevant to Ameritech's knowledge of Amos's propensity to harass women and to the reasonableness of Ameritech's response.1 As such, it is necessary to recount the entire series of incidents constituting Amos's allegedly offensive conduct.

In 1975, Amos was employed in Ameritech's coin center with Barbara Huckeba. At trial, Huckeba testified that Amos exposed himself to her on three separate occasions. Huckeba also stated that she reported these incidents to her supervisor. Ameritech discharged Huckeba on October 24, 1975, citing her problems with Amos and its belief that Huckeba, as a white female, could more readily find another job than Amos, a black male. All of the complaints surrounding Huckeba's encounters with Amos were expunged from Amos's employment record, but two complaints about Amos's behavior during 1975 were not expunged. These complaints indicate that Amos brushed one co- worker's buttocks as she bent over, and that Amos partially exposed his penis to another co-worker.

In February 1988, Amos engaged in conduct that Jacquelyn Stine, a co-worker with whom he was training to be a customer service representative, found offensive. Stine testified that this conduct included telling Stine he was in love with her, smelling Stine's hair and telling her it was beautiful, and running a strand of Stine's hair through his mouth. During Stine's last encounter with Amos, Amos pushed himself against Stine as she stood at a vending

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machine and Stine noticed that Amos had an erection. As a result of these problems with Amos, Stine left the customer service training program and returned to her previous job as an operator. A copy of Stine's complaint against Amos was placed in his file, but Ameritech did not discipline Amos at this time.

An Ameritech report indicates that on July 18, 1989, Amos continued his offensive conduct by partially exposing his penis to a co-worker while seated in the back of a van. Janie Kern, the co- worker involved in this incident, reported Amos's conduct to Ameritech. At this point, Ameritech warned Amos that he would be disciplined if he were found at fault in any future allegations of sexual harassment.

In 1990, six female Ameritech employees formally complained to Ameritech about Amos's conduct in the small business office where he worked. Of these six women, five indicated that Amos had rubbed his penis against them. Ameritech investigated these complaints and suspended Amos for two weeks. In addition, Ameritech stripped Amos of a sales award and informed him that he faced termination for any such future incidents. At the time the decision to suspend Amos was made, Ameritech did not review Amos's personnel files, nor were any of the supervisors involved in the decision aware of Amos's past history of misconduct.

Despite the two-week suspension, Amos continued his harassing behavior. In early 1991, Debbie Murray, one of Amos's co-workers in the small business office, asked to move to a different desk because Amos was making improper comments. These comments included inviting Murray over to his house and asking her whether she ate breakfast alone. That same year, Ameritech received an anonymous letter claiming that Amos was still sexually harassing women in the workplace. In the investigation that followed, at least three women confirmed that Amos was still engaging in sexually harassing conduct.

In February 1992, Jennifer Rice, another employee in Ameritech's small business office, complained about Amos's conduct. Rice stated that Amos rubbed himself against her, rubbed her neck, and made inappropriate comments about her body. In response to Rice's complaint, Brian Bauer, the direct supervisor of both Amos and Rice, and Darlene Olberding, who was in charge of the managers in the small business office, met with Amos. Amos was informed that he could not have any physical contact with anyone in the office, and that further misconduct could result in his suspension or termination. Amos expressed interest in moving out of the small business office, but Bauer told him that a transfer would not be the answer.

One of the claimants in this case, Debbie Wentland, was also employed in the small business office and was seated in a four-person cubicle directly across the aisle from Amos's cubicle. Initially, Amos and Wentland engaged in only innocuous conversations, but during one encounter Amos walked behind Wentland's chair and placed his hands on her shoulders. Wentland also testified that Amos rubbed and touched his crotch area on a daily basis. At various times, Amos would approach Wentland and touch her, including standing close enough to her desk that their legs touched and rubbing his hand up and down her back. Wentland asked Amos to stop touching her. She complained to Bauer in November 1992 after an incident in which Amos patted her stomach and said "Oh, so you are going to be a mom," and then followed her to her desk where he continued to talk to her while rubbing his erect penis through his pants.

Bauer met with Wentland on November 25, 1992 and informed her that he would forward her complaint to Monica Sharp, Ameritech's Equal Employment Opportunity ("EEO") Coordinator. Sharp first met with Wentland to discuss Amos's conduct, and then met with Amos on two occasions. Sharp informed Amos that he had violated the previous warning not to touch anyone in the office. On December 18, 1992, Sharp recommended that Amos

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be terminated based on her conclusion that Amos "d[id not] seem able to control himself at Indiana Bell." After forwarding this recommendation to Ameritech's legal department, Sharp went on vacation.

On December 28, 1992, Labor Relations manager Joyce Leck returned from vacation and, after reviewing Sharp's recommendation that Amos be terminated, noticed that the thirty-day period for disciplinary action provided for in the collective bargaining agreement had expired. Because Ameritech missed the deadline for disciplining Amos, the company did not take any action against him. However, Sharp did meet with Leck and an official from Ameritech's legal department. They agreed that the next complaint against Amos would result in an immediate suspension pending investigation in order to avoid missing any deadlines.2 Amos was then informed that he was not being disciplined because of an administrative error, but that any further misconduct could result in his suspension or termination.

In January 1993, Sharp began an investigation to determine whether Amos was continuing to harass Wentland or any of the other service representatives. While Wentland stated that Amos had not harassed her again, she did recommend that Sharp speak to Lori Everts or Patricia Black. Everts, a chief union steward and a claimant in this case, refused to talk to Sharp because she regarded it as a conflict of interest to assist the company in investigating a member of the union. After an unproductive meeting with Black, during which a union steward continually interrupted the interview, Sharp became angry at what she regarded as union interference with the investigation. Sharp informed Leck, Ameritech's Labor Relations manager, of her concerns. Leck then informed the union president that the company intended to hold the union liable if it were sued as a result of Amos's conduct.

On April 15, 1993, Everts filed a charge with the EEOC based on Amos's conduct. In her charge, Everts stated that Amos walked around the office with his hands in his pockets fondling his genitalia. Everts also testified that Amos began directing his behavior toward her in February 1993 by brushing up against her with his penis erect. Everts stated that at different times Amos brushed his hand over her buttocks, grabbed her waist, and stared at her and stuck...

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